TOWARDS A BIBLICAL VIEW OF CRIMINAL JUSTICE ©

Table of Contents

(Pages on the left reflect a printed book) 

1-4       Citations; Contents; Dedication; Overview; Disclaimer and         Challenge

6          Preamble, and Two Faulty Propositions

10        Two Opening Quotes and Three Ultimate Questions

14        Who Am I and What is My World View

20        The times of Today and Some words about justice

25        Foundations of Anglo-American Legal Traditions

25        Part I — Pre-History

26        Part II — The Rise of Feudalism

28        Part III — Contracts, Causa, and Strict Liability

29        Part IV — Some Comments on Property and Serfs

30        Part V — The Investiture Conflict

31        Part VI — the impact of William

34        Part VII — Theological Precepts of William’s Criminal Law

34                    Step 1 — Romans 13:1-6

36                    Step 2 — Deut. 6:1-25

38                    Step 3 — the arrival of fault

43                    Step 4 — Tort Reemerges

47                    Step 5 — Law of Merchants

50                    Step 6 — Coming of Magna Carta

54                    Step 7 — Coming of Equity

56        Part VIII — Our Problems of today

62        Part IX — Origins of Law

67        Part X — Setting the Stage

72        Part XI — Revising our image of God

74        Part XII — God’s Purpose, Method, and Consequences

97        Part XIII — Fault vs the Bible

108      Part XIV — Lesson from Community Oriented

117      Part XV — God’s Method

125      Part XVI — Some Other Principles from God’s Law

136      Part XVII — The Death Penalty

145      Part XVIII — Using teams as part of a method

146      Part XIX — an 18 Point Reform Agenda

164      Conclusion

 

 

DEDICATION

I dedicate this to Yahweh, the Creator of all that has ever existed, now exists, or will exists in the future, including the reader and myself, and to give Him praise and glory for the good Instructions of His torah [Hebrew for Law in the Old Testament], and no’mos [Greek for Law in the New Testament] — and for His grace, mercy and Justice shown to me through Jesus Christ, His Messiah and Son.

 

 

OVERVIEW

As a former litigation lawyer and trial court judge, I will set forth proposals for modification of our Criminal Justice Systems so offenders and victims might have a belief that Justice can be found through our systems. Today, I doubt that you can find a single person who, having experienced the system, believes there is any Justice flowing from it.

I will do this by what may seem to be a strange path: an analysis of the history, philosophy and methodology of our Anglo-American legal system compared and contrasted with what God’s Law has to say about conflicts. I have three purposes in presenting my propositions:

a) to show that the philosophies underlying our current legal systems are antithetical to God’s character, Instructions, and Methods for dealing with conflict;

b) to propose changes to our system which should allow more people who come into contact with our system — as victim, offender or newspaper reader — to find peace and a sense that justice is taking place; and,

c) to encourage the Christian community and its leaders to practice God’s ways for dealing with the everyday conflicts of life, thereby appropriate His Peace and Justice when in any conflict and taking a lot of business away from the courts. [See my book, In Search of Justice, at www.shepherdsforpeace.com.]

When I say, God’s Law, I believe most readers will immediately think in terms of tablets of criminal laws and their punishments. To the extent that we have that idea, it likely flows from a belief that the great underlying principles of our Western Legal Tradition are Biblically based.

I intend to show the reader that the idea of a Biblical basis for our criminal law philosophies comes from a misunderstanding of the nature of God, and from our incorporating a incorrect reading of the Bible into our legal system in the days following the arrival of William the Conqueror in England.

In the process of presenting my positions and the consequences flowing from what William created, I will also set forth God’s Purpose and Method for his Law, and the consequences which flow from the practice of His Instructions. Finally, I will propose how aspects of His Ways could be introduced into our existing system.

I do all this because: To the extent that we believe our Criminal Justice system is built on a Biblical foundation, we are not likely to reconsider the stated purposes for our Criminal Codes, or consider any transformative changes to those codes. We will continue to tinker around the edges of our system, and never touch justice.

 

DISCLAIMER AND CHALLENGE

What I will be doing is to present a dichotomy, i.e., “a division or contrast between two things that are entirely different.” In any written presentation of a dichotomy, dogmatism will always appear to be present. As a litigation lawyer, I am used to writing in self-assured dichotomies – just look at what I have written so far!

The reader, facing declarations of dichotomies will often have a visceral reaction against the writer, particularly when the writer attacks a sacred cow – which I will be doing. That sacred cow is a belief that the most fundamental philosophies of our criminal codes are Biblical.

However, please note that my title is Towards; I do not profess to know it all, nor know all of any single piece of what I am going to present. I also know semantics are very important when one tries to convey ideas about theology and law, and that it is difficult to cover all the bases in a single book of a size anyone will read.

Thus my Disclaimer is that I think I know my shortcomings in writing and the depth of the challenge I am facing.

My Challenge to the reader is simple: please cut me some slack.

Why should you do that? I will give you two reasons:

1.  Hundreds of thousands of lives hang in the balance of our willingness to explore the Purpose of our criminal codes with an eye to changing our Purpose for them and thereby rediscover and apply a pre-William the Conqueror Method for dealing with conflict in earlier times and still, in many places in current times.

2.  The changes I will propose, if implemented, can, in my humble opinion, save billions of dollars of tax payer money, and open the door to a dramatic increase in reformation and rehabilitation of those passing through our existing systems.

 

Finally, I will write has been passed through my World View informed by the Old & New Testaments of the Christian bible. I would hope that the thoughts can be considered for their merit – let alone from their source.

 

PREAMBLE

At its heart, and from my heart and I believe the Heart of God, life is all about Justice — or, if you will, Peace in the Midst of Conflict.

Pontius Pilate asked Jesus: “What is Truth?” [John 18:38.] He might just as well have asked: “What is Justice?”, for he was sitting as a Judge at the moment.

The very words — truth and justice — suggest these two things actually exist, yet the world of today does not believe either exists.

I do!

The mere fact that we have these words in our language is seen by some, including myself, as a meta-physical proof of the existence of God, our Creator, Who is in His very nature both Truth and Justice — and the source of all true peace. Metaphysically, you can be certain that no other animal has such concepts written upon their heart.

But I also posit that, in the United States, some of our national idols [“an image or representation of a god as an object of worship”] are our law, legal systems, and form of government. When, as in these times, we lose faith and trust in our idols, peace flees us, to be replaced by anger and confusion, leading to bitterness and a riotous every man for themself.

I would further posit that while we refer to our legal systems as being systems of justice, the vast majority of our people have lost all thought that our laws and their systems either are just, or can ever produce justice.            At the same time, advocacy of Biblical Truth as worthy of consideration in any issue of the day is increasingly being labeled as hate speech.

So people run hither and yon seeking truisms to apply to our law and legal systems in hopes of increasing the sense that justice is alive in the land – all the time denying that truth exists!

Is it any wonder that no reform produces any noticeable change?

But what if there is a God-Creator?

What if we think of our systems as being Biblically based, but they are not because we have misread Him and His source material?

What if we have staked everything for generation upon generation on truisms which are not true, but have been converted to Holy Writ?

If we have done these things, how then will we, like the king with no clothes, hear, let alone consider that our legal philosophies are naked?

There is certainly an increased interest in the subject of Criminal Justice reform at this time, with people crossing political lines to engage in discussion of possible changes to our law and systems in order to produce more justice. Even some from religious groups are joining the endeavor.

But what I see is that all are subconsciously blinded by their belief in the fundamental proposition that our criminal codes are Biblical, for no one is questioning that proposition or the validity of the philosophies of our systems. No meaningful reform can possibly take place without questioning those philosophies.

OUR FAULTY PROPOSITIONS

The following are the philosophical propositions undergirding our legal systems:

A. Mankind is made in the image of its Creator (to an English speaker, “God”).

B. Mankind is a rational animal knowing the difference between right and wrong.

C. Therefore, if we publish a written Code of Crimes,

D. Determine the Fault of the lawbreaker based on their intent, recklessness or negligence, and

E. Punish those who violate the law,

F. Mankind will, in rational self-interest, obey the law rather than suffer punishment,

G. Thereby we will deter evil, and

H. Establish order and deliver justice.

I ask the readers to ask themselves this: How has that worked out so far?

So allow me to examine the time and place when these ideas entered our Anglo-American legal system.

It was 1066 A.D., as William the Conqueror unitized the Shires of England by instituting a legal system to deal with actions which, in his opinion, “threatened The King’s Peace.”

In critique of the principles he introduced, I posit that:

“A” above is true.

“B” is only partially true because the sin within us clouds our rationality.

“C” through “G” are false and not substantiated by any credible evidence.

As to “H”, we may be able to establish a level of orderliness and peacefulness by our individual choice to voluntarily submit to the law (the best understanding of the term, Rule of Law), but we will not thereby have Justice except by happenstance, or by blinding ourselves with circuitous reasoning. And “H” remains false for God is the only source for Justice:

Many crave and seek the ruler’s favor [judge, president, legislator, bureaucrat, etc], but the wise man [waits] for Justice from the Lord. [Prov. 29:26.]

That same God also tells mankind to “do Justice”:

He has told you, O man, what is good. And what does the Lord require of you but to do Justly, and to love kindness and mercy, and to humble yourself and walk humbly with your God?  [Micah 6:8.]

But I suggest to you that we cannot “do” justice unless we “love kindness and mercy, humble ourselves, and walk humbly with our God”. I also suggest that our doing justice flows from first practicing the other three things – kindness, mercy, and humility.

I think that was the message of the Bishop who spoke at the wedding Prince Harry and Ms. Markle the other day.

I also suggest to you that the only reason we have Justice in our vocabulary is because we have conflicts – within our self, with another from the reality of living as sinful people in a sinful world, and with God.

But praise Him, for He has graciously given us instructions for dealing with conflict such that, when we walk out His Ways in a conflict, we can appropriate His Justice, which is best seen in the ability to sleep like a baby at night.

TWO OPENING QUOTES

The following quotations are given to prepare the reader to accept the reality that law is, and always has been, a religious term with theological implications:

… From the Creator alone all human law derives its sanction; without reference to the Creator, there can be no justification for the existence of human law. For, without the sanction of the Creator and His authority for the ordination of human society, man has no right to make laws for his fellow man, or for his posterity, since all men are equal in right, and all are ultimately responsible for their acts in the tribunal of conscience alone, which means merely before the tribunal of their Creator. Neither, therefore, upon the efficacy of any supposed social compact … nor upon the brute force of the majority to enforce its ordinances, does the existence of the social order depend. For, if the origin of law were to be sought in compact, a similar compact would suffice to abrogate it; and if it depended on the force of the majority, the wrongfulness of disobedience to its behests would depend upon its discovery and manifestation to the world.

History of the Development of Law, pgs 12-13. Hon. M.F. Morris, Late Associate Justice of the Court of Appeals of the District of Columbia (John Bryne & Co., 1911).

Law is in every culture religious in origin. Because law governs man and society, because it establishes and declares the meaning of justice and righteousness, law is inescapably religious in that it establishes in practical fashion the ultimate concerns of culture. Accordingly, a fundamental and necessary premise in any and every study of law must be, first, a recognition of this religious nature of law.

Second, it must be recognized that in any culture the source of law is the god of that society. If law has its source in man’s reason, then reason is the god of that society. If the source is in an oligarchy, or in a court, senate, or ruler, then that source is the god of that System. …

Third, in any society, any change of law is an explicit or implicit change of religion. …

Fourth, no disestablishment of religion as such is possible in any society. A church can be disestablished, and a particular religion can be supplanted by another, but the change is simply to another religion. …

Fifth, there is no tolerance in a law-system for another religion. Toleration is a device used to introduce a new law- system as a prelude to a new intolerance.

In analyzing now the nature of Biblical Law, it is important to first note that, for the Bible, law is revelation. The Hebrew word for law is torah, which means instruction, authoritative direction. The Biblical concept of law is broader than the legal codes of the Mosaic formation. It applies to the divine word and instruction in its totality. … The law is the revelation of God and His righteousness.

The Institutes of Biblical Law, Rousas John Rushdoony (Presbyterian and Reformed Publishing Co., 1973, 8th printing, 1984, pages 4-6).

These quotations firmly tie the metaphysical concept of the word Justice to God, because the very idea of Justice has been hardwired into us by Him; i.e., it is a part of His image, in which we are made.

Therefore, if all law is religious in nature, if freedom of religion is something tangible and real, then there is no reason to reject out of hand someone who chooses to analyze our Criminal Justice system from a Biblical perspective – something I have been engaged in for over 40-years.

I believe you will find that a thorough analysis of God’s torah (the Hebrew word wrongly translated as Law in the Old Testament) and God’s no’mos (the Greek word wrongly translated as Law in the New Testament) we will find a way for dealing with conflict dramatically different than what our systems offer, yet a way which is, as said by a Russian Professor who heard me describe it in 2002 in Ust- Kamenogorsk, Kazakhstan: “So obviously True!”.

THREE ULTIMATE QUESTIONS

What is Justice and, in light of Proverbs 29:26 and Micah 6:8, how do we find it, and do it – individually and collectively?

If torah and no’mos did not originally mean then what did they mean, and how does that change what we see when we read the Scriptures?

And if we can answer the first two questions, what might we do to align our existing criminal code and its processes to God’s Ways?

The State Mediators of Fiji heard my short presentation on this and at once began to explore their ability to introduce elements of the alternative way into their activities. Leaders of the nation of Kazakhstan heard it, and wrote the ability to mediate criminal offenses into their mediation law, along with ways to “test the spirit of an offender for a repentant heart after a period of incarceration with the possibility of early release.”

New Zealand heard one of their own, and did it. [See: Justice in the Community: The New Zealand Experience, at: www.shepherdsforpeace.com

Isolated or tribal people groups, or people living under totalitarianism practice it for their conflicts – as the Kazakh did for hundreds of years prior to the take-over by Russia in the late 1800’s..

So, dear reader, it can be done.

WHO AM I

They say that we are often a product of our times and places, and that is likely true about me. I was born 7/2/41, in Elkhart, Indiana. My father was of Amish-Mennonite background, a home-study litigation attorney and, at the time of my birth, a City Judge. My mother was Presbyterian, and a graduate of Wittenberg College.

I was raised in the Presbyterian Church, in a town of some 30,000, the middle of three boys. As I grew up, my father went from City Judge to County Prosecutor, to the Indiana State Senate, to candidate for the U.S. Senate in 1964 (by which time I was in law school). Our dinner table was regularly a place of discussing issues of the day, ripped from the headlines of the local paper, with Dad making references to Biblical concepts as we debated.

At that time in home, church, school and society, all openly spoke a common belief that the most fundamental and cherished propositions of our Anglo- American legal precepts were Biblical, and so I accepted that proposition as Holy Writ.

I graduated from Indiana University Law School in 1966, and returned to Elkhart to join my father’s firm. Like him, I got involved in politics while as an attorney focusing on litigating cases. In the summer of 1973, Indiana Governor Otis R. Bowen, M.D., appointed me to the Indiana Board of Corrections, of which I later became Chairman. The Board was a lay-citizen, statutory advisor to the Governor on prisons.

My interests at the time included special education (our middle son had special needs), but I knew nothing about prisons, did not work in the Criminal or Juvenile justice systems, nor was I familiar with our Mental Health systems. To overcome my lack of knowledge, I read a lot, attended conferences to learn about the philosophy and methodology of those systems, and toured many of Indiana’s facilities.

What I found within the facilities, along with what I learned in my studies, led me to look into matters of mental health, special education, and the Juvenile Justice system for they all seemed to “feed” the prisons.

In the spring of 1976, two local lawyers suggest that I run for an upcoming vacancy on the Elkhart Superior Court II. At the age of 35, I was flabbergasted.

At the same time, I had been trying to understand justice and, having not found it through my other activities and sensing a real lack of justice in the systems I was analyzing, I thought that as a judge I could at least “do justice”.

I did not, at that time, equate justice with God, only the Constitution and our U.S. ways of “doing law”.

I took the bench 1/1/77 and by mid-October came to a conclusion that everything I thought I knew about God, Truth, and Justice, was a lie. I also came to a conclusion that “We the People” were never going to “establish Justice”. [Preamble, U.S. Constitution.]

At that time I knew there was a God Who created me, to Whom I would be held accountable and that Jesus of Nazareth was His Son. I also believed God created us to “provide for a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare and secure the blessings of liberty to ourselves and our posterity” [the remainder of the Preamble], and that the way we would accomplish those things would be through written law and procedure. To the extent that we did not see or experience justice, all we had to do was tweak our law and systems. Tweaking is all that is under discussion in these later days.

Worst of all, however, was that during those ten months I too often found myself doing things as Judge which I considered to be unjust.

My World View being shattered, and never shy, I called God a fraud and suggest He give the Aardvark a chance the next time. He told me I was a sinner, and I agreed, naming my sins. He explained Himself, by calling to my mind a man I had sentenced to prison for life for the rape of a two-year old – reminding me of what I wanted to do to that man, and telling me that I was, in His eyes, just as bad. I suddenly realized that it was my character which was at issue, not my actions. Working harder would not solve the character problem.

Then I knew my need for a Savior, and knew who Jesus really was; so I accepted Him as Savior. However, I had no comprehension of Him as Lord.

After that experience, I began pushing the law towards what I saw as justice. My first push was to declare the Indiana Mandatory Sentencing laws unconstitutional. My studies while on the Board of Corrections when mandatory sentences came into our law, my short experience as Judge, and my interest in Constitutional Law brought me to my constitutional position. Additionally, Article 1, Section 18 of the Indiana Constitution said:

Penal Code and Reformation:  The penal code shall be founded on the principles of reformation, and not of vindictive justice.

My zeal to do and see justice, and the injustice of mandatory sentences ended by my being found in Indirect Criminal Contempt of the Indiana Supreme Court in 1981. [For more on this, see Chapt. 16, Loving God, by Charles Colson, Zondervan, 1983; see also my book, In Search of Justice, Chapts. 5-8.]

I left the bench under a cloud, and returned to the practice of law, while becoming a part-time consultant to Colson and Prison Fellowship. [Have you ever wondered why we say lawyers “practice”? Is it because we know, deep down, lawyers and their systems can’t produce it?]

In the Fall of 1983, I left law and Ellen and I moved to Minneapolis to direct the Christian Conciliation Service of Minnesota [CCS-MN] – a ministry devoted to teaching on, and helping people in conflict to act out, Matt. 5:20-26, 18:12-20, I Cor. 6:1-8, and Jas. 5:13-16.

We left CCS in 1988 to be itinerants of this ministry, and moved to Colorado where we built a house by our own hands to be debt free and able to go wherever, whenever called.

In 1993, Colson sent me to the United Nation’s 2nd International Conference on the Future of Corrections in Poland, and then on to a Baltic States’ conference. My paper was on Reconsidering & Redefining Justice [www.shepherdsfor peace .com]. It was at this conference where I picked up the Story of Philip [cut and paste the following]:

https://www.canlii.org/en/yk/yktc/doc/1992/1992canlii12804/1992canlii12804.html?autocompleteStr=1992%2071%20C.C.C.%20(3d)%20347&autocompletePos=1

            I came home to find a letter from the International Institute for Christian Studies (now Global Scholars) asking if I would consider going abroad to teach law, its Biblical principles, and the Biblical model for dealing with conflicts. The letter said they got my name from Colson.

In February, 1994, Ellen and I landed in Moscow, Russia, where I taught the History, Philosophy and Methodology of U.S. law, comparing and contrasting it with the Biblical way for dealing with conflict. Ellen taught English.

From 1995-1999, we were in Minsk, Belarus, and then transferred to Ust-Kamenogorsk, Kazakhstan through 2008 (with quick trips in 2014 and 2019).

In 2001, we started having major medical issues. In 2004, in order to help with finances, I went through the Colorado Bar process, and re-entered the practice of law. Going back into law was, as I look back, an act done from pure lack of faith in the ability of the God Who had been providing for us for 20-years to do so in the face of any major medical disaster. Going back into law was to have horrible consequences – which is a story for another time.

There were two things during these years overseas (1994-2008) on which I was focused, other than studying law in order to teach law:

Gathering stories from around the globe on how semi-nomadic, tribal/clan, ethnic, religious or racial groups – and people living under totalitarianism – had, in the past (and still in the present in many instances), dealt with conflict; and,

Why had my re-studying of the law in 1993-94 to prepare to teach law overseas not only failed to confirm the proposition that our most treasured philosophies of law were Biblical, but had left me convinced that the philosophies were antithetical to the Bible; i.e., what was I seeing that I had not seen before?

By 1999, I made my first effort at writing down my thoughts in a systematic presentation. [see: Restorative Justice, A Primer, @ www.shepherdsforpeace.com]

WHAT IS MY WORLD VIEW

As I told my students in the USSR:

We all have a World View, i.e., a set of glasses which we put on each morning, through which we try to make sense of what we encounter. A wise person knows what their glasses are, admits they color his beliefs, shares his beliefs with those he is debating or instructing, admits he could be very wrong, and commits to struggle to reconsider their glasses when challenged.

Thus I want you the reader to know my World View:

I believe in the God of the Bible, and Jesus of Nazareth, His Son and anointed Messiah.

I believe the Bible is God’s written revelation of Himself to man, just as Messiah in the flesh was a visual revelation of Himself to man, and His Holy Spirit a spiritual revelator of Him to those who listen to Its gentle prodding.

I do not believe you can make a political treatise out of the Bible.

We find no Executive Branch outlined in the Bible, for God is to be our CEO. We do see behaviors of Executives, good and bad, and we see God executing His Law through them (or not), and see the consequences of obedience to, or rejection of, His Law.

I believe our Executives should seek to judge their actions against God’s Word, and the Executives found in the Bible.

There is no Legislative Branch outlined in the Bible, for God is the Law- Giver, Who has a Purpose and Method for His Law, backed up by a theology related to the mankind whom He created and knows best. This philosophy takes into account The Fall.

Our Legislators should struggle to comprehend how a law they are considering does or does not advance God’s Purpose and Method.

We do find in the Bible guidance for a Judicial Branch, and a Conflict Resolution System. If we are wise, ought we not to at least try to understand His Purpose, and consider His Methods for His systems?

I know I do not have All Truth, and what I see, I see only dimly [I Cor. 13:12].

God once made a jackass speak His Truth [Num. 22:21-35], so when I am debating someone whom I believe to be blind and dumb, I try to pause and ask myself if that person is just possibly speaking some of God’s Truth to me.

I do not ask the reader to accept my world-view; I only ask you to consider my arguments about law and legal systems in light of the wide- spread dissatisfaction with our current system. If my thoughts have merit, then let them be considered in the debates about reform of our systems.

THE TIMES OF TODAY

It seems there is, once again, increased interest in Criminal Justice Reform. Among those involved are U.S. Senator Rand Paul, Columnist George Will, the Charles G. Koch Foundation, Fareed Zakaria, and Hillary Clinton; an rather unexpected eclectic group.

While it encourages me to see the debate, I have yet to see someone set forth an overarching philosophy around which people might unite; instead, I see tweaking without reconsidering our roots.

I also see two major roadblocks on the road to any meaningful change:

A.  How can we build a consensus of a sufficient number of people for need for reform (let alone a common set of reforms), which would cause politicians to seriously consider reforms in the face of a hue and cry to “hang ’em all”?

B.  How can we overcome our subconscious belief that our systems are Biblically based, and, if we find them to not be Biblically based, listen to one who presents Biblical concepts and then struggle to implement the Biblical concepts?

Philosophers say the Creator of a thing determines its Purpose, the Purpose determines the Method, and the Method produces results — positive and negative. If that is true, and if all agree from an examination of the consequences produced that our system is broken and needs repair, why would they not reconsider the stated Purpose of those systems?

Purpose is, after all, a philosophical concept.

As to Item A, because the issue of justice runs through the minds of all when they start to think about Criminal Justice, and because it is of metaphysical nature, I believe a vast number of people (Jew, Christian, Islamist, Buddhist, and Hindu) may be able to come together to support appropriate reforms if those reforms are based upon Truth. After all, all five believe there is something unique about humans that separates us from the rest of the animal kingdom, i.e., that we are a specially created being”. That acknowledgment then requires that all mankind treat one another with the dignity which flows from their unique creation.

We hold these things to be self-evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among these are life, liberty, and the pursuit of happiness. [U.S. Declaration of Independence.]

These words have stirred the hearts and minds of the people of the world since 1776.

I addressed a room full of academics in Ust-Kamenogorsk in September, 2014, on this issue of dignity. I told them that I could boldly say to the leader of ISIS that he is wrong before the God he proclaims because he does not treat his captive people with dignity, a nearly universally recognized concept. The room, 75% professing Islam, agreed.

If the religious were to come together around dignity as a basis for reform, we might have a political force which the political realm would listen to.

As to Item B, only a radical re-education will suffice. That means someone must risk criticizing our underlying philosophy of crime and punishment. I will do so because of my zeal to see justice abound, and I do it by analysis of the words of law and process from two systems:

a) The Anglo-American, which began in Feudalism in England in the 800’s.

b) The Biblical words, which began at the beginning of time itself.

As I do this, the reader needs to know a simple, yet profound, truth about words of law.

Words of law are not like words of medicine, which transport easily from one language to another. That is because words of law carry with them a history, philosophy and methodology of the society creating them – and have impacts in the nature of a religion, as pointed out by Mr. Rushdoony.

As an example, consider estoppel, which appears many places in our Anglo-American law. An English-Russian law dictionary translated the word as “to be stopped from”, which is true, but legally meaningless”:

Stopped from what?

Why am I stopped?

How do we determine that I am to be stopped?

Can I be stopped and later be given a re-set?

None of that is present in the Russian dictionary.

In contrast, Black’s devotes 3.5 columns to describing this word and its variants, including case and treatise language. I needed two, 80- minute class sessions in the old USSR to describe it to my students. In a U.S. Law School, it is a two credit-hour course called Remedies! [The best law in the world is useless if it offers no remedy to the person hurt.]

SOME WORDS ABOUT JUSTICE

To Black’s, as we shall see, justice is addressed in terms of (1) a system, (2) a product of a system, and (3) one who presides over a system — yet the product is declared just by someone standing outside of the case adjudicated, and not by the participants.

To the people in the case, I suggest that justice is a longing of the heart for reunification with their Creator, in Whose image they are made. [I thank my older brother, Dave, for this idea of a longing heart.]

People believe it exists, but seem unable to define it except as, fairness.

But people can, and do declare the outcome of a process they were caught up in as just or unjust from their perspective at the conclusion of the process – regardless of what that process might look like to others.

The participants in our law courts, of course, cannot control either the law or its application; those things are governed by lawyers, judges, legislators, regulatory agencies, etc. Their rule is imposed by black-letter words of law in action, litigated by an aristocracy of lawyers, and presided over by a priesthood of judges.

Is there an alternative Process, flowing from a different Source, and designed for a different Purpose, which places control of the process in the parties to the conflict, and engages with little if any rules, Lords of courts, or presuppositions of outcome?

If there is (and there is), what does it look like, where can we find and analyze it and what it produces, and could at least some of it be taken into our current systems?

Those are the questions I will try to answer.

I proposed earlier that before we can begin to understand the meaning of Justice, we must agree that it is a word we would not have in our vocabulary were it not for the fact that we have conflicts; i.e., it is only when in conflict, or when we are considering or analyzing the conflict of others, that we are interested in justice. [see: James 4:1-12.]

Therefore, justice must be seen to be a highly personal, internal, situational, attitude/feeling. It is not something dispensed by a blindfolded lady with a law book in one hand, and sword in the other.

Again, for the Christian theologian, Justice is a metaphysical proof of the existence of God: an always existent, standing outside of time and space (in fact, Creator of time and space), Who has disclosed His nature and love to us in His written word (the Bible), through His physical incarnation in Jesus of Nazareth, through His bestowing common grace among all people, and the presence of His Holy Spirit alive and moving about in the World spreading His Truth.

If this is Truth, as I believe it is, then to the extent that our legal systems can only deliver justice by accident, and often impede justice from being appropriated or done by the parties in a conflict, we must analyze the theological underpinnings of our Anglo-American legal systems in light of Scripture.

One more comment before we begin:

This book is not about Social Justice which, in the author’s opinion has a very different connotation to it for the Christian than non-Christian. For the Christian, Social Justice is delivered through the Body of Christ, not through the State, and is delivered by individuals and groups as led by the Holy Spirit. For two excellent works on this topics, I recommend: Generous Justice: How God’s Grace Makes Us Just, by Dr. Timothy Keller (Dutton, 2010), and Justice: Right and Wrongs, by Nicholas Wolterstorff (Princeton Univ. Press, 2008).

I will now move to an examination of our Anglo-American Legal Traditions.

FOUNDATIONS OF THE ANGLO-AMERICAN LEGAL TRADITIONS:

Part I – Pre-History:

To find where, when, why, and how the roots of our Anglo- American systems of Law emerged, we need to look into history. While we do this, we must remember that what emerged resulted in a level of liberty, freedom and prosperity for the common person never before seen in history, and it only emerged because of the constant pressure of lawyers to move the system forward.

Yet that same history also brought us the problems and discontent which we have with our Justice systems of today.

The earliest form of government, and thus law was the family, which enlarged to the Tribe or Clan. At its center were the parents. While we may dislike the idea, the family has always been Authoritarian in structure, oral-law in nature, with rapid and radical swings between application and non-application of “the law”.

With expansion to tribe or clan, we see development of a Chief, Kahn, etc, and often a judicial structure such as the “Elders at the Gate” (aksakal, “Greybeard” in the Kazakh language). The elders may have had an advisory role in “legislation” by their Chief, but the form remained Authoritarian. Authoritarians can behave like a good father, or as a tyrant, or swing between the two without rhyme or reason.

As populations increased, City States began to appear. Not surprisingly, they would war against one another, as would the Nations (confederations of City States) which succeeded them. But still, for most of the time, and for most of the people of planet Earth, the only real form of government has been the Authoritarian.

An Authoritarian might be a Witch Doctor (Religious) or General (Strong Man) — or we may find the two merged, as in Egypt under the Pharaohs, Rome under the Emperors, the Holy Roman Empire of Europe, and Russia of the Czars and Orthodox Church. But in all, law issued by an Authoritarian has but one purpose: to keep him where he is, and “we the people” where we are. In short, his law is not something for a common person to make use of, or defend against.

According to the late S.E. Finer, noted British Professor of Government and Political Administration at Oxford, in The History of Government from the Earliest of Times: Ancient Monarchies and Empires; The Intermediate Ages; Empires, Monarchies and the Modern State (Oxford Univ. Press, 1999), the Law of the State, as we think of it today, rarely dealt with anything other than Treason in so far as the daily lives of the people were concerned. Things like assault and battery, chariot crashes, oxen that gored, and theft, were left to the people to work out among themselves, in their communities. If a breach of the peace of sufficient size took place, it was called Treason, and handled accordingly. And property rights, particularly rights in land, were normally limited to possession only, with the State as owner.

Part II – The Rise of Feudalism:

In the 9th Century in Western Europe and England, there grew up a combined quasi-social, political, religious, economic system called Feudalism. In my opinion, it is best understood when we see it as based on Contracts (reciprocal obligations):

Feudalism: A landholding system, particularly applying to medieval Europe, in which all are bound by their status in a hierarchy of reciprocal obligations of service and defense. The Lord was obligated to give the vassal (1) some land, (2) protection, and (3) justice. The lord guaranteed the quiet occupation of the land by the vassal and guaranteed to do right if the vassal became involved in a dispute. In return, the vassal owed the lord some type of service, called “tenure” (literally “means of holding”), by which the vassals held the property. [Black’s.]

At that time the lower portion of the English Isle was made up of fiefdoms called Shires, ruled over by Barons. Each was autonomous, and vigorously defended its autonomy more violently than our 13 Colonies. However, collectively they had the same problem our Colonies had: none were strong enough to fight off an outsider, i.e., the Vikings, Scots, and French facing the Isle; for us, it was King George III.

The Barons’ answer was to collectively contract with a “General for All the Armies”. This man was not a King such as we would see later. In return for his Generalship, the Barons would supply troops, horses, armor, weapons, food, etc. The General moved about the countryside with his retinue, lodging for short periods with the various Barons, until his services were needed. This movement was also a way to help keep the Barons toned down in their wars against one another.

That contract, however, forced a Baron to find men willing to go into combat, which was not an easy task, for many would not return. To get them, the Baron chose the vehicle of giving land to the fighting men (Vassals: “the guarantee of a fief, feud, or fee; a feudal tenant” [Black’s], whom they sent to the General. These fighters received their land “in Fee”:

Fee: A heritable interest in land; esp., a fee simple absolute. “To enfeoff someone was to transfer to him an interest in land called a fief … [it] implies the characteristics of potentially infinite duration in land today; but in the earliest part of the feudal period, a fief might have been as small as a life interest … [it] was not used to transfer interests ‘smaller’ than life interests – e.g., so called terms for years … [Black’s.]

The “fee for life” normally included an obligation that the Baron would, upon the death of the man, assist the widow and children until they could handle the land and make their own living.

Although the Purpose of the Barons was mutual protection, the consequence of Feudalism included the beginnings of three branches of our modern law: (1) Contract Law; (2) Property Law; and, (3) the Law of Inheritance. Thus began a 1000+-year period of development of law, culminating in what we in the U.S. now call Rule of Law — which proved to become quite different than law on the Continent.

Part III — Contracts, Causa, and Strict Liability

Initially, the law of Contract was the Law of the Vow, made “as unto the Lord God and Jesus, His Christ.” [See: Lev. 27.] That meant that you had to fully perform your side of the vow before you could sue (go to court against) the other party. [“meant: “a legal Consequence of trying to put into law a religious principle or any other stated Purpose” (WDB).]

At that time, Meeting of the Minds, our modern philosophy, was not the general rule on the Continent, but rather causa was:

One of the vaguest terms of the Roman juristic language. Starting from the basic meaning of cause, reason, inducement, the jurists use it in very different senses … Causa is the reason for which some judicial measures (actions, exceptions, interdicts) were introduced by the praetor … Sometimes causa is roughly identical with animus when it alludes to the subjective motive, intention, or purpose of a person.” Adolf Berger, Encyclopedic Dictionary of Roman Law, 382-383 (1953). [Black’s.]

Where causa continued to exist on the Continent, you were bound by your vow even though a meeting of the minds may not have been present — just like in the Bible. Causa did not develop in our Anglo-American law.

I bring up causa because its philosophy is like what we call Strict Liability — a term I will constantly return to, and an important thing to remember as I contrast it with our Criminal Justice concept of Fault:

Strict Liability: Liability that does not depend on actual negligence or intent to harm, but that is based on the breach of an absolute duty to make something safe. Strict liability most often applies to ultra-hazardous activities or in products-liability cases.  Also termed absolute liability; liability without fault.

Fault (13c) 1. An error or defect of judgment or of conduct; any deviation from prudence or duty resulting from inattention, incapacity, perversity, bad faith, or mismanagement.  See NEGLIGENCE. Cf. LIABILITY. 2. Civil Law. The intentional [or reckless] or negligent failure to maintain some standard of conduct when that failure results in harm to another person. [Black’s.]

The essential difference between the two philosophies is that the condition of the mind (intent) is a necessary element for liability under fault, but not under strict liability.

Property Law is Strict Liability, and not based on Fault but rather on proof of one’s ownership [title] in the property.

The Law of Inheritance is Strict Liability, based on a statutory list of factors related to descent and devise.

[I would also note that, in the earliest of these times, the idea of a Corporation was anathema to the Church because it was seen as avoiding personal responsibility; escaping personal responsibility is not supported Biblically.]

Today, by focusing on the state of the mind of someone who has caused a harm to another, we allow avoidance of responsibility by anyone who can, in some way beat the mental standard.

Part IV — Some Comments on Property and Serfs

The Fee carried with it an ownership of the land from the center of the earth to the outer limits of the Universe (which became a difficult concept once the airplane showed up).

Personal (portable) Property rights were likely recognized in the local conflict resolution process of the people in day-to-day village life. However, it was not likely much more than that “under the law”, as few but the Barons had more than what was necessary to survive.

The State didn’t waste its time getting involved in those squabbles unless the aristocracy was involved; then it intervened because the aristocrats were empowered — to use a modern term. Yet, to the extent personal property was legally recognized in England, it was certainly far more than what was recognized in the institutions of slavery and serfdom:

Serf: A person in the condition of feudal servitude, bound to labor at the will of a lord; a villein. * Serfs differed from slaves in that they were bound to the native soil rather than being the absolute property of a master. [Black’s.]

Serfdom remained the law in Russia into the late 1880’s. However, when it was replaced, it produced the propiska, the equivalent of an “internal passport” which tied you to a given location and impeded the freedom of movement which we in the U.S. have enjoyed from the earliest of times. Wherever serfdom existed, it inhibited development of law which would assist the common person.

 

Part V — The Investiture Conflict

In 1054 A.D., the Great Schism took place, breaking the Christian Church of the West (later known as Roman Catholicism, from which would break Protestantism in the 16th Century), and the Christian Church in the East (Greek-Russian Orthodoxy, which also broke into some divisions over time).

From 1056 to 1122 A.D., the Investiture Controversy was active in Western Europe, including England. It had one issue: “Who had the authority to ‘invest’ the cleric with their robes of office – Church or State?” [See: The Oxford Dictionary of the Christian Church, 2nd Ed. (Rev., Oxford Univ. Press, 1990).] For our purposes, we need to recognize three things about this struggle:

a) at a gut level, the controversy was over who would control the hearts, minds and conflicts of the people: the Church, using its sense of Biblical purpose, or the emerging State, using its “best interests of the State” purpose;

b) it started the process of Separation of Church and State, which was later written into the 1st Amendment to our U.S. Constitution;

c) it was taking place in England before William the Conqueror came in 1066.

This struggle did not take place in the heartland of the former USSR (Ukraine, Belarus, and the Rodina, Mother Russia) prior to the breakup of the USSR in 1991 – and some would say it still has not taken place. The lack of the divestiture conflict in the East will be meaningful as I contrast things I encountered in the former USSR with our legal history.

Part VI – The impact of William the Conqueror:

In 1066 A.D., William the Conqueror beat the Barons’ General at the Battle of Hastings, thereby becoming the titular head of all the Shires in that part the English Isle south of Hadrian’s Wall, leaving Scotland to initially develop along a slightly different path.

I like to think that, having won, William paused, looked around, liked what he saw, and formed a Purpose in his mind: “Let’s create a Kingdom out of these Shires, over which I can be King.”  Today, we call this Nation-Building, or the “forging of a Nation-State”.

Having formed a purpose, William needed a Method to carry it out, something more than naked power lest he be in never ending guerilla war. Wittingly or not, he focused on the conflicts of the people as a way to forge the Shires together.

He picked a person from (or sent one of his men into) each Shire, and called him a Reeve. The Reeve could arrest, try, and convict – like the militzia in Moskva, or our current Administrative Law System. Slur the two words, Shire and Reeve, and you get Shirereeve, from which we get Sheriff; sometimes it is surprising how long a word will remain active in the law!

But for what could the Sheriff arrest, try and convict you? Well, of a Crime, of course!

            Crime. (14c) An act that the law makes punishable. [Black’s.]

Do you note the situational ethics, and detachment from truth present in this definition? With such a definition, you should quake in your boots: Anything the mind of man can conceive can be criminalized — and in the 20th Century, we have come to see that proposition proven.

But what is a Crime?

In the beginning of William, a crime was the same act you did yesterday that hurt someone in the community, and which you had previously dealt with in the community, but which William now declared to be “a threat to the peace of the State”, to be dealt with by the State, in the State Courts, and not in and by the community. Thus the State would get all the money generated by the system in order to support the system, an idea which may have been in William’s mind as kings need money.

The big three crimes started with:

a) touching or threatening another person in a rude, insolent or angry manner, without their permission (Battery/Assault);

b) taking another’s transportable personal property without their permission (Theft); and

c) depriving a person of their liberty (Kidnapping) or land (Illegal Ouster).

Because of the legal history to that point in time (800-1066), these were obvious choices.

William then appointed Judges who rode a circuit through the Shires, hearing appeals from the Reeve; Circuit Courts are courts of Constitutional jurisdiction in many states in the U.S. today, and in places like Western Nebraska, Judges still ride around their circuit, albeit in autos.

The Judges would periodically gather wherever the King was, and compare notes with one another to try to be consistent in their decisions. From this came the Common Law of England, a form of precedent which, together with Magna Carta, Charter of the Forests, Bills of Rights and Writ of Habeus Corpus, form the essence of a constitution for England to this day.

By 1776, thanks to King George the III and the Atlantic Ocean, such a constitution was no longer acceptable to the American Colonists.

In summary, by 1100 AD we have three purposes for law well in place:

a) to organize and control behavior;

b) to merge smaller units into a Nation-State; and,

c) to give people a place to go with their conflicts rather than having to engage in the “blood feud”.

Previously they merely went to one another in community (an attitude) to try and work things out with the help of fellow members of the community. Please remember this fact, for it is at the heart of what I will be proposing for reform.

What William created worked pretty well in England. I posit that the reason it worked was because of the 200-years of legal development which preceded it. That is, by the time of William, people had come to see a need for law, and had voluntarily developed a willingness to submit to it for their perceived mutual benefit – the best philosophy for the concept of rule of law.

Yet, when this was later tried by England in Africa, India and other places, it never worked out as well; why the outcome was different should be an interesting field of study.

 

Part VII – The theological precepts of William’s Criminal Law:

During this early development of what we today call Criminal Law, and because of the semi-merged Church/State in England under William, those creating his method would have naturally turned to the Scriptures and the Church for support in their efforts. What follows are passages of Scripture which I grew up hearing as support for our systems, and our systems’ purposes and methods, but which seemingly have not been contemplated for the consequences of their adoption.

Step 1 – Romans 13:1-6

Let every person be loyally subject to the governing (civil) authorities. For there is no authority except from God, and the authorities that exist are appointed by God [by His permission, His sanction]. And those that exist do so by God’s appointment. [Prov. 8:15.]  Therefore he who resists and sets himself up against the authorities resists what God has appointed and arranged [in divine order]. And those who resist will bring down judgment on themselves [receiving the penalty due them]. For civil authorities are not a terror to [people of] good conduct, but to [those of] bad behavior. Would you have no dread of him who is in authority? Then do what is right and you receive his approval and commendation. For he is God’s servant for your good. But if you do wrong, [you] should dread him and be afraid, for he does not bear and wear the sword for nothing. He is God’s servant to execute His wrath (punishment, vengeance) on the wrongdoer. Therefore one must be subject, not only to avoid God’s wrath and escape punishment, but also as a matter of principle and for the sake of conscience.

Saint Paul, a Pharisee above all Pharisees [Phil. 3:4-6], and thus a religious lawyer- prosecutor, says several things in this passage.

a) He recognizes the existence of Governing Authorities, be they in the family, clan, tribe, City-State, or Nation-State.

b) He recognizes that these authorities bear a sword, and can punish people for whatever the governing authority deems inappropriate; an authoritarian concept.

c) He recognizes that the governing authorities are themselves, like all people, subject to God, and thus are “not to [be] a terror to good works.”

In short, Paul laid a “blessing” on the efforts of government to secure peace in the land, and he upheld government’s right to ultimately use punishment as one Method when the laws were breached, provided it did not punish “good works”.

But, Paul did not repudiate the rest of the Bible.

Now, please don’t throw this in the trash as I pose two questions:

Is Paul’s Method – punishment – God’s highest and best method, or even His method at all and, if so, to what extent?

Is there anything in this Scripture which supports General Deterrence, as opposed to terror/fear?

It is a Truth that we, as believers in God and His Christ, must have an attitude of respect for, and voluntary subjection to governing authorities. We see this powerfully presented in Shadrach et al v. Nebuchadnezzar [Dan. 3], when the three quietly responded to their King, and his Law, while affirming their need to obey God — all the time looking to God as their protection and vindication and not to the State as a source of some “rights”. And they had peace throughout the process being imposed against them, demanding nothing from the King.

In short, they had that respect which I did not have as a Judge towards my superiors — but I also did not have their understanding of God as the source of Justice.

So, is it possible for our methods to do more than just punish?  Hold on to that question.

 

Step 2: Deut 6:1-3, 20-25

Now this is the instruction, the laws, and the precepts which the Lord your God commanded me to teach you, that you might do them in the land which you go to possess, that you may [reverently] fear the Lord your God, you and your son and your son’s son, and keep all His statutes and His commandments which I command you all the days of your life, and that your days may be prolonged.  Hear therefore, O Israel, and be watchful to do them, that it may be well with you, and that you may increase exceedingly as the Lord, the God of your fathers, has promised you, in a land flowing with milk and honey.

When your son asks you in time to come, What is the meaning of the testimonies and statutes, precepts which the Lord our God has commanded you?  Then you shall say to your son: We were Pharaoh’s bondmen in Egypt, and the Lord brought us out of Egypt with a mighty hand; and the Lord showed signs and wonders, great and evil, against Egypt, against Pharaoh, and all his household, before our eyes.  And He brought us out from there, that He might bring us in, to give us the land which He swore to our fathers.  And the Lord commanded us to do all these statutes, to [reverently] fear the Lord our God, for our good always, that He might preserve us alive, as it is this day.  And it will be accounted as righteousness (conformity to God’s will in word, thought and action) for us, if we are watchful to do all this commandment before the Lord our God, as He has commanded us. [Emphasis added.]

It is from passages such as this that we get our theology to connect punishment to law-breaking – “fear … lest the anger of the Lord your God be kindled against you and destroy you from the face of the earth”. This is also the source of our philosophy that we can, by promulgating law and punishing law-breakers, deter future evil activity.

Moses is speaking here. He is telling the people what God wanted to tell them personally at the foot of the mountain [Ex. 20]. The word fear appears three times. According to the Interlinear Bible (Hendrickson, 1984), the Hebrew word for fear is: “yare’ (yaw-ray’); a primitive root; to fear; morally, to revere; caus. to frighten.”  Thus the Amplified Bible adds reverently in the passage.

My question is, for the Purpose of Law, very simple:

Is the best meaning in the passage “to revere”, i.e., “to stand in wondrous awe at the beauty of God’s Law”, or is it “to quake in terror and run from the Face of God” as people did after hearing His first 10 Commandments? [contrast Ben Kingsley’s portrayal of Moses to that of the people in the 1995 movie, Moses!]

If it is revere, then what do we find when we study God’s Law, thinking of it as a “gracious, blessed, needed-by-the-blind, instruction for how to live free of all that the world and others can throw at us?”

We will come back to this when we analyze God’s Law (torah); for now it is enough to understand that 1000 years ago, terror was the understanding, and the philosophy/theology/theory of the law said that knowledge of the law, in the mind a rational person, knowing they would be punished for law-breaking, would lead to deterrence.

In our Law, deterrence is of two types:

General Deterrence: A goal of criminal law generally, or of a specific conviction and sentence, to discourage people from committing crime [in general].

Special Deterrence: A goal of a specific conviction and sentence to dissuade the [specific] offender from committing crimes in the future.  [Black’s.]

Step 3 – The Arrival of Fault

I imagine that somewhere in the ancient records there is evidence of how, and from where, and even why, Fault entered the discussion, but I will base it on our alleged rationality, and the few facts I recall from law school days:

Man is created in the image of God. God is a rational being, and man is a rational being. God knows the difference between right and wrong, and we have that same knowledge. Having been given the law, knowing they would be punished for breaking the law, Adam and Eve would, in self-interest, not do wrong.

But they did wrong, thus displaying the state of their inner, guilty mind and thus warranting punishment by society:

 

Mens Rea [Law Latin “guilty mind”] The state of mind that the prosecutor, in order to secure a conviction, must prove that a defendant had when committing a crime; criminal intent or recklessness <the mens rea for theft is to deprive the rightful owner of the property>. Mens rea is the second of the two essential elements of every crime at common law, the other being actus reus.  Also termed mental element; criminal intent; guilty mind.

 

“Most English lawyers would however now agree … that … it misleadingly suggests that, in general, moral culpability is essential to a crime, and they would assent to the criticism expressed … that the true translation of mens rea is ‘an intention to do the act which is made penal by statute or by the common law.’ [Allard v. Selfridge, (1925) 1 K.B. at 137 (per Shearman, J.)] H.L.A. Hart, Legal Responsibility and Excuses,” in Punishment and Responsibility 28, 36 (1968).

 

Actus reus [Law Latin “guilty act] The wrongful deed that comprises the physical components of a crime and that generally must be coupled with mens rea to establish the criminal liability; a forbidden act <the actus reus for theft is the taking of or unlawful control over property without the owner’s consent>. – Also termed deed of crime, overt act.

“The word actus connotes a ‘deed,’ a physical result of human conduct.  When criminal policy regards such a deed as sufficiently harmful it prohibits it and seeks to prevent its occurrence by imposing a penalty for its commission. …” J.W. Cecil Turner, Kenny’s Outlines of Criminal Law, 13 (16th ed., 1952).

Thus one convicted of a crime is actually punished not for their act done which caused a harm, but for the state of their mind when they did the act.

But possibly more important is that fact that we are not fully rational beings (while God is) because of the impact of the Fall. Therefore, you cannot expect obedience out of fear when the mind is 100% self-focused.

Nevertheless the distinction between mens rea and actus reus establishes this reality in our system, and raises three questions:

Why require that Crimes be done Intentionally, Recklessly, or Negligently?

Do you think it matters to the victim?

What are the consequences of searching for the condition of the mind of the one being charged, i.e., seeking poof of fault in the mind which can’t be read, and then coupling the search result with mandatory sentences and a declaration that the actor is a criminal?

Our inability to know the content of the mind means we cannot distinguish between: (a) an innocent finder of lost property, and (b) a thief who stole the same property at the exact same time but concocted a great story to look innocent when found in possession of what was someone else’s property, and sold the story to the jury!

Man cannot know the mind of another – nor, according to God, the Truth of our own mind [Jer. 17:9].

So, how do we get to convicting a person for the state of their mind rather than for the act done? We do it by creating a legally binding, presumption:

Presumption. (15c) A legal inference or assumption that a fact exists, based on the known or proven existence of some other fact or group of facts. Most presumptions are rules of evidence call for a certain result in a given case unless the adversely affected party overcomes it with other evidence.  A presumption shifts the burden of production or persuasion to the opposing party, who can them attempt to overcome the presumption. [Black’s; i.e., Man is presumed to intend the natural and probable consequences of his actions. The act declared to be illegal was done, therefore the intent existed. Feel free to offer evidence to rebut that. (WDB).]

This is, of course, circuitous reasoning, but our law is full of such things so that it may “work towards its purpose”.

We now need to look at three of the four categories of fault which are in our Criminal and Tort Law: Intent, Recklessness, and Negligence. [The fourth is found in Contract Law, where we require a Meeting of the Minds on all material elements of the contract to create the contract; but that will not be discussed in this book.]

Intent: The state of mind accompanying an act, esp. a forbidden act. While motive is the inducement to do some act, intent is the mental resolution or determination to do it.  When the intent to do an act that violates the law exists, motive becomes immaterial.

Reckless: Characterized by the creation of a substantial and unjustifiable risk of harm in others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than negligence; it is a gross deviation from what a reasonable person would do.

Negligence: The failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation; any conduct that falls below the legal standard established to protect others against unreasonable risk of harm; … The term denotes culpable carelessness.

Meeting Of The Minds:  Actual assent by both parties to the formation of a contract, meaning that they agree on the same terms, conditions and subject matter.  This was required under the traditional subjective theory of asset, but modern contract doctrine requires only objective manifestations of assent.  See also mutuality of assent.  [Black’s]

This belief in the necessity for fault in our Criminal Law is not limited to our Western Legal tradition.

In the Fall of 2002, I was at a table with 25 of the leaders of Kazakhstan: Minister of Education; Minister of Justice; Minister of Police; Minister of Prisons; Minister of Education; Members of Parliament; Special Representatives of the President; Members of Academia; etc. I had been invited to participate in a discussion of three criminal justice topics:

1.  How does a State hold entities (corporations et al) criminally responsible?

2.  Should Kazakhstan adopt the America Plea Bargaining System, for they sensed their Criminal Justice System was proving too harsh (even though they had a provision which automatically reduced any penalty 50% if the offender simply “acknowledged his act”)?

3.  How to implement a provision of their Criminal Code which said: “If an offender reconciles with his victim, by giving the victim what the victim desires, then there is no criminality for the act.”?

When we got to the third of these, I raised the idea of a system without the concept of fault, except for premeditated murder. The Professor of Criminal Law immediately spoke up: “It is not possible to have a criminal law system without fault.” He was not indignant, not condescending, but merely speaking the common thought of all societies with organized criminal codes and procedures.

My response was: “But we already have such a system; it is called ‘no-fault’, or ‘strict liability’. We have it, and you have it as well.” Once we talked through it, he admitted they had no-fault, but it didn’t change his mind when it came to the “heavy duty of the criminal law to punish” (my understanding of his position, not his exact words).

 

Is there Biblical support for this concept of the necessity for fault to make our criminal law “work”? I will address that later.

Step 4 – Tort Reemerges

Initially under William the Conqueror’s system, there was what we would today see as an outrageous twist to it: If you wanted the services of the system, you had to pay the Sheriff for it! Maybe that helps us see why the Sheriff of Nottingham became a tyrant; but I digress.  .

Eventually, the people tired of this, and decided to dust off a word they used when sitting in community to help one another when in conflict: Trespass. Today we now know this as basis for out Law of Torts. \

What is a Tort? To my students in the former USSR, it was an after dinner dessert!

To our law, it is the same act done as is called a crime, but it is handled by the civil courts rather than the criminal courts, or, with full constitutionality, by both courts! Tort does not involve imprisonment, but results in an award of monetary damages going to the victim, rather than fines and bodies going to the State and its prisons.

Tort (16c) 1. A civil wrong, other than breach of contract, for which a remedy may be obtained, usu., in the form of damages; a breach of a duty that the law imposes on persons who stand in a particular relation to one another.  2. The branch of law dealing with such wrongs.

“To ask concerning any occurrence ‘Is this a crime or is it a tort?’ is – to borrow Sir James Stephen’s apt illustration – no wiser than to ask concerning a man: ‘Is he a father or a son?’ For he may well be both.’”  J.W. Cecil Turner, Kenny’s Outlines of Criminal Law 543 (16th Ed. 1952).

“It might be possible to define tort by enumerating the things that it is not. It is not crime, it is not a breach of contract, it is not necessarily concerned with property or rights or problems of government, but it is the occupant of a large residuary field remaining if these are taken out of the law. But this again is illusory, and the conception of a sort of a legal garbage-can to hold what can be put nowhere else is of no help.  In the first place, tort is a field which pervades the entire law, and is so interlocked at every point with property, contract and other accepted classifications that, as the student of law soon discovers, the categories are quite arbitrary. In the second, there is a central theme, or basis or idea, running through the cases of what are called torts, which, although difficult to put into words, does distinguish them in greater or less degree from other types of cases.”  W. Page Keeton et al, The Law of Torts, Sec. 1 at 2-3 (5th Ed. 1984). [Black’s.]

Tort Law contains the same three states-of-mind – Intent, Recklessness and Negligence – as in the criminal law, but without the sense of moral culpability so as to warrant punishment by the State under the Criminal Law.

Culpability: Blameworthiness; the quality of being culpable. Except in cases of absolute [strict] liability, criminal culpability requires a showing that the person acted purposefully. Knowingly, recklessly, or negligently with respect to each material element of the offense.

“The concept of culpability is used as a reference point to assess the defendant’s guilt and punishment even though, in the two contexts, culpability denotes different aspects of the defendant and the murder [itself]. At the guilt phase, culpability is most often used to refer to the state of mind that the defendant must possess. Also at the guilt phase, culpability may reflect a broader judgment about the defendant: when he is culpable for his conduct, it means that he is blameworthy and deserves punishment. At the punishment phase, the concept of culpability stands as the benchmark for when the death penalty is an appropriate punishment.” Phyllis L. Crocker, Concepts of Culpability and Deathworthiness, 66 Fordham J. Rev. 21, 35-36 (1997).

In other words, the exact same act done by a person at one point in time and space may be processed through either the Criminal Court as a Crime, or the Civil Court as a Tort – or through both with complete constitutionality and no double jeopardy!

There are some great differences in those two processes however. In Criminal Law you must prove a person “guilty beyond a reasonable doubt” (a great tipping of the balance scale), while in Tort, you need only prove responsibility “by a preponderance of the evidence” (the slightest tipping of the scale). And there is a right to remain silent in the criminal process, and have a lawyer appointed for you by the state if you cannot afford one — but neither of these are present in the civil court.

But please note that the linguistic change from guilt in crime to responsible in tort is very, very, intentional, for it avoids an character implication inherent in a finding of one to be a Criminal:

Criminal, adj. (15c) 1. Having the character of a crime. In the nature of a crime <criminal mischief>  2. Connected with the administration of penal justice <the criminal courts>.

Criminal, n.(17c)  1. One who has committed a criminal offense. 2. One who has been convicted of a crime. [Black’s.]

I invite the reader to ponder the necessity for this distinction of punishing one by the full force of the State while leaving the victim of the other to their own devices, and expenses, to try to recover damages.

I invite you to consider the implication of being called a criminal, with its apparent designation of your character.

I invite you to consider why the “title for the actor” — criminal — came 200 years after the “term for the act”.

But bringing Tort back into the law did meet a philosophical need due to the failure of the law’s process to bring about a sense of Justice.

Finally, there have been three significant philosophical shifts of our legal theories in the past; this was the first of them (if we don’t count William’s forcible shift from a community process to a State process).

Step 5 – The Law of Merchants

During the time all of the above was developing, and prior to the coming of Magna Carta in 1215 A.D., another thing was taking place: the rise of Merchants.

The population of Europe more than tripled between 900 and 1200 A.D., and true cities began to emerge. Thus there became a need to get production from its location to people not “on site”.

There was nothing new about Merchants, for they seem to be as old as time itself — but there was something different about the condition of Law in Europe in those 300 years, versus the conditions of Law in earlier times. Recall Dr. Finer’s idea that the only law of the State was Treason; for all else, the people were left to their own devices.

So, in Europe in the times we are looking at, in every city to which a Merchant would come with production to sell, he found a very active Law; Law of the Church- City, or Law of the Lord-City, due to the Investiture Struggle. Later, this increased to Law of the Catholic Church-City versus Law of the Lutheran Church-City versus Law of the Protestant Church-City, etc.

The point is, however, that a Merchant does not care about Law; he cares about “doing the bizness” as my students called it. As he buys and sells he not only did it with the people (retail), but with producers and fellow merchants (wholesale). In all these transactions there was the inevitable opportunity for conflict.

The Merchant quickly discovered that if the conflict came to the attention of the City authorities, he/she could expect to be in town a long time, for “law grinds exceedingly slow but exceedingly fine”. [The first is true, but the second is a hope not always realized in some party’s opinion; but I digress (WDB).] Time was money to the Merchant.

Do you recall my just saying that there were three times in history when the Law looked back at its Purpose, and reacted? This was the second of those times.

The mind of the merchant was: “Sometimes I win, sometimes I lose, but in the long run I make a profit. So let’s deal with this among ourselves, and quickly get on down the road.” But now he and his adversary now discovered they had “breached the peace of the city”, and found themselves in the courts of the city, wasting time – and paying out money for lawyers.

To meet their Purpose to do business and not legal battles, the Merchants just created their own conflict-resolution-system and carried it with them in their wagons from place to place:

Arbitration. A method of dispute resolution involving one or more neutral third parties who are usually agreed to by the disputing parties and whose decision is binding. [Black’s.]

For their mutual survival and benefit, they agreed that their conflicts would be submitted to themselves (as a class/clan/village of people) rather than to the Courts!

Again, there was nothing new about this idea: the Jewish people had a Synagogue Court (Bet Din) for centuries. Paul strongly urged arbitration to the Christians of Corinth, a merchant city [I Cor. 6:1-8], and the Christian Conciliation Services (starting in the U.S. in the 1980’s) have done the same thing within the Christian Church in recent years. And, yes, we can name Sharia Law of Islam as one of these systems.

One might wonder if the Merchant’s new system caused concern to the Rulers of the cities, for suddenly they were not getting revenue from merchants fighting one another in the City-Courts. However, the Merchants had three ways to overcome the Ruler’s angst:

(a) by-pass a city which would not leave them alone (boycott — a reverse form of bribery);

(b) direct bribery; and

(c) create their own cities and networks of Cities such as the Hanseatic League, and do their business with one another within those cities.

[I cannot find in the Bible where the one offering a bribe is addressed; only the taker of the bribe is addressed. I guess God expects the bribe to be offered, but asks us to reject the offer. Again, I digress (WDB).]

But none of what the merchants put into place was really Law, for it was not written and published by a King-sort of person, nor enforced in the King’s courts. Yet, it has worked for centuries.

[In the U.S., in the early 20th Century, legislatures thought they could improve the oral traditions with statutes, and created the Law of Sales. By the mid-20th Century, the laws had become so rule and lawyer-bound that bankers and merchants got together and wrote a new law – the Uniform Commercial Code – which they sold to legislatures for adoption. Once adopted, the merchants and bankers expected to “keep it up to date” through a panel of experts (not Legislators) so it would continue to meet their Purpose. I studied the UCC in law school as it was going through the legislative process in Indiana – where my father, as a State Senator (and an expert Contract trial lawyer who hated the Code), had single- handedly stopped it for two sessions. He then decided to seek the U.S. Senate nomination, and needed bankers and merchants for campaign treasury purposes, so he relented, saying he had a son in law school who could learn this new stuff, but he would not waste his time on what he believed was a mistake. In contrast to my father, I saw the Code as a wondrous thing, and still do, for it was an effort to do justice. However, I think the Code came at a time when the U.S. was too “lawyerfied”, and thus has never been able to live up to its potential for true greatness; again, I digress (WDB).]

But the lesson is simple for our study: If the system of the government is seen to be causing more harm than good, consider why that is so, and consider what can be done – privately or through the political process – to make things better. But don’t limit your inquiry to Method – look also at the Truth of the underlying philosophy of the stated Purpose; it may need changing.

Step 6 – The Coming of Magna Carta

With the success of William the Conqueror in 1066 A.D., Feudalism changed into something like our modern State, held together by a legal system administered by the King.

In 1215 A.D., the Barons reasserted themselves because the King was acting like Kings have a tendency to do; i.e., as an authoritarian. The unhappy Barons forced William’s successor, King John, to sign Magna Carta, The Great Charter as it is known in England [@www.shepherdsforpeace.com]. We should take a moment to see the highlights of Magna Carta because of its impact on our legal Processes. Those Processes ought, just like our Purposes, be examined against what the Bible offers.

Magna Carta began with a declaration its Purpose:

… that in the presence of God, and for the health of Our Soul [King’s soul], and the souls of Our [King’s] ancestors and heirs, to the honor of God, and the exaltation of Holy Church, and amendment [benefit of] Our [King’s] kingdom

Should that not be the highest and best Purpose of all actions of government, to make its laws and legal systems give glory to God? And, what about being “to the benefit of the people,” particularly in light of the many negative consequences we see of our Criminal Justice system today?    What follows is a list of things in Magna Carta which we can recognize today:

#17 – a fixed location for courts [easy access to Justice; every 36-square miles in the heartland of the U.S. had a Justice of Peace available to help, and who did not have to be a lawyer]

#20 – fines to be proportionate to offense [see Exodus 21:23-25, which conveys the idea of proportionality rather than amputation]

#21 – jury [but for Noble People only; I will explore the Jury in the Bible later]

#24 – Sheriffs, constables, coroners or other King’s employees are not to be judges, and cannot hold Court [Then, pray tell me what madness are we are doing in our Administrative Law system?]

#28-31 – no taking of property by the King without adequate compensation [our 5th Amendment]

#38 – (?) a right to confront witnesses

#39 – (?) a jury for the Common Person

#45 – the start of a Professional Judiciary

I find it noteworthy that the following “rights” do not appear:

a) Right to Remain Silent;

b) Right to Counsel, including at state expense if poor;

c) Right to the Power of the State to compel witnesses and documents to

appear at trial; and

d) Right to at least one level of appeal.

These came later as additional protections against the tyranny of government, most often pushed forward by case-to-case litigating activities of attorneys of their day.

We are familiar enough with these things that I only want to elaborate on the Jury. The Jury does not appear in the Bible except, arguably, in connection with executing the death penalty by stoning [see John 8:1-8], which I will discuss later.

However, in our legal philosophy, the Jury was to serve three purposes:

a) to establish the parameters of “the reasonable prudent man”, and to  establish the existence and nature of “duties owed” in Tort law;

b) to protect against the power of government; and

c) to protect against an improperly written law, in light of the circumstances of a case, through what is known as jury nullification — a concept which now, I am sorry to say, is highly disfavored in the U.S. and often prohibited:

Jury Nullification: A jury’s knowing and deliberate rejection of the evidence or refusal to apply the law either because the jury wants to send a message about some social issue that is larger than the case itself or because the result dictated by the law is contrary to the jury’s sense of justice, morality, or fairness. [Black’s.]

When this last purpose for the jury is taken away, when laws carry mandatory penalties, and when the jury, as is generally true, does not even know what the penalty may be, a great harshness of the law can result. These things automatically give prosecutors a power to literally coerce guilty pleas — and these were some of the things troubling the leaders in Kazakhstan, which made them want to examine the philosophy and mechanism of their law, and to gather a better understanding of our laws, methods, and philosophies.

Understand this: law is never static. It is a pendulum swinging between the extremes of anarchy and totalitarianism. Part of the genius of our Founding Fathers was their design of a political system intended to slow down the speed and arc of the political swing. They knew from history that, in the centuries after Magna Carta, Kings routinely would start drifting back into the Divine Right of Kings. Every time that happened, the English Parliament would dust off Magna Carta, and pass an English Bill of Rights to remind the King of the principles to which he was beholding.

Our Declaration of Independence was an example of an English Bill of Rights: a statement of principle, followed by a list of the errors of the King in light of Magna Carta, and a declaration that “We are not going backward in the law as to our rights as Englishmen”. As such, our founding fathers were not engaged in revolution, dissatisfied and proposing something new, but rebellion against loss of what they were entitled to as Englishmen.

But all this is political; obscenity of criminal laws is not as easily controlled, for it is far more subtle in its appearance, subject to philosophical and cultural changes, yet of far greater impact upon the average citizen.   

Step 7 – The Coming of Equity

The original English Rules of Pleading, filing and responding to cases, put a premium on technical competence in understanding of some very arcane words. If you failed to select the right words, or used them incorrectly, you could be attacked for that failure, the case dismissed, and you would have no right to plead over, or correct your error.

In other words, the Purpose of Law to provide a place for conflict resolution rather than use of the Law of the blood feud had fallen prey to rules and regulations.  The old adage that “the letter kills, but the spirit gives life” [II Cor. 3:6] is true as to all Law, even God’s Law, as shown by the issues between Christ and the Pharisees.  Unfortunately, I fear that we are again in a form of calcification in our civil law system in the U.S. today, helping the growth of a sense of injustice.

This early calcification of Law in England led to the third time of analysis of the Purpose for the Law vis-a-vis the Method and Consequences of the Law. The results of the analysis morphed into the Courts of Equity, a/k/a Courts of Chancery.

People began to write to the King that they were being deprived of justice.  The King, maybe conscious that justice was more a theological word than a legal word, started sending these letters to his Lord High Chancellor (Senior Judicial Official in the Government, initially a member of the Clergy), and gave him power to, in essence, do whatever he thought appropriate to see that Justice was done.

Often the Chancellor would do nothing but write a letter of reply, but on some occasions he would command the parties to appear before him for inquiry. As there was effectively only one Church in England at the time, and firmly connected to the Throne, the “invitation” was rarely declined. But out of that emerged an entire system of law, committed to the idea of doing justice.

Equity focuses on the remedy you can get if you win your case. At that time the only remedy of the Civil Law was monetary damages, and it could be inadequate. For example: You make a contract to buy my one-of-a-kind book for $500.00. You run home to get the money, come back, hand it to me, and I tell you I sold it to another for $1,000.00. A remedy of damages is not sufficient; YOU WANT THE BOOK! – and you want the Lord Chancellor to order me to go get that book back from the one I sold it to, and give it to you or else excommunicate me to Hell.

The law could not do that, for the cardinal rule of property law is that no one can force you to sell what is yours, nor buy something from another. But the Lord Chancellor, backed by the power of Church and State, could compel, and you would obey for fear of your eternal salvation.

Over the centuries, Equity became an established system; in the U.S. it was merged into the “at Law” system so that a Judge can, in any given case, “sit in Law” and/or “sit in Equity” off and on throughout the processing of any individual civil case. It is not a system in our Criminal Law, however. The essentials of the Law of Equity are:

a) You must first prove your entitlement to win at law in contract, tort, property, etc.

b) You must then prove that damages are not an adequate remedy.

c) You must then prove you came into court “with clean hands”.

d) You will then have to defend against a charge that you should be estopped from your special remedy because of some action or inaction on your own part, “on which the other party reasonably relied, to their detriment.”

e) Finally, the Court will then consider the need to “balance the equities” so that no “undue hardship” takes place when picking who wins.

Equity, like the Uniform Commercial Code, is a field of the law which I love because it is striving after, in my opinion, justice. But I inject it to show cherished principles of Purpose can, and should be, re-examined from time to time and modified as needed so justice may still appear to be alive.

I believe now is such a time for re-examination when it comes to our Criminal Justice system.

 

Part VIII — Our Inherent Systemic Problems of Today

Over my years of dealing intimately with the law and legal systems of the U.S., and studying and being involved in developing alternatives, I have come to see the following:

Rules abound and abound, always in an effort to level the playing field in the court. Sadly, the practices of today seem like that of England of Old: one tiny error of process, and you are dead.

The number of statutes attempting to control every single possible situation of life have proliferated to the point that no one, including attorneys, can possibly know what the law is in its fullness. More importantly, there are so many that Judge can’t keep track of what they did with their left hand when a close fact- philosophical issue comes upon them from their right hand.

The number of Regulatory Laws, and their equivalent of criminal penalties without Criminal Due Process, Jury Protection, or appeal de novo review is leaving a very bad taste in the mouths of the people who encounter it.

The case-study method to find the overarching principles which may govern a case no longer works because we have millions of cases. As to every point of possible application of law, any variation of fact makes the outcome of case #1 suspect when read in light of case #2. In short, you can always find a case which looks like what you want the Court to do — let alone run a new idea up a flagpole hoping the judge will salute it.

This multitude of cases can make it easy for a judge to avoid checking the citations and doing independent research, and to choose to rely upon the reputation and influence in the community of a known lawyer to the detriment of the lesser known lawyer and his or her clients.

And the annotators of statutes and rules (those who give you lists of cases on statutory and rule points of law) can overlook cross-applications of a case in different fields of the law so that when working in field A you may never find a case of critical importance because it is indexed under field B!

I have been a direct casualty of the horrible side of the last two of these examples — which is for another time.

These six factors create a situation in which the rich and powerful, with their ability to hire many attorneys for a single case, gain a substantial advantage in litigation. In addition:

Mandatory sentencing, and removal from the Jury of the knowledge of the possible sentences, leaves “the people through the jury” without any ability to compare the appropriateness of penalty vis-a-vis the nature of the specific offender and the facts of the actual offense, so that they might consider the effect of their decision on justice.

Everywhere you look, penalties are getting harsher, yet with a continued growth of the prison population.

Institutions which grew up to serve court referrals, from correctional institutions to helping families and children in Juvenile Court, have become lobbyists for staying in business at the cost of actually helping.

And the distress of the people over what they see, hear, and experience about our systems grows, and grows, and grows – and the sense of injustice abounds.

Let me give you two but examples – the first of which was a case I handled as Judge.

The defendant was, as I recall, 26 years old. His record consisted of: (a) at 18, forging a check for $25.00 of clothing, charged, convicted and put on probation; (b) at 21, found having broken into a used clothing store, charged, convicted, and given 1 year in prison; (c) at 26, forging a credit card for $80 of clothing, and caught before exiting the store.

The jury found him guilty in 30 minutes.

I then told the jury they had a second task, as the defendant had been charged as a Habitual Offender; now they had to determine if that were true. Under the law, to be a habitual offender you must: (a) commit a crime and be sentenced; then (b) commit a second crime and be sentenced; and then, (c) commit a third crime and be convicted. Of course, he had done these things; I expected the jury to take 10 seconds.

Instead, 2 hours went by, and the jury sent out a question: “What does it mean to find him habitual? What will be the consequence?” I wrote back that, under Indiana law, I could not answer the question. Another hour dragged by, and they returned with a guilty verdict. I then told them the consequences:

“Not less than 2 nor more than 8 years [my choice] for the forgery charge.” That sentence was non-suspendable as he had a prior felony conviction; how long ago, what type of felony, or the facts of the felony were all irrelevant and immaterial facts. To that sentence, I had to add 30 years of prison time, non-suspendable.”

Their explosive release of anger and dismay could be heard in the hallway. So I invited them to write me with their thoughts, and eleven did so. In unison, they said if that was what justice was about, don’t invite them back, for they would not serve.

But two told an interesting story: After reading my reply, they felt it was their duty to agree upon what it might mean if they were going to convict, and only then to convict! One person said he thought it meant an extra 20- years; the others agreed that was insane and thus impossible. Eventually they decided it would mean that if they convicted, he was guaranteed to get special correctional treatment. And so they convicted him to help him.

As you ponder that case — and that fact that the only financial harm the offender cause was the first $25.00, consider this: What does the average person, victim or juror, want from the system?

My second story is a composite of two of my cases, designed to make a point:

A man was found unconscious, having broken through the front window of a home, with their TV set wrapped in his arms. He was charged with Burglary of a Dwelling, a crime carrying a 6-20, 10-year presumptive sentence which could be modified up or down based on a list of factors of offender and offense, but was non-suspendable because he had been convicted of a felony in another state 12 years earlier.

To be convicted, the State had to prove each of the following “elements” beyond a reasonable doubt: “Breaking into a dwelling of another with intent to commit a felony.”

He was, of course, obviously, guilty, his intent being established by having the TV in his arms — right? And then the Defendant told his story:

I was on my way home, really drunk, and realized I was in danger of falling into the roadway and getting run over. I saw that front porch, with its swing, and thought I would lie down. I remember starting for the porch, and that is my last memory. I never intended anything but to lie down.

If the jury believes that story, then he is acquitted; but we will have used a lot of court time, at a lot of legal expense, over a broken window and TV, for which he will not have to pay. [In the case from which I created this scenario, I was compelled by the mandatory sentencing law to send a man to prison for 2-years for, as I recall, stealing a sofa left on the street for a Good Will pickup. His sentence was mandatory because of a prior felony of theft 10-years earlier. Again, if I recall correctly, he was killed in an attack in prison while under my sentence.]

So let me ask you this: “You are the property owner, what do you want to see?”

A judge in Iceland told me how they handle such things:

The man is taken to the hospital drug/alcohol dependency Unit, and treated for up to 5 days. In the process, he would meet with the property owners, and they would try to make arrangements for restitution, which is almost always successful. End of process; go forth and sin no more.

As I said, my stories are to make points; I think these points are obvious.

Finally, I want to call your attention to Lady Justice. An icon is a pictorial representation in religious art. In Russian Orthodoxy, an icon is often of one of the Saints of the Church, and is considered a reminder to the faithful of a person God redeemed, and through whom God then worked in redeeming some other person or part of creation.

Lady Justice is an icon of our legal system of today; mind you, not an icon of the Law, but of the State-process by which we resolve conflicts which people are unwilling to resolve between themselves. For a pictorial look at Lady Justice, see Representing Justice, by Resnik and Curtis (Sheridan Books for the Yale Law Library Series (2011).

We best know the Lady as holding any two of three things: the most common is a two-edged sword in her right hand, upright or leaning at her side; and either a balance scale or law book in her left hand. She is almost always blindfolded. Such a person, male or female, should be considered dangerous if you pause to think about it, for she will, regardless of her inner desires, cut something apart when the decision of the scales and law is declared; she has no other tool to offer those who come to her asking for hoping for help rather than force to start a blood feud.

I say of myself that as a Judge I spent Monday mornings separating people from society and sending them to prison. Monday afternoons, I separated marriages.  Tuesday through Thursdays, I separated business people in their conflicts. Fridays, I separated juveniles from their families. And all weekend, I cried.

Because of that, I believe that when Solomon called for the sword to divide a baby in half [I Kings 3:5-28], it was not because God told him to do so and not because in his wisdom he knew the true mother would display herself (and thought that he would be able to discern the display if it happened); it was because he had no choice under the law. But, he also knew this: 50% of the people would have thought him wrong regardless of whom he chose, but if he divided the baby, the people might be united, albeit in revulsion of him.

I believe these things because I had to wield the sword of the Law, and I carry a lot of pain for doing it.

There are three more aspects of the icon which I point out without knowing if my connections are valid, but the Scriptural analogy simply appears present:

a) “In judging, you are not to show partiality” [Lev. 19:15], and a blindfold will help you retain impartiality;

b) yet God “judges with an open eye” [Jer. 32:19]; and

c) the two-edged sword is the Word of God [in the Greek, rhema, which stands for the Bible, the words of Jesus, and the prompting of the Holy Spirit], piercing all things for the Purpose of discovering Truth (Heb. 4:12)].

Part IX – Origins: Bridging Towards a Theology of Justice

It is now time to turn to God and His Word, He being the Author and Finisher of all things, including Law. Thus we ought to consider what He offers from His wisdom and understanding of exactly what we really are – we whom He created and knows best.

When one wants to discuss something as fundamental to everyday life as The Law, one should begin with the issue of Origins: “From whence comes Law?”

Both the USSR and the U.S. promulgate their laws through parliaments, have Presidents, Constitutions and a Judiciary; yet the realities of what each produces are as different as day and night. That should make us want to dig deeper.

Law is everywhere: in our homes, work places, community, nation, and nature.  It is written (statutes, rules, regulations, decrees, ordinances, case decisions), and unwritten (traditions, verbal orders, gravity and “the law of the jungle”).

My questions the first day of class to my students in the former USSR were:

What is law?

Where do we find it?

Why do we have it; that is, what do we want from it [Purpose]?

Where does it come from [Source]?

What does it Produce [Consequences]?

For the third, they, like all whom I have ever met, immediately said: “To control behavior”. But as I waited for other thoughts – and there always were others — someone would always say something to the effect of: “To help us with our conflicts”. Please remember that as we proceed.

Jurisprudence: 18th Century: The study of the first principles of the law of nature, the civil law, and the law of nations. [Black’s.]

This definition invites us to study the product of different people at different times and places; i.e., it refers us to the minds of other men and women who have gone before us and the results of their work in the law. However, when we take that path, we find that law is a constantly moving thing; it is not static, but subject to daily influences (whims?) of Police, Judges, Parliaments, Executives, Bureaucrats, cultures, sensitivities, and philosophies.

For example, the totalitarianism of the former USSR did not start with the Bolshevik Revolution in 1917 – it had been at the heart of Russia for 900 years! The Czar became Stalin, the Aristocrat the Bureaucrat, and the Peasant remained the Peasant. Their Law, as a tool of the totalitarian to stay in power, did not change – and remained throughout the entire time span of little use to the people.

Equally so, our system of today sprang out of a time and place, for a Purpose, with a philosophical underpinning. So if we take Jurisprudence and go back to its Latin roots, we find the following:

Juris, adj. [Latin] 1.  Of Law.  2. “Of right.”

Prudence: 1.  The ability to govern or discipline oneself by use of reason.” [Merriam-Webster’s Collegiate Dictionary, 11th Ed., 2004.]

“Jurisprudence, n. (17c) 1.  Originally (in the 18th century), the study of the first principles of the law of nature, the civil law, and the law of nations – also termed jurisprudentia naturalis. 2. More modernly, the study of the general or fundamental elements of a particular legal system, as opposed to its practical and concrete details.  3.  The study of legal systems in general.  4. Judicial precedents considered collectively.  5. In German literature, the whole of legal knowledge.  6.  A system, body, or division of law. 7. CASELAW.

“Jurisprudence addresses the questions about law that an intelligent layperson of speculative bent – not a lawyer – might think particularly interesting.  What is law?  Where does law come from?  Is law an autonomous discipline?  What is the purpose of law?  Is law a science, a humanity, or neither?  A practicing lawyer or judge is apt to think questions of this sort at best irrelevant to what he does; at worst naive, impractical, even childlike (how high is up?).”  Richard A. Posner, The Problems of Jurisprudence 1, 1990. [Black’s.]

Please focus in on “Of Right”; what does that suggest? Or consider the extent to which you have “the ability to govern or discipline yourself by use of reason.” What does that suggest, particularly if we throw in the concept of Sin and our twisted rationality?

I suggest that when we consider Origins, there are only two possibilities: all that there is, starting with the Universe itself, has come about through chance, by blind evolution and survival of the fittest; or, there was, is, and will always be a preexistent and ever-existing Creator, Who created everything there is, with a Purpose and for a Purpose.

During a recent series I watch on the EWTN network, The Heavens Proclaim the Glory of God, I heard the presenter say that the experts in physics have concluded that there is a one in 10 to the 10th power, followed by 10 to the 23rd power, chance that there was no Creator-event. If interested, the programs are now on You Tube.

While in Belarus, I was invited to speak to what I thought was going to be a small group of law students at a new law school in Brest (on the Polish border, a hotbed of anti-Belarusian-Government sentiment in 1998-99). As I was being shown to my hotel room at 1:00 am of the day of the meeting (a former KGB hotel), my host said:

Now, Judge Bontrager, for your plenary speech to open the conference, we would like you to address Human Rights. Have a restful night.

Conference? Plenary speech? Human rights? What is going on? I don’t really “do” human rights; that can get one in trouble in many foreign nations!

Then it dawned on me: it was the second anniversary of the 1996 Belarusian “unconstitutional ‘legal’ revolution”, and it was also International Human Rights Day. Belarus had not changed the name of its KGB, so it still existed, and I could be certain there would be some in attendance.

I was not a happy camper.

But a thought came to my mind, and I went to sleep — to wake up with my mind having put together the following short presentation.

I have been asked to address Human Rights, but I have a problem.

You come from a history of dialectic, atheistic, materialistic Marxism, in which all is the product of evolution – that is, we have all evolved out of some mud hole over billions of years – and we are all in the process of evolving towards the day of the Great Proletariat Rule.

If evolution is TRUTH, then to speak about Human Rights seems arrogant and futile to me. Sooner or later, something bigger or stronger, or with a better weapon, will come along and pen us up like we pen up sheep to butcher and eat. They will take our teeth for the gold in them, our hair to make pillows and lampshades, and our glasses and then destroy us in a gas chamber – as did Hitler. And we will have no right to complain because we recognize no outside source of Truth.

Yet the mere fact that you ask me to discuss this subject means that, down deep, you think there is, in Truth, a way to distinguish Hitler from Mother Theresa. Therefore, I posit to you that Human Rights has meaning if, and only if, there is a Creator: a Creator with a Purpose for all that He created – including each one of you. If my proposition is Truth, then it is not you rights which you should focus on, but rather two questions:

What are my responsibilities to Him Who created me, and how can I find and wrestle with those responsibilities?

How then should I live in whatever circumstances I find myself at any moment?

In short, either there is a Source of Law Who Is, within Himself, True Law in its Fullness and Who has disclosed Truth to us, or there are no rules for the ball game of life.

More importantly, absent Truth, there can be no Justice, only the making of comparisons, seeking after Fairness.

But if there is Truth, you can find Justice when in Conflict by coming to know and practice the Creator’s ways for dealing with the Conflict; i.e., by “doing Justice” so you may receive “Justice from Him”.

Questions?

And boy did they have them!

 

Part X – Setting the Stage

I now want to explore some more definitions, and then some aspects of the nature of God.

Criminal law. (18c) The body of law defining offenses against the community at large, regulating how suspects are investigated, charged, and tried, and establishing punishments for convicted offenders. [Black’s.]

“The criminal law represents the pathology [“(from the Ancient Greek roots of pathos, meaning “experience” or “suffering“, and logia, “an account of”) is a significant component of the causal study of disease; Wikipedia] of civilization.” Morris R. Cohen, Reason and Law 70 (1961).

Have you ever thought of a Criminal Justice System as being a “suffering” resulting from civilization, i.e., a necessary but inherently evil thing? WOW!

Crime. (14c) An act that the law makes punishable; the breach of a legal duty treated as the subject matter of a criminal proceeding [which breach may also be treated as a Civil matter in Tort Law].

“Understanding that the conception of Crime, as distinguished from that of Wrong or Tort, and from that of Sin, involves the idea of injury to the State or collective community, we first find that the commonwealth, in literal conformity with the conception, itself interposed directly, and by isolated acts, to avenge itself on the author of the evil which it had suffered.” Henry S. Maine, Ancient Law, 320 (17th Ed. 1901). [Black’s.]

There is no room in this definition for an individual victim to be at the table of a conflict between a Criminal and a “State-Victim”.

Criminal justice. (16c) 1. The methods by which a society deals with those who are accused of having committed crimes. 2. The field of study pursued by those seeking to enter law enforcement as a profession.

Criminal-justice system. (1929) The collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded. * The system typically has three components: law enforcement (police, sheriffs, marshals), the judicial process (judges, prosecutors, defense lawyers), and corrections (prison officials, probation officers, and parole officers). [Black’s.]

These last two are essentially two ways of saying the same thing: the product of the system is “Justice”, regardless as how perceived by victim, offender, or community.

Justice (17c) 1.  The fair and proper administration of laws.  2. A judge, esp. of an appellate court or a court of last resort.  3. Hist. Judicial cognizance of causes or offenses; jurisdiction. [All this includes the following 11 expanded definitions:

Condign justice: An outcome according to what the litigants deserve; esp., justice on the kind and degree of punishment that is appropriate for a given offense.

Distributive justice (16c): Justice owed by a community to its members, including the fair allocation of common advantage and sharing of common burdens.

Jedburgh justice: A brand of justice involving punishment (esp. execution) first and trial afterwards.  The terms alludes to Jedburgh, a Scottish border town where in the 17th Century raiders were said to have been hanged without the formality of a trial.  Jedburgh justice differs from lynch law in that the former was administered by an established (albeit after the fact).

Natural justice (>1837): Justice as defined in a moral, as opposed to a legal, sense. “… the expression is confined to something glaringly defective in the procedural rules of the foreign law … that the defendant has not been deprived of his opportunity to present his side of the case.”“ G.C. Cheshire, Private International Law 675 (6th ed. 1961).

Popular justice (17c): Demotic [ordinary colloquial speech] justice, which is usu. considered less than fully fair and proper even though it satisfies prevailing public opinion in a particular case. Cf. social justice.

Positive justice (17c): Justice as it is conceived, recognized, and incompletely expressed by the civil law and some other form of human law.

Preventative justice: Justice intended to protect against probable future misbehavior – appointing a receiver or administrator, issuing a restraining order or injunction, and binding over to keep the peace.

Social justice (1902): 1.  Justice that conforms to a moral principle, such as that all people are equal.  2.  One or more equitable resolutions sought on behalf of individuals and communities who are disenfranchised, underrepresented, or otherwise excluded from meaningful participation in legal, economic, cultural, and social structures, with the ultimate goal of removing barriers to participation and effectuating social change.

Substantial justice (17c): Justice fairly administered according to the rules of substantive law, regardless of any procedural errors not affecting the litigant’s substantive rights; a fair trial on the merits.

Vindictive Justice:  Article 1, Section 18. Indiana Constitution: The penal code shall be founded on the principles of reformation, and not of vindictive justice. [I cannot even begin to define this, but its impact is visceral.]

 

Commutative justice (1856): Justice concerned with the relationships between persons and esp. with fairness in the exchange of goods and the fulfillment of contractual obligations.

Personal justice (16c): Justice between parties to a dispute, regardless of any larger principles that might be involved. [Black’s.]

Please notice that the first thirteen terms are written from the vantage point of one looking at a case from the outside, and determining that what took place was just [(14c) Legally right; lawful; equitable. Black’s]. Each presumes justice can be defined with specificity by referring to a process. Therefore, because we label the process as justice, we declare its product to be just — and that is circuitous reasoning.

But these definitions point out a great problem: If I walk away from a court screaming “unjust, unjust”, it will not matter that the rest of the onlookers cry “justice was done, justice was done”, for I will have imprisoned myself in anger and bitterness, although I walk free on the street.

I finish writing this having been personally such a situation for over 6 years; another story for another time. Yet I have learned how to forsake the anger and bitterness and be at peace in the maelstrom — not always, but for much of the time.

But the last two definitions give an appearance that parties themselves can define something as just, and thus should be provided a process which helps them accomplish their goal. And so we look at one more definition:

restorative justice. [Hereafter, “RJ”]  An alternative delinquency sanction focused on repairing the harm done, meeting the victim’s needs, and holing the offender responsible for his or her actions. Restorative-justice sanctions use a balanced approach, producing the least restrictive disposition while stressing the offender’s accountability and providing relief to the victim. The offender may be ordered to make restitution, to perform community service, or to make amends in some way that the court orders. [Black’s.]

I wonder why this was not found, or even cross-referenced, under justice, in Black’s?  Instead, one had to know the term and look for it under restorative. Strange.

Although no date for the term is indicated, it seems to have first appeared in 1955 from Christian thinkers.

I also wonder why, if it is considered a “good thing”, it is limited to juveniles as shown by the use of “delinquency”?

Finally, I want to make an observation which should be obvious, and which must be born in mind when attempting to engage in Restorative Justice:

As an outsider to a conflict, I cannot tell a participant in a conflict that what they did or received through the restorative process was just, yet both giving and receiving justice are components of the Restorative Justice process!

Part XI – Revising Our Image of God

I now want to make some declarative statement about things which I know about the linguistics of the Scriptures which can impede our understanding of God’s thoughts related to what we call Justice.

A.  The Ten Commandments [Ex. 20:1-17] are not a Criminal Code of Crime and Punishment; in fact, the word commandment is not found in the body of the passage.

B.  This lack of commend is, I suggest, confirmed in the opening sentence:

I am the Lord your God Who has brought you out of the land of Egypt, out the house of bondage.

Fleshing out that Preamble, what God seems to be saying is:

I brought you out of bondage, not because of who or what you are, not because of your worthiness, but because of My promise to your ancestors, and My love.  Would you like to know how to behave towards One Who has loved you that much, and in spite of what you have done?

The Hebrew word translated as commandment (miswah) “is synonymous with hoq (statute) and torah (law); thus it may be considered Law [Vine’s]”. However, another word, tsav, sometimes translated as commandment, is also translated as precept:

Isaiah 28:10: For it is [His prophets repeating over and over]: precept upon precept, precept upon precept, rule upon rule, rule upon rule; here a little, there a little.

Precept is “a general rule intended to regulate behavior or thought” [Google dictionary].

I posit that the 10 Commandments are not in the nature of a criminal code, i.e., “do this and suffer this”. They seems far more like instruction, precepts for people to govern themselves, people who have been “in bondage in the world too long”. It tells them how to live and walk free from all that which the fallen world and its fallen inhabitants can throw at them.

Part of my belief stems from the fact that torah’s primary meaning, according to Vine’s, is direction; instruction, not law; more on that in a moment.

C.  God clearly distinguishes between a sentence of punishment and the pronouncement of consequences. We see this in Gen. 3:14:

And the Lord God said to the serpent, Because you have done this [enticed Eve and Adam to sin], you are cursed above all [domestic] animals and above every [wild] living things of the field; upon your belly you shall go, and you shall eat dust [and what it contains] all the days of your life.

“You are cursed” is certainly a statement of conviction for a wrong done, and of a sentence imposed of having to go upon your belly eating dust in the future.

God acted directly against Satan and imposed a punishment against him. But it is, after all, directed at Satan, the great deceiver and liar from the beginning, and we must be wary of making this our justification for turning God’s Instructions into a punishment-based legal system bent on deterring conduct by people with free will.

In contrast, in Gen. 3:16-19, God does not curse Adam and Eve but announces to them the effects (consequences) of their acts on themselves, and on Planet Earth:

… The ground is under a curse because of [what] you [have done].

Most importantly, there is no hint of General Deterrence in either of these passages.

 

Part XII – God’s Purposes, Methods, and Consequences:

I know that God’s Purpose for His Instructions and His Method of dealing with harms people cause one another, is that people might follow His Method to find peace, justice, and freedom in life; i.e., that they might practice His ways when in conflict and be reconciled to Him, and to one another. To accomplish that, He asks us to deal with our conflicts face-to-face, with help of others as necessary. Therefore:

a) His Purpose is for something other than deterrence.

b) His Method when practiced results in [produces a consequence of] a greater sense of Justice being alive, and an ability to be at peace in a fallen world, and

c) we would be wise to at least consider, at a minimum, the value of His precepts and if they can and should be implemented into our existing systems.

To do this we must reconsider some other Biblical linguistics, just like I earlier invited you to consideration fear as meaning, standing in awe of.

We have already seen that: Justice comes from God, not man [Prov. 29:26], and God wants us to do Justice [Micah 6:8]. We have seen that Lady Justice’s tools are only the black letter of the law, and a sword. We have seen that God’s torah is primarily instruction to people deaf and blind to their sin, and thus given as an act of Grace, so we might chose to confess, repent, and be restored to fellowship with Him and others.

With those thoughts in mind, let us then reconsider some other Scriptures.

The first place we look which holds God’s first command, is:

Gen 1:27-28:  So God created man in His own image; in the image and likeness of God He created him; male and female He created them.  And God blessed them, and said to them, Be fruitful, multiply, and fill the earth and subdue it [using all its vast resources in the service of God and Man]; and have dominion over the fish of the sea, the birds of the air, and over every living creature that moves upon the earth.

It seems axiomatic that if God gave this planet to us for our good, we would want to, as rational creatures, knowing the difference between right and wrong, take care of it carefully for our own preservation, and for the preservation of our offspring.

There is, of course, a great debate on this very subject taking place world-wide.  But, note that there is no punishment or consequence attached to the command; just a statement of responsibility to the Creator, Who is no longer recognized in this era as significant to preservation, health, peace, or justice.

The second place we look is at Gen. 2:15-17:

Then the Lord God took the man and put him in the Garden of Eden to tend and keep it.  And the Lord God commanded the man, saying, You may freely eat of every tree of the garden; but of the tree of the knowledge of good and evil and blessings and calamity you shall not eat, for in the day that you eat of it you shall surely die.

Here there is a clear and distinct command not to eat from one tree.

But what is “you shall surely die”? How would Adam have any concept of what death is at that point in history? Is this a punishment God imposes, or a prophetic statement of consequence – a “loss of a preferred state of being”?

This seems much like a parent saying to a child: “don’t touch that hot stove; you will be burned”, a precept in the form of an educational statement of consequence for not paying attention, made to a child who has no idea what burned means; it is not saying, “if you touch that stove I will burn your hand”.

But Adam and Eve ate, and we have a third place to look: Gen. 3:1-24

Now the serpent was more subtle and crafty than any living creature of the field which the Lord God had made. And he [Satan] said to the woman, Can it really be that God has said, You shall not eat from every tree of the garden? [Rev. 12:9-11.]  And the woman said to the serpent, We may eat the fruit from the trees of the garden except the fruit from the tree which is in the middle of the garden. God has said, You shall not eat of it, neither shall you touch it, lest you die. But the serpent said to the woman, You shall not surely die. [II Cor. 11:3.] For God knows that in the day you eat of it your eyes will be opened, and you will be like God, knowing the difference between good and evil and blessing and calamity.

And when the woman saw that the tree was good (suitable and pleasant) for food, that it was delightful to look at, and a tree to be desired ion order to make one wise, she took of its fruit and ate, and she gave some also to her husband, and he ate. Then the eyes of them both were opened, and they knew that they were naked; and they sewed fig leaves together and made themselves apron-like girdles.

And they heard the sound of the Lord God walking in the garden in the cool of the day, and Adam and his wife hid themselves from the presence of the Lord God among the trees of the garden.

But the Lord God called to Adam and said to him, Where are you? He said, I heard the sound of You [walking] in the garden, and I was afraid because I was naked; and I hid myself. And He said, Who told you that you were naked? Have you eaten from the tree of which I commanded you that you should not eat? And the man said, The woman whom You gave to be with me, she gave me [fruit] from the tree, and I ate. And the Lord God said to the woman, What is this you have done? And the woman said, The serpent beguiled (cheated, outwitted and deceived) me, and I ate.

And the Lord God said to the serpent: Because you have done this, You are cursed above all [domestic] animals, and above every [wild] living thing of the field; upon your belly you shall go, And you shall eat dust [and what it contains] all the days of your life. And I will put enmity between you and the woman, And between your offspring and her Offspring; He will bruise and tread your head underfoot, and you will lie in wait and bruise His heel.

To the woman He said: I will greatly multiply your grief and your suffering in pregnancy and the pangs of childbearing; with spasms of distress you will bring forth children. Yet your desire and craving will be for your husband, and he will rule over you.

And to Adam He said, Because you have listened and given heed to the voice of your wife, and have eaten of the tree of which I commanded you, saying, You shall not eat of it, the ground is under a curse because of you; in sorrow and toil shall you eat [of it fruits] of it all the days of your life. Thorns also and thistles shall it bring forth for you, and you shall eat the plants of the field. In the sweat of your face shall you eat bread until you return to the ground, for out of it you were taken; for dust you are, and to dust you shall return.

The man called his wife’s name Eve [life spring], because she was the mother of all the living. For Adam also and his wife the Lord God made long coats (tunics) of skin, and clothed them.

And the Lord God said, Behold, the man has become like one of Us [the Father, Son and Holy Spirit], to know [how to distinguish between] good and evil and blessing and calamity; and now, lest he put forth his hand and take also of the tree of life, and eat, and live forever – therefore the Lord God sent him forth from the garden of Eden to till the ground from which he was taken.  So [God] drove out the man; and He placed at the east of the Garden of Eden the cherubim, and a flaming sword which turned every way, to keep and guard the way to the tree of life. [Rev. 2:7; 22:2, 14, 19.]

Do you recall how you felt having realized you just stepped in the do-do, or the flashing lights of the state trooper have just filled your rear window along with the screaming siren? Did you feel “dead”? Did Adam and Eve, after eating the fruit feel within themselves that each had “suffered a death of something essential to their very essence”?

They certainly felt ashamed, for they made clothes for themselves, and then ran away and tried to hide in the bushes.

Christians accept the proposition that when Adam and Eve ate of the fruit of the tree of the knowledge of good and evil, they died spiritually, but not physically, and they became subject to physical death which might otherwise never have been.

For each of us, it is always spiritually that we must first recover from stepping in the do-do.

Please notice that they knew something so horrible had taken place that they:

a) tried to cover themselves,

b) tried to hide from God, and

c) began to play the “blame game” when called out.

Theologically they died because in God, and in Him only, is there True Life, and by violating His command, they separated themselves from Him, and lost that aspect of life.

God’s Purpose for His creation was True Life in Him.

Praise God that His purpose was not forever fractured, for He knew it could be healed, and had a Plan for that healing.

Thus, I suggest that what we see in this passage is God foretelling consequence of disobedience, and not a punishment meted out in an effort to deter future actions by others.

God knew their future actions, and knew they would sin anew, so deterrence does not seem involved in the proclamation.

Adam and Eve still had their life, but had already lost the abundance of peace, joy, contentment, etc, and were hiding in the bushes. All would now be different as a consequence of their chosen behavior – not as punishment imposed by the State upon them to deter them from evil. They, and we, would have to live, emotionally and physically with that consequence, and choose how to react to it.

What they needed was to know that there was a way back to relationship with God.

Another consequence was that Adam and Eve were instantly separated from one another. When confronted by God, Eve blamed the serpent which had “beguiled me” while Adam blamed Eve and God: Gen 3:12: “The woman whom You gave to be with me, she gave me of the tree, and I ate.”

Jewish scholars say the best interpretation of Gen. 3:1-7 is that Adam was there while the serpent was beguiling Eve. Thus I ask: “Adam, you were given power over all of creation. Why did you not rebuke the serpent and send him away? How dare you blame Eve for your lack of faith.” [Thanks to my friend Tim Arensmeier for a visual demonstration of this insight over 25 years ago.]

Finally, and most importantly for our purposes, the serpent and the ground (planet Earth) became “cursed”: “Because you [Satan] have done this, cursed [a verb] are you …”; “the ground is under a curse because of you [Adam and Eve].”

As to the Serpent, the Hebrew word for “you have done” is asah. The Hebrew word for “cursed” is arar, and means “to execrate”, “to express great loathing for”.  So, because of what the serpent did, God “execrated” him; i.e., punished him, but not with any thought of deterring him from his forever rebellion.

But God did not curse Adam and Eve, or the ground. The Hebrew word for “because of you” is ba ‘buwrekaa, “on account of you”. Here God states that the action of Adam and Eve would produce a consequence, converting what had been set before them as a “good work” (gathering, eating and tending the fruit and produce of the garden God had planted) into the labor (drudgery) of gardening.

My father, who grew up in Iowa in a farm family, loved having a garden, and he found two of his three sons enjoying that activity as well. As for me, it was a cursed toil.

If we think of this scene through a lens of crime and punishment, what do we have? As to Satan/Serpent, we have a punishment of the Evil One for his evil act. We know Satan is a deceiver from the beginning, and for his evil and rebellion against God he will experience the lake of fire. Instead of “cursed”, God might have as readily used “condemned to death are you,” with final imposition of the sentence deferred to a future date.

As to planet earth, we have a prophetic statement of consequences which were to flow from the disobedience of Adam and Eve, not from evil. To read this as Crime and Punishment rather than consequence is improper. Suffering consequences for an action is not the same as punishment for that action; consequence carries with it its own “instruction”, and opportunity to learn from the act and choose not to repeat the act — provided that we do not harden our hearts to the instruction. There remains a hope for the future, instead of a hopeless paralysis produced by condemnation. [Rom. 8:1.]

Our system of punishment is designed on the presumption that by imposition of it by man, you can be forced to choose future obedience. But you can just as readily choose to apply a “cost/benefits” analysis in light of the many acts you do and get away with. Or you can choose to intoxicate yourself with alcohol, drugs, anger and bitterness, and simply “not give a damn”.

We do not necessarily learn from being brought before a system.

Free choice is an essential part of the makeup of God, and the Image of God in which man was made. God made man for relationship with Him and with other man, but it was to be a relationship by choice, out of love and worship, and not of coercion.  The lake of fire is a tangible consequence for one who rejects God and relationship with Him as their Sovereign, for it is living without His Light and Sustenance. Hell is not a punishment meted out for doing wrong; were that true then we will all go there.  Instead, it is a place we knowingly create and sentence ourselves to — in this life and the next — by rejecting Him Who created us.

Praise God that it is possible for us to free ourselves from that prison because of His Grace in Christ Jesus.

Finally, if God’s statements as to the future were punitive, then why in the world did he kill an innocent animal, skin it, make clothes for people who had already made their own clothes, and then send them free to walk about the world?

You see, they, by their own hands, had made clothing for themselves that they knew was insufficient; that is why they hid in the bushes.

As a Christian, I know the works of my hands are nothing but filthy rags and that Christ is my Robe-of- Righteousness, without which I cannot come into the presence of God.

I therefore conclude that God did not punish Adam and Eve. Instead, He met their deepest of needs: a covering acceptable to Him.

He offered them restoration to relationship if they would stop blaming one another, and Him, and seek renewed relationship with Him.

And He expelled them from the Garden lest they eat of the Tree of Life and live forever in their fallen state without the possibility of redemption.

The fourth place we can look is Gen. 4:2-16:

… Now Abel was a keeper of sheep, but Cain was a tiller of the ground.

And in the course of time, Cain brought to the Lord an offering of fruit from the ground.

And Abel brought of the firstborn of his flock and of the fat portions.

And the Lord has respect and regard for Abel and his offering, but for Cain and his offering He had no respect or regard.

So Cain was exceedingly angry and indignant, and he looked sad and depressed.

And the Lord said to Cain, Why are you angry? And why do you look sad and depressed and dejected?  If you do well, will you not be accepted? And if you do not do well, sin crouches at your door; its desire is for you, but you must master it.

***

And [the Lord] said, What have you [Cain] done? The voice of your brother’s blood is crying out to Me from the ground. And now you are cursed by reason of the earth, which has opened its mouth to receive your brother’s [shed] blood from your hand. When you till the ground, it shall no longer yield to you its strength; you shall be a fugitive and a vagabond you shall be on the earth [in perpetual exile, a degraded outcast].

Then Cain said to the Lord, My punishment is greater than I can bear!  Behold, You have driven me out this day from the face of the land, and from Your face I will be hidden; and I will be a fugitive and a vagabond and a wanderer on the earth, whoever finds me will kill me.

And the Lord said to him, “Therefore, if anyone kills Cain, vengeance shall be taken on him sevenfold.” And the Lord set a mark or sign upon Cain, lest anyone finding him should kill him.

The first part of the passage requires careful attention.

We do not find a prior reference to sacrifices in the Bible. One might assume that Adam and Eve sacrificed to God in thanksgiving for their life, and His presence, but we don’t see it referred to. In fact, Cain is the first named one to bring a sacrifice – albeit one from the “fruit of the ground.”

Because of a later focus in the Bible “on the blood”, many Christians believe that Cain sinned by bringing fruit of the ground. But no instruction on sacrifices had been given, although God had demonstrated a blood sacrifice in the killing of the blameless animal. Yet the Old Testament later clearly provided for a sacrifice from the fruit of the ground for the poorest of the poor [Leviticus 5:11-13].

Indeed, God’s conversation with Cain makes it clear that the problem was not with the type of the sacrifice – blood versus grain – but with the attitude of Cain as he brought the sacrifice, and again when it was rejected. God’s acknowledgment of Cain’s attitude in presenting the offering is inherent in the rejection of the offering.

Did Cain bring it begrudgingly rather than joyfully? Did he bring it silently cursing God, and/or his parents for making production of crops such a hard thing? Did he bring it in jealousy of the fact that he was working his fingers to the bone in a now hostile soil while his brother lazed around and watch the sheep much the grass?  Yet God did not just chastise Cain, but willingly gave Cain instructions valuable for his future life.

Cain, however, rejected the instruction, did not fight against the sin slowly consuming him inwardly, and killed his brother.

He then got another visit from God – not an instantaneous burning to the crisp I would have meted out for First Degree Murder. Did he kill Able presumptuously, relying on God to spare him as He spared his parents? The sin of presumption against God is a big thing in the Scriptures.

God then says Cain is “cursed by reason of the earth [consequence] which has opened its mouth to receive your brother’s [shed] blood from your hand”, and he will no longer receive the “strength of the ground”. In addition, Cain would be a fugitive and vagabond, a degraded outcast.

Once again, we must ask: Is God telling Planet Earth not to give to Cain the fruit of his labors, or is God saying that something has happened to Cain inwardly that will lead him to choose to gain nothing from farming except bitterness?

I hate farming, and all my father did to interest me in it only made me hate it more. Was there such a course-of-conduct with Cain?

Also, note that God did not say to Cain: “I decree that you shall wander the earth”; He merely said Cain would wander. Are we reading punishment, or prediction?

Then Cain cried out for relief, and God willingly gave it!

Does that not obviate any and all aspects of punishment that might otherwise be read into the passage?

But why did God do this? Was it an act of grace for Cain – or grace for the siblings of Cain that they might be spared the agony of the blood feud, forever hunting Cain and his progeny to eradicate them from the earth?

Heb 12:14-16: Strive to live at peace with everybody and pursue that consecration and holiness without which no one will [ever] see the Lord.  Exercise foresight and be on the watch to look [after one another], to see that no one falls back from and fails to secure God’s grace (His unmerited favor and spiritual blessing), in order that no root of resentment (rancor, bitterness, or hatred) shoots forth and causes trouble and bitter torment, and the many become contaminated and defiled by it.

In Christian theology, we have a choice when we sin: run from God and others, or come out of the bushes to God in confession and repentance, be restored to Him, and seek after restoration with those whom we have hurt.

Cain never sought either; he only whined not to be killed by others as he had just killed his brother. Even so, God gave Cain grace — for the moment, but not for eternity.

But why did Adam and Eve come out of the bushes and Cain did not?

I suggest it was because they paused and reflected on the fact that they had never received anything from God but goodness, and chose to trust in that goodness. The fact that they came out playing the blame game — i.e., the then state of their hearts was immaterial to God; only the fact that they came out was material.

The next place we look is in Gen. 9:1-7:

And God pronounced a blessing upon Noah and his sons and said to them: Be fruitful and multiply, and fill the earth. And the fear of you and the dread and terror of you shall be upon every beast of the land, every bird of the air, all that creeps upon the earth, and upon all the fish of the sea. They are delivered into your hand.  Every moving thing that lives shall be food for you, and as I gave you the green vegetables and plants, I give you everything. But you shall not eat flesh with the life of it, which is its blood. Any you surely for your lifeblood I will require an accounting; from every beast I will require it, and from man, from every man [who spills another’s lifeblood] I will require a reckoning.  Whoever sheds man’s blood, by man shall his blood be shed; for in the image of God He made man. And you, be fruitful and multiply; bring forth abundantly on the earth and multiply on it.

First, to the extent that one wants to think that God actively cursed planet earth and all on it in Genesis 3, here he certainly removes the curse, and bestows a blessing in its place.

This was, if you will — and except for the presence of sin in Noah and his family members — a “time of a new beginning for planet Earth and its inhabitants”.

Now the passage clearly says: “I will require a reckoning [for taking the life of another]” – i.e., a consequence. “Whoever sheds man’s blood, by man his blood shall be shed, for in the image of God He made man”.

This is a clear authority granted man to take the life of another via a death penalty. But certainly it is not mandatory, for God later, as we shall see, tells the people to establish Cities of Refuge, and allows alternatives to the death penalty in the form of Ransom and Banishment.

The next place we look was a long time later: Exodus 20:1-21:

Then God spoke all these words:

I am the Lord your God, who brought you out of the land of Egypt, out of the house of bondage.

You shall have no other gods before Me.

You shall not make yourself a carved image [to worship it] or any likeness of anything that is in heavens above, or that is in the earth beneath, or that is in the water under the earth; you shall not bow down yourself to them or serve them; for I the Lord your God, am a jealous God, visiting the iniquity of the fathers upon the children to the third and fourth generations of those who hate Me, but showing mercy and steadfast love to a thousand generations of those who love Me and keep My commandments.

You shall not use or repeat the name of the Lord your God in vain, for the Lord will not hold him guiltless who takes His name in vain [that is, lightly or frivolously, in false affirmations or profanely]; for the Lord will not hold him guiltless who takes His name in vain.

[Earnestly] remember the Sabbath day, to keep it holy (withdrawn from common employment and dedicated to God). Six days you shall labor and do all your work, but the seventh day is the Sabbath to the Lord your God. In it you shall not do any work: you, or your son, your daughter, your manservant, your maidservant, your domestic animals, or the sojourner within your gates. For in six days the Lord made the heavens and the earth, the sea, and all that is in them, and rested the seventh day. That is why the Lord blessed the Sabbath day and hallowed it [set it aside for His purposes].

Regard (treat with honor, due obedience, and courtesy) your father and your mother, that your days may be long in the Lord your God gives you.

You shall not commit murder.

You shall not commit adultery.

You shall not steal.

You shall not witness falsely against your neighbor.

You shall not covet your neighbor’s house, your neighbor’s wife, or his manservant, or his maidservant, or his ox, or his donkey, or anything that is your neighbor’s.

And then look at what took place:

Now all the people perceived the thunderings and the lightnings and the noise of the trumpet, and the smoking mountain; and as [they] looked they trembled with fear and fell back and stood afar off. And they said to Moses, You speak to us, and we will listen; but let not God speak to us, lest we die.  And Moses said to the people, Fear not, for God has come to prove you, so that the [reverential] fear of Him may be before you, that you may not sin. And the people stood afar off, but Moses drew near to the thick darkness where God was.

The people had gathered at the foot of the mountain at the command of God: “Behold, I come to you [Moses] in a thick cloud, that the people may hear when I speak with you, and believe you and remain steadfast forever.” [Ex. 19:9.]

They had just had over 90 days of witnessing unbelievable things done at the hand of the One Who had freed them, saved them, and nourished them.

So, why, that is for what Purpose did God give them His Instructions? And were these Instructions in the nature of crime and punishment, or mere instructions on how to live?

Although some of the Instructions are directed at the individual, and some at a The People Israel as a Society, is there any difference in their two natures, that is, some difference of a punitive nature?

God started with a Preamble: “I am the LORD your God, who has brought you out of the land of Egypt, out of the house of bondage.” [Ex. 20:1.] We need to consider what He was saying to them before speaking His Instructions.

These people had just finished hundreds of years living in the most powerful and wealthy nation on earth, but a heathen place full of heathen gods. For many years, they had things very good. Then “a new king arose over Egypt who did not know Joseph” [Ex. 1:8], and they found themselves in captivity.

But once freed, and during those 90 days, they incessantly whined, making me think that their life in slavery had not been that bad, for they were prone to say:

Would that we had died by the hand of the Lord in the land of Egypt, when we sat by the fleshpots and ate bread to the fill; for you have brought us out into this wilderness to kill this whole assembly with hunger. [Ex. 16:3.]

They were like Cain – discontent with reality, while expectant of being protected from reality by God as something like a “right” for being “His Chosen People.”

Another thing appears certain: they no longer knew (understood) their God in any meaningful way, and had picked up some very bad habits. So allow me to expand God’s statement, mindful of the admonition in Scripture to not “add to or delete from” his Word:

I am the LORD your God, who brought you out of the land of Egypt, out of the house of slavery, because I had such a great a love for you.

I freed you, protected you, and nourished you (as He does us).

I did this in grace and mercy and not because of something you had done (and it is the same for us).

I know your minds are darkened from your years in the luxury of Egypt (from being in the World), and you no longer know TRUTH (and it is the same for us).

I know your hearts are deceptively wicked from the impact of sin and your emotions can lead you astray (and it is the same for us).

Would you like to know how to love One who so loved you?  (Amen!)

Would you like to know how to truly live, to have life abundant? (Amen!)

Here are some things for you to practice that you might have Life.

Praise God for His gracious gift of His instructions for living.

 

By thinking this way, the Commandments become teachings about how to live.  If you practice the principles given, no person, no thing and no situation can take peace from you; they may take your possessions of even your life, but not your peace.

Ergo, if you choose not to follow the teachings, you will have no peace, and you will spend your life dealing with consequences.

Think again of the peace Shadrach, Meshack and Abednego had in Daniel 3.  Note that they did not demand a jury trial, a lawyer, a right to remain silent or their religious freedoms. They did not spit invectives seeking to degrade and demean the King in front of his people. They did not complain of a violation of due process by the King listening to gossip and condemning them without an evidentiary trial.

Why did they not do these things?

I suggest it was because they chose, while facing certain death, to put their hopes and expectations nowhere except in God – and they could do this because they were, at the time, “acting righteously before God and man”, and therefore not in bondage to self-protection, anger, bitterness, fear, etc.

You have to work hard to find a punitive God in the 10 Commandments. Even the “visiting the iniquity of the fathers upon the sons” is later clarified:

Ezek 18:2-29:  What do you mean by using this proverb concerning the land of Israel, The fathers have eaten sour grapes, and the children’s teeth are set on edge?  As I live, says the Lord God, you shall not have occasion any more to use this proverb in Israel.  Behold, all souls are Mine; as the soul of the father so also the soul of the son is Mine; the soul that sins, it shall die.  But if a man [uncompromisingly] righteous (uptight and in right standing with God) and does what is lawful and right, and has not eaten [at the idol shrines] upon the mountains, nor lifted up his eyes to the idols of the house of Israel, has not defiled his neighbor’s wife, nor come near a woman time of impurity, and has not wronged anyone but has restored to the debtor his pledge, has taken nothing by robbery but has given his bread to the hungry and covered the naked with a garment, who does not charge interest or percentage of increase on what he lends [in compassion], who executes true justice between man and man, who has walked in My statutes and kept My ordinances to deal faithfully, [then] he is [truly] righteous; He shall surely live, says the Lord God.

If he begets a son who is a robber or a shedder of blood, who does to a brother either of these sins of violence, and leaves undone all of the duties [of a righteous man], and has even eaten [the food set before idols] on the mountains and defiled his neighbor’s wife, has wronged the poor and needy, has taken by robbery, has not restored [to the debtor] his pledge, has lifted up his eyes to the idols, has committed abomination (things hateful and exceedingly vile in the eyes of God), and has charged interest or percentage on what he has loaned [in supposed compassion]; shall he then live?  He shall not live!  He has done all these abominations; he shall surely die; his blood shall be upon him.

[Followed by more generational shifts.]

25. Yet you say, ‘The way of the Lord is not fair and just. Hear now, O house of Israel: Is not My way fair and just? Are not your ways unfair and unjust?

When a righteous man turns away from his righteousness, commits iniquity, and dies in his sins, for his iniquity which he has committed that he has done he shall surely die. Again, when the wicked man turns away from the wickedness which he committed, and does that which is lawful and right, he shall save his life. Because he considers and turns away from all his transgressions which he committed, he shall surely live; he shall not die. Yet says the house of Israel: The way of the Lord is not fair and just.

O house of Israel, are not My ways fair and just? Are not your ways unfair and unjust?

Let me ask you: Should not our systems, when ever reasonably possible, at least try to respond to the inner thing which may be taking place within the one charged with, or previously convicted of a harm, rather than to the simple outward act causing a harm?

We will return to this question when we look at possible modifications to our systems.

Again, I do not see punishment as present in the reference to honoring parents; rather, a consequence is described for not following the teaching. I am not trying to be dogmatic or argumentative here; rather I am trying to get the reader to at least consider thinking differently about the Purpose of God for His Instructions.

God’s first Purpose is, in my opinion, very clear: Instruction to people who are deaf and blind and deceptively wicked of heart – sinners by nature as well as by actions — living in a fallen world among other people of sinful nature. They are given so that we might know how to turn away from the types of entanglements listed in the Ten Instructions which can rob us of peace.

God’s second key Purpose is, in my opinion, found in Rom 3:19-20:

 

Now we know that whatever the law says, it speaks to those who are under the law, so that [the murmurs and excuses of] every mouth may be hushed and all the world may be held accountable to God. For no person will be justified (made righteous, acquitted, and judged acceptable) in His sight by observing the works prescribed by the Law. For [the real function of] the law is to make men recognize and be conscious of sin [not mere perception but an acquaintance with sin which works toward repentance, faith, and holy character].

If, as the Bible teaches, we are fallen (sinful) people, how shall we ever know Truth?

Yes, I believe Truth exists; it may not be easy to agree upon, but God is Truth, and His Truth has been and is being displayed to man so man might seek after Him and enjoy Life and that Abundant through Him.

Thus, it there is Truth in what I posit, then God’s giving of His instruction was an act of Great Grace. I tell my students that God’s Law is like a ploynik’s otbec (carpenter’s plumb line): it allows us to see when we are not “plumb” – when and where we have fallen short of His Glory.

For such moments, God instructs us rather than threatens punishment. This is because He has given us a way of reconciliation, of coming back to Him and those we have hurt — and He wants to encourage us to walk it.

That Way is by Confession and Forgiveness. He wants us to walk His path. It is why He could promise: “Therefore, [there is] now no condemnation (no adjudging guilty of wrong [i.e., of a wrong essential nature, of being a “criminal”; Author]) for those who are in Christ Jesus, who live [and] walk not after the dictates of the flesh, but after the dictates of the Spirit.[Romans 8:1.]

There is a very significant difference between conviction and condemnation.

Condemnation paralyzes and leaves one hopeless and helpless.

I once spent over two weeks in a coma, with a mind very active with scene after scene which were to end in my being euthanized (the word which was in my mind). But I did not know I was physically paralyzed from the neck down; I only knew I was restrained by straps I could fight against. In that setting I fought and fought and fought; yet the doctors saw only a paralyzed patient. In contrast, I am now over 6-years into a legal nightmare, and every time I think it is about to end, it finds a way to continue.  It often paralyzes me emotionally, yet I still physically move about and am able to, from time to time, overcome the attendant anger and bitterness.

We know what we have done, as did Adam, and Eve. We know whom we have hurt. But we can’t see anything we can do to make things right.

So we stand rooted in position, fearful to move, lest someone find us out, reject us, or punish us. A strong sense of condemnation is one of the consequences of our Criminal Justice system because our Purpose and Method are wrong. Condemnation is a horror.

Conviction, in contrast, precedes sentence. It is a declaration of the truth of the fact that you caused a harm, allowing you to, if you so choose, agree with God that you are responsible for your act done, have a responsibility to acknowledge that to those whom you have hurt, and a responsibility to take such steps as are possible at the moment to help right the consequences of the harm dome. It is what God’s Spirit is constantly striving to bring into the life of all mankind.

Conviction invites us to come out of the bushes and commit to a new path – a path we do not know where it will take us, or where it will end, or what it will look like as we walk, but a path we can walk one step at a time because He is with us, we are right with Him, He knows the future, and we no longer need to know the future for we are in His Light and Life; i.e., we walk in faith and not by sight. [See: Romans 8:28, 37-39.]

All of the above is why I see Psalms 119 (the Psalm of the Law) as a hymn of thanksgiving to a gracious God who knows our need to know how to live, and who gives us His written guidance, His indwelling Spirit, and the Body of Christ to assist us in making choices.

For example, Psalm 119 offers the following insight into God’s Law (again using the Amplified version throughout):

a) it reveals the whole of God’s revealed will (v. 1);

b) it is His testimonies (v. 2);

c) you are not unrighteous when you walk in His precepts (v. 3);

d) one yearns that their ways were directed by His statutes so he/she would not be shamed (v. 5-6);

e) we should give thanks when we learn by sanctified experiences His righteous judgments {v. 7);

f) we cleanse our ways by conforming our ways to His word (v. 9);

g) His testimonies are more valuable than any wealth we may accumulate (v. 14);

h) His precepts mark out a path of life, and not death (v. 15)

i) His testimonies can be our delight and counselors (v. 24);

k) His ordinances are good (v. 39);

l) His ordinances give one a renewed life (v. 40);

m) His ordinances give us answers for those who taunt and reproach us (v. 42);

n) His word of truth give us something to hope in (v. 43);

o) we walk in liberty and ease when we walk according to His precepts (v. 45);

There are 176 verses in Psalm 119; I leave it to the reader to mine them for further insight.

I would also refer the reader to the Hebrew word, derek, translated as ways in passages such as Deut. 32:4 and Psalm 103:7, where God’s ways are equated with righteousness, law and justice.

In contrast to all of this, I don’t know of anyone who sings a hymn of praise to our Criminal Code!

In summation, I find nothing to support the idea that God’s law is punitive in its essential nature, or given for the central purpose of deterring conduct. God gave us free will – the ability to choose – and that freedom can always override any fear of punishment. If you doubt that, go into the prisons and ask those you meet if they knew what they were doing was a crime, and whether they were thinking about getting caught and punished when they did the crime.

I said earlier that the words of law carry with them history, philosophy, and methodology. In the Old Testament, the Hebrew word translated as law is most often torah. But the primary meaning of the word is “instruction, teaching”.

In the New Testament, the most common Greek word used for law is nomos. It means the “distribution of the grain (or grazing lands) to the animals.” [Strongs #3551, KJV.] It obviously implies that the grain being distributed is “good”; and so it is with God’s Instructions.

Neither words support making God’s Law into a penal code rather than a gracious gift.

God’s Words are to me, a wonderful thing to guide me through life.

XIII – Fault versus the Bible

Let me remind you that, in our Western Criminal Justice systems, fault is the state of one’s mind when doing an act, which state of mind, when added to the act, allows for conviction of a crime because the doing of the act conveyed the intent of the mind to do a known wrong, ergo, to do evil. Fault includes: Intent; Recklessness; and Negligence.

As I said earlier, there is no doubt but that mankind is a rational being, made in the image of a Creator, Who is a rational Being with total knowledge of all things past, present and future. But our rationality is clouded by sin with and without.

Yet as created rational beings, it is not our rights for which we should first search, but rather we should seek to understand our responsibilities to Him and one another, for we will, ultimately, be held to account by Him.

Fortunately, God will not determine our ultimate fate based upon the totality of our works — our “rap sheet”, if you will — such as a judge might do in considering the penalty to impose on a person with multiple offenses over their life-span. Instead, He reads the heart, something we cannot do — either of our own or of others.

So, in most sentencing Codes today, there is a presumptive sentence for an act, which can be shortened or lengthened based upon factors of the actual act(s) done, and factors of the actor. Were God to judge in that manner, we are all doomed, like the young man I sentenced to 32-years for trying to steal clothes from time to time.

We are doomed because God cannot allow sin into His presence, for all sin is, at its heart, a rejection of Him. And a single sin is sufficient to separate is from Him but for His grace.

I believe what God will read is, in its simplest:

Have you, in recognition of your sinful condition, and God’s provision for your reconciliation to Him through Christ, freely, voluntarily and unconditionally committed yourself to Christ as Lord, and to the Ways of God?

If this is correct, then our Fault before God will be our knowing and intentional rejection of Him when we knew full well of our need to submit to Him.

Knowing, adj. (14c) 1.  Having or showing awareness or understanding; well informed <a knowing waiver of rights to counsel.>  2. Deliberate; conscious <a knowing attempt to commit fraud.> [Black’s.]

That is, from God’s perspective we do know His Law – we are not presumed to know it as in our systems. We know because He has written it upon our hearts, and we will suffer a Consequence for our choice to not submit.

Deut 30:11-20: For this commandment which I command you this day is not too difficult for you, nor is it far off. It is not [a secret laid up] in heaven, that you should say, Who will go up for us to heaven and bring it to us, that we may hear it and do it? Neither is it beyond the sea, that you should say, Who will go over the sea for us and bring it to us, that we may hear it and do it?  But the word is very near you, in your mouth and in your mind and in your heart, so that you can may do it.

See, I have set before you this day life and good, death and evil. [If you obey the commandments of the Lord your God which] I command you today, to love the Lord your God, to walk in His ways, and to keep His commandments, and His statutes, and His ordinances, then you may live and multiply; and the Lord your God will bless you in the land into which you go to possess.

But if your [mind and] heart turn away and you will not hear, but are drawn away to worship other gods and serve them, I declare to you today that you shall surely perish; and you shall not live long in the land which you pass over the Jordan to enter and possess. I call heaven and earth as witnesses this day against you, that I have set before you life and death, blessings and curses; therefore choose life, that you and your descendants may live.

And you shall love the Lord your God, obey His voice, and cling to Him, for He is your life and the length of your days that you may dwell in the land which the Lord swore to your fathers, to Abraham, Isaac, and Jacob.

Commandment in verse 11 is, in Hebrew, mitsvah, which can also be read as precept or law. Note how clearly these precepts are given so that the people might know and enjoy life – without a declaration that God would punish them for their poor choices.

The ultimate consequence for one’s non-submission is eternal separation from God into a place of darkness; it must be a place of absolute darkness, for He is Light, and there is no darkness where there is Light.

This is not a punishment, but an allowing of one to have that which he/she demanded – lack of any responsibility to God, leading to being separated from God. It allows this to prevent the one from doing further harm to those who have submitted to God. This idea of “separation in order to protect others” (banishment) is a part of the justification for the Bible’s death penalty, as will be discussed later.

Before looking into where the concept of Fault, as we know it in the law, is purportedly found in the Bible, we need to distinguish between “an intentional act” under our law (with mens rea, and actus reus) from a “volitional act”:

Volition (17c) 1. The ability to make a choice or determine something. 2. The act of making a choice or determining something. 3. The choice or determination that someone makes. [Black’s.]

In Criminal Law, the results of an act – pulling a trigger which discharges a bullet from a gun – may carry a liability even though there was no intent that the particular consequence of the action – the death of John – was intended or ever would have been intended.

Intent. (13c) “The phrase ‘with intent to,’ or its equivalents, may mean any one of at least four different things: – (1) That the intent referred to must be the sole or exclusive intent; (2) that it is sufficient if it is but one of several concurrent intents; (3) that it must be the chief or dominant intent; (4) that it must be a determining intent, that is to say, an intent in the absence of which that act would not have been done, the remaining purposes  being insufficient motives by themselves.  It is a question of construction which of those meanings is the true one in the particular case.” John Salmond, Jurisprudence 383-84 (Glanville L. Williams ed., 10th ed. 1947) [Black’s.]

A “non-volitional act” is very different, and carries no criminal culpability in our system. It is like when the doctor hits on your knee with a hammer to test your reflexes; your leg kicks out and strikes a nurse standing near, injuring her. You are not, at law, responsible for the injury because you did not, knowingly and intentionally choose to do the act of kicking out your leg; the body reacted without your brain making a volitional decision. In fact, you could not have prevented the leg from shooting out! Nor does this mean the doctor is responsible; he will be judged on a separate standard as you gave him permission to commit “battery” upon you — and the nurse may have assumed the risk by standing too close.

In Texas a few years back, a spouse claimed he was sleep walking when he stabbed his spouse to death. Had the jury believed the story, he would walk free. The jury, probably because there were 27 stab wounds, chose not to believe the story.

Now compare this to a volitional act done, with an untoward consequence.

Mary is your very best friend; you would never, ever do anything to hurt her. But you are out hunting with her, shoot your gun, the bullet strikes her, and she dies. At law, you are responsible for pulling the trigger – the intentional volitional act – regardless of the consequence. However, what is your level of culpability: First Degree Murder, Second Degree Murder, Voluntary Manslaughter, Involuntary Manslaughter or “innocent for lack of intent to harm Mary”? That will depend on the facts of the case, the decision of the Prosecutor as to whether to prosecute and, if so, for which crime, and the decision of judge or jury at the conclusion of the case – not to mention the decisions of friends of Mary, friends of you, or people reading the newspaper.

I know: you thought we had “rule of law” and not “rule of people”. But law does not self-operate; there is plenty of room for “rule of the one with power” throughout our processes of apprehension through sentencing.

What we try to do is to connect the hazard of shooting with the intent to shoot, and require a punishment because of the severity of the harm. We work the nature of the harm through the various degrees of culpability, i.e. intent, reckless, negligence — because we cannot truly know what was in your mind at the time. When we discuss the Cities of Refuge, you will find that God has a way of addressing some of these problems. But let’s look at how the court case of shooting Mary actually proceeds:

The prosecutor starts by charging you with Premeditated First Degree Murder. “Wait”, you say, “I told you my intent, and I had Mary’s best friends testify as to the truth of my statements about my intent. Therefore, I cannot be guilty of anything.” “Ah”, says the prosecutor, “not to worry; one is presumed to intend the natural and foreseeable consequences of their volitional act! The jury can read from your act and conclude your evil intent to kill Mary. You will fry!”

“Okay, okay,” you say, “I confess, I saw her with John and shot her in a heat of sudden passion” “Okay,” says the prosecutor, “Second Degree Murder, 20 years in the slammer.”

“No, no,” you say. “I meant to say that I had an irresistible impulse which robbed me of my sanity.” “Okay,” says the prosecutor, “Voluntary manslaughter, 10 years.” If you have never seen Jimmy Stewart and Ben Gazzara in Anatomy of a Murder, by all means you should so you can understand the implication of an attorney’s “talk with a client”!

“No, No.”, you say. “I meant I was insane.” “Not guilty”, says the prosecutor – “and we will put you in the mental hospital for life – or until you convince an expert that you are sane so they will let you out.”

And I smile inwardly, because I know how to play that game and will be out in a year.

In the Bible, we are told that: “The heart is deceitful above all things, and it is exceedingly perverse and corrupt and severely, mortally, sick! Who can know it [perceive, understand, be acquainted with his own heart and mind]?”  [Jer 17:9]  We are also told:

What leads to strife (discord and feuds) and how do conflicts (quarrels and fightings) originate among you? Do they not arise from your sensual desires that are ever warring in your bodily members? You are jealous and covet [what others have] and your desires go unfilled; [so] you become murders. [To hate is to murder as far as your hearts are concerned.] You burn with envy and anger and are not able to obtain [the gratification, the contentment, and the happiness that you seek], so you fight and war. You do not have because you do not ask. [Or] you ask [God for them] and yet fail to receive, because you ask with wrong purpose and evil, selfish motives. Your intention is [when you get what you desire] to spend it in sensual pleasures. [James 4:1-3.]

Do you really think God wants us playing such a game with ourselves, and denying our responsibilities to Him? May it never be! Yet that is exactly what we do when hauled “before the law”:

I didn’t do it.

I didn’t mean to do it.

Everybody’s doing it.

If you were poor you would do it.

Mommy made me do it.

The Devil made me do it.

Or, like Eve: “I was beguiled.”

Or like Adam: “The woman YOU (God) gave me, so YOU God are to blame.”

All this focus on the mind leads to tons of lawyers, statutes, rules of procedure, etc. But the worst consequence of this focus on the mind is that, at the end of the process, after you have ducked, weaved, and bobbed:

a) you will no longer see yourself as guilty, nor accept any consequence imposed by the Judge;

b) You will walk out crying for justice – as will your family and those who know you.

c) The victim will be crying for justice – as will their family and those who know them.

d) And all who read of the event will divide over whether or not justice was done, based solely on a small paragraph in the newspaper.

So where in the world did the Christians of the 11th and 12th Centuries come up with this idea of Fault?  Allow me to give you three references:

On Intent versus no intent – Ex 21:12-14: Whoever strikes a man so that he dies shall surely be put to death. But if he did not lie in wait for him, but God allowed him to fall into his hand, then I will appoint you a place to which he may flee [for protection until duly tried]. But if a man comes willfully upon another to slay him craftily, you shall take him even from My altar [to which he may have fled for protection], that he may die.

On Intent – Ex 22:4: If the beast which he stole is found in his possession, whether it is ox or ass or sheep, he shall restore double. [Compare Ex 23:4-5: “If you meet your enemy’s ox or his donkey going astray, you shall surely bring it back to him again.”]

On Recklessness or Negligence – Ex 22:5-6: If a man causes a field or vineyard to be grazed over or lets his beast loose and it feeds in another man’s field, he shall make restitution of the best of his own field or his own vineyard. If fire breaks out and catches so that stacked grain or standing grain or the field is consumed, he who kindled the fire shall make full restitution.

The first passage certainly sets forth distinctions in how the death of another has been caused; that is, it sets forth facts which allow for a death penalty. But does it invite, let alone require, “a reading of the mind”? Someone struck another and has a responsibility as a result. Then evidence is brought forward that the one “lay in wait” for the other, and that fact controls the consequence to be imposed. That is still strict liability because nowhere does the Scripture say that “laying in wait” equals proof of the condition of the mind; it is that concept which we have, in my opinion, added to the Scripture.

The second passage presents a fact which increases the amount of restitution to be made. Scripture requires one, upon finding an animal which is not their own, to return that animal to its owner. Could this additional restitution be because the person (a) was found heading the wrong direction, and/or (b) denied accountability?  In other words, found in his possession establishes a responsibility to return; if you are not in the process of returning, that fact makes you responsible to give up the animal, and give another such animal to the owner whom you wronged. There is nothing in this that hints that by imposing the doubling of restitution, you will deter the thief.

The third does not address the mind of the man who owns the horse or starts the fire, only what he did, i.e., “started a fire” or “allowed to graze bare”. From that flows an obligation to make right for the resultant harm; this is certainly strict liability without a need to “read the mind by circuitous reasoning.” In each case there was a chosen volitional act (causes/kindled), done with knowledge of the possibilities, i.e., letting his field be grazed bare so his horse would want to wander seeking food; and, a fire escaping to his neighbor’s field. There is no hint of intent to harm anyone in any manner. Yet both passages say that the actor “shall surely make restitution for damage flowing from the volitional act.”

In our system we would analyze the two cases by trying to find a proper level of culpability: You did not keep your fences in good shape, or you should not have started a fire when the wind was that strong; i.e., you were negligent, or maybe even reckless – and for that state of your mind, our system can hold you responsible for the harm done the other.

I suggest that we are looking for a way to blame a person for an act which we might not blame our self.

I know: I once started a fire, with the greatest of care and protection in place, only to have an unexpected wind come up and threaten a neighbor’s house before the fire trucks could arrive, so maybe I have a deeper understanding of this passage.

This looking for someone or something to blame to avoid responsibility is most clear in negligence, where we speak of an act done “under all the circumstances as measured by the reasonable prudent man.”  But that concept is not in these two verses. What we see is, in our law, Strict Liability.

I suggest that behind the concept of strict liability is the idea that community sees a greater need for it than to waste time, energy and resources trying to probe the depths of the mind; i.e., the community sees the need for peace within the community (where everyone struggles to survive against weather and sustainability in general) as more important than labeling someone a criminal or a tort-feasor. The one doing an act which harms may be the biggest jerk in the community, for he may be the best wheel-maker. Thus the desire of the community is to help someone see how their action has harmed others, and change their behavior rather than banish or punish.

I believe the Story of Philip [@ www.shepherdsforpeace.com] proves my theory, and beautifully describes the benefits of an alternative method for dealing with acts causing harms.

Our entire Code of Driving offenses are based on strict liability; whether that is because of the ancient idea that the owner/operator of the uncontrollable animal is strictly liable (the ox that gores, as opposed to a wild animal), I do not know:

Ex 21:28: “If an ox gores a man or a woman to death, then the ox shall surely be stoned, and its flesh shall not be eaten; but the owner of the ox shall be clear.

We will return to the story of this ox a little later to make another point. In the meantime, understand that under Strict Liability the method is viewed as (a) warn, (b) as a teaching to change behavior, (c) with a minimal fine as encouragement.

XIV – A Lesson from a Communally-Oriented Person

You will recall that as I was arriving in Moscow, my mind was swirling over my beginning to question the Biblical support for Fault, Punishment, and Deterrence. It was in the second week of being in Moscow that I received a very practical lesson.

I was walking with Vaughan when, out of the corner of my eye, I saw an auto collision. The cars veered to the side, stopped, both men got out, and started heading for each other.

“Vaughan,” I said, “looks like trouble.” He looked at me as though I was from Mars, and said: “Ne problema” – you can translate that.”

Sure enough, the men met, and started talking. “Vaughan,” I said, “what’s happening?”

“Bill, do you see the militzia man standing down there?” Sure enough, there he was, in his uniform, complete with AK-47 – and he was watching the two men. “Well, he has the ability to come over and actually determine who is at fault, and assess damages, but only if invited over. [Sounded like a Shire Reeve to me.] But he won’t be invited, and he won’t come unless violence erupts. And he will not be invited, because if invited, when he gets there the first thing he will demand are our papers: propiska (internal passport cum national identity card), vehicle documents, and work book (from first day of work to death, and required to be on your possession at all times).”

“Okay,” say I, “so he can be judge, jury and executioner all in one – right?” “Yes.” “And they won’t call him because ???” “Because none of us live where our propiska says we live, there are probably no papers for the car, and someone will end up in the gulag – that is why. You see, everything we do day by day to survive is illegal, so we have to act under a different set of beliefs, i.e., survival in community, surrounded by the insanity of government and law. Welcome to Moskva!”

About then, one handed the other some money, they shook hands, and went their separate ways. “Vaughan,”, I said, “you don’t carry enough money around to pay such damages; tell me more.” “Well,”, he said, “they decided who was at fault, how much should be paid, and the one made a promise to do so.” I laughed; I’m sorry, but I am too conditioned by our Western Legal Systems to not laugh. Vaughan chided me: “Don’t laugh; the promise will be kept, for otherwise, we all die.”

Paul wrote to the Church in Corinth [I Cor. 6:1-8] the following:

1 Cor 6:1-9: Dare any of you dare, having a matter of complaint against another [brother], go to law before unrighteous men [men neither upright nor right with God, laying it before them], instead of before the saints (the people of God)? Do you not know that the saints (the believers) will [one day] judge and govern the world? And if the world [itself] is to be judged and ruled by you, are you unworthy and incompetent to try [such petty matters] of the smallest courts of justice?  Do you not know also that we [Christians] are to judge the [very] angels and pronounce opinion between right and wrong [for them]?  How much more then [as to] matters pertaining to this world and of this life only!  If then you do have such cases of everyday life to decide, why do you appoint [as judges to lay them before] those who [from the standpoint] of the church count for least and are without standing?  I say this to move you to shame.  Can it be that there really is not one man among you who [in action is governed by piety and integrity and] is wise and competent enough to decide [the private grievances, disputes, and quarrels] between members of the brotherhood.  But brother goes to law against brother, and that before [Gentile judges who are] unbelievers [without faith or trust in the Gospel of Christ]?  Why, the very fact of your having lawsuits with one another at all is a defect (a defeat, an evidence of positive moral loss for you).  Why not rather let yourselves suffer the wrong and be deprived of what is your due?  Why not rather be cheated (defrauded and robbed)?   But [instead it is you] yourselves who wrong and defraud, and that even your own brethren [by so treating them].

The people of Russia, after 70 years of dialectic, materialistic, atheistic, evolutionist, communism – not to speak of the 800 prior years of merged church-state Czarist totalitarianism – understand this passage even if they have never read it.  They know they will not get Justice by going to the law, so they practice conflict resolution in a community mechanism [see Philip @ www.shepherdsfor peace.com].

In contrast, Christians in the U.S. go to the law with the same frequency as the non-Christian.

Who is wise, and who is foolish?

Whose system seems to produce the most beneficial result for a society, and for a sense of Justice being alive?

The people of Russia have had a thousand-years of totalitarianism. The Czar became Stalin, the Aristocrat became the bureaucrat and the peasant remained the peasant. In 1989, the Wall had come down, but the inner wall of the mind’s way of doing things had not.

For the totalitarian, the purpose of law is to keep you in your place and “themselves” in power. Therefore, while beautiful written law may exist — and the Stalin mid-1920’s Constitution is the model yet today in the former USSR (you would find it beautiful to read) — it is not worth the paper it is printed on, for it is only for the “day when the great proletariat revolution prevails.” In such a system, you have to develop alternative ways to deal with your conflicts so you can survive.

We of the U.S. are also the product of a thousand-year legal tradition, one which we know as Rule of Law, with Due Process of Law to protect the innocent.

Rule of Law:  2. The supremacy of regular as opposed to arbitrary power <citizens must respect the rule of law>. – also termed supremacy of law. 4.  The doctrine that general constitutional principles are the result of judicial decisions determining the rights of private individuals in the courts, under the rule of law, Supreme Court caselaw makes up the bulk of what we call “constitutional law”>.

Due Process, (16c) The conduct of legal proceedings according to established rules and principles for the protection and enforcement of private rights, including notice and the right to a fair hearing before a tribunal with the power to decide the case. Also termed due process of law; due course of law. See FUNDAMENTAL FAIRNESS DOCTRINE. [Cases: Constitutional Law 3840-4841.]

“The words ‘due process’ have a precise technical import, and are only applicable to the process and proceedings of the courts of justice: they can never be referred to an act of legislature.” Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly, 6 Feb. 1787, in 4 Papers of Alexander Hamilton 34, 35 (Harold C. Syrett ed., 1962).

“The words, ‘due process of law,’ were undoubtedly intended to convey the same meaning as the words, by the law of the land,’ in Magna Charta.”  Murray’s Lessee v. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 276 (1856) (Curtis, J.).

“Due process of law in each particular case means, such an exertion of the powers of government as the settled maxims of law sanction, and under such safeguards for the protection of individual rights as those maxims prescribe for the class of cases to which the one in question belongs.” Thomas M. Cooley, A Treatise on the Constitutional Limitations,  356 (1868).

“An elementary and fundamental requirement of due process in any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections…. The notice must be of such nature as reasonably to convey the required information.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657 (1950) (Jackson). [Black’s.]

It is not our laws which rule us per se, but the fact that they rule us through a constitutionally-based, and difficult to modify, “due process of law” which we see as legitimate, and we choose to submit to it.

In the mind of a Russian, if they chose to submit to and obey daily their laws, they would starve – and so they don’t bother with, and actually ignore, their law.

Our sense of “due process” includes at least the following ideas:

a) Written statutes setting forth the material elements of the offense;

b) Charges in writing delivered to the offender, including reference to, and where to find, the statutes under which the charge is being brought;

c) Right to remain silent;

d) Right to an Attorney, to be paid for by the state as necessary;

e) Burden of proof on the prosecutor to prove, “beyond a reasonable doubt”;

f) Right to confront witnesses and have them cross-examined;

g) Time to prepare a defense;

h) Access to the written law (statutory, Regulatory, and Case Law);

i) Right to present your own witnesses;

j) Assistance of the power of the Court in securing evidence and compelling witnesses to come to the court;

k) A fair and impartial judge;

l) A Jury of one’s peers; and,

m) Normally a guaranteed right of appeal to a higher court.

The full list is longer, but those are the ones we all seem to know about.

Let me give you an example of meaningless law.

In Kazakhstan, as in all the former members of the USSR, their Constitution, like ours, says it is the Supreme Law of the Land. Well, Article 20 of the Kazakh Constitution reads as follows:

1. The freedom of speech and creative activities shall be guaranteed.  Censorship shall be prohibited.

2. Everyone shall have the right to freely receive and disseminate information by any means not prohibited by law. The list of items constituting state secrets of the Republic of Kazakhstan shall be determined by law.

3. Propaganda of or agitation for the forcible change of the constitutional system, violation of the integrity of the Republic, undermining of state security, and advocating war, social, racial, national, religious, class and clannish superiority as well as the cult of cruelty and violence shall not be allowed.

Do you see a blatant difficulty here requiring interpretation? But they do not believe judges should have an interpretative function; rather they must apply the black letter law as written.

For eleven years, I tried to get students in the old U.S.S.R, to see this problem, without success. Then, in the fall of 2005 we returned to Kazakhstan having been gone for several years due to Ellen’s medical needs. I found the “cooking gas” (the gas in apartments for the oven/range) was still gone; it had gone “missing” in the Fall of 2002. No one knew where it went, but they knew it had to be “a political matter” – and no one was going to risk sticking their head up to try to find out anything. [One of their slogans for survival is: “The blade of grass which grows fastest, gets cut first.”]  So we joined thousands of people in buying platka (electric hot plates), or glorified toaster-ovens as electricity in the standard apartment does not have enough power for an electric oven/range – and to even begin converting would mean rewiring the entire building, not just your apartment.  No one had that kind of money.

Shortly after returning, there was an expose on Caspio Net TV that Ust- Kamenogorsk had no cooking gas. “Ah ha”, I said to myself, “a concrete example to use!”

The next morning, I started class by asking the students if they had seen the program; all had. I said, “Well, I have an update. They just arrested the owner, producers, directors and reporters on charges of violation of the State Secrets Act. Seems that Parliament made the fact there was no cooking gas in Ust a State Secret.

So, look at Article 20, the first two paragraphs. Are they guilty?”

All, immediately and without hesitation, said: “Yes.”

“Respectfully”, I said, “then you have no freedom of speech or press.”

After 10 years of frustration, I saw the truck hit each of them in the face.

I waited a bit, and then said: “We have the same sorts of contradictions in our Constitution and laws; would you like to know how we deal with them?”  And they listened to our method – a method I have some problems with, but, a method based on logic.”

Why did I take this little side path?

Does the Body of Christ in the U.S. not practice I Cor. 6:1-8, Matthew 5:20-26, Matthew 18:12-20 and Jas. 5:13-16 because we have been brain washed into believing our system produces Justice?

If a nation of 150,000,000 people can exist for 1000-years, and handle their own conflicts without our vaunted Rule of Law and Due Process, might we think it worth considering their ways, even if we won’t accept those passages from the Bible?

There is another story from our life in the old USSR which illustrates life under a totalitarian-based system, with a totally managed economy (except for the black market which is how all live financially).

After only 2 weeks in Moscow, using a bathtub as a clothes washer, we decided to use our meager resources to get a Western machine. When we moved to Minsk, Belarus, I went with Oleg to “comparison shop” for a washer there. Comparison shopping was not a big thing in the Soviet psyche as they never before had things to “compare”.

We found a good buy, and agreed to meet the next day to make the purchase after I had gone home and gotten the cash from the stash. The next day, I got to the appointed location a few minutes early, saw the line leading to the Government Money Exchange Booth, and promptly got in line. Yes, I was Russified: a line meant something needed existed at the other end; get in it and buy for your collective!

By the time Oleg appeared, the line was longer behind me, but had not moved in front of me. Since I had simply jumped into the line, I did not even know if the Bank was open (in Minsk they often were not), and asked Oleg to check. He went, looked and came back to report it was open.

“But, Oleg”, I said, “the line is not moving.” So he went forward again, this time having a word with those in front of me. When he reached the front of the line, he beckoned: “You’re next!” Strange, but I went forward, slid six, $100 bills through the slot (with two people peering over my shoulders), got a bag full of Belarusian Rubles (which I did not bother to count because you were never, ever cheated on this staple of survival), and walked 20-feet to buy the machine – where the money would be counted by that clerk, and change given me.

As I walked, I saw, out of the corner of my eye, a strange thing taking place: from the back of the waiting line, people began passing Belarusian money forward to the front of the line (there were about a dozen people in the line by then). The person at the front of the line slid it through the slot, got Dollars, and the crowd collectively walked away to somewhere.

“Oleg”, I said, “stoi eta?” [“What gives?”] He reminded me of things I already knew:

a) The Belarusian currency is not a hard currency. Between September 1995 when we arrived, and June 1999 when we left, the exchange rate went from 1,100 Belarusian Rubles to the Dollar to 300,000 (600,000 if you exchanged on the street, which was illegal). That meant it was necessary for every person, in order to survive, to exchange excess Rubles for Dollars.

b) Each Belarusian is a member of at least one, and sometimes two or three, “collectives” — about fifteen people in each, trusted implicitly.

c) Every day, one is appointed to spend the day in line doing something for the collective. Each person in that line “held the stake” of at least fourteen others, whose lives depended on finding Dollars; but as to one another, everybody in that line was a “stranger”.

I knew those things when I got in the line. Oleg now showed me how, knowing the common need of the moment, they instinctively and immediately formed a new collective when they saw my $600! Oleg said: “They simply left to find a place where the one with the dollars could find out what each put into the communal pot, and arrange a method of breaking the dollars into smaller dollar amounts for distribution – a process done with absolute honesty. This is how we survive.”

Part XV — God’s Method:

If God’s Purpose for law is not to try to deter evil through determining the condition of the mind, and then punish people, but rather to give teachings so we might know how to live and be truly free, and give us a path to follow to come back to Him when we sin, and if He wanted to establish a procedure for people to use to help one another in that process, then what would His Method look like?

From 1982 through 1993, I was focused on the combination of I Cor. 6:1-8, Matt. 5:21-26, Matt. 18:12-20, and Jas. 5:13-16. During that time, a friend pointed me back to Exodus 20:18-21:

Now all the people perceived the thunderings and the lightnings and the noise of the trumpet and the smoking mountain, and as [they] looked they trembled with fear and fell back and stood afar off. And they said to Moses, You speak to us and we will listen, but let not God speak to us, lest we die. And Moses said to the people, Fear not, for God has come to prove you, so that the [reverential] fear of Him may be before you, that you may not sin. And the people stood afar off, but Moses drew near to the thick darkness where God was.

As I read the passage, I realized that everything which followed in the torah was initially intended by God to be given to the people by Him personally, in the fullness of His Spirit; i.e., the black letters of the law, and the Spirit, were going to be united in the presentation. That is why Ben Kinglsey sat in rapture while the people ran; he heard the Two together, and marveled at the wonder of the genius of the law! [see Moses, 1995, TNT Network.]

I wonder how much of what God wanted to convey was lost when He had to resort to indirect conversation through Moses?

There are, I am sure, many reasons why God chose to wrap His essence in the flesh of a baby, in the womb of Mary. But I believe one reason was to demonstrate what His Instructions, united with His Spirit, were really all about – shorn of the thunder, lightning, etc. For example, in Exodus 21:22-25, it says the following:

And if men struggle with each other and strike a woman with child so that she has a miscarriage, yet there is no further injury, he shall surely be fined as the woman’s husband may demand of him; and he shall pay as the judges decide.  But if there is any further injury, then you shall appoint as a penalty life for life, eye for eye, tooth for tooth, hand for hand, foot for foot, burn for burn for burn, bruise for bruise. [NAS version.]

There are several things we need to see here.

First, the word for fined in Ex 21:22 is anash, and it means: “properly, to urge; by implication, to inflict a penalty, specifically, to fine.” Yet we find it translated in many versions as punished. Because this fine is imposed by the husband, it seems wrong to use punish, which is function of the State; it sounds more like an “offer to settle; the start of a possible bargaining process.”

I confess to being concerned about how often I find by implication in the words I am looking up in the Bible. A judge should not imply a fact of a case, or a result of the case; the first is to be proven, and the second is but an application of existing law to the proven facts.

Second, it appears that a person could not trouble the Judge before trying to work things out with the other party. Does this not look like a place where the Spirit could have squeezed in a demonstration of Matt. 18:12-20, if the people had not fled?

Third, a Judge was limited in power and a decision had to be “proportionate” to the injury. Did thirty-two years for the young man stealing some clothes strike you as “proportionate”?

Fourth, the Biblical Judge is limited specifically in his decisions as well. Pay in the text is the Hebrew word, nathan: “to give, used with greatest latitude of application (put, make, etc.)”. How is it that some religions then read this passage to sanction cutting off of hands and gouging out of eyes? Recently there was an article in the news of a man in an Islamic country sentenced to 1,000 lashes (that is not a typographical error), in sets of 50 over a period of weeks. He barely survived the first imposition of the sentence.

Do you want our law to brutalize, demean and degrade someone created in the image of God, all in the name of deterrence? Where is dignity in that?

Fifth, a Biblical judge is, like a secular judge, further limited: he/she cannot reconcile people warring in front of him/her, at least not while acting “under the law”.

In the sixty days between when I announced my resignation from the bench, and the Governor appointed a successor – at a time when I was at peace with the law – a husband and wife, each with their own attorney, appeared before me for a preliminary hearing in a divorce. The hearing would decide who lived in the house, who paid what bills, who had custody of the children, etc.

The husband testified first.

They (with 3 kids) were living in a basement, on top of which he was building a house, by hand, in old-world German craftsmanship. He wanted to stay in the house because, with a minimal outlay of money, and his time, he could finish the house and increase its value by a substantial amount. I interrupted and asked him: “Sir, have you ever considered the fact that your wife hates that house? She would live in a mud hut with you if you were ever at home. But you’re at the laboratory as a chemist all day or upstairs building the house.”

It struck me I might be a bit out of bounds, so I begged his pardon and struck my words from the Record before he could come up with an answer.

Later the wife was on the stand, pointing out the obvious costs for four of them to move out versus one – and I interrupted her. “Ma’am, I think I know a bit about your husband, for I come from an old German background. Do you realize that if your husband were standing at the pearly gates asking Saint Peter to get in, and Peter asked him, ‘Why should you come in?’, he would say, ‘Because I loved my family.’ And if Peter asked, ‘How do I know that’, your husband would point to the house as proof of that love.’”

Well, now I knew I was way over the line, so I struck those remarks before she could answer, and called for a 15 minute recess. I went back into chambers for two cigarettes and coffee, came back out, saw the attorneys and told them to get their clients so we could continue. They said, “Judge, ah, they are not here.” “Well, where are they?”, I demanded, in anger. “Ah, they decided they didn’t know one another, and went looking for a counselor.”

Two weeks later, they came back and dismissed the case.

My actions that day were highly improper measured against the role of blindfolded Lady Justice – and probably even the Canons of Judicial Ethics — but it was one of many times when I found a speaking of Truth to have an unexpected and powerful impact on a proceeding.

What if we had a place where Truth of such a penetrating nature could be shared with people in conflict as a routine matter?

As I said earlier, there are two great passages in the Bible on assisting people in conflict to possibly find peace, and a sense of Justice:

           

            Matt 5:21-26: You have heard that it to the men of old, You shall not kill, and whoever kills shall be liable to and unable to escape the punishment imposed by the court; and whoever speaks contemptuously and insultingly to his brother shall be shall be liable to and unable to escape the punishment imposed by the Sanhedrin, and whoever says, You cursed fool! [You empty- headed idiot]! shall be liable to and unable to escape the hell (Gehenna) of fire.

So if when you are offering your gift at the altar you there remember that your brother any [grievance] against you, has something against you, leave your gift at the altar, and go. First make peace with your brother, and then come back and present your gift. Come to terms quickly with your accuser while you are on the way traveling with him, lest your accuser hand you over to the judge, and the judge to the guard, and you be put in prison.  Truly I say to you, you will not be released until you have paid the last fraction of a penny.

Matt 18:12-20: What do you think? If a man has a hundred sheep, and one of them has gone astray and gets lost, will he not leave the ninety-nine on the mountain and go in search of the one that is lost? And if it should be that he finds it, truly I say to you, he rejoices more over it than over the ninety-nine that did not get lost. Just so it is not the will of My Father Who is in heaven that one of these little ones should be lost and perish.

If your brother wrongs you, go and show him his fault between you and him privately. If he listens to you, you have won back your brother. But if he does not hear, take along with you one or two others, so that every word [rhema] may be confirmed [histemi] and upheld by the testimony of two or three witnesses. If he pays no attention to them [refusing to listen and obey], tell it to the church [ekklesia]; and if he refuses to listen even to the church, let him be to you as a pagan and a tax collector. Truly I say to you, whatever you forbid and declare to be improper and unlawful on earth must be what is already forbidden in heaven and whatever you permit and declare proper and lawful on earth must be what is already permitted in heaven. Truly I tell you, if two of you on earth agree (harmonize together, make a symphony together) about whatever [anything and everything] they may ask, it will come to pass and be done for them by My Father in heaven. For wherever two or three are gathered (drawn together as My followers) in (into) My name, there I AM in the midst of them.

Both passages refer to conflicts between brothers; the Greek word is adelfos, and signifies of the same womb. To a Christian, this means a fellow Christian. But in I Corinthans 6:1, where former prosecutor Paul refers to conflicts with another, the Greek word is heteros, meaning, the other person involved, the most general of all terms.

I show the distinctions because I want to encourage people to think that the principles in the two passages from Matthew can be used as guidelines for any conflict, with any person, at any time. You might not have another church to help out, but there may be mutually trusted friends, business organizations, etc which could help speak Truth to the deaf and blind.

These passages present a number of principles:

A.  God wants people who have complaints against one another to first talk to one another, regardless of whether a person thinks they are a victim or are being called an offender. From God’s perspective, the talking is of greater importance than engaging in religious activity [Matt. 5:23; Matt. 18:15; see also, Amos 5:21-24.]

B.  If talking to one another will not get the job done, get some other people involved – up to and including the entire organization you or the other party might be a part of. The purpose is conversation in hope that Truth might be spoken into the conflict by people not blinded by the conflict, accepted by those in the conflict, and confession and forgiveness loosed so reconciliation of relationship, and resolution of the conflict, might occur.

Before going, however, one should prepare themselves, possibly with the help of counselors, to confess and forgive as appropriate at the start of the conversation. One of the best tools I know for this preparing is The Peacemaker (Baker Books, 1991), by my friend, Ken Sande.

If you decide that you need to “take one or two” with you, think in terms of “who will the other listen to”. Often, that will mean taking friends of the other, not your friends. This is as it should be, for you are not engaged in trying to win a case in court, but to win another back to righteous actions. In selecting people, you cannot gossip to them about the nature of the conflict, only that you have a conflict with Charlie, have spoken with him, and it did not good, asking them to come with you. You are not necessarily looking for a court-room witness of a past event, nor people to serve as judges, but people to, as the Greek text shows best: “boldly stand upright [histemi], God’s very Word [Truths for the Moment, rhema]” to those in conflict who have allowed the conflict to blind them to Truth.

You see, this process is designed to start with no rules, regulations or procedure, and no preconceived outcomes. It is merely conversation with the help of others, not knowing where it will end, but entered into to honor God who gave the Instruction to come and talk. It is an act of faith to participate.  When others are brought in to help, they come not as mediators or arbitrators at law, nor are they merely facilitators, for they come with a bias – to serve God and speak His Words.

The witnesses (martus, martyr in the Greek) may judge words and actions- inactions as against God’s standards, but they do not judge outcomes. They don’t give “awards” or even order behavior. They remind the parties of sin, the need for confession and forgiveness, and the need to do justice as they are moved in the process by God.

You see, when you are in conflict, you have only a few possible outcomes: (a) be reconciled; (b) go to war; or (c) confess, forgive and do justice regardless of what the other does, so that you may receive God’s Justice (peace within) rather than allow the pain of the offense to become a “root of resentment (rancor, bitterness, or hatred) [which] shoots forth and causes trouble and bitter torment, and many become contaminated and defiled by it.” [Hebrews 12:15.]

The Victim Offender Reconciliation program in Elkhart County was merely a version of this passage. One of Fred Palmer’s victims bought Fred, his wife and child coats one winter when they were in need. When Fred was sent back to prison, two of the victims alternated going to see Fred in prison each week — and one of those was a Deputy Sheriff whom he had plundered!

Yes, even in what we see as a very serious criminal act (home burglary) — and in a secular program — victims and offenders can find peace with one another, i.e., God’s “peace which passes all understanding”. It is that peace which has become, to me, the only definition I know for Justice.

So, if God’s Purpose for law and process are designed so that we might be reconciled to Him and one another, can such a noble purpose be built into our processes of criminal, juvenile and civil law in this day and age?

If so, what might it look like?

Part XVI – Some Other Principles from God’s Law

Before launching into a discussion of how God’s Purpose for law might be brought within our systems of today, I want to set forth some other concepts which can be found in the Bible.

We have already seen that He appears to require us to speak to one another before going to the courts, and that when we reach the courts, any result must be “proportionate”. [Ex. 22-25.]

Another general principle is found at Romans 13:8:

Keep out of debt and owe no man anything except to love one another, for he who loves his neighbor [who practices loving others] has fulfilled the Law [related to one’s fellowmen, meeting of its requirements].

This is, to me, a saying that before going to the Court, and while trying to work out things face-to-face, restitution is not the automatic amounts of the Old Testament, or calculation of losses and damages, but is first the doing of acts which the Holy Spirit brings to your mind as capable of being done as initial Justice at the moment. That is, “do love” and “receive the love of the other.”

Another is that money damages for “pain and suffering” were not a part of God’s method.

Ex 21:18-19:  If men quarrel and one strikes another with a stone or with his fist, and he does not die but keeps his bed, if he rises again and walks about leaning on his staff, then he who struck him shall be clear, except he must pay for the loss of his time and shall cause him to be thoroughly healed.

Another is that insanity and its comrades mental disease or defect, are not a recognized defense in the Bible. Exodus 21:28 says:

If an ox goes a man or a woman to death, then the ox shall surely be stoned, and its flesh shall not be eaten, but the owner of the ox shall be clear.

God’s Way focuses on the harm, and not the mental state of the actor; the ox killed a human, and is to be executed. We see this routinely when a bear kills or even merely mauls a human.

Well, the story of the pesky ox goes on in verses Ex. 21:29-30:

But if the ox has tried to gore before, and its owner has been warned but has not kept it closed in and it kills a man or a woman, the ox shall be stoned and its owner also be put to death. If a ransom is put on [the man’s (i.e., owner’s)] life, then he shall give for the redemption of his life whatever is laid upon him.

Now we have an ox, known to his owner as liking to gore/push against people with its horns, which this time kills someone. The owner is to be executed unless, in some unknown manner, a sum of money is determined (likely between the parties and without aid of a judge), and paid to the victim as a ransom.

I suggest the reasons for this remedy is that the owner of the pesky ox knew his ox had hurt a human in the past, but decided to act in self-interest (oxen are expensive animals to acquire, and take a long time to train and become of sufficient strength to be productive), rather than kill it as a responsibility to his community.

But concerning this matter of paying a ransom, and avoiding the gallows, consider the following:

Some years ago, I picked up a foreign newspaper in an airport overseas. It had a story about two English women in, as I recall, Saudi Arabia, who conspired to have the husband of one killed – and succeeded. They were found out, tried, convicted, and sentenced to be beheaded, which raised a journalistic tumult in the West. It was then discovered that their families were negotiating with the family of the deceased to pay a ransom under Shari’a law — which raised another journalistic tumult.

When the Judge who convicted them was questioned, he said he was aware of this, and if they came to him before execution, and said an agreement had been reached, he had the power – but not the obligation – to lift the sentence. He said he was not compelled because the needs of the community also needed to be weighed in the balance.

My question for any society is this: If victim and offender reach an accord, why should not a Court accept such a decision, as a general rule but subject to exceptional circumstances, and allow the parties to depart in peace? Obviously such a system can be manipulated by the rich and powerful against the poor – yet if done in a ceremony or according to a custom, such as in Philip, would that not offer a protection against manipulation?

The following passages give us additional matters for thought:

Ex 21:33 to 36: If a man leave a pit open or digs a pit and does not cover it, and an ox or a donkey falls into it, the owner of the pit shall make it good; he shall give money to animal’s owner, but the dead beast shall be his.

If one man’s ox hurts another’s ox so that it dies, then they shall sell the live ox and divide the price of it; the dead ox also they shall divide between them.

Or if it is known that the ox has gored in the past, and its owner has not kept it closed in, he shall surely pay ox for ox, and the dead beast shall be his.

In the first case, money is to be paid, but the offender gets the dead animal for its value; sounds reasonable to me.

In the second case, oxen are big animals, and they can hurt unintentionally. So if the hurt results in death, sell the live ox (oxen worked in pairs in those days), and divide the money and dead ox between the parties; sounds reasonable to me.

In the third case, we have that pesky ox which has a habit of goring plus an owner who did not keep him penned in, but only an injury to another ox. Thus there is no need for a death of the owner. The owner merely buys the other a new ox, arguably of equal age and strength, and gets to keep the dead ox.

Then, in Ex. 22:1, we have the following:

If a man steals an ox or a sheep, and kills or sells it, he shall restore five oxen for an ox, or four sheep for a sheep.

Here we have payment “in kind but multiple”, and theft — taking without consent (which is the best translation of the Hebrew).

If what is taking place here is a multiple payment as a punishment for the theft. it seems to be a departure from what we have been seeing. There is another possibility: An adult ox [who would steal and try to sell a baby ox?] and a sheep [the Hebrew word denotes adult, not “lamb”] have (a) come to obey the commands of their master, and (b) have a reproducing value (labor versus babies and wool). If the stolen animal cannot be recovered (it is dead or another now owns it), it is unlikely the thief will have a spare one hanging around. So allow the offender buy a multiple number of young ones, which compensates for the time to raise to adulthood and be productive and controllable.

It is also possible that God might be thinking in terms of specific deterrence in this instance, and a fixed restitution to avoid haggling. [Compare Ex. 22:4 and 7-9.] After all, we had death for horse stealing because of the peculiar value of a horse in preserving life in our wild frontiers.

But does “he shall pay double” in Ex. 22:4 mean return the live property stolen plus one other, or does it mean return the live one plus two more? I don’t know; it is for discussion, as is all that I write, regardless of how dogmatic my way of writing may seem. I am trying to raise questions of (a) what is being said, and (b) what might it mean for a system of conflict resolution?

In all of this, please remember that these people cannot get to a judge without trying to work things out within community; that should make a big difference in our thought processes.

Ex. 22:2-3 forms the basis for our modern laws of defense: self-defense, defense of others, and defense of property. In the passage, all three situations are present.

If a thief is found breaking in and is struck so that he dies, there shall be no blood shed for him. But if the sun has risen [so that he can be seen], blood shall be shed for slaying him. The thief [if he lives] must make full restitution; if he has nothing, then he shall be sold for his theft.

Note that there is a freedom from blood-guilt for killing the thief, but not if the sun has come up. I have pondered on this exception in light of my belief in the purpose for God’s law. I see at least things which are different “in the light of day”:

a) you can likely recognize the person to report them later;

b) you can tell if they are armed and a direct threat to you; and

c) the village is up and about, meaning you can cry out for help.

Maybe?

Ex. 22:10-15 forms the basis for our modern law of bailment.

Ex. 22:16 raises a question: Why is this man not executed under the laws on rape [see Deut. 22:23-39] – or is it to distinguish possible consent from rape, yet provide for a remedy because the male is required to take the lead in Godly behavior?

Ex. 23:4 may play into the determination of whether one is a thief or not; after all, an innocent finder of lost livestock and a thief of the livestock are identical in initial appearance. Therefore, walking towards the owner may be proof of innocence.

But if we submit these conflicts through a Philip-type ceremony, might that remove the necessity to “judge based upon circumstances”? Regardless of how one proves the difference between the two types of offenders, we still don’t see the Bible doing a “search for the state of the mind” before ascribing a consequence; it is all strict liability.

Restitution is a concept we recognize, and I touched on it earlier. The Bible also says:

Num 5:5-7: And the Lord said to Moses, Speak to the Israelites, When a man or woman commits any sin that men commit by breaking faith with the Lord, and that person is guilty, then he shall confess the sin which he has committed, and he shall make restitution for his trespass in full, and add a fifth to it, and give it to the one he has wronged.

While all sins are Biblically considered to be first against God and Him only, they do have consequences and people are hurt by them. Here the general “penalty” for that hurt, if the people cannot work something out between them, is 120% of value of damage (pain and suffering excluded). Again, it seems reasonable to me.

Remember, an order for the 120% only takes place if they cannot agree and wind up in front of a Judge!

This also appears to be in lieu of replacement of something damaged; that is, the fire or loose-horse damaged property could be replaced in-kind or in cash plus 20%. But please note that nothing goes to the State for operation of its conflict resolution system; all goes to the victim, or to an eleemosynary (charitable) organization.

In our laws of today, we define restitution this way:

restitution: (1) A body of substantive law in which liability is based not on tort or on contract but on the defendant’s unjust enrichment; (2) The set of remedies associated with the body of law, in which the measure of recovery is usu. based not on the plaintiff’s loss but on the defendant’s gain; (3) Return or restoration of some specific thing to its rightful owner or status. (4) Compensation for loss; esp., full or partial compensation paid by a criminal to a victim, not awarded in a civil trial for tort, but ordered as a part of a criminal sentence or as a condition of probation. [Black’s.]

The first of these definitions may seem a bit strange, but it is a part of our Contract Law. The idea is that one breaching a contract should not make a profit from their breach.

The second is, “give back the sheep you stole which we found in your possession.”

The third is what most people recognize, and the reason we do not use the term in tort is because we use the word damages instead. If I steal your property, and since we need not prove intent, proof that it is yours and not mine then requires that I must return it to you, pay any damages you may have sustained as a result of being deprived of its use for a period of time, and add 20% to the damages.

In contrast, I earlier referred to Romans 13:8 for a restitution concept of “we owe no one anything but love”. Thus, in comparison to our current system of Court Orders, let’s look at the issue from the vantage point of the victim and the offender.

Imagine I am sitting in jail awaiting trial (or in prison after sentencing) and I, like the prodigal son [Luke 15:11-32, at 17] “come to my senses” and I know “I owe love to those I have hurt”. What in the world am I to do, for I have nothing? Can I ever know what love might look like if I never face the ones I have hurt? On the other hand, is it possible for a victim to receive peace absent the ability to speak with the offender and ask them questions, so is it not “love” to be willing to face my victim, taking ownership of my actions? Might that be all my victim decides is necessary?

We should be providing this opportunity to our offenders and victims – a process which I will get to soon.

The Bible also provides for a beating as a response to harm:

Deut 25:1-3: If there is a controversy between men, and they come into court and the judges decide between them, justifying the innocent and condemning the guilty, then if the guilty man deserves to be beaten, that the judge shall cause him to lie down and be beaten in his presence with a certain number of stripes according to his offense. Forty stripes may give him and not more, lest if he should be beaten with many stripes, your brother should [be treated lie a beast and] seem low and worthless to you.

I am intrigued by the fact that the beating is administered in the presence of the Judge, and can only conclude that it was for the protection of the one being beaten, so that it not become more than one could bear. Maybe it is so the Judge can step in and stop it when it becomes demeaning. It might be so the Judge can stop it if the person confesses – but that obviously makes the beating look like torture.

But I see the penalty as designed to warn one who “does not listen or struggle to change.” I will address this idea a bit later.

The Bible also has a Habitual Offender clause:

Deut 21:18-21: If a man has a stubborn and rebellious son who will not obey the voice of his father or his mother though they chasten him will not listen to them, then his father and mother shall take hold of him and bring him out to the elders of his city at the gate of the place where he lives. And they shall say to the elders of his city, This son of ours is stubborn and rebellious; he will not obey our voice; he is a glutton and a drunkard. Then all the men of his city shall stone him to death; so you shall cleanse out the evil from your midst, and all Israel shall hear and [reverently] fear.

The reason I think a beating may have been a warning tool is the existence of this passage. Still:

The first thing to recognize is that this is not some small child.

Second, it involves repeated actions.

Third, the parents are not their own judges of the matter.

Fourth, there will be more than one judge – a panel of some sort.

Fifth, there will be a jury of sorts, i.e., the stone-throwers, all men of the city. Many will, of course, be fathers themselves, maybe with a prodigal son who did or did not eventually return.

Sixth, the parents, as the first witnesses, must cast the first stone [Deut. 17:7], and if it were found that they testified falsely, it would be done unto them as they sought to accomplish against their son [Deut. 19:15-20].

Seventh, the very process of being asked to stone another should give any of us a great pause as we stoop to pick up the rock: “In what ways are not my daily behaviors towards God equally stubborn and rebellious?” Could not this lead to “jury nullification”?

Eighth, it often takes but one calm voice in the midst of a mob to speak Truth to quiet all – as we see in Christ’s statement to those wanting the death of the woman caught in the very act of adultery: “Let him who is without sin among you be the first to throw a stone at her.” [John 8:7.]

This is an interesting passage. In verse 8, Christ wrote something on the ground, and the crowd dissipated. I wonder what He wrote. If we take His spoken words literally, we would then have to abolish the death penalty, for all are with sin and thus rendered incapable of throwing the stone. But He said He did not come to abolish the law [Matt. 5:17]. So to use this passage for that purpose would seem inappropriate.

On the other hand, if He wrote: “Where is the man?” – the one with whom she was caught “in the very act” and whom the law required be stoned to death as well [Deut. 22:22-24] – or if we see him writing in a way that each man saw their own secret sin – then in either instance we see the power of spoken Truth on being black-letter-law-judgmental, while upholding the death penalty.

Then there are three passages which might give us some insights to common debt, simple thefts, and maybe even the length of a term of incarceration.

Deut. 15:12-16: If your brother, a Hebrew man, or a Hebrew woman, is sold to you and serves you six years, then in the seventh year you shall let him go free from you. And when you send him out free from you, you shall not let him go away empty-handed; you shall furnish him liberally out of your flock, your threshing floor, and your winepress; of what the Lord has blessed you, you shall give to him. And you shall [earnestly] remember that you were a bondman in the land of Egypt, and the Lord your God redeemed you; therefore I give you this command today.

Lev 25:39-41: And if your brother becomes poor beside you, and sells himself to you, you shall not compel him to serve as a bondman [a slave not eligible for redemption], but as a hired servant and as a temporary resident he shall be with you; he shall serve you till the Year of Jubilee. And then he shall depart from you, he and his children with him, and shall go back to his own family and return to the possessions of his fathers.

Deut 24:10-15: When you lend your brother anything, you shall not go into his house to get his pledge. You shall stand outside, and the man to whom you lend shall bring the pledge out to you. And if the man is poor, you shall not keep his pledge overnight.  You shall surely restore to him the pledge at sunset, that he may sleep in his garment and bless you; and it shall credited to you as righteousness (rightness and justice) before the Lord your God. You shall not oppress or extort from a hired servant who is poor and needy, whether he is of your brethren or of your strangers and sojourners who are in your land inside your towns. You shall give him his hire on the day he earns it before the sun goes down, for he is poor, and sets his heart upon it; lest he cry out against you to the Lord, and it be sin to you.

Note that the time is limited regardless of how great the debt. The man, when released does not go out “empty-handed”, but is bestowed things which would make it possible for him to start a new life. And he is not to be treated as a slave, for a Hebrew could not have another Hebrew as a slave [Lev. 25:44].

I see these as remarkable options, equally valid in this day and age.

 

XVII – The Death “Penalty”

I believe the death penalty is a key part of God’s Way we need to see it through His eyes, and then consider implementing it according to His Purposes.

If you seek out all of the passages in the Bible related to death penalty in the Pentateuch, you will find that the nature of the offenses can be broken into three general categories — but first we must start with the realization that being executed has nothing whatsoever to do with your position with God.

A. Open and notorious denial of the existence of, or thumbing your nose at, God. This includes matters such as blasphemy, witchcraft, idol worship, and one who “with a high hand, presumptiously and avowedly, confronts God’s authority and sets up their own lust in competition with it.” [Matthew Henry Commentaries, on Num. 15:30-36.].

We are, as I write this, watching a major eruption in the Middle East as a result of a great difference between Judeo-Christian concepts and Radical Islam’s concepts when it comes to this subject. Radical Islam has no sense of restraint, and openly slaughters people for what it believes are violations of Allah’s code of conduct.

In the West, where Church and State are separated, we believe that:

a) freedom of speech (particularly when political or philosophical in

nature),

b) freedom from a state-Church,

c) free exercise of religion, and

d) freedom to assemble and petition government for redress of

grievances (using the court and legislative process),

are so critical to “maintaining freedom” that we must say to God: “God, sorry, but you have to handle this; otherwise, in Your name we may, when exercising political power, destroy all freedom believing that we are protecting You.”

B.  Open and notorious denial of the image of God in which all of mankind – male, female, black, white, brown or other, rich or poor, of what ever religion – are made, uniquely and individually, and thus worthy of dignity regardless of their actions.

This denial of the Holy Image has two aspects to it: (a) denial of that Image in another (rape, murder, and kidnapping are three examples); and (b) denial of that Image in yourself (practicing homosexuality or bestiality, to name two).

C.  Open and notorious violation of the two essential building blocks of all of society.  There are two aspects of this: (a) up close and personal, such as upon the family as in adultery; and (b) more widely, such as in the community by drug dealing.

For example, it was, and maybe still is, the law of Singapore that if you are caught coming into the country with more than a specified amount of certain substances, you are executed because that quantity of those substances released into the community, are so destructive of community.

D.  An analysis of the Biblical cases also shows that the primary purposes of the death penalty are to remove from the community:

a) one whose actions are so disruptive of peace that, quite simply, they cannot be allowed to remain in community; and

b) to give victims an opportunity to heal without, I would suggest, being forced through taxes to provide room, board and amenities to their offenders in prison.

E.  However, God had multiple provisions for reducing the number of actual executions. Those which I have identified are:

Two eye witnesses — and I question if DNA, finger prints, or voice prints would be considered eye witnesses;

A Jury for carrying out, personally, the stoning, possibly opening a door for jury nullification but definitely meaning the jury must know the penalty options when determining guilt;

Ransom (discussed earlier; see also Nu. 35:31 for it not being available for what we would call First Degree, Premeditated, Murder; ratsach, “to dash to pieces”);

The Cities of Refuge [Num. 35:9-34; Deut. 19:1-13]; and,

 

Banishment [Num. 5:1-4; Lev. 13-14 in light of the generally accepted under-standing that leprosy was often used as a synonym for sin].

Two of these deserve comments: Refuge and Banishment.

Today, there is again a Sanctuary Movement among some churches in the U.S. for people who have come to the U.S. illegally. In some instances, such a church is literally in rebellion against the government’s authority. Yet there are times when we must stand in opposition to government; Shadrach, Meshach, and Abednego did it [Dan. 3], and Peter said he would do it when circumstances warranted [Acts 4:19-20].

But, to cite the Cities of Refuge passages as authority for sheltering the illegal is, I believe, a misreading of the Bible.

The refuge passages say, quite simply, that there is a distinction between what we call premeditated (and likely “heat of sudden passion”) murder, and causing death of another. This is the only place in the Bible where I see the possibility that intent is in use – but I may be wrong.

Num 35:11-13: Then you shall select cities to be cities of refuge for you, that the slayer who kills any person unintentionally and unawares may flee there. And the cities shall be to you for refuge from the avenger, that the manslayer may not die until he has had a fair trial before the congregation.

The Hebrew word for unintentionally is shegagh, and means “inadvertence or mistake” — which is the same as our concept of negligence. But to say that is to read into the Bible the “search for the state of the mind” of the offender. Without judging the mind, can we not judge facts which show a lack of the elements which would warrant the death penalty?

Let’s look at those elements.

Num. 16:17-24 starts with situations in which a stone, or a weapon in the hand as warranting death. Then we have lack of hatred and not lying in wait which do not warrant death; the next verse uses enmity term warranting death. Enmity and hatred are terms for which we would expect to find a “public history” between the parties; absent a showing of the facts of public history, death is not appropriate for an apparent stabbing or a thrown rock — which is reiterated for two more verses.

Thus I still think we are reading our mental fault concepts into what God says.  Because the life of a person is involved, I would actually prefer God’s approach to ours’.

Let us lay that aside for the moment, and look at the process from the view of the alleged offender:

a) He flees to the City of Refuge before the family of the deceased catches up with him and kills him under the influence of the “heat of the blood” — a concept which rules the nations surrounding Israel.

b) He reports to the Chief Priest, where he has to confess that there is a dead person back there, and his act caused that death.

c) The Priest will then hold a trial before the local congregation where the parties lived. It only makes sense that it is the congregation of the place where the act took place; i.e., venue would be in the village, community, or governmental entity involved because of the issue of hatred and enmity.

d) At the trial, the burden of proof will upon the perpetrator [not the family of the deceased or State] to establish any of the facts which takes the death penalty off the table, including establishing a lack of enmity [malice ’eybah hostility, hatred]. So this looks like the community acting as a jury, which gets to weigh the historical relationship between the parties. And:

(e) If the alleged offender wins a right to sanctuary, he goes back to the City of Refuge and stays there until the chief priest dies, allowing the “heat of the blood” to cool, and victims to heal.

On another of our flights overseas, I picked up an international paper and read a story from Yemen.

A man went to collect on a debt not paid.

In Yemen, all men carry a ceremonial curved dagger, and a Kalashnikov (AK-47), so, in the process of the visit, a fight broke out and he killed the debtor.

He took off cross-country, picking up a goat along the way. He reached the compound of a Sheik noted for his wisdom in conflict resolution, slit the throat of the goat, and dumped the AK-47 and dagger in the gushing blood. That is how a Yemeni asks for sanctuary.

It was granted him, and when the angry family arrived – with all their daggers and AK-47’s – the Sheik calmly went out to meet them, unarmed. He told them the man was under his protection, and to go home; when the time was right, he would bring the man to them for talking about what had taken place.

The family left and the Sheik took the man to the local jail to be held.

The Sheik was asked by a newsman how long it might be before the trial. The Sheik’s response was: “From experience, at least two years for the heat of the blood to drop to where we can talk. You see, when we talk, we have to ask: was there a debt; was it past due for payment; why had it not been paid – for all issues must be explored.”

This was done under Islamic Law, but the idea is in accord with the Bible.

Of course, this all might mean that we would have to change our burden of proof rules – but those rules not considered to be constitutional in nature.

Insofar as banishment is concerned, I see it as, for us, an alternative where death might otherwise be proper. However, we can’t send someone to Canada to avoid a consequence of an action warranting banishment as protection for the community.

Thus, while prisons are not referenced in the Bible – and were basically unknown other than as pre-trial places of detention prior to the 19th Century – I can rationalize the use of prisons to meet the need which banishment was designed to meet: allowing peace within the community.

But if we do that, then we have to consider several things:

Philip was clearly a candidate for banishment – which, in a strange way, was a part of what he received: the first part of his sentence was to spend the winter (6+ months) helping his grandfather maintain a trap line above the Arctic Circle – ouch.

When I was Judge, I had the ability to, for low level crimes, sentence a person for the normal period (say 6 years), send him off to the Department of Correction, tell the Department (unbeknownst to the offender) to let me know how he was doing after 5 months, and then consider bringing him back and converting to probation if it seemed he had “learned” from the experience; it was called “shock probation” – and it was very, very effective.

Another effective tool was scared Straight”, where juvenile and parent(s) would spend a day at a maximum security facility, taking a tour and sitting in a room full of residents telling them the realities of prison life.

Community Service Restitution activities also worked well, particularly when the “sentence” was to help out at the animal shelters, nursing homes, and the like.

Actually, the options available are as broad the multiple minds can come up with, and the vast majority are effective.

Over the years, it has become my opinion that any sentence beyond one-year is not able to be mentally and emotionally absorbed, and the person sentenced for many years merely shuts down and gives up – which is not helpful for them.

At the time of banishment in the Bible, there was no time limit, so we would have to impose a life-sentence if shock probation seemed inappropriate. Choosing to try shock probation (to take a risk against the interests of the community) is one thing; to consign a person to prison for life because of their act and not execute them is a whole different thing. You see, we do not want this person back until we have some confidence that he/she has, in fact, “come to their senses.”

A Prison Chaplain once said to me: “There can be no rehabilitation without regeneration”. That is Truth, but it imposes a Judeo- Christian standard on the offender – kind of a forced conversion. Our Constitutional would prohibit that, but would it prohibit offering a process designed to help the prodigal “come to their senses”?

So what is to be done?

Biblically, one banished could, at any time, come back to the gate of the city, knock, say they had changed, and asked to be readmitted.

As a Judge, I had discovered a repentant heart could be seen across a courtroom floor – but I also knew I could be “conned”.

So my encouragement to the correctional staff of the Prison of Bermuda (they only had one prison, so it was a small staff) was to train all staff members in how to “spot a spark of repentance”.

When a staff person thinks John has come to his senses, like the prodigal son, he reports that to the Warden, and a team is created to “test the Spirit”. The team can’t judge fruit because the person is not in a position to easily produce fruit. But the team can judge confession, forgiveness, and repentant acts.

If the team is of the opinion that the appearance of repentance is genuine, they try to get victims and offender together, because that process will create additional proofs.

If those conducting the proceedings are then convinced that this is a “new man”, then create a safety net in the community for John, and get him headed for the door!

@www.shepherdsforpeace.com,  there is a Reconciliation Flow Chart based on Matt. 18:12-20 which shows how sin- within leads to an outward act, which should call forth confrontation, hopefully opening the door for the Spirit to bring conviction and a repentant heart. Following that, you can counsel to help one possibly see the sin- within – the things which control their emotions and behavior – and help them change their behaviors. In the meantime, the Spirit will produce fruit, in God’s way, in His time, as He desires.

In conclusion, I re-ask my basic question:

Does the Bible appear to stand for the concept of punishment for the purpose of deterrence as a state-supervised response to conflict-causing acts?

Yes the Bible gives some appearance of that, but I believe it to be deceptive. Just because it appears to match our modern-day ideas does not mean it is, at its core, (a) based on reading a mind of the offender, or (b) done for the purpose of general deterrence as opposed to special deterrence.

I think we are reading the thoughts of man, and not probing for the thoughts and wisdom of God.

Part XVIII – Using Teams as Part of a Method:

In 2011, Ellen and I were in Fiji, when an invitation came to meet with the professional mediators of Fiji. The government had recently instituted mediation as a required pre-court step in matters of employer/employee relations. There is an interesting back-story to why these relationships were a really big deal in Fiji, but I will skip that.

The government selected some people and sent them to Singapore for special training. Their services were paid for by the Fijian Government, and they were having some successes. But the mediators wanted to know what was different in what we did in the Matt. 18:16 process from what they did – and why we did it the way we did.

We explained that, first, Prov. 11:14 says this: “Where no wise counsel is, the people fall, but in the multitude of counselors there is safety.”

Second, we saw a multiple of counselors being called in to help in Jas. 5:13-16.

Third, use of a team multiplies the gifts and life experiences of the helpers to hear and see with the inner eye the deeper issues involved. [II Cor. 1:2-3:

Blessed be the God and Father of our Lord Jesus Christ, the Father of sympathy (pity and mercy) and the God [Who is the Source] of every comfort (consolation and encouragement), Who comforts (consoles and encourages) us in every trouble (calamity and affliction), so that we may also be able to comfort (console and encourage) those who are in any kind of trouble or distress, with the comfort (consolation and encouragement) with which we ourselves are comforted (consoled and encouraged) by God.

Fourth, use of teams allows for daily help as opposed to weekly, allowing for more time in sharing personal stories for encouragement, allowing a level of emotional attachment to take place, allowing for the bearing of burdens of a conflict — all as might be appropriate.

Fifth, we also remove any “time clock” mentality, and provide boxes of tissues!

These team members are to be unbiased as to the parties, but biased when it came to God, as we see ourselves as emissaries of His Truth. Thus, we confront with what we believed to be the Truth required for the moment — hopefully doing so in love. [Eph. 4:15.] We do not order anyone to do anything (although the Government – or a pastor of a church – might order them to at least come to the table).

Having made our presentation, we then spent two hours watching them ask their supervisors why they could not act in these ways – for it was contrary to all rules of professional mediation – and discussing what it might look like if they could.

I have not heard what may have come from this.

When I addressed the experts of Kazakhstan about how to create a way to bring into being a process to assist offenders in “giving the victim what the victim desires”, a Kazakh asked me: “For what offenses might this work?” Before I could take a breath, another Kazakh, with a massive smile on his face, said: “Any, any at all; we can’t limit this marvelous gift!”

Maybe 5 minutes later, the second one interrupted to say: “Ah, maybe it won’t work for murder?” Except for that caveat, the Kazakhs were ready to roll – and the Russians at the table stood petrified in fear of being manipulated.

You see, the Russians had been the Overlords for centuries, and were now second class citizens, and in a minority. They could not hold government offices because, while they forced the Kazakhs to learn Russian they had not bothered to learn Kazakh – and the Kazakh Constitution required bi-lingualism!

In addition, the Kazakhs were tribal-clan people, with massive families (cousins were seen as sons and daughters). The Russians, in contrast, had one child at best – and a collective is nothing like Family!

In 2014, I discovered that the Government of Kazakhstan has developed a mediation system for their Courts, which specifically includes mediation of what were designated as criminal acts. That was certainly a step in the right direction, particularly if the mediation is aimed at gaining from an offender an acknowledgment of having caused a harm, rather than adjudicating an outcome.

XIX – AN 18-POINT REFORM AGENDA

I hope that, by this time, I have convinced you that, assuming the God of the Bible exists:

a) He desires a healthy relationship with us, and healthy relationships between us and others;

b) He does not want any to perish from an enjoyment of an abundant life;

c) He knows that we need direction because sin blinds us to truth, and thus He has graciously provided us with directions for living life in His torah;

d) His directions are not based upon intent and punishment to deter evil as is our Criminal Code;

e) He offers us restoration of relationship with Him if we take responsibility for our actions which hurt others, confessing to them, forgiving them for any part they may have had in the conflict, and doing what we can to help make right for the harm caused;

f) His method is to confront us with Truth, with no regard for the state of our mind or heart, so that we can see what we need to do, instead of playing a blame-game; and,

g) He allows us to face the consequences of the things we do, but offers us the strength and peace (His Justice) to deal with those consequences if and when we surrender to Him.

And so I come to my final question:

If His Ways are better ways, what things might we consider changing in our Criminal Justice system which could increase the possibilities of people caught up in the system finding God’s peace and Justice

I have 15 proposals and I do not consider that to be an exhaustive list. Nor do I say any of them are necessarily fully or correctly thought out.

But I do ask you, as you consider these, to consciously resist thinking in terms of some great and heinous set of facts so that we can explore the concepts — and that you begin in good faith.

Finally, I consider the first three proposals to be inseparable; they work in tandem, and, in my opinion, the lack of any one might be fatal.

1.  Abolish Fault from our codes, except for Pre-meditated Murder.

As an example, for a prosecutor to prove Burglary of a Dwelling in Indiana when I was a judge, they had to prove: (a) breaking and entering, (b) a dwelling, (c) of another, (d) with intent to, (e) commit a crime inside.

Not only can we not prove the existence of a mental state except by circuitous reasoning, but, to the victim, “why did you break in” is not important; they know why — their stuff is gone! What is important to them is: “Why did you pick my house, and what are you going to do about this?” A victim will not know the answer to those questions unless an offender volunteers it – which they will not do because of terror of the mandatory punishment. And if they can’t do it, they create their own prison of denial and hiding.

You see, an offender can never be “free in his spirit,” and face the community [Joshua 7:1-13], until he/she takes ownership of their action. By abolishing Fault, we remove defenses, and end the ability of an offender to enter into the hide and blame game. This makes it more likely he/she will throw themself on the mercy of the Judge – particularly if we offer an optional path [see, New Zealand @www.shepherdsforpeace.com] for dealing with the offense.

And it also will speed up the system, about which we say, “Justice delayed is Justice denied.”

2.  To encourage the taking of responsibility, and because we have removed Fault, we must abolish all mandatory sentences.

Once again, if we add an optional path [New Zealand], with it being the right of an offender which a prosecutor can’t take away, we will encourage them to take responsibility, knowing that they will be responded to in their uniqueness and their circumstances, instead of by a sword-wielding, blindfolded lady.

3.  Stop using the word Criminal, and its stigmata of “essential character.”

To God, we are all criminals, yet He offers us all His love and acceptance when we confess, repent of heart, submit our lives, hearts, minds and emotions to Him and, with the help of community, begin walking in a new way.

Thus I suggest we use Offender, like in Kazakhstan; a little change, but with a possible tremendous impact.

The Free Dictionary on-line defines offending as:

1. To cause displeasure, anger, resentment, or wounded feelings as in: We were offended by his tasteless jokes. 2. To be displeasing or disagreeable to.

I suggest that we consciously adopt such a definition, for it focuses on conduct and not “essential character.”

4.  We should abolish the insanity defense and all of its progenies.

Our degrees of Fault (intent, recklessness, negligence), and allowing a defense of insanity, mental incompetency, irresistible impulse and the like, are all open to being gamed. All discourage the taking of responsibility, and the mental gymnastics of insanity etc allows a person to hide from responsibility – something they may have been doing for decades as a way of coping with life.

Insanity did not become a defense until 1843, in England. Prior to that, harms done by those lacking mental competency were handled in other ways. In part, this was because the person had a history within the community which established their problem. But, in 1843, the defense was allowed one who had no history of strange behavior!

In the Bible, the ox in the habit of goring is to be executed to protect the community. If a dumb animal is dealt with without considering the state of its “mind”, there is no reason not to do the same with the human – even one with an injured mind. The question is one of (a) their danger to society, (b) the process to be used, and (c) the options available for dealing righteously with such an offender.

But one part of that process must be holding accountable. That means, to me, a process which recognizes the possibility that the offender has been engaged in a life-long elaborate game, which must cease.

I know that this sounds harsh and cold, but please remember: the Philip type process could still be used with them, and banishment and ransom remain options.

5.  We must put an alternative pathway in place.

Every Court system should have something like a New Zealand or Philip process in place for adults, juveniles, and all offenses — with the possible exception of pre-meditated murder.

We should put it in place at the start of the proceedings, not after the proceedings have taken place.

Offenders must be allowed to have at least one person of their own choice present during the proceedings, as must victims. The State must also have people present, including professionals if necessary, to give input and encourage Truth- speaking in love, and maintain orderliness.

A Record should be kept, not for incarceration if an agreement is breached, but as evidence for a future time on the issue of “was this person actually repentant?”

I find it noteworthy that after my presentation to the leaders of Kazakhstan, they statutorized a mediation alternative for criminal matters. It is all the more amazing because they already had the following two statutes in their criminal code:

a) If a person “takes responsibility for their actions”, any penalty was limited to 50% of the statutory maximum penalty; and,

b) “If an offender, reconciles with his victim by giving the victim what the victim desires, there is no criminality for the act.”

6.  We should seriously consider a two-tiered sentence of imprisonment:

The first “tier” would be a period from -0- to 365 days, which could include things like shock probation, probation, work-release, community service, special education, drug or alcohol treatment, job training, etc, etc, etc. You might consider this as a “reality check” for the one who may be headed down a path to destruction.

The second “tier” would be “life, or until the offender has figured things out.”  This would look like the concept of banishment found in the Bible for it removes a person from society whose behavior cannot be tolerated because of the harm he/she continues to do.

7.  We must rethink the purpose and function of prisons.

But if we use prisons as a place of banishment because we cannot send our problems to Canada, then we must give serious thought to what the institution looks like, and how it functions.

The first two prime functions of a prison are protecting community from the individual, and the individual incarcerated from other incarcerated individuals. Thus, separating offenders into different locations based on the violence of their actions and attitudes is mandatory.

Penitentiaries, a place of post-conviction incarceration, were unknown until started by the Quakers in Pennsylvania in the early 1800’s (if we don’t count debtor’s prisons and Roman galleys). The theory was that if you took an offender, put them in solitary confinement with a Bible for a fixed period of time, they would repent. The problem proved to be that, deprived of human interaction, many want insane by the time of their release. Thus we can’t use isolation from all human interaction as a tool.

Next came Reformatories. Here there was interaction, and labor – making license plates, road signs, etc. However, in most instances it was a warehouse, housing many who did not need to be there, for periods in excess of rationality, and mixing violent with non-violent together. The work done must be linked to helping the community and helping the offender upon release.

Next came Correctional Institutions, with schooling, counseling, and many other good and appropriate programs. But the population was often still mixed with the violent, non-violent, lifer, short-termer, weird, and psychotic all in one. So we developed Super-Max and Farms to try to separate – something which remains very important in any institution. But education — including religious education — should be a part of the new facilities, while unlimited radio, TV, and internet must be removed.

The old way has never stopped the growth of the incarcerated population, or it recidivism after graduation. New Zealand stopped growth, and dramatically lowered recidivism through it’s pre-trial program! Thus, rather than going into multiple descriptions of various facilities which might work, I am going to describe a necessity for any facility we do use, from County Jail to Super-Max.

Our purpose is to: (a) avoid the death penalty; (b) protect the people from one who cannot be out and among them, at least at this time; (c) protect an incarcerated person from his/her fellow inmate; while (d) recognizing that some will “change”, and it would be proper to release them. The trick is: how to find them! So, every worker in every facility must be trained to spot what they think might be a spark of repentance.  When they do so, they go to the facility supervisor to set up a “testing” for a repentant (not remorseful) heart. This would likely involve care-

frontation with Truth, in love, seeking displays of confessing wrongs of done, and forgiving of wrongs received. It should include a face-to-face Victim-Offender component for all victims willing.

If that process, in the minds of those running it, concludes that there has been in inward change of heart, then we start the process of release, and specifically help create a supportive community for the offender on the outside.

Can this system be conned? Absolutely. Can people be hurt in the process?  Absolutely. But would those things be any worse than what we have today? In my opinion, absolutely not.

8.  We can decriminalize some offenses, removing them from our existing system.

It should be recognized that by removing mental fault from the system, going to strict liability, and not using the term, criminal, we effectively do decriminalize. However, decriminalizing must not become an avoidance of responsibility!

I think we can remove any number of offenses from our existing system, and place them into the civil-law system. That means moving from the criminal court, with its “proof beyond a reasonable doubt” standard, to the civil court with its “proof by a preponderance of the evidence” standard.

Confiscation of property (drugs/alcohol in possession; auto being driven without a license; etc) along with nominal fines, community service as an optional way to pay a fine, multiple forms of intervention in the life of the offender to help with change, and many other positive things are possible in such a system.

However, we must be watchful that this change does not imprison someone into a class of poverty from which they cannot escape – a problem I understand exists in some places today because of impact of fines on the State budgeting process.

9.  We should restore jury nullification in some manner.

Again, this may not be routinely necessary if the major changes which I propose are adopted. However, until then, due to the draconian nature of mandatory sentencing, the depth to which the concept of punishment controls the philosophy behind our laws and procedures, our ongoing (although hopefully properly modified) use of the death penalty, and over-usage of prisons, the jury should must gain a role in sentencing.

Without jury nullification, the people have no protection from the injustice of the black-letters of the Law – an issue we also see in our Administrative Law system.  As long as we have mandatory sentences, I believe we must find a way for the jury to know the penalties, and have the right to nullify. Even without mandatory sentences, I think we should still explore how we might have a jury participate in the sentencing process – which may be the theology behind the Biblical process of stoning; i.e., an opportunity for community to override the black letter of the law.

One form might be to have a panel of citizens, changing rapidly to avoid an attitude of “everybody is a criminal” — a danger judges fight daily. They might review Pre-Sentence Reports, listen to oral arguments, maybe question the offender and/or his/het attorney, and make a private suggestion to the Court. The Court would not be bound by the recommendation, but would at least see a view “from the community”.

10.   We need a meaningful Death Penalty

As a help to move in that direction, I again point out that executing a person does not affect where they spend eternity; that is for God. But I think there may be a subconscious block against the death penalty because of a high percentage of belief in the opposite position.

As a part of the death penalty, I also believe we should seriously debate whether scientific things like finger prints, voice prints, eye scans, or even DNA qualify as eye-witness. Those things can be invaluable in overcoming the well established problems with eye-witness testimony – but I remain somewhat uncomfortable with making such things “eye witnesses” for death penalty purposes.

As to the categories for use of the death penalty, I do find the second and third categories in the Bible as giving valuable direction, but will not herein advocate for where the lines might be drawn in any instance; that is for the political process. I only assert that it seems to have a position in God’s processes, and we should not be hasty to ignore it.

I would offer a couple of additional thoughts, however:

a) At what point do we decide that a transporter of a quantity of illegal drugs, or illegal immigrants gets executed even if they are claiming they had no idea the stuff was in the vehicle?

b) At what point do we execute (or banish) the drunk driver who has had fourteen arrests, with twelve involving property damage? If a death results from operating under the influence, is that one incident enough?

c)  As to the “high hand” person who not merely denies God but challenges Him for power, and because “cut off from his people” [the penalty in Num. 15:30] could be excommunication [I Cor. 5] or banishment and not necessarily death, I am willing to consider whether there may be some Category 1 offenses – i.e., direct offenses against God’s existence and authority – which could be worthy of consideration for imprisonment for life because of (a) the divisiveness caused within the community, and (b) the nature of the offense.

11.  We should abolish our Plea-Bargaining and Sentence Bargaining systems.

This was one of the matters at the Round Table in Kazakhstan. They believed their criminal code was proving too harsh, and wanted to see how to tone it down.  They already had the provision about “paying what is desired”, and 50% reduction for “taking responsibility”. However, what responsibility looks like was not defined, and should be.

But they wanted something more, and thought plea bargaining might get it for them. I explained to them that in the plea bargaining system an offender, and all of his/her family and friends, seldom see Justice because they feel coerced, and not dealt with as a person but as a lump of slime.

Likewise the victim, and their family and friends do not see Justice because they have no chance to tell the rat fink their feelings, or ask their inner, psychologically motivated questions.

Finally, everyone who reads a blip in a newspaper on the matter takes a side on “too harsh” or “too lenient”, while lacking knowledge or a dog in the fight. The collective result is that there is no peace in the land.

In Kazakhstan, they listened, and immediately discarded the idea of adopting our plea and sentencing bargaining system.

I also believe that removal of mandatory sentences and intent, with a New Zealand type option, will substantially remove the perceived necessity for plea bargaining; all we may need is to allow the Court, now free from mandatorys, to suggest (and Order?) – in all/some instances? – a lesser alternative, more appropriate to the facts of the case, as a response to the acts which caused a harm.

I had a client charged with 2nd Degree Murder which, once the facts became clear, was voluntarily reduced by the prosecutor — without even my suggesting it — to attempted voluntary homicide. The 19-year old, who had made a tremendously bad decision, was saved from a likely destruction of prison under a minimum 20-yer sentence.

12.  Holding “entities” (corporations, etc) liable for crimes.

This was also discussed at length in Kazakhstan. The problem is that we normally can’t find the real donkey to pin the tail onto, and we want a person to be liable – not the heartless entity.

Interestingly, the criminal law professor at the table knew of, and mentioned, the famous U.S. “Exploding Pinto Case”. That case was filed in Elkhart County, Indiana, when I was Judge, by my former associate, but then removed to another county for processing. I knew it well! In that case, the jury did not convict Ford Motor Company of a crime.

So I acknowledged to the table that holding entities criminally responsible is a problem in our system, but suggested two things which can lessen the problem:

a) How a Class-Action and Punitive Damage process, with attorney fees awarded the successful Plaintiffs, can gain restitution for victims.

For that, I used the outcome of the Pinto civil case as an example. In the criminal case, the prosecutor secured possession tons of internal Ford records which became “public information”. That information was taken by plaintiff attorneys in California, and a class-action case was filed. The civil jury punished Ford with damages equal to the extra profits Ford expected from not fixing the known defect, and awarded attorney fees.

It is a concept which can be very meaningful.

b) What would it look like to execute a corporation?

I suggested an item-by-item auction sale, rather than bulk-sale. In the bankruptcy of Enron, some 80% of value was bulk-sold, so that the business which hurt so many continued under a new name, for the benefit of the rich and powerful who could buy and control it. The true victims got little, if anything, of monetary or psychological value.

13.  Problems within the Juvenile Justice System.

In the Juvenile Justice System, we have two other issues which must be examined.

First, we tend to approach the juvenile as one not capable of conscious rebellion; we think “treatment” is the only answer. I believe the answer must always include care-frontation and accountability “brought home to” the young, their parents, the government, and the Service Providers.

For example, I had a case as Judge which showed the schools moving rebellious kids into a “special school,” when tests had showed them as having learning disabilities. Under Indiana statutes, that entitled them to special educational services – but none had been provided them, and none was provided in the “special school”. Such an approach is likely to encourage further rebellion.

In another case, I ordered a mother incarcerated with her child for a day for not paying attention to the child skipping school; we never had the child miss a day after that!

The second problem is how the service providers, who have a financial stake in the existing systems (as do steel, brink and mortar industries in building prisons) too often control the system.

I blame judges for allowing this to happen; they have forgotten their own youth, and their duty to think in terms of protecting society while producing accountability.

I blame the professionals for lacking a world-view with absolutes of Truth – or being afraid to make use of Truth because it is not politically correct in this day and age.

And I blame the government for promising programs and not providing them for lack of funding. As one example, I had a case in which 5 different private agencies were involved in providing services to a family – all at the cost of the State. I discovered that the 5 entities were not sharing anything about what they were seeing/doing with each other due to confidentiality concerns.  I threatened them all with being fired, and my probation department taking over to avoid the problem; the entities quickly figured out a way to overcome their perceived problem.

14.  Our allegedly non-criminal, but punitive-based, Regulatory Law System must be stopped. Here I am only going to discuss the Regulatory Agencies, and not all Administrative Agencies.

First, the System is, in my opinion, founded on a constitutional infirmity not dissimilar to that discussed by Justice Scalia in Morrison v. Olsen, 487 U.S. 654 (1988) dealing with the Special Prosecutor legislation.

Second, it exists only because of the default of Congress in doing its exclusive job – enacting legislation.

Third, Congress creates a Regulatory Agency (think IRS) by a general statute. The Agency is placed in the Executive Branch, with its top official appointed by the President with the advice and Consent of the U.S. Senate. Its employees are hired through the Executive Branch. The Agency has power to makes Rules and Regulations with the “force and effect of law” – which is exactly what a hard working Congress, with cooperation of the President in signing laws, should be doing — and not by the executive as employer of the people working in the agewncies.

Fourth, when someone violates one of the rules and regulations, they are investigated, prosecuted, and adjudicated by the Agency in an internal Agency process; i.e., by the Executive Branch of which the Agency is a part, and not by the Judicial Branch. Most eventual appeals are to the Federal Courts of Appeals, thus avoiding: (a) the guilt beyond a reasonable doubt standard; and (b) a jury with the right to judge the rationality of the rule or regulation being challenged. In addition, the rules for review make Agency employees who drafted the regulations and testified at the hearings, “experts” on the meaning and intent of the regulation! Thus, in the eyes of an appellate court, they are almost unchallengeable declarers of truth in the proceedings, making the right of appeal even more meaningless.

If we are going to keep these agencies, and allow them to help Congress by writing rules and regulations, okay; I can live with that.

I could even allow an Agency to be an initial investigator, turning its initial investigation over to the FBI and/or Department of Justice (DOJ). Thus the DOJ becomes the prosecutor.

At trial, Agency experts should be treated according to the standard rules of expert testimony, not their current “special employment status.”

We might also have a type of a required mediation process similar to that used by the Courts in Fiji – but not arbitration.

However, the quasi-judicial, adjudicatory portion of the agencies must be removed from them, and placed in the U.S. District Courts; a bureaucrat with a sword is simply another type of totalitarianism. The same holds true for State government agencies, but those cases would go to their state trial courts.

If that were all done, then questions become:

a) Are violations of the rules and regulations, and their “penalties”, to be in their nature “crimes” or “civil wrongs”?

b) What should be the “burden of proof” needed to “convict”, i.e.: (i) preponderance of the evidence (civil law standard); (ii) clear and convincing evidence (civil law enhanced standard); (iii) beyond a reasonable doubt (Criminal Law standard)?

c) Will we use the jury system, including nullification?

15.  We should abolish the quasi-fundamental right distinction in our constitutional law.

I include this because it goes hand in glove with the persecutions now taking place in Agencies and, in my opinion, a massive and unnecessary increase in confusion on the law related to fundamental rights.

The quasi-fundamental right was a creation of the U.S. Supreme Court; as its creation, it can do away with it.

I believe that we only need two categories of rights – fundamental rights not capable of regulation by government, and non-fundamental which may be regulated.  We don’t need the third category, which has its own standards of proof and burdens to be dealt with.

“Social economic laws and regulations” deal with what the Court has concluded are not fundamental rights. There the test is whether Congress had a “Rational Basis” for its decision, and a peg within the Constitution upon which to hang its right to legislate. That Rational Basis test includes the following principles:

a) the law is presumed constitutional;

b) the burden of proof is on the one who attacks the law to prove unconstitutionality; and,

c) that there is no rational basis for the law or the categories which it creates.

Not surprisingly, the citizen normally loses these cases.

I am unhappy, not with the jurisprudence but for the multiplicity of pegs that the Courts have found to hand things on; but that is for another time.

However, when law and regulations encounter a fundamental right (religion, speech, press, assembly, petitioning, etc), then:

a) the law is presumed unconstitutional,

b) the burden is on the government,

c) under strict scrutiny review,

d) to prove a compelling state interest for the legislation, and,

e) show that the government has chosen the least intrusive method for

carrying out its interest.

All of this is as it should be.

My problem is that the court created a third category: quasi- suspect. Therein there is neither a presumption of constitutionality, nor of unconstitutionality, and the burden of proof is on the government to show that the challenged classification serves an important state interest and the classification is at least substantially related to serving that interest. The review is done under Middle-Tier Scrutiny, not the Strict Scrutiny of fundamental rights. I am not a fan of this category because it effectively elevates things into near-fundamental right level for which there is not always a direct constitutional foundation.

And I cannot agree with allowing unelected bureaucrats to use it in Agency proceedings.

16. Court Rules need to be amended to provide that Prosecutors, Law Enforcement, and State Investigators must disclose all information obtain in the process of investigating regardless of whether it was relied upon the prosecution of the crime. The issue of whether an item is or is not exculpatory is for the Judicial Branch and not for the Executive Branch of government.

Any attorney for the State found to violating this provision must be subjected to disbarment.

17. Trial Judges must be required to write their own opinions, i.e., to not rely upon law clerks for that writing.

In addition, a Trial Judge must be compelled to analyze in detail each party’s claims, defenses, facts, arguments, and citations, and explain why the judge is accepting or rejecting each portion of the presentation. The idea of a judge simply saying, “I agree with the position of “X” is an abomination because Appellate Courts generally rule only on issues of law and take the findings of fact of a trial court as holy writ. Thus a lack of, or misunderstanding of the claim of a party by the trial court means an appeal by that party will be rejected is it is fact-based rather than law-based.

18.  Judges of a court of last appeal, i.e., where appeal is not “of right” but “at the pleasure of the Court” must review the appellate petition and its exhibits. This matter cannot be left to the law clerks writing memos accepted blindly by the Justice. It is a duty of the Justice which cannot be delegated.

I am sure there are more to consider, but this is my opening list.

CONCLUSION

I have tried to paint a picture of a God Who chose a method of communication with Mankind in the form of “instruction and teaching”, “distributing good grain”, and not in the form of “Crime and Punishment threat”.

He also chose to allow us to face the consequences of our chosen behaviors, while offering to walk with us, and even carry us as we turn to Him, stand up, choose His path of confession and forgiveness, and stumble forward in a world of sin.

He said that He would “meet with you” [the flock of Moses], “from above the mercy seat, from between the two cherubim that are upon the Arc of the Testimony”. [Ex. 25:22.]

And He will perfectly judge the nature of our hearts.

A man recently accused me of wanting to create a system where a criminal could come, cry and wail a confession, and walk away without consequences. That is not something new to me; a deputy prosecutor back in Elkhart, Indiana, was quoted by the newspaper in saying: “If Judge Bontrager had his way, every defendant would leave the court room with a pat on the head, a ‘there, there,’ and a bouquet of roses.”

I told the man the other day that he was absolutely correct: I do want to see a system in which a person can come without terror, cry out his agony over doing things he knew he should not do, and be responded to in the totality of his self – in contrast to a system which says, “open your mouth and we will cut your head off.”

I also said to him that I knew not what the consequence might look like in any given case, but I expected to see more justice in the community in my model than we see today, more people at peace when in conflict, less people in prison, and less recidivism.

Philip, New Zealand, Jas. 5:13-16, and Matthew 18 all describe the type of system I want to see — a process which allows one to take ownership of their actions and face the consequences, at peace, because they have acted right before God and man.

Is it possible that individuals and communities will suffer harm, even horrible harm from someone who “games” my proposed system? Of course; my proposals are no more perfect, and offer no facially greater protection of the people than the systems we have now.

However, from seeing unbelievable reconciliations and transformations take place in the system I propose and have worked in, and in faith – and a bit of fatalism over “what do we have to lose” – I prefer facing the risk rather than continuing down what I see as a false trajectory.

Bill Bontrager

© Law Day, June 1st, 2020.