I began this tome at the age of 52, while I also began a four month period of teaching general principles of law at two universities in Moscow, Russia.
In contrast to the United States, lawyers are not a significant factor in the society of the former Soviet Union. In the United States, for our roughly 250 million people, there are roughly one million lawyers. In the former Soviet Union, with about 190 million people, there are barely 30,000 lawyers.
And right here a point needs to be made: when I use the term “Soviet,” I will be referring to the philosophical mind-set which ruled Russia, Eastern Europe, and Central Asia for most of the past 70 years; when I use “Russian,” I mean the historical and ethnic Russian person of north-central Asia and extreme Eastern Europe.
One reason for this disparity of the number of lawyers is the historical communal approach to life in Russia versus that in the United States. We are committed to the “rights of man” — to the inalienable rights of the individual. In part because of this (along with the Judeo-Christian concept of the unique worth of each individual), in our society the rights of the individual have become paramount to the rights of the community.
In Russia, the exact opposite has been true for over 1000 years — in part due to the difficulties of life in the far north, and in part due to a history of a lack of private ownership of land and of property used for production of goods. The result is fewer lawyers: you need fewer in a community-centered life than in an individual-centered life.
A second reason, however, is that the experience of historical Russia with law, from the earliest of times, has been an experience with “repressive law” — that is, the law served always to uphold the power and decree of the King (Czar or Soviet Dictator). In comparison, law in the United States has always been basically autonomous — that is, seeking to hold the political and military leaders responsible as well as all the populace. Repressive law societies always produce less lawyers than do autonomous law societies.
I arrived in Moscow with (and possibly because of) a wide and seemingly contradictory background. I was born into the home of a lawyer/politician, my father holding the offices of Municipal Judge, County Prosecutor, and State Legislator.
I graduated from Indiana University Law School in 1966 and entered the general practice of law in Elkhart, Indiana, in the firm of my father. In the Fall of 1973 I was appointed a member of the Indiana Board of Correction, a lay-citizen advisory board to the Governor on matters of prisons. I served on the Board through the end of 1976.
In 1977 I became Judge of the Elkhart Superior Court II, a court of general jurisdiction for Elkhart County (about 135,000 people). While I exercised jurisdiction in all areas of the law (Criminal, Civil, Family, Probate, Juvenile, etc), the Court quickly took on the attributes of my personality — an insatiable hunger for that thing which we call “justice.” Thus the criminal and juvenile areas took precedence over all other work areas of the Court.
My sense of what was necessary for justice to happen, and my zeal and manner of speaking, proved more than the law and legal system could tolerate. In 1981, for provoking the law and system over an issue of mandatory sentences in some criminal cases, I was found in Indirect Criminal Contempt of the Indiana Supreme Court. Should you want more information on this, see Chapter 16 of Loving God, by Charles Colson (Zondervan Publishing House, 1983).
I chose to leave the bench in February, 1982, in the midst of proceedings by the Indiana Supreme Court to remove me. From then until September, 1983, I again practiced law privately.
But this time the way I practiced was radically different. Having suffered a great deal of pain and anguish during 1981, at the hands of the law and in the processing of a conflict, I had found peace through a surrender to Jesus Christ as Lord and Savior.
Now, in my clients, I saw the same turmoil I had experienced; so I began offering the peace which I had found. I spent far more time in counseling as a Christian than in lawyering.
In September, 1983, I left the practice of law and moved to Minneapolis to become Executive Director of the Christian Conciliation Service of Minnesota (CCS), a ministry to draw Christians in conflict out of courts and into churches for discussion, healing, reconciliation, and resolution of their conflicts.
During this time, I focused on learning and teaching principles of finding justice in the midst of conflict by choosing personal “peace-living” — the practice of the principles found in Matt. 5:22-26 and 18:12-35.
In 1988, I left my position with CCS to pursue a role of teacher and consultant. Over the next several years, my work led me into several internal church conflicts, taking the same principles and applying them to corporate conflict settings.
In 1990, I began to minister in prisons through Prison Fellowship, the organization formed by Charles Colson, former aide to President Nixon. Here I focused on the message of reconciliation to those behind bars.
The next year I became involved with Justice Fellowship (a branch of Prison Fellowship), and began to develop some applications of principles of reconciliation to matters of the law and legal systems of the United States.
In 1993, I became involved with the international arm of Prison Fellowship, presenting to emerging nations a whole new concept of criminal jurisprudence called Restorative Justice.
My tenure in Moscow was under the International Institute for Christian Studies (Overland Park, Kansas).
Why did I choose the title of Restorative Justice: A Primer for this work?
I do not know about you, but as I wander about, I meet a lot of people who complain that justice seems to no longer exist in the United States.
As I listen to them, I find that such people fit into five categories:
(1) Those who feel they have been harmed by another — by a crime, a tort, or in violation of a contract — and feel they have been let down by the legal system in seeking resolution of the conflict. I will call these people victims, for that is how they see themselves, although harm-sustainers would better establish that we are not limiting this to matters of crime.
(2) Those who know they have harmed others, but who also feel that the system has failed to deliver justice to them. I will call these people offenders, or harm-doers.
(3) Those who are family members, friends, fellow workers, neighbors or acquaintances of victims or offenders, who also say that justice was denied to their friend. I shall call these people community.
(4) Those of one region — county, state, nation — who, based upon what they receive from the media, bemoan the fact that Justice seems to no longer exist. I shall call these people society.
(5) And those who labor within the law — legislators, law enforcement officers, prosecutors, defense attorneys, judges, probation officers, correctional officers, etc, who so often speak with discouragement and a hint of bitterness. I shall call these people players.
Finding all of these feelings in the United States of America, a nation committed to the proposition of the Rule of Law, with highly developed criminal and civil legal systems (as opposed to many nations with nearly no civil law), is particularly disconcerting to a person of the law such as myself. To sense the law devouring us, rather than serving us, causes pain.
But the total of my study and experience says that there are things which can be done which may restore a sense of justice to people in all five of the categories. Thus, I entitle this work, Restorative Justice. But, I also call it A Primer because I am not a theologian, and I do not believe that I have all knowledge. So I see this work hopefully as beginning a foundation for discussion within the Christian community. Working together, we may be able to develop this into a true program for reform, in our nation and churches.
I devote this book to two questions: what has brought us, in the United States, to this point of frustration? What, if any way, is the way out? But two disclaimers must be made. First, I am writing as an evangelical and as a lawyer. Lawyers tend to sound and be legalistic. Their rhetoric often seems harsh, uncompromising, judgmental and condemning. We make sweeping assumptions, and hang theories on them. And we tend to be argumentative — as though that should surprise anyone. But I love people, and I love our God who isn’t done with me yet. I plead for an open-minded hearing. Second, I want to present the Mosaic Code as a model for law and procedure. I will propose that a nation which wants to thrive must acknowledge that Code and seek to incorporate its principles into its legislation. I also believe Christians should be a part of these legal processes.
But I am not a Utopian, and I fear power greatly. It was not our Lord’s way. My proposals call for sacrifice, not for the exercise of power. They call for risk-taking not control-taking. They call for proclaiming the heights to which Jesus calls us, while acknowledging the depths to which we continuously plunge.
My understanding of the Bible says that our best efforts will not stop the downward slide of mankind to the point where all life on earth would end but for the return and intervention of Christ. But the Bible also says that our God is sovereign over that event. Until then, we are seed-throwers and body-snatchers (Jude 22-23).
So, instead of seeing this as a proposal for Christians to take power and coerce restorative justice principles, please see it as proposing an educational program. If one person who reads this finds peace in the midst of conflict, I will be glad. If there is just one who, after reading this, acts upon it, and thus snatches another from the fires of conflict, I will leap for joy.
SECTION 1 — JURISPRUDENCE
Because this work will present a study of law, it will be called a book of jurisprudence. Jurisprudence may be defined as: “The science or philosophy of law” (Webster’s New World Dictionary 3rd College Edition).
To me, philosophers and theologians should be asking questions such as What is the source of law? What are its purposes and its methods? What will be the consequences of our choices concerning source, purpose, and method? I see this as the issue of The Rule Of Law.
On the other hand, political scientists should be asking questions like: How do we choose our laws? How do we enforce them and interpret them in a life of a conflict? I see this as Rule By Law.
Finally, there is the question for each of us to ponder: What is my attitude towards law and the legal system, respect or anger? This is the matter of being Under Law. It is a highly personal matter.
Studies in Jurisprudence ask questions such as those which I asked my Russian students: Where did you first meet law? Where else have you met law? In what forms do you find law? What are the purposes of law? How does law function? What are the sources of law? What are the results of law?
Jurisprudence does not ask questions concerning “laws of cause and effect”, such as touch a hot stove, you will get burned and learn not to touch a hot stove. Nor does it ask questions about “laws of nature”, such as gravity or animal kingdom life. The reason is that such “laws” do not need human involvement.
I begin with the issue of where we first encounter law. If we stop and think about it, we first become aware of law within the family. We grow up discovering that there are rules, relationships, authority structures, and power at work within the family unit.
True, these laws of family interaction are, generally, unwritten. They seem to be constantly changing. They may be based upon historical custom and usage which seem very outdated. And they can be very arbitrarily and haphazardly enforced. Yet, they are laws, for they seek to govern human behavior as that behavior works itself out within a community of other people.
And we have just met the first purpose of law: to regulate human behavior in relationship to other humans and to the planet.
As we consider our life to the moment of reading this page, we will see that we have encountered law in many places: on the street, in the playground, at school, in sports, driving a car, etc. As we look, we find customs and usage, Constitutions, statutes, rules and regulations, behaviors of superiors to inferiors, and procedures, all of which are equally entitled to be called laws because all are equally involved in seeking to govern human behavior in relationship to other humans.
At this point, we have seen a second major purpose of the law: it is to restrain people, and is backed by power to accomplish its purpose.
And we now realize that the only law we know is the law created by humans. It is enacted by humans, enforced or “processed” by them, and even defined by them.
Sometimes jurisprudence will attempt to define law based upon the type of law which a study finds in a particular political setting.
As such, law might in one locality be termed repressive, i.e., so in the control of the “King” that society must always be looking to the King for its meaning and existence. I came to a country, Russia, which has never known any law other than repressive law — whether it was under the Tartars, Mongols, Tsars, or Soviets.
Obviously, in a repressive system, all those functioning to keep the system going look only to the King to see if they are doing the right thing. And, just as obviously, they live in constant fear that they may become the focus of the King’s displeasure, and thereby the victim of the law.
Another system of law, in another place, might be called democratic, that is, it is always looking to the majority to see what to do. This might be true of the United States. However, law which always looks to a majority can be just as repressive of rights, status, property, and dignity of the individual as the repressive law of a King — and just as lacking in moral foundation. This was what DeToqueville warned about when he wrote Democracy In America.
Or a legal system might be called autonomous, i.e., capable of holding king and people to account (known in the United States by the phrase “the rule of law”). In such a system, those in charge of the administration of the law generally look only to the “letter of the law” to justify their actions. They do not consider what factors may bring people into the system for resolution of conflicts, nor what the impact of a decision may have upon the greater community to which these people will return. These are seen to be moral or political issues, outside the scope of the law. The autonomous system fears that any attempt to address these matters would be a risk to its independence.
(This is why I had so much trouble as a Judge — I was always asking, “Why do they come,” and “What happens when they leave?” And I was always pointing to the other branches of government and trying to tell them where they were failing in the establishment of justice! But, I must admit, I did a lot of this with arrogance, which equals contempt.)
Another approach to the study of law would be to study historical principles of law (the method used in the United States until the end of the 19th Century). In that type of study, one considers principles as developed from the Common Law since 1100 A.D., and then look to cases to see how those principles have been applied by judges in an effort to bring about “justice.” This would also be a culturally specific way to study law. We will do some of this in this book.
Or, jurisprudence might study how specific interactions of two or more people were dealt with, at and by law. One could then devise categories of law, and, from the cases studied, come up with a number of “principles” which would then be argued when a new case would arise. This is the method (case book study) used in law schools in the United States today.
Or we could study every system of law and procedure which is available to see what we would like to copy or avoid.
I am certain that there are other approaches to a study of jurisprudence available, but these will serve to make my point: in every instance we would still be dealing with laws of man, ever in a state of change.
For the purpose of this book, “law” shall be considered as whatever, in a given situation, passes for the rules (written or unwritten; specific or non-specific) which regulate the interactions of human beings within a society. As such, “law” will presume something created by mankind.
Here, I will present a theory of jurisprudence which may best be described as Restorative Justice.
If I prompt the reader, i.e., with what lawyers call “leading questions”, I may also get you to see and acknowledge the presence of another law.
This law is also found centered in our relationships, it is always unwritten, it seems to always function perfectly, but it does not seem to come from humans. This is the law of love lived out in relationships with others.
The mother who comes to tuck us in at night, gives us a kiss, prepares our food, and washes our clothes — and to whom we so seldom say thanks — lives this love out in the family.
The teacher who takes us aside to speak soft words of encouragement, lives this love out in the school.
If we search out lives, in every setting of the law of humanity, we will often find examples of the law of love.
It is not fair to say that law made by humans fails to recognize this other law. Law knows that it is present. But it is fair to say that man made law, historically, has ignored this other law because it knew that it could never require a person to live out this other law of love.
As a judge I wept for what might have been, knowing that it would require love to bring it about, yet seeing myself as helpless to produce the love needed. So, I issued decisions, to people who were unwilling to decide between themselves based upon love.
Human law, coming from power and restraint, just does not know quite what to do with love.
Today I believe something different. I do not believe that human law can create the love needed to take us out of our need for law. But I do believe that human law must recognize that another system of law exists. And I believe it is possible for human law, whether written or procedural, to:
(1) Point out to the people subjected to human law that another system exists;
(2) Explain why one should choose the other system;
(3) Encourage one to choose the other system; and then
(4) Respond appropriately to one who makes the choice to seek the other system.
Today, in the United States of America, we are at an all time low in our attitude to law, the legal system, and those who administer the system.
I suggest the reason is that we know, in our innermost being, the things I have just said — and we want to know what to do about them. To begin, we must consider the question of the source of law.
Sources of Law
I begin with seven questions:
Question 1: Is there an absolute LAW which exists, and which is in some way above all of the laws and systems of man?
Most people (including my students in Moscow), think that the law is an absolute. “In fact,” they say, “if jurisprudence is actually a science, then it must be a science wherein two plus two always equals four.” And they continue to study, looking for the perfect law of man which always produces four.
But they quickly become frustrated thinking about law, and deep down seem to know no law is absolute. Law appears situational rather than absolute. Does the officer, when he stops you, arrest you or just warn you? If you are arrested, will the prosecutor file charges, or let you go your way? If you are charged, will you be offered a reasonable plea agreement, or forced to trial? If you have a trial will you be convicted or acquitted? If convicted, will the judge be lenient or harsh?
Every one of these legal decisions is made by a human being, subject like us to idiosyncracies. And the law constantly proves to us how subject it is to our human frailties! Yes, we know the law is not absolute, but we keep on seeking and hoping, don’t we?
Question 2: If absolute LAW exists, where do we find it?
If it is not discoverable, then it does not, in fact, exist and cannot be the LAW which we all seek. And if it is not discoverable, then the words of Oliver Wendell Holmes, former Chief Justice of the U. S. Supreme Court, become chillingly appropriate (in The Second American Revolution, by John Whitehead — David C. Cook, Publishers; 1982; page 51): “Truth is the majority vote of that nation which can lick all others.”
Question 3: Is this LAW, assuming we can find it, binding upon all?
If it is not of equally binding force upon every human being, in every period of time, in every setting of society, and in every circumstance, then it is not the LAW we seek. Elton Trueblood, A Place To Stand, (Harper & Row 1969), phrased it this way (pg 27):
The same proposition cannot be true for one man and false for another, because then the confusion would be intrinsic, and the effort to know the truth would be a meaningless undertaking.
Question 4: Is this LAW unchanging?
If it changes and is changeable, it cannot be what we seek.
Question 5: Is this LAW recognized by all?
If it is not recognized by all, then those who do not recognize it are not bound by it, and we still do not have the absolute which we desire.
“Binding” and “recognized” are not the same thing. Of the two, the first is the critical one, for if such a LAW exists, and is binding upon me, then the fact that I refuse to acknowledge (openly recognize) it does not alter its binding effect. And, depending upon the source of the LAW and the method of conveyance of that LAW to all of mankind and to me, it is possible for me to be chargeable with the knowledge of the LAW, even though I refuse to recognize the LAW.
Question 6: Does this LAW offer a final judgment of all matters in perfect justice?
If there is no day of reckoning, so to speak, then there is no LAW. If such LAW exists, transcends all other law, and is binding upon all, it must vindicate itself and its existence at some ultimate point in time, to and for all of history, and upon all who have ever lived.
Question 7: Does the LAW have an answer to the question of why we do not simply agree with one another and then live out our agreements? That is, why we do not live out love in our relationships?
Phrased differently, does this LAW tell us why we must have our laws, regulations, and processes? Does it tell us how to behave and function within what we create? My friend, Sam Ericsson, says that as he travels the world and speaks to people on matters of the law, he is always able to secure agreement to one basic proposition:
“No person wants to be treated by law, or at law, in a way which is any less than any other person is treated.”
In a manner, this is a reverse of the Golden Rule: “Do not do unto me less than that which you would want done unto yourself.” And, while this is certainly a starting point, and does represent question (5), it does not, I think, go nearly far enough.
John Warrick Montgomery wrote a book entitled, Law Above The Law (Bethany Fellowship, 1975). There he gives four reasons why, for him, the Bible must be the place to find this law above all laws:
An explicit, non-question-begging standard of absolute justice is provided by which the evil laws of sinful men and sinful societies can be evaluated and corrected. (p. 46)
Biblically revealed ‘higher law’ offers the only reliable guide to personal and national health, and thus to the preservation of individual and corporate life. (p. 47)
Together with revealed law, Scripture imparts the gospel, thereby offering not only perfect standards but also merciful help for a fallen race that continually violates them. (p. 49)
In the face of the inadequacies and failures of even the best of human justice, Biblical revelation assures us of a Last Judgment, where perfect justice
shall be rendered. (p. 51)
It is my belief that there is LAW above all our laws — that it is discoverable, recognizable, and binding upon all, and it has been for too long neglected. It is to be found in the first five books of the Bible.
I believe that for a number of reasons:
First, if there is no discoverable and agreeable LAW above all law, then there is, in fact, no law but only power and anarchy, disguised by a membrane called “civilization,” which can at any moment, like in Yugoslavia today (or Germany under Hitler), shatter in an obscene way.
Or, if we recognize that unfettered majority rule might, itself, be a form of anarchy, we can show that potential no better than through some other words of Oliver Wendell Holmes:
When it comes to the development of a corpus juris (a body of law) the ultimate question is what do the dominant forces of community want and do they want it hard enough to disregard whatever inhibitions may stand in the way. (The Second American Revolution, p. 51)
I refuse to accept that anarchy is truth.
Second, as a Christian, I see life as a whole; I do not separate social, legal, or political concerns from concerns of ecclesiastical or theological nature. All acts have both public and religious significance. There is, in all things, a continuous battle between good and evil, God and Satan. Thus, I see absolutes wherever I turn. I see reality at two levels — that which I can see, touch, experience; and that which is of God even if I cannot see, touch, or experience it.
Third, I believe that here our choices are only two: either there is a Supreme One above all others, from everlasting to everlasting; Creator, Provider, Sustainer; the God Who has revealed Himself to mankind — or there is not.
If the first is true, law and truth flow; if the latter is true, there is no truth, only power and anarchy; and there is no future, no meaning. All is chance — so go for the gusto this time, because this is all you will ever get. There are no values or principles, no way to determine the “ought” from the “is.” If there is no discernable, objective “right” to which man can agree, then there is not even the possibility of there being such a thing as error.
To quote Whitehead further (p. 88):
The crucial question is really one of epistemology — the theory of knowledge. If man cannot know, according to a higher law, what is just or right in a situation, he cannot protest and criticize legitimately any particular course of action as unjust. Therefore, questions of right and wrong are resolved, in the jurisprudential view, by the political process.
Montgomery also cited a delightful tale to show the results of a law of “every man for himself” (p. 17):
Once upon a time, a hare of philosophical temperament invited a politically oriented fox to dinner. During the entree, the hare presented an interesting argument on the relativity of law and morals, stressing that each beast, in the final analysis, has a right to his own legal system. The fox did not find this argument entirely convincing on the intellectual level, but was much impressed with its practicality. For desert he ate the hare. Moral: A philosophical viewpoint can be of immense practical consequence, especially when the stakes (steaks) are high.
Fourth, I believe that the Bible is God’s authoritative revelation to mankind; that its pages contain necessary and sufficient guidelines for the proper ordering of personal, social, and ecclesiastical life; that all aspects of life — need to be brought into subjection to God. This includes our laws, legal systems, legal procedures, and the behavior of people who function in those areas.
Fifth, the Bible offers doctrines and statements unknown in all other religious systems. These relate directly to the matter of law, and confirm the validity of the Bible as the source book for LAW:
(1) The Bible states that man is made “in the image of God.” (Gen. 1:25)
Now recall: if there is no god, there is no law above all law; thus, if God exists, then He must, in His very nature, epitomize all absolute, unchanging, binding upon all, LAW. If we then, as humans, are made in the image of the Author and Embodiment of LAW, then knowledge of that LAW must be etched permanently in our very nature and being.
(2) And the Bible declares exactly this situation to be true:
For this commandment which I command you today is not too difficult for you, nor is it out of reach. … the word is very near you, in your mouth and in your heart, that you may observe it.” (Deut. 30:11-14)
In point of Biblical history, this was said after the Ten Commandments and sundry laws had been given.
(3) God, both LAW and the LAW-giver, says of Himself: “For I, the Lord, do not change” (Mal. 3:6), thus fulfilling one of the requirements of the LAW — unchangeability;
(4) And the Bible promises a day of reckoning:
The conclusion, when all has been heard, is: fear God and keep His commandments, because this applies to every person. For God will bring every act to judgment, everything which is hidden, whether it is good or evil. (Eccl. 12:13-14)
This leads me to my sixth reason — which is related to the issue of “expect” versus “respect”. I asked my Russian students, “What do you expect from the law?” (This is also a way to discover what Sam Ericsson seeks — common ground for the law.) They said:
To be treated equally with others.
To have my rights protected.
To have my property protected.
To have my pursuit of happiness protected.
To have due process.
To have all bound by the same law.
To have a problem-solver.
But, try as we might, the laws and systems of man will always fall short. Sooner or later, our expectation will not be met. We will find that we have a “decision-maker,” not a “problem-solver,” to whom we are appealing. And we will find that the decisions of the law are dividing us from one another, rather than restoring us in good relationship.
Or you might address this matter of expectations from a review of the Preamble to the Constitution of the United States:
We the People of the United States, in order to form 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, do ordain and establish this Constitution for the United States of America.
The fact is that everything which we the people said we would do, the Bible says God and God only can do:
And He is before all things, and in Him all things hold together. (Col. 1:17) [If we could do it well, why did I, for 5 years, spend one afternoon per week granting divorces?]
Many may seek the favor of the ruler [Judge, President, etc] but justice for man comes from the Lord. (Pro. 29:26)
Unless the Lord builds the house, they labor in vain who build it. (Psalm 127:1a)
Unless the Lord guards the city, the watchman keeps awake in vain. (Psalm 127:1b)
“Who covers the heavens with clouds; Who provides rain for the earth; Who makes grass to grow on the mountains; He gives to the beast its food. Psalm 147:8)
If we see the Preamble as only a goal to strive to, under the principles of the LAW, all will be well in our soul. But if we begin to expect the government to actually accomplish the things which only God can accomplish, we will be emotionally shattered.
Can we, nevertheless, respect the law and the system which is over us?
If we put our expectations upon the God Who will, some day, judge all things, hidden or in view, with righteousness, then we can choose to grant respect to the law, the system, the process, and those who serve in it, even when they fail us in some manner.
In the third chapter of the Book of Daniel, three men faced the dilemma: denied every legal right and process which we hold sacred (religious liberty, appointment of counsel, separation of power, impartial tribunal, facing witnesses, rights against self-incrimination), they did not swear at the king, or at the law, or at the process. Instead, they admitted what they had not done, and why they had refused. Faced with a certain death, they quietly and respectfully continued in their refusal — acknowledging the power of the king to kill, but the power of God to save. And they stated that even if God did not save, it would not change the fact that He existed and would, some day, set all things right.
While serving as judge, I expected perfect righteousness from the law, from the legal process, and from those serving in the law. When perfection was not forthcoming, I removed my respect for the law, the system, and those who served. In short, I became an “anarchist” who had set himself above the law. I was rightly found in contempt by the Indiana Supreme Court. Today, I respect, for I have changed the place — the Person — where I place my expectations.
Let’s hear some other thoughts from Whitehead:
Modern legal theorists define jurisprudence as the science of the law. Jurisprudence, however, encompasses more than a vague generality such as that. The Latin term juris means ‘just’ or ‘right.’ Prudentia, means ‘a practical skill in the management of business affairs.’ In other words, jurisprudence has to do with the administration or weighing of justice or right values. (48)
Thus, this book begins with the proposition that there is “law above the law,” and hereafter I shall designate it as LAW.
This LAW is that which emanates from God, the Ever-existent One Who created and sustains all that is, Who reveals some things of Himself to mankind through nature, Who has also written to man in that Book known to Christians as the Bible, and Who entered the life of man on earth in human form as Jesus Christ.
I will use law to designate all the efforts of man — constitutions, statutes, customs, usages, and procedures — to rule and regulate the behavior of those who will not love.
Purposes of Human Law
Just what are the purposes of law?
We have already seen that law serves to regulate human behavior relative to our relationships.
Inherent in that purpose is the acknowledgment that if we could always agree, and always live out our agreements (or find our own way back to a good relationship when a disagreement occurs), there would be no need for either law or legal process. There might, however, still need to be a process, and people to help in that process. However, even the process would not be of law but would be of voluntary seeking after unity beyond concepts of law.
Since we seem unable (or unwilling?) to live in agreement, the law gives a place and a process where we can bring our conflicts, rather than leaving us to war against one another to the death. So, a second purpose of law is to give us a process which is able to compel us to do what we choose not to do.
This process, it is hoped, will also restrain people who perceive themselves as victims from taking the law into their own hands.
And law seeks to punish those who transgress the laws of society, or the rulings of Courts, in hope that they will not transgress again. In a civil case, as we shall see more fully later, the questions asked generally are:
(1) How much, if any, has the offender injured the victim?
(2) What remedy or remedies, if any, are appropriate to compensate the victim for the loss?
In a criminal case, however, the questions appear to be:
(1) To what extent, if at all, has the offender injured society?
(2) What sentence, if any, is necessary to punish the offender for his transgression?
Just as punishment of the offender, rather than compensation for the victim, separates Criminal law from Tort or Contract law, so there must be something about a criminal act which makes a victim compensation approach inappropriate. That which has, historically, separated these fields of law is the issue of punishment.
Historically, punishment has been seen to have five goals:
(1) Reformation means seeking to change offenders from law-breakers into law-abiding, productive members of society. It seems desirable (society gains, and nobody loses) if the offender is rehabilitated. However, everyone today seems to agree that the U.S. law and legal system do not bring about reformation.
Of course, a theory that man is sinful answers the problem, for nothing done to or for one who is a sinner by nature will change him. Rehabilitation is an inward act of the heart which then displays itself in outward actions of love, lived out in relationship and community.
(2) Restraint is simply the removal of a person, for some period of time, from the presence of others. The purpose is to incapacitate the person from committing crimes against the public. However, 99% of all offenders sentenced to prison do get out — and studies show they come out the worse for the experience. Also, in the instances of the worst offenders, they merely find a new “public” to offend — fellow inmates. This, of course, also means that lesser offenders, sent to prison, get doubly punished as they become the prey of the anarchist.
Further, during the time of restraint, victims often receive no restitution and family members of offenders may be placed upon welfare. All of this injures society to a still greater degree as it supports the bed-and-breakfast establishment (prison), and the incarcerated offender via taxes.
Restraint, as a form of punishment, is foreign to the Bible except for the person who, being unable to make restitution, is sold as a bond-servant for restitution (Ex. 22:3; Deut. 15:12). It is believed that the maximum period for such servitude was 6 full years (see also, Ex. 21:2).
(3) Retribution proceeds from a theory of vengeance, plain and simple: “You did something wrong. We do not like you. We will remove you from among us.” Maybe this is merely the law attempting to justify itself.
Of course, this denies the dignity of the individual. And it lacks a certain display of love. We are to love the sinner but hate the sin.
Then, when we try to make sense of the particular sentence given a particular person for a particular crime, in comparison with another sentence given another person for his or her particular crime, we find the appearance of such a disparity that, once again, the law makes no sense.
It may be that we demand retribution, but the Bible makes it plain that vengeance is for the Lord and not for humans. Yet we do find support for the people, as agent for God, exacting God’s retribution as punishment. We shall see this in the death penalty, in its precise Biblical application.
(4) General Deterrence operates on the theory that a certain punishment to one person will reduce the possibility of other people committing the same, or similar, offenses. Biblically we find support over and over for general deterrence, even though there is no proof that following a Godly order will universally result in such. We are forced back to faith in Him Who created and does know best. Thus, general deterrence is a proper way to view sanctions for violations of the law. But it must be viewed within a context of no prisons!
(5) Specific Deterrence is the thought that a punishment given to a person will deter that person from doing the same or similar acts in the future. However, if 75% of those released from prison are re-arrested and again incarcerated within four years of release (current figures from around the world), specific deterrence does not seem to work very well. For example, harsh penalties for drug trafficking do not even slow down the flood of drugs, whether it is because people are doing the dealing under the influence, or because of the high financial reward in light of the risk of actual punishment, or because of the constantly expanding market.
Later we will look at the very concept of punishment as a purpose for the law. For now, I have presented the ancient concepts.
In Civil law (as opposed to Criminal law), there is a stated purpose of trying to restore those who have been harmed to the position they occupied before the harm took place. This is, if you will, a shifting of the burden of loss from the one who sustained the loss to someone who ought, more properly, to bear the loss.
Civil law also establishes relative rights, powers, positions, etc. As such, it serves in yet another way to order society.
And, we must never forget that one purpose for law is to simply uphold the position of some one — or some group — in power. This is the “repressive” concept of law which we mentioned earlier.
These purposes seem a bit sterile, however. Can law —
(1) In its written forms — Constitutions, statutes, and case decisions;
(2) In its procedures; and,
(3) In the actions of its servants —
serve another purposes? Can it serve to build up, rather than tear apart?
But what are the purposes of God’s LAW? If He exists, and has given LAW, then we ought to seek to bring the purposes of our laws, procedures, and actions into conformity with His purposes.
God’s Purposes for Law
God is, according to the Christian doctrine, in three separate but yet unified Beings — Father, Son, and Spirit. This relationship is a mystery which the mind of man can barely comprehend, let alone adequately express.
But any consideration of the nature of God must automatically carry with it a concept of relationship. And we, the ones who have received His LAW, being made in His image, must also be relational in our basic characteristics.
Also, any consideration of the relationship between God and humans must carry with it the concept of superior to inferior, and the concept of rights and responsibilities.
Thus, we may expect to find purposes within God’s LAW concerning our relationship with Him, our relationships with one another, and our rights and responsibilities, both horizontally with others and vertically with God. His LAW should define, as well as proscribe. His LAW should call as well as respond.
Prior to the Fall (Gen. 3), LAW was a part of the relationship between God (creator and superior) and Man (created and inferior). From God came “provision” (the world and all which it contained), delegated authority (for humans to rule that world), and law (“touch not the tree of knowledge of good and evil”).
From the human point of view, there was:
(1) The very fact of relationship with God — walking and talking with Him;
(2) Some responsibilities — exercising stewardship over that created by God and entrusted to humans, and to pro-create; and,
(3) Some rights — the freedom of an inferior living in a relationship of obedience in faith to a loving Superior whom he knows exists, sees, hears, cares, loves, and provides.
Now at this point, man had no need to create law, as all LAW had already been given by God. Even with the entrance of the family unit, law was not necessary. Relationship to each other, and to God, in respect for the LAWS created by God and written on the heart, were all that was needed.
Another way to say all this is that what we had was love lived out in a setting of relationship.
But, with the Fall, all this changed. SIN entered into the world and infected the entire universe.
I see something interesting in the dialogue between the Serpent and Eve and Adam. I say “and Adam” because apparently the best reading of Gen. 3:6 is that Adam was there while the dialogue was taking place!
God had said, “from the tree of the knowledge of good and evil you shall not eat.” (Gen. 2:17) Satan said, “For God knows that in the day you eat from it your eyes shall be open and you will be like God, knowing good and evil.” (Gen. 3:5, emphasis added)
Now, Satan is called the “father of all lies”, and this was his first lie. Adam and Eve already knew good and evil, and they knew the difference between them. They may not have known the consequences of an evil choice, but they knew what evil was. “Good” is obedience to, and “evil” the disobedience of, LAW. One is proper relationship with God, in trust and faith, inferior to superior, lived out in love. The other is debate, argument, and rebellion against God, a denial of faith, and a seeking to be independent Him.
It was not so much that Adam and Eve listened to the serpent — it was that, at the end of conversation, they did not go back to being trusting inferiors of a loving, providing, superior.
Please remember this point, for, as we go along, we will have many chances to deny God’s simple and straight-forward instructions. We will want to debate issues which may easily be debated but which, at the end of the debate, are not for further debate, but for acceptance in faith, to be lived out in action.
For mankind, SIN is lawlessness: rebellion against all authority, beginning with the authority of God, followed by a seeking after self, utilizing power as the means to satisfy self. The best word to describe this condition is “anarchy.” We normally use this term to express an attitude or approach towards our organized governmental structures, but it also is a word expressing an attitude and approach to relationship at all levels of life. In fact, anarchy defines the essence of the nature of fallen man.
Sin breaks into, and substantially defeats, love lived out in relationship. The closer we come in our relationships, the more our individual self-seeking gets in the way, and we separate rather than unite.
With SIN, came “necessity” (see The Ethics of Freedom, by Jacques Ellul; Erdman’s, 1976). So long as a person selects lawlessness rather than a close relationship in obedience and faith to God (and love-lived-out in close relationships with others and with all of God’s creation), it is then “necessary” for that person to:
(1) work for existence;
(2) work for identity; and,
(3) work to control others for reasons of his own sense of self- preservation.
So it becomes necessary that humans create law and process to regulate a daily state of lawlessness which they themselves bring into being.
But any law, or system, which humans create is polluted by the very power-based anarchy which infects all mankind. That leaves us without hope. If one is to be freed from necessity, that freedom must come from, and be supplied by, some source other than mankind.
God acknowledged the situation, and gave directions to us as to how we ought to inter-relate with one another. We find these directions in the Bible in the form of principles (the Ten Commandments) and case law (often inter-lineated in Bibles as “Sundry Laws”).
Because these come from God, they constitute LAW. In Romans 3:19-24, the purpose of LAW, and the path to living in LAW (love lived out in relationship) are both set forth:
Now we know that whatever the LAW says, it speaks to those who are under the law, that every mouth may be closed, and all the world become accountable to God; because by the works of the law [a sense of necessity!] no flesh [person] will be justified [given right standing before God] in His sight; for through the LAW comes the knowledge of sin [that we are SINNERS by nature]. But apart from the works of the law, the righteousness of God [towards man] has been manifested, [it] being [earlier] witnessed [to] by the LAW and prophets; the righteousness of God [is] through faith in Jesus Christ for all those who believe; for there is no distinction; all have sinned and fallen short of the glory of God, being justified as a gift by His grace through the redemption which is in Christ Jesus. (Amplification added)
Thus, one purpose for God’s LAW is to remind us that we are sinners, separated from Him by our rebellious self-interest, in need of a Savior so that our relationship with Him might be restored. I prefer to say that the purpose of God’s LAW is restorative in nature, rather than punitive. It calls us to restoration to God and to one another. To the extent that it appears punitive, it is only declaring the consequences for a refusal to accept the offer.
Now, the LAW of the Ten Commandments serves to define the relationship between God and man as well as between man and man. Please note that it begins with a statement of grace (unmerited favor) given before telling us how to respond to that grace.
I am [existence and pre-existence] the Lord [ruler entitled to obedience] your God, Who brought you out of the land of Egypt, out of the house of slavery [unmerited favor; grace]. You shall have no other gods before me. You shall not make for yourself an idol or any likeness of what is in heaven above or on the earth beneath or in the water under the earth. You shall not worship them or serve them; for I, the Lord your God am a jealous God, visiting the iniquities of the fathers upon the children [cause and effect], on the third and fourth generations of those who hate me [the line is drawn — love or hate; there is no in between], but showing loving kindness to thousands, to those who love Me and keep My commandments [rights versus responsibilities]. You shall not take the name of the Lord thy God in vain, for the Lord will not leave him unpunished who takes His name in vain.
Remember the Sabbath Day, to keep it holy [a provision of grace — a day of rest in faith that He will provide for the lost labor]. Six days you shall labor and do all your work, but the seventh day is a Sabbath of the Lord your God; in it you shall not do any work, you or your son or your daughter, your male or your female servant [doing unto others as God has mercifully done unto you] or your cattle [even a dumb animal is to be respected and to be dealt with as a steward of God] or your sojourner [you cannot deny the dignity of the other upon some racial, cultural, or theological grounds] who stays with you. For in six days the Lord made the heavens and the earth, the sea and all that is in them, and rested on the seventh day; therefore the Lord blessed the Sabbath and made it holy.
Honor your father and your mother, that your days may be prolonged in the land which the Lord your God gives you. [And so many of us, failing to honor a parent, find our days short and full of agony, and we possess nothing except anger and bitterness.]
You shall not murder.
You shall not commit adultery.
You shall not steal [the right of private ownership of property as against one another, but not as against God, is acknowledged].
You shall not bear false witness against your neighbor [which is later defined by Christ as anyone within your sphere of influence at the moment and in need of that which you are able to supply].
You shall not covet your neighbor’s house; you shall not covet your neighbor’s wife or his male servant or his female servant or his ox or his donkey or anything that belongs to your neighbor [for you need them not; I AM THAT I AM will supply; be content and, rather than seeking self, seek to serve others]. (amplification added)
These Ten Commandments (Ex. 20:1-17) may be broken into two relational groups:
(1) Relationship with God (v. 1-11); and
(2) Relationship with others (v. 12-17).
For right relationships with others, we need a right relationship with God. It is our relationship with God, rather than law, which should then motivate our right relationship with others (that is, motivate obedience to the remainder of the LAW).
At the same time, our intentional poor relationship with another can be evidence that we are not in a right relationship with God. The Book of I John deals prominently with this issue.
Also, we ought to note the LAW of respect for others as “made in the image of God” which permeates the second portion of the law. If we understand the uniqueness of each human being, if we see each as being made in the image of God, if we see each as of great a value as we think ourselves to be, then we can quickly see why Jesus would sum up the second set of the Ten Commandments with, “Love thy neighbor as thyself.”
Whitehead, (26), says it this way:
A Christian world view teaches that man is created in the image of God. The implications of man made in God’s image can be summarized by saying that man, like God, has person-hood, a measure of self-transcendence, intelligence, morality, love, and creativity. In essence, to say that man bears God’s image affords man a dignity above and beyond all other creatures. The fact that man and women were made in the image of God is intimately connected to the concepts of authority, and of power to govern, and to man’s relationship to the revealed law of God.
We can note in the second half of the Ten Commandments that we have matters of:
(1) Physical harm to a person — Thou shalt not murder;
(2) Property offenses — Thou shalt not steal; Thou shalt not covet; and,
(3) Harms to community — Thou shalt not commit adultery; Thou shalt not bear false witness against thy neighbor.
These are the three classical divisions of the criminal law — person, property, and community.
But even with the giving of the written law, LAW remained as originally set forth in the Garden. It defined the relationship between God and Man.
God “provides.” Man has stewardship over the provision. There is need for a direct and perfect relationship with God. And we are to live obediently, in faith that God knows what is best.
Likewise, LAW governs our actions towards one another.
But two problems remain.
First: how do sinners stand before a Holy God; that is, gain a restored relationship with God, if their works will not suffice?
The answer to the first problem is that God provided an acceptable sacrifice, which only He could do, and which only He could be. So He united with mankind in flesh, in the person of Jesus Christ, and allowed us sinners to kill Him.
For those who see their sinfulness, their need for salvation, and the fact that God has provided the sacrifice, the gate to a close relationship with God, and for a restoration of LAW within the heart, comes through acceptance of Jesus Christ as Lord and Savior, in faith.
With our acceptance of this sacrifice, God’s Spirit comes to live within us so that we do, in truth, “walk with God.” Some of the ways we do this walking are prayer, study of the Bible, meditation on Scripture, attentiveness to the Spirit, and fellowship with believers (including seeking counsel from them).
The presence of the Spirit within is the proof of the re-establishment of our close relationship with God. However, the relationship is not one of freedom as understood by man, but of a freedom springing from the relationship of a loving subordinate to a loving Superior. In this relationship, the inferior, as a loving response to the love received, seeks to know and follow LAW.
This restoration of LAW frees us from the necessity of works, and allows us to practice right relationships with others, rather than relating to others through self-centered, rebellious, power-based, anarchy. And this LAW, evidenced in the directions for life within the Bible, and in the life and statements of Jesus Christ, remains forever available to all, for it is “in our mouth and in our heart.” (Deut. 30:11-14)
Thus, what I suggest is that the opposite of anarchy is not law, but LAW; i.e., love lived out in right relationships with God, with mankind, and with God’s creation. It is “being right” (an inward attitude), “doing right” (an outward action), and “helping to put right that which has gone wrong” (involvement in restoration of those things which SIN has broken).
My belief is bolstered by the answer which Jesus gave to a lawyer when asked, “Which is the great commandment in the law?” The lawyer meant, Of all that which is written in the books of man, what is the most important rule for governing of all conduct?
To this, Jesus answered, quoting from the Book written by God rather than the laws of religious or secular leaders:
You shall love the Lord your God with all your heart, and with all your soul, and with all your mind. This is the great and foremost commandment. The second is like it, ‘You shall love thy neighbor as thyself.’ On these two commandments depend the whole law and the [sayings of the] prophets. Matt. 22:35-40.
So Christ summed up the entire theory of love-lived-out in relationship.
But a second problem remains: sinfulness is still within both us and others. As redeemed and regenerated people, we will struggle each day with doing what is right or doing what is pleasing to self (anarchy). We will even be uncertain as to which may be which! And we will live out our lives in the presence of, and within and under the institutions of, other men who are also sinners.
To survive and thrive, we need to know what are the rules of behavior for individuals and society. The question which defines the second problem is, where do we find the rules? The answer is to study, know, appropriate, and put into place the LAW given by God for right conduct in the Bible.
Law, and all institutions created by man — such as governments, customs, practices, usages, organizations, even churches — represent necessary constructs to control response to anarchy, and the meeting of personal needs. But, as such, they are all power-based, infected by the very anarchy which they seek to control. This does not make them evil, but it does make them power based, rather than love based.
If we use mankind’s laws and processes, created by humans, from human minds, then we have something which is ever changeable. We will always argue over which law is right or wrong, which process is right or wrong. But if we, individually and corporately, use God’s laws, then we have an absolute, unchangeable, and perfect source available to all through study of the Bible.
Let us now look at some other purposes of God’s LAW, or that which what flows from knowledge and application of God’s LAW in a person’s life. Psalm 119 is often called The Psalm of the Law. It says a lot about what happens to the law-knower, to the law-follower; it states purposes:
v 1-3: How blessed are those whose ways are blameless, who walk in the LAW of the Lord. How blessed are those who observe His testimonies, who seek Him with all their heart. They also do no unrighteousness [towards others]; they walk in His ways.
v 6-7: Then I shall not be ashamed when I look upon all Thy commandments. I shall give thanks to Thee with uprightness of heart when I learn Thy righteous judgments.
v 9: How may a young man keep his way pure? By keeping it according to Thy word.
v 11: Thy word I have treasured in my heart that I may not sin against Thee.
v 24: Thy testimonies also are my delight; they are my counselors.
v 25: My soul cleaves to the dust; revive me according to Thy word.
v 28: My soul weeps because of grief; strengthen me according to Thy word.
v 38: Establish Thy word to Thy servant as that which produces reverence for Thee.
v 42: So I shall have an answer for him who reproaches me, for I trust in Thy word.
v 45: And I will walk at liberty for I seek Thy precepts.
v 49-50: Remember Thy word to Thy servant in which Thou hast made me hope. This is my comfort in my affliction, that Thy word has revived me.
v 63: I am a companion of all those who fear Thee, and of those who keep Thy precepts.
v 66: Teach me good discernment and knowledge, for I believe in Thy commandments.
v 74: May those who fear Thee see me and be glad, because I wait for Thy word.
v 98-100 Thy commandments make me wiser than my enemies, for they are forever mine. I have more insight than all my teachers, for Thy testimonies are my meditation. I understand more than the aged, because I have observed Thy precepts.
v 105: Thy word is a lamp unto my feet and a light to my path.
v 116-117 Sustain me according to Thy word that I may live, and do not be ashamed of my hope. Uphold me that I may be safe, that I may have regard for Thy statutes continually.
v 130: The unfolding of Thy words gives light and understanding to the simple.
v 160: The sum of Thy word is truth and every one of Thy righteous ordinances is ever lasting.
v 165: Those who love Thy law have great peace and nothing causes them to stumble.
I do not know about you, but to have something which is truth and ever-lasting; which gives light, understanding, counsel, wisdom, insight, good discernment, knowledge, and life itself; which revives me, blesses me, strengthens me, comforts me; which gives me companions and encourages others; which allows me to have hope, joy, peace, rejoicing, and thankfulness; which gives me a reverence for God Almighty; which keeps me pure, not sinning against God nor offending my neighbors, while allowing me to answer those who reproach me — that is the most wonderful thing possible for living life. All of the above are good purposes for LAW.
And what might happen if a nation chose to do this, rather than just an individual?
So keep and do them, for that is your wisdom and understanding in the sight of the peoples who will hear all these statutes and say, “surely this great nation is a wise and understanding people.” For what great nation is there that has a god so near it as is the Lord our God whenever we call upon Him? Or what
great nation is there that has statutes and judgments as righteous as the whole law which I AM setting before you today? Deut. 4:6-8
O Israel, you should listen and be careful to do it, that it may be well with you and that you may multiply greatly, just as the Lord, the God of your fathers, has promised you, in a land flowing with milk and honey. Deut. 6:3
God’s Method for Law
We now come to the question of the methods which God offers us for dealing with conflict. Once we see His method for conflict resolution, we will then need to understand the method as also LAW. Then we will need to seek to apply LAW to:
1. our written laws (as in Constitutions, statutes, case decisions, rules of procedure) and unwritten laws (customs, usages, and traditions), etc.
2. our systems and institutions (governments,
churches, business organizations, etc)
3. and to the way in which those who control our institutions actually do their jobs (law enforcement officers, judges, prosecutors, probation ands parole officers, etc.
In the process, we should not only seek to restrain anarchy, but should also point the way to true LAW, i.e., love lived out in right relationships.
I mean to say, we should be always seeking to restore that which has been fractured by the results of both personal and communal sin.
I also believe that it is a duty for all who live under LAW, to enter into each and every one of the institutions created by humans in order to demonstrate LAW and call people towards LAW.
But God’s LAW has yet another purpose. The first great purpose of LAW, as we have seen, is to call us to seek a restored relationship with Him and with one another. The second great purpose is to tell us how to seek to come back into agreement when we disagree. In short, it also gives us a method based upon love, not force.
If we can see a conflict resolution METHOD set forth in Scripture, we can see it as pointing a way to love lived out in relationship (LAW). Once we see it, we can test every constitution, statute, rule, regulation, court decision, and the acts of all those charged with management of a system of conflict resolution, by asking whether the item or act in question does or does not point the way to, offer the hope of, and/or respond appropriately to love lived out in right relationships while also complying with the standards of law set forth in the Old Testament.
In short, I propose a study of jurisprudence based upon one theory and one method, applicable to each and every situation which may ever come forth. I then propose a study of our law to show how certain well accepted principles, processes, and functions, do — or do not — uphold the ideal. And I propose that any discussion concerning whether a particular proposal for the future does or does not enhance the ideal is the only proper way to even consider a future course for any law, anywhere.
I begin with a statement: “If we had no conflict, there would be no law. Not only would there be no law, there would not even be, in our vocabulary, the word ‘justice.'” Another way to phrase this is:
(1) So long as we agree, and live out our agreements, we do not need law or a legal system.
(2) Whenever we disagree, we have four options:
(A) Restore trust and relationships so that we again agree, and then live the old, the modified, or the newly created agreement; or,
(B) Agree to allow someone to tell us what to do, and then choose to do what we are told, all the time keeping our relationships intact which means we must develop a system of some form for telling us what to do within a loving community; or,
(C) Resort to anarchy, force of arms, to win victory, at whatever the cost to us, others, or community; or,
(D) Adopt laws and legal systems, granting to them a power to coerce, restrain and punish. This means we may try to kill one another through our agents (lawyers) on the floor of the courtroom while thinking ourselves to be “righteous”.
So, let’s begin with the source of conflict:
What is the source of quarrels and conflicts among you? Is not the source your pleasures [self-seeking] that wage war in your members [within the community]? You lust and do not have, so you commit murder [rebel]. And you are envious and cannot obtain, so you fight and quarrel. You do not have because you do not ask. You ask and do not receive, because you ask with wrong motives so that you may spend it on your pleasures. You adulteresses, do you not know that friendship with the world [rebellious self-seeking with the use of power] is hostility to God [love lived out in relationship]? (James 4:1-4) (amplification added)
It is obvious that whenever two seekers after self (sinners; anarchists) come into relationship with one another then, sooner or later, conflict will occur. When that takes place, only two paths are open to the combatants: a path to law and legal system, or a path to the Spirit of God wherein acts of love and righteousness will be revealed.
Both require faith. The first says that you have faith that the system will do justice. But Scripture says: “Many may seek the favor of the ruler [Judge, Jury, Politician, etc] but justice for man comes only from the Lord.” Prov. 29:26
It is this inability of the system to meet our expectations which has resulted in the widespread unrest of victims, offenders, community, society and even the players today.
The second path also requires faith, for when you begin upon it you do not know what may develop. But you do know that you are being obedient. The Apostle Paul, who might be considered a lawyer by his own description of himself, summed up the options in I Cor. 6:1:
Does any one of you [no person is so unique as to be able to disregard the instruction], when he has a case [no case is so unique as to allow a person to disregard the instruction] against his neighbor [nothing about the other person can be used by you to disregard the instruction], dare to go to law [that is, the power-based systems of man created to hinder anarchy] before the unrighteous [because law cannot require something demanded by love] and not before the saints [people of God’s Spirit who will help guide you to His Spirit so you may respond to the other in the conflict from love lived out in relationship]? (amplification added)
As we then search Scripture, we find the following steps towards possible resolution of conflict:
1) Go to the other person — regardless of who you may think is at fault — and speak of the matter:
If, therefore, you are presenting your offering at the alter, and there remember that your brother has something against you, leave your offering there before the alter, and go your way; first be reconciled to your brother, and then come and present your offering. Matt. 5:23-24
And if your brother sins, go and reprove him in private; if he listens to you, you have won your brother. Matt. 18:15
2) Confess what you need to confess (wherever you fell short of the glory of God), and forgive what you need to forgive (that in which the other fell short of the glory of God). Be prepared to do towards the other person such acts of love as God lays upon your heart to make restitution for any wrong which you may have done, or to bear the burdens of the one who wronged you:
Therefore, confess your sins to one another, and pray for one another, so that you may be healed. James. 5:16
And be kind to one another, tender hearted, forgiving each other, just as God in Christ has forgiven you. Eph. 4:32
And what does the Lord require of you but to do justice, love mercy, and walk humbly with your God. Micah 6:8
3) If there is not both resolution of the conflict and a restoration of relationship, gather two or more who will be witnesses of God’s truths (law and Spirit), both to you and to the other, and go with them back to the other person:
And if he will not listen to you, take one or two more with you, so that by the mouth of two or three witnesses, every word of God may be confirmed. Matt. 18:16
Is there not among you one wise man who will be able to decide between his brothers? I Cor. 6:5
4) Should that step not succeed, the witnesses should involve the community while you, giving up a need to secure by force what should be freely done by the other person, leave discipline to the community:
And if he refuses to listen to them, tell it to the church. Matt. 18:17a
5) The community bears your burdens while continuing to confront the other until such time as a repentant heart appears. This relieves you of the necessity to resort to force:
Bear one another’s burdens, and thus fulfill the law of Christ. Gal. 6:2
6) Upon appearance of a repentant heart, the community welcomes the repentant one back into full fellowship (as did the father of the prodigal son), assists in needed reconciliation between you and the other, and then assists the offender to discover the things of self-seeking which led to the offense, so that confessing and a correct walk will result:
But while he was still a long way off, his father saw him, and felt compassion for him, and ran and embraced him, and kissed him. Luke 15:20
Where there is no guidance, the people fall, but in abundance of counselors there is victory. Pro. 11:14
(7) The offender, in turn, does those acts of justice to the other (including the community) as led by the Spirit and the counsel of the community:
Owe nothing to anyone except to love one another; for he who loves his neighbor fulfills the law. Rom. 13:8
You will find me constantly referring to confrontation. That is heart of this model. That is why it is so important.
Because not all will respond to this process, and since the community (being made up of lots of self-seeking individuals) will not always fulfill its role, man creates laws, systems, and procedures to deal with that which we will not (not “cannot”) deal with through the Biblical model.
But that which humans create should be capable of, at any moment, short-circuiting its process to allow the parties and the community to return to the love-lived-out-in-relationship process.
And every person who functions as an official in the systems which man creates should so function as to encourage acts of repentance, reconciliation, rehabilitation and restitution to take place.
We now have our ideal LAW and METHOD.
To review the Ten Commandments and the Sundry Laws from a standpoint of what they mean, that is, what behavior is or is not proscribed, is not my purpose. That has already been done by Rousas John Rushdoony in his, The Institutes Of Biblical Law (Presbyterian and Reformed Publishing Co., 1973). While I do not agree with all the conclusions which he draws, his overall effort is excellent.
However, what is missing remains to view our modern laws and systems, and their underlying theorems, from a Biblical perspective. We need to particularly see how they do or do not uphold the Biblical law, how they do or do not point the way to love lived out in relationship.
To see this theory in action, we will look primarily at Criminal Law and Procedure in the United States. But, first, we need to consider how the law which we have in the United States came to us.
SECTION 2 — A HISTORY OF LAW IN THE UNITED STATES
In order to utilize a proposed model law and method, we need something with which to compare. Since my expertise in law and procedure is confined to that of the United States only, and since I consider people of the United States, and Christians wherever they may live, as the two major types of readers of this book, I choose to use U.S. laws and procedures as the primary source of comparison.
But two things must then be said.
First, I am not one who believes that God brought forth in the United States His perfect form or system. As I shall shortly hope to demonstrate, merely returning to the law as it existed in the early part of the 19th century in the United States will not solve the problem.
Second, in order to understand the American experiment — to which a significant portion of the world, emerging from the former Soviet Union and other totalitarian systems, is looking for examples of law and system — we must not think that our law and processes emerged from nothing in the late 1700s.
They were, in fact, products of what was brought to the North American continent from the European past. We must consider what was brought before we can begin to compare. We will study this in more detail later, but for now an overview.
In England from 1066 until 1620 (the time of the arrival of the first colonists in North America), a body of law had developed known as Common Law. It had begun as a way to resolve disputes between people under local law. But, as a lack of uniformity in law and process grew between the various political jurisdictions, the King began to assert his interests by appointing judges who rode about the country, sitting much as appellate courts. This led to a greater uniformity of law, and thus the term, Common Law came into being — “common throughout England.”
The second major development took place in 1215 when the King was, by the Magna Charta, brought somewhat under the control of the law. This has led to expressions such as, “rule of law,” “no man is above the law,” “we have a system of laws and not of men,” and, “equality before the law.”
Lex rex (law is the king), rather than rex lex (the king is law), became the watchword.
By 1620 the law in England consisted of six easily recognized main parts: Criminal Law; Civil Law in Tort; Civil Law in Contract; Civil Property Law; Equity; and Law Merchant. I will explore each of these in detail later.
Criminal law applied to those acts publicly declared, by king or legislature, to be crimes. Thus, there could be no crime without a “statute” — a public declaration of some type.
In contrast to the need for an edict or statute, at civil law each case originally began upon its own merits, to be decided, as it were, in a vacuum. But as time went on, and in an effort to secure some uniformity in the land, the judges began to bind themselves to the decisions of the past, and to the doctrine of Stare Decisis (“to stand by decided cases; precedent.” Black’s Law Dictionary) was born.
Thus, to the New World came a well-developed sense of the need for law. And every principle involved in this development, from 1066 to 1789, was literally incorporated into the U.S. Constitution in 1791 by two words of the Fifth Amendment in the phrase, “due process”: “No person … nor be deprived of life, liberty, or property without due process of law; …”
The second major influence upon the American experience was the fact that the colonies were primarily economic units under economic charters from the King. As such, the people were used to, and expectant of, freedom of choice in vocation, ownership of real and personal property, and compensation for work done based upon production rather than upon their mere existence, position, or title.
This sense of rights relative to property had been, in fact, the foundation for development of a Civil Law. If, as in so much of the world, there is no right to any private property beyond one’s personal possessions, then there is no need for Civil Law — only for a Criminal Law. In most of the former Soviet Union, for example, we see a very stunted Civil Law, and with it a general lack of respect for law.
If one cannot participate in the creation of the law; if one can never predict the imposition of the law upon them; if one can make no use of the law for his aid in time of need, then the only reasonable response is to ignore the law.
The most natural response of people to a lack of Civil Law is to develop informal community processes for the resolution of conflict, because “we the people are all we have!” And, so also, in much of the world, we find such community programs operating almost invisibly.
Historically, as a sense of rights relative to property develops, there will naturally follow a development of a sense of other personal rights. One of those “other personal rights,” the right to religious freedom, was a third major influence on our nation.
Many colonists came because of religious issues. In matters of religion, they believed and acted differently than the established state religions of England and the other countries from which they first came. They wanted to be free to act in accord with their religious conscience, even though there was substantial anarchy in their beliefs and practices.
And they saw all these matters of rights and freedoms as proceeding from God the Creator, and not from society, the state, or the law.
As a fourth influence, because many of them had experienced religious and/or economic persecution by the state, they brought with them a deep mistrust for organized power. On the other hand, they knew that some self-restraint of individual freedom was necessary for greater community and individual protection because they fully recognized and understood the sinful nature of mankind.
Thus, they were willing to delegate some of their individual power to a governmental power, provided that in the delegation there were reasonable protections against the government making improper use of that power.
This fear of excessive and repressive government led to four provisions being included in the Constitution:
(1) A separation of power in a vertical direction between local, state and national levels;
(2) An effort to balance power through checks by one branch against the others;
(3) The specification of preserved rights; and
(4) A listing of a number of items which established and secured a minimal level of due process for protection of those rights, freedoms, and property.
This does not mean, however, that all which Americans founded, or that all old-world practices which were brought to America, were in accord with the Bible.
But certainly equality before the law is Biblical, and it is fundamental to the concept of rule of law. The Bible says that someday every human being who has ever lived will stand before the God who created all. At that time, every person will be judged on but one point: did they trust in God for their salvation, or did they make themselves into gods, believing they needed no salvation except that which they could provide by their own work.
In short, no color, no race, no ethnic or family background, no sex, no creed, no position, no title, no power, or national origin will have any bearing on our future with, or separation from, God. Each will stand before God on exactly the same footing as all others.
In the Old Testament, leaders were constantly exhorted to show no partiality or favoritism when sitting as judges over the disputes of the people:
You shall do no injustice in judgement; you shall not be partial to the poor, nor defer to the great, but you are to judge your neighbors fairly. Leviticus. 19:15
There shall be one standard for you; it shall be for the stranger as well as the native, for I am the Lord your God. Leviticus. 24:22
They were often condemned by the prophets for failing in this very regards.
Thus, the Bible rejects any form of legal system which, in any manner — by design, by historical development, by force, by trick, or by bribery — denies equal standing to any person, at any time.
Nor is the rejection limited to only a part of the law, such as proceedings in Criminal Law, but is applied to all segments of law, to legal procedures, and to the actual operational methods of the main players (lawyer, prosecutor, judge, etc).
Now the Constitution includes the following listed legal rights:
(1) Freedom of speech — But the Courts quickly placed a responsibility upon this freedom, i.e., to not scream “fire” in a crowded theater just to see people run;
(2) Freedom of the press — And even today, efforts to regulate such things as pornography, libel, racial and other slurs, and slander have proven very elusive;
(3) Freedom of assembly — But again the courts quickly set a limitation against riot, and tumult;
(4) Freedom of religious belief, and a limited freedom of religious practice — the courts soon told the Mormons that they could believe whatever they wanted, but could not have two wives. But today we can ritualistically slaughter an innocent animal as a sacrifice to a pagan god (with the amicus curie [“friend of court”] support of a large percentage of the Christian Church);
(5) Freedom to freely petition the government;
(6) An equality of these freedoms everywhere in the nation through the “full faith and credit” clause;
(7) Freedom to bear arms;
(8) The right to vote regardless of race, color, etc. While we said that government may only exist with the consent of the governed, it did take the Civil War, and a constitutional amendment to allow women to vote, before this
right was fully in place;
(9) Government could not establish state religions; and,
(10) Equal protection under law.
But, by placing these guarantees in the Constitution, we created a legal presumption in favor of our individual rights and against the law, the legal process, the government, other individuals, personal relationships, and community. In contrast, community interests in Russia have always been viewed as transcending individual interests.
Then, in the Constitution, the Founders placed the concept of Due Process which has two parts. The first is an attempt to protect the rights given. The second might be defined as “that way in which, by and through the law and its processes, the rights of a community might be found to supersede the rights of the individual.” Due Process includes:
(1) A right to writ of habeas corpus — thus the individual cannot be held in custody on an “open charge” for investigation beyond 72 hours, but must be promptly charged or released. This is largely unknown in vast areas of the world, where people may be held for months, and even years, “pending investigation;”
(2) A denial of Ex Post Facto laws and of Bills of Attainder — laws can not be given applied retroactively, nor may the family of a convicted person be stripped of property and belongings for the offense of the member;
(3) The right to trial by jury in all crimes except for impeachment. Here the jury, on behalf of the community, had four historic functions: (a) To judge the reasonableness of the law, thereby protecting the community from the law; (b) To judge the actions of people within concepts of community standards, but under the law; (c) To report back to the community on the status of the law and legal system; and, (d) to guard against the person using governmental power and/or position improperly;
(4) The right to a trial in the State wherein the crime was alleged to have taken place, so that the local community is involved;
(5) A definition for treason and the requirement that two or more witnesses to an overt act of treason were required for conviction;
(6) The granting of full faith and credit of the legal actions of each State so that the acts of each State must be recognized by the other states;
(7) A limitation upon the possible invasion of one’s person, property, papers, and effects by requiring such proceedings to be upon sworn affidavits showing probable cause, with a judicial review before such warrants would be issued.
(8) Crimes charged must be charged by a sworn document. Thus, any individual, my lawyer, and the entire community, may know of what a person is or is not charged, and who it is that makes the charge;
(9) A prohibition against being placed in Double Jeopardy. That is, government was prohibited from charging a person a second time for the same offense after the jury had acquitted; to do so would have been an undermining the findings and role of the jury;
(10) A protection against self-incrimination so that the accused does not have to give evidence against himself. This was meant to limit the potential for torture and other forms of coercion to extract a possibly false confession;
(11) Compensation for any property taken for public use. It was recognized that the people, in the guise of government, might also steal;
(12) The jury trial in Civil Law. There was a recognition that even Civil Law can by tyrannical, so the jury would have the same four functions in Civil Law as in Criminal Law;
(13) No judicial review of the facts of a case upon appeal. Here, again, there was a protection against undermining the function and responsibility of the jury;
(14) The right to a reasonable bail, so that a person’s liberty might not be unduly restrained;
(15) A prohibition of excessive punishments, although the courts still struggle with what this does, and does not, mean; and,
(16) An autonomous judiciary — a Judicial Branch of government which could hold the king, legislature, individual, and even the community to account, without fear for its continued existence.
However, in the zeal of the colonists over the matter of rights, and the protection of those rights, two things were, I think, substantially swept aside: the matter of community, and the issue of responsibilities.
In this failure were the seeds for many issues related to law and system today.
John Whitehead wrote well:
In recent years we have witnessed numerous marches on Washington in which one group or another has demanded new “rights.” Frequently, such rights have not meant freedom from state control, but rather entitlement to state action, protection, or subsidy. In the process of yielding to the ‘will of the people,’ and creating new rights, the state inevitably enlarges itself and its bureaucracy. … As the state creates new rights for some, it necessarily diminishes some rights for others. Someone has to lose, but there can be no appeal to any outside criterion of justice in a system where there is no god but Caesar. (p. 89)
The concept of human rights is a fertile source of confusion because of our persistent failure to be specific about the nature and source of what we call human rights. From a Biblical perspective, “rights” as such do not exist but grow out of duties and limits. There is no explicit “right to life” in the Bible, but an explicit prohibition of the taking of innocent life, from which the right to life emerges. … The modern secular view holds that individuals have just such rights as the Constitution and other laws give them. From this humanistic base, the “struggle for rights” becomes, in effect, a conflict with other human beings to persuade, or force, them to
generate laws entitling us to the rights we seek. … Rights must have a reference point and a specific context or they are meaningless. The reference point determines the nature of the right exercised, defining the one who possesses it, and setting limits to others who must respect it. Both the claim to and the exercise of a right therefore, can be either valid or invalid depending upon the reference point. (p. 116)
The truth is that rights grow out of responsibilities, and responsibilities, in turn, grow out of relationships.
The rights of Adam and Eve to freedom, as loving subjects under a loving Superior, were conditioned upon responsibilities to:
(1) the planet and all it contained (stewardship);
(2) one another (love as parts of each other, incomplete without each other); and,
(3) obey God (do not eat of the tree).
Relationships are just another word for community. My demand for my own absolute rights — even for those rights which are, in fact, Biblical rights (rather than privileges granted by man) — makes me an anarchist. I must be willing, when it is appropriate, to surrender my rights for the benefit of relationship (community). After all, Jesus did.
The early Americans colonists saw this surrender as necessary for governmental structure, and therefore the people delegated some of their power to the government. But they did not see this attitude of surrender as a factor in the general law. Thus, The Constitution is devoid of language which would point us towards the ideal of living in loving relationships rather than under threat of law — even a good, benign, or neutral law.
But have we compared the list of rights and processes of our Constitution with God’s absolute standards? Did we sow seeds in our Constitution for destruction of the very things which we desired to guarantee?
Is the very reason “we the people” have, apparently, miserably failed to “establish” the things we thought we could establish the fact that we neglected to understand where God fits into the picture? And/or, have we lost some of the protections over the years?
I will continually raise these questions throughout the rest of this book.
What are the basic rights to which each individual is Biblically entitled? I do not claim that this list is accurate or complete, but these are some of the rights which I find in the Bible:
(1) Life itself, except as taken by God or by mankind under God’s delegated authority (such as in capital punishment);
(2) Freedom from the scourge of necessity — the need to find my value and meaning through work rather than in right relationship to God and others;
(3) Freedom from a sense of having to provide all things for myself lest I perish;
(4) Liberty, which can only be found through bondage to the God who created me, has plans for me, will save me from my sins, and is my true Provider;
(5) Pursuit of a relationship with God, not through a motivation of fear or duty to obey, but a motivation to obey through love for Him Who first loved me, trusting Him Who knows me best, and knows my needs best;
(6) Meaningful “work” which God has prepared in advance for me, having taken into account my gifts, talents, and life experiences; and,
(7) Property ownership, while recognizing I am but steward of all I may ever possess, or use of the common possession. The God who delegated responsibility for care of the planet to mankind, and who constantly speaks to us of the need to provide for the widow, the poor, the orphan, and the stranger in the land, is the true Owner.
These rights, contrary to Constitutional rights, carry with them the following responsibilities:
(1) Do unto others as you would have them do unto you. This means my desire for rights must be seen, and exercised, only within concepts of relationship and community;
(2) Remember the widow, the orphan, the stranger in the land, and the land itself;
(3) Deliver the oppressed from injustice;
(4) Obey the laws of God;
(5) Live within community, in love, rather than in individualism and self-centeredness;
(6) Do justice; and,
(7) Help repair the fractures caused to community and relationship by others.
Now, for me, two critical observations are in order:
(1) To the extent that these responsibilities are binding upon the individual, they are also binding upon the corporate structures which individuals create — e.g., government, church, and business; and,
(2) To the extent that these responsibilities are binding upon the individual, they are binding upon the him as he serves in any created institution — such as President, pastor, or owner.
SECTION 3 — THE CATEGORIES OF HUMAN LAW
Criminal Law — The Issue of Public Wrongs
We can now begin to compare a number of features of U.S. laws and procedures with the Biblical LAW and METHOD. To start, let us return to the history of the development of law, as some further comparison is in order.
In the earliest history of mankind, only one form of law was generally known. It was repressive, originating from the few elites at the top of the pyramid and used to control the masses of society for the benefit of the elites. While it had many of the attributes of what we now know as Criminal Law, it was really political law in that it was designed, and functioned, to maintain in their positions those who held power, and to preserve their life in the style to which they easily became accustomed.
Now when a member of the masses was harmed either by a member of the elite or another member of the masses, this law could not be called upon for help or relief. It was arbitrary, capricious, and unpredictable. The elite could and did use it against members of the masses, but there was no reciprocal right.
This form of law occupied the legal front for the majority of the history of mankind on earth. And this is still the norm for the majority of people on the planet today.
In the earliest law in England, there were none of the terms which warm the hearts of lawyers today: Torts, Property, Contracts, Equity, or Crimes. Instead, because of a lack of legislative law and because of a lack of a place and process to turn to, people were left to blood feuds for resolution of conflict. If you hurt me, I kill you. Your brother then kills me, so my father will kill your brother. Your uncle then kills my son, and — well, you get the picture.
It was because this was the situation of the people Israel in Egypt that God set a gracious limit upon the law, the limit of proportionality or consequence to harm. We know it as, “an eye for an eye, and a tooth for a tooth.” We often read this, however, as a idea of vengeful punishment rather than a limitation upon our tendency to engage in the blood feud.
Eventually, the community (the masses) got tired of the traditional method of conflict resolution. The local Baron was also tired, and worried about the drain on the fighting force he needed to protect him from the neighboring Baron (whose Uncle he had once killed). The local religious leaders were also having a hard time putting a feud into theologically permissible behavior.
So, a local law began to appear, with an incentive to people to settle cases by compensation. People in conflict were “invited” to come and sit with people of the community to seek resolution of the conflict. Issues of “honor,” and “responsibility to the community,” and, yes, “love” were brought into the discussion. Compensation became the preferred result.
But when the parties could not agree, and no one could prove “truth,” the parties were left without a remedy. To have a law is wonderful. To have a process is even better. But to not have a remedy means a law or process is of little value. We have words which do not help us. People in many places in the world understand this very well. I fear we, in the United States, have forgotten this truth.
In an effort to determine truth, so that a decision could be reached and a remedy ordered, trial by “ordeal,” “combat,” or “oaths” was instituted. In “combat,” each party got a sword, and fought it out under the theory that God would protect the innocent one. If a person were found to have violated the property or rights of another — by trial, by surrender in the middle of combat, or by dying in the combat — he, or his heirs, paid something to the injured party and something to the local Baron.
It is interesting to note that under Biblical law, many offenses called for an extra 20% of value above the loss to be paid to the priests for the common good — maybe this was community service restitution, a hot item in the United States today.
Dr. Harold Berman, in his book Law And Revolution (Harvard Press, 1983), states that a local community process, in contrast to repressive totalitarian law, was the norm until something interesting happened. In the middle of the 11th century, Gregory VII began the process which culminated in what we now know as the Papacy. The process was known as The Investiture Struggle, and dealt with the question of who would appoint clerics to their positions — the local secular ruler, or the head of the Church at Rome.
To establish his position, Gregory wanted the appearance of law — a legal justification, if you will. So he set a number of men to work researching the laws and systems of history — primarily the Roman Civil Law and the Bible. In the process, they developed the Canon Law and Canon Legal System (which, unfortunately, later distorted into the Inquisition). Gregory then used this law and legal system to justify his appointment of the clerics as against the claim of the secular rulers to make the appointments. Eventually, a compromise was reached, granting Gregory the desired power.
But, in the meantime, the secular rulers began to develop their own laws and systems in an effort to hold power against the developing power of the Church. Such was the case in England in 1066, when William the Conqueror arrived. England consisted of many small, independent, political units, each with its own laws and processes.
William (whom Berman says was actually an agent for Gregory VII’s successor, because the churches of England were supporting the local secular leaders rather than the Pope) was intent upon consolidating his power over all of England. Thus he began to establish “King’s Courts,” and to declare certain acts as “against the King’s peace.” Into this system, the injured person (whom we will hereafter call by his legal name, Plaintiff) brought an action against a wrongdoer (hereafter the Defendant).
To administer this system, William appointed his representative, called a Reeve, in every political unit, known as Shires. This Reeve had a combination of police power (to arrest) and judicial power (to determine cases). Today we have taken the two words and shortened them to Sheriff.
Then William appointed judges to ride about the kingdom and hear appeals from the decisions of the Reeves — Circuit Judges. As the judges traveled about, they sought to apply the same principles of the law to similar cases. Thus was born Common Law; that is, a law “common to all England.” We shall return to the development of this law and system later. For now, we will turn to the king’s courts, and the development of the Criminal Law.
One problem with the king’s courts was that even though the injured party often had to initiate the case, all monies (fines) went to the king rather than to the victim. After all, the king had to pay the judge, keep the army (the police) fed and clothed, etc. The victim did get a return of any goods which had been stolen if the goods were found in the defendant’s possession.
If the defendant could not pay (the usual case), he was “punished” by the king who desired peace in the land. This meant imprisonment, branding, mutilation, or, more likely, hanging.
Thus developed the Criminal law, the key attributes of which became:
The King in England (“State” in United States; “People” in the former Soviet Union), is seen as the victim. A crime is considered, therefore, to be an act which the public desires not to be done, and which the public is willing to punish if it is done. It is considered a Public Wrong.
Because the remedy for violation of criminal law is to be a punishment, certain protections of the accused become necessary. We do not want to punish an innocent person. Thus, there can be no crime without a statute, and acts done before there is a statute are not criminal; that is, you can not be punished for a prior act if the act is later made a crime (Ex Post Facto).
The statute must set forth every material element of the conduct which is criminal, for people may not be punished without “knowledge” that what they are doing is criminal. However, we are all presumed to know the law.
The State, prosecuting the action on behalf of the people, must prove the defendant did the necessary acts (actus reus), and must prove this beyond a reasonable doubt. This means that the balance scales must tip to their near maximum against the defendant before he may be convicted. Since punishment is the remedy, we — in the U.S., at least — want to be certain that we only punish the guilty, not the innocent.
Next, a defendant must have done the acts with some level of knowledge — mens rea, a “guilty mind” — which must also be declared in the statute. Over time, and in order of importance today, the necessary mental state of a defendant was determined to be: intentional, reckless, negligent, or conduct under what is called strict liability. We will define these terms later. For now, simply remember that this is the order in which our concepts of fault in Criminal Law (mens rea) developed.
After conviction, the question is then asked: What punishment should be given to carry out the five known purposes for punishment: reformation; restraint; retribution; and deterrence (individual or general). Note the absence of restitution from the options available.
With time, crime established three major sections — the same as in the Ten Commandments:
Crime Against Person;
Crime Against Property; and
Crime Against The Public Order.
Crimes Against Person may be categorized as:
Crime which involves the death of another person (homicide — murder, man-slaughter, and felony-murder); or,
Crime which involves the force or threat of force against the physical body of another person but does not result in death (such as assault, mayhem, battery, rape, robbery, extortion, and kidnapping).
Crimes Against Property are distinguished by an absence of force against a person. Instead, the loss of property is the focus of the crime. In this category we find the crimes of theft, embezzlement, false pretenses, forgery, burglary, arson, and the like. Obviously, what began as a crime against property could become a crime against person if, for example, someone were killed in the process of an arson.
Crimes Against Public Order would include such matters as rioting, treason, and most of the so-called “victimless” crimes (such as pandering, prostitution, sale of pornography, drug dealing, and, until recently, abortion). Here, violence to a person may or may not be present, and loss of property may or may not be present. Instead, what is involved is a behavior perceived injurious to the integrity of community to such an extent as to warrant criminal sanctions. Sometimes we see these as “moral crimes.”
Some explanations of the words concerning intent are necessary at this time.
Specific Intent. Here the requirement is for the defendant to have determined in his mind to commit at least one of the required elements of a criminal offense. For example, First Degree Murder normally requires proof of premeditation, which is an intent, found to be existent before picking up the gun, to do an act (shoot the gun), and bring about a result (kill the person).
Transferred Intent. This is used to justify convicting a person of a result which they did not intend, but which was a result of the illegal act. For example, I intend to kill A by shooting, but miss and kill B whom I love and would never kill. Nevertheless, my intent to kill A is transferred to B, and I am guilty of murder.
Implied Intent. This says that we are rational people, intelligent, and with understanding; therefore, the intent to do an act may be implied from the very doing of the act.
Strict Liability. This denies the need for any mental status. Instead, we are liable for doing the act without any defense. An example is sexual intercourse with a female under a certain specified age (Statutory Rape). Belief concerning her age — even a reasonable belief — is no defense. We will look at this area of the law more fully at a later point.
In addition to a theory of law designed to protect against punishment, a Criminal Procedure was developed to further safeguard human rights. All of the issues of search and seizure, for example, also flow from the punishment response of the law. Just as a restorative response will, as we shall see, change many parts of the law, so it may change many parts of legal procedure.
Torts — The Issue of Private Wrongs
In medieval England, the victims, so to speak, were being left out in the cold. That is, if the Defendant had money, it went to the King in fines; if he had none, he went to jail or was executed. The people of England therefore turned back to the local courts, filing cases against people (offenders) who had caused them a harm.
These cases were first known as Trespass. Acts constituting trespass were considered to be unlawful interference with the person, property, or rights of another.
At first, there were three major varieties of trespass:
(1) Trespass With Force Of Arms against the person: The three classic examples of this were:
Assault — an act which arouses in the plaintiff a reasonable apprehension of an imminent battery taking place. Fear is not required, only apprehension. Words are never enough provocation; there must be some overt physical action, although the action could be innocuous but for the words. There must be a present, apparent ability of a defendant, in the perception of plaintiff, to carry out the threat.
Battery — An intentional touching of the person of another in a rude, insolent or angry manner. “Person” of the plaintiff includes those things attached to him at the time, and the touching can be by an agency set in motion by the defendant.
False Imprisonment — the plaintiff must be aware that he is not free to move about at will as a result of the acts of the defendant. Confinement must be total and without freely given consent.
(2) Trespass Against The [personal, private] Property [of another] By Carrying Away — theft being a classic example. Today we call this “exerting unauthorized control over property of another with intent to deprive the owner of the use and enjoyment thereof”; and,
(3) Trespass against real estate — Breaking The Close (“close” being the term to designate a person’s land). In the crime of Burglary, one common statutory element is “breaking and entering.”
All three trespasses required proof of a specific intent to do the act which caused the harm; that is, that the act of a defendant was a volitional act (as opposed to, for example, an act done while sleep-walking or as a result of an uncontrollable reflex). But it was not necessary to prove that the harm was intended (guilty mind), or that harm even resulted. The person and property were seen to be of such value that any violation had to be responded to.
So, Trespass actually began in what is called Strict Liability, at the opposite end of the beginnings of the Criminal Law.
Trespass cases in local courts helped, but soon proved insufficient. For example, a defendant throws a log towards the road, hitting the plaintiff who is walking past. The plaintiff, being harmed, has an action in Trespass against the defendant because he was directly touched by the agency set in motion by defendant. This would be Trespass with Force of Arms. But what if, instead of hitting plaintiff, the limb lies in the highway and the plaintiff, in the dark, stumbles over it and is injured. What then?
The local courts developed the notion of Actions On The Case. Trespass became the action for direct and immediate harm without actual damages needing to be proven. Actions On The Case were for an indirect or consequential harm where actual damages did have to be proven.
But in Actions On The Case you also had to prove a fault — that is, that the defendant did the act with some mental culpability, but not necessarily with mens rea.
Gradually, fault became the doing of an act negligently, recklessly or intentionally — the same three concepts as are involved in Criminal law, but they developed in reverse order of relative importance in Torts. That is, today intent is the most important question in Criminal law, while negligence is the least important; in Tort, negligence is most important, with intent the least important.
For a time, Tort had a problem with the idea of liability for negligent inaction. Eventually, it developed the theory that since the Tort-feasor (the person doing an act which causes a harm) is in the best position to reduce or eliminate the consequences or risk of his behavior, he may be held responsible for failing to do so, provided only that he had a duty to act.
We now need to define a number of these terms.
Negligence came to mean “to do an act which a reasonably prudent person would, in same or similar circumstances, not do; or, to refrain from doing an act which a reasonably prudent person would do.” You are, in essence, held to a mythical community standard of conduct. The community, in the form of the jury, determines its standards on a case-by-case basis.
Recklessness came to mean “the doing of an act with a heedless disregard for the safety of others, where the actor knows, or has every reason to know, that a very high risk of harm is being created.”
Intentional came to mean “the act was done knowingly and volitionally, but the result of the act may not have been intended or even reasonably foreseeable.”
These definitions are, for all practical purposes, the same when used in the Criminal law.
Not surprisingly, the interest and power of the king under the Criminal law soon swallowed up the old Tort actions of assault, battery, false imprisonment, theft, burglary, arson, murder, mayhem, etc.
Thus, Tort law, for a time, lost its original character of strict liability except for trespass on real property. It subsequently developed areas of strict liability involving manufacture, possession, or use of dangerous instruments, such as dynamite, escape of water stored behind a dam on one’s premises, etc.
Tort law came to be seen as the way to address any “private wrong” while Criminal Law was left to address “public wrongs.”
But the same acts by a defendant could be a crime as well as a tort! And today, although not at first, a person might be sued at both Criminal law and Tort law for the exact same set of acts, with opposite results because the rules are different. The recent criminal and tort trials of O.J. Simpson are a classic example of this possibility.
Tort law was considered to have a number of purposes:
(1) To compensate people for wrongs suffered;
(2) To place the cost of that compensation upon those who, in justice, ought to bear it;
(3) To prevent future loss and harm (deterrence, both general and specific);
(4) To vindicate the person wronged; and
(5) To deter victims from making an individual retaliation for wrongs done.
Note that these same five purposes could be seen as valid for all matters of Criminal law other than cases in which a death penalty is felt necessary (although some of the purposes may be applicable even there).
But, please note also that, fundamental to Torts is the idea of establishing responsibility. One who causes a harm ought to be responsible for correcting the wrong done. Fault is just as fundamental to the Tort system as to the Criminal law system, but the difference is in to whom the fault must be acknowledged — to the state, or to an identifiable victim. And there is a difference to be seen in the response of the law, punishment or compensation will be required.
Eventually, Tort law, being based upon a case-by-case development rather than upon statutes, was seen to ask these questions:
Was there a duty owed by defendant to plaintiff?
Was the duty breached?
Was the breach due to a fault of the defendant as tested by a community standard (the hypothetical reasonable man in similar circumstances)?
Did damage proximately result from the inactions or actions of a defendant; that is, did the act in fact cause the harm complained of, and was that harm reasonably foreseeable?
Is the proof sufficient to just tip the scales of justice (preponderance of the evidence), rather than being beyond a reasonable doubt? Note the difference in proof required because of the difference in response of the law to determination of liability; and,
What compensation should be given to the person damaged?
Whence Came This Focus on Punishment?
Having looked briefly at Criminal law and Tort law, and seeing how the same acts could be processed under either concept, one might wonder where the necessity for a certain mental state of a person hurting another came from, and why there is a focus on punishment rather than on restoration. After all, it seemed that restoration was a key ingredient in the communal systems which had been developing before the time of Gregory VII.
Berman poses an interesting answer. In the development of the Canon Law, a man by the name of Anselm (at one time Archbishop of Canterbury in England) re-worked the meaning of the Atonement of Christ into a legal theory. It went something like this:
Since God is, as one of His attributes, absolutely just, His absolute justness demands punishment of all mankind for both our sin nature and our individual acts of sin. He cannot bear the sight of sin, so we must all die as was promised in the garden. The death of Christ on the cross satisfied God’s demand for punishment of man for the inherited sin condition, but did nothing for the individual sins of life. For those sins, punishment was still required for God to be just. This punishment came to be seen as: (1) penance done to the Church as God’s representative on earth; and, (2) purgatory for final cleansing before entering heaven.
Prior to Anselm, according to Berman, confession to a priest was done in an open setting. Most often this was in the hallway of the church, often sitting on a bench. Also, penance most often consisted of acts which the priest suggested the penitents ought to do towards the victims of their acts to repair the wrongs done. Thus, the focus of law and process, as seen through the eyes of the Church in Rome before Anselm, was confession and restoration. After Anselm, the focus became seen as punitive, resulting in denial of one’s acts rather than confession. In fact, it is after Anselm that we see the confessional booth appear in the Church at Rome. From the confessional booth comes much of our concepts of confidentiality and one-on-one counseling — both of which are impediments to restorative justice.
It may be noteworthy, in an effort to understand how people in Russia have dealt with conflict, having essentially no Civil law, to bear in mind that the pre-Anselm approach to offenses is still the case in the Russian Orthodox Church. The Orthodox Church does not have penance, purgatory, or the confessional booth. I also found it interesting to note that the Roman Catholic Church prominently features Christ on the cross, dying for the sins of mankind, while the last thing you see upon leaving an Orthodox Church is Christ standing on the head of the serpent, setting the captives free to live the abundant life!
Well, as noted in the last chapter, in response to the move by Gregory to establish canon law, the secular Princes felt the need to create their own law. But as they did so, they borrowed the punishment concepts set in place by Anselm, and made themselves the victim, just as the Church made itself the victim (albeit, in substitution for the victimization of God).
The fact remains that what I choose to call the State-As-Victim-Punishment-As-Method model was firmly in place throughout the West by 1200 A.D., long before the first European colonists came to the U.S.
Property Law — The Issue of Rights
The next three sections will deal very briefly with the areas of Property and Contract law, and the Law Merchant. The coverage will be much less, for the impact of these fields of the law is much less insofar as matters of restorative justice are concerned.
So, if two of the actions in Trespass were based upon injury to property or property rights, a Law of Property would be required so that we could determine who owned what, or had what rights in what property. In its earliest days, Trespass to Property was actually a trial to prove the ownership (or other right) in and to a specific property.
As Property law developed, it asked:
(1) What are the respective rights — ownership, possession, use; present or future; contingent or certain; etc — of the competing parties?
(2) Whose rights are the higher?
(3) Is the proof sufficient to tip the scales? and,
(4) What needs to be done to uphold or protect the rights?
Because of the importance attached to ownership of both property and the means of production, as well as the right to peaceable enjoyment of both, damages did not need to be shown in order to bring and win a case in Property law. The earliest actions were all Strict Liability. It needed only to be shown that a person did an act volitionally, causing a harm to property, and they were held liable without regard to the state of his mind. However, the state of his mind might effect the damage question.
Consider, also, how the issue of property rights motivated the development of the Rule By Law:
If it is mine, not yours: Criminal law is needed for theft;
If it is mine, not yours: Tort law is needed if you damage my property;
If it is mine, not yours: Contract law is needed if I want to sell;
If it is mine, not yours: Inheritance law is needed so that I can pass it on to my descendants when I die.
It may be said that Property law, or the right to ownership of property, is the engine which drives the development of all other portions of the law. It may be for this very reason — lack of any private ownership and, therefore, lack of an engine — which accounts for the relatively impoverished state of formalized Civil law (as opposed to informal communal legal processes for resolution of conflict) in so many parts of the world today.
Contract Law — The Issue of Vows
As Actions On The Case in Tort continued to develop, Contract law was just beginning to develop based upon dealings in real property, and dealings between merchants. All of these were based, however, upon Contracts Under Seal. There was a written document, signed by the parties, to which they had affixed their personal wax seals — thus the term, “under seal.”
Some rules of behavior were becoming so fixed between merchants that contracts were beginning to be implied to exist even when there was nothing under seal. This was the beginning of the Law Merchant, as it was then known (now the Uniform Commercial Code in the United States). However, this Law of Merchants did not, at first, help normal buyers because of the doctrine of caveat emptor, “let the buyer beware”.
But, what was to be done when someone promised to do a “service” for another, such as building a barn, verbally rather than in writing? He then builds negligently, and the barn falls on the owner’s cattle, injuring the cattle (which are personal property). We appear to have two parts of trespass: damage to personal property, and damage as a result of negligence. But the property is not attached to the plaintiff (Trespass Force of Arms), it is not removed (Trespass by Taking), the harm is not direct (it is like the log lying in the highway), and it arose out of an agreement (Contract). The newly developing courts did not know what to do with this kind of situation at first.
To solve the problem, local courts created, under Contract law, the field of Assumpsit (He Assumes It). Now it seemed that we had Tort law in Contract law.
In fact a plaintiff might sue in Tort or Contract, based upon the remedy he desired, although he would in the process elect one remedy and exclude the other. This doctrine of election has been largely abolished today.
Soon came an Action On The Case in Contract for deceit. Just as in Tort, Assumpsit became the complaint for direct harm, while Action On The Case was for indirect harm.
And, very quickly, implied promises of good workmanship were imposed upon all those who offered their services or wares to the general public. Today, we have added, under the warranty portion of Contract Law, Strict Liability in Contract for defective products.
And this is how law always goes. The law is never static; it is always changing, growing or retreating. And this fact of change also affects notions of justice, and the need for some absolutes.
Contract law, in essence, attempts to define what promises the law will enforce. The law recognizes that we are constantly making promises, but does not assume it is possible to enforce all promises. Over the years, the following options have developed to separate enforceable from unenforceable promises:
Promise Plus Formality, such as Contract Under Seal;
Promise In Return For Promise, which is the concept of Consideration;
Promise Plus The Bargaining Process, where the very process of bargaining proves the intent to be bound by a contract;
Promise Plus An Antecedent Debt, considered the issue of responsibility for a “moral indebtedness;” and,
Promise Plus An Un-bargained For, But Reasonable, Reliance, which is called Estoppel in that the one with a legal argument to avoid the contract is stopped from raising the argument because of the change of position (to his detriment) by the other.
Contract Law came to ask these questions:
(1) Was there a contract; i.e., an offer (promise) by one party, with an acceptance (promise) by another?
(2) Was there an adequate consideration; i.e., a legal detriment (giving up a legal right; agreeing to do what one was not legally required to do) to support each promise?
(3) Did each party have the legal capacity to contract; i.e., were they not a minor, mentally infirm, or a married woman)?
(4) Was the contract valid; i.e., was there a lack of duress, fraud, misrepresentation, etc?
(5) What were the conditions of the contract, and were they “certain”; i.e., can we readily determine what it was that the parties agreed so that a proper remedy may be ordered? (In the Law Merchant, the contract was examined from the standpoint of the “hypothetical reasonable merchant”.)
Has the contract been breached?
Was the breach material?
Is the proof sufficient to tip the scales of justice? and,
What needs to be done to restore the injured person to the position he occupied prior to the breach, or otherwise to make right for the wrong done by the breach?
The Law Merchant
By now, I have used the term, Law Merchant, twice. It is time to say a few words about this development.
At the same time that Gregory VII and the secular Princes across mainly Western Europe began the struggle for control under law, Western Europe also underwent a very rapid population growth. In turn, this led to the development of a new class of merchant, the traveling merchant. Until then, most merchants were local craftsmen, plying their trade from the shop under their house. Now, in an effort to serve the growing population, they took to wagons and began traveling about the country.
Soon, certain cities became known as “merchant fairs,” where the merchants gathered, traded with one another and with the people of the city. The people, in turn, distributed (sold) within the city and surrounding areas.
But problems quickly arose involving matters of law. The issues could be listed as follows:
Each principality had a different law; uncertainty does not lend itself to making money through trade;
The legal system of the local prince was slow and cumbersome; these were traveling merchants, needing to travel to make money and the last thing they needed was to be bogged down in some city waiting upon a court process;
The systems were adversarial, in a search for some particular mental state of the actor. These ethical standards were formed through a mix of Roman Civil Law and the Bible. In comparison, the merchant was going to meet his fellow merchant the next week, in another town, and did not want to carry an unresolved conflict (together with its anger and bitterness) into a new effort to do business;
The developing field of Contract Law had formalities piled upon formalities, leading the merchant to feel that he was being asked to “do contract” whereas all the merchant wanted to do was to “do business”. The two are different concepts. Also, the merchants were uncomfortable with being judged by non-merchants who did not understand the mercantile mind.
So, in response to these concerns, the merchants developed their own law, the Law Merchant, and took it with them wherever they went. They judged one another, with speed, based upon concepts of mercantile reasonableness. Arbitration and mediation were the methods most often employed rather than formal litigation. Rules of evidence were different. And their system was characterized by a high degree of (to them) logical and rational business concepts rather than artful language, formalities, and processes of the local legal systems available.
Of course, over the years, princes got into this field through legislation — and the next thing you knew, the flexibility was gone. Local law had consumed even the merchant’s affairs!
Beginning in the 1950’s, in the United States, merchants and bankers, with the help of a few law professors, began to draft what they hoped would be a new Law Merchant. Today, with minor variations, it is in place in all 50 states. It is called The Uniform Commercial Code. It is filled with words like: commercially reasonable; due care; good faith; mercantile quality; etc, words which the law would never tolerate. It will fill in the blank spots of an alleged contract for you if you do not. That is, where the law will say no contract because of lack of definiteness, the Code will create a contract by filling in the blanks. This is in recognition that business is the name of the game rather than preparation of contracts. And the Code was drafted in such a manner that it would be flexible, allowing it to change as customs, usage, and traditions changed. There is a continuing study commission checking to see if the aims have been met, a commission of merchants rather than lawyers.
A very strong version of the ancient Law Merchant is alive and well in all places where the Civil law never fully developed — such as the former Soviet Union — through an Arbitrage System for commercial disputes.
Equity — The Issue of Fairness
I think that, by now, the reader can see the propensity for the law to pile rules upon rules upon rules. This can produce a certain straight-jacket — which is exactly what happened.
To compound matters, in the fields of Tort, Contract and Property, the Courts quickly developed the doctrine of stare decisis. We call this doctrine “precedent”: it is a commitment to the rules, procedures, principles, and holdings of prior cases. The Courts saw themselves as bound to the decisions in these past cases, and were unable to change to meet new situations. As time went by, more and more people began to bring disputes, so more and more “unusual” situations were faced.
Bound by stare decisis, the law began to stagnate. And the remedies available at law were proving too inflexible to meet the “peculiar” needs of new victims and new cases.
So people began to petition the king directly for extraordinary relief outside of the law. As it was extraordinary, the king took to referring the cases to his Chancellor (his chief religious officer) for a review of the moral issues involved.
From this developed the Chancellery Courts and the field of Equity, which soon developed its own set of interesting requirements, extraordinary remedies, and new defenses, together with some different rules of proof.
Once a basic case was proved under Tort, Contract, or Property Law, only the following questions needed to be asked:
Would the remedy at Law be adequate? If not, then Equity would act.
Did the one seeking Equity come to the Court with “clean hands?” Since he is are asking for justice, and for an extraordinary remedy, he may not do so if he has some fault in the matter.
Has he been guilty of laches? That is, has he slept on his rights, allowing the other party to change their position in reliance upon the petitioner’s silence, to their detriment?
What is fair?
What should be done?
Because the remedies available in Equity were very powerful, the judges were concerned that skillful lawyers might manipulate a jury to an unjust result. To avoid such potential abuses, the jury was denied in Equity.
God’s Categories Compared
It now seems appropriate to review the approach of the Biblical Law, in comparison to Criminal, Property, Tort, Contract, Law Merchant, or Equity Law.
In matters of property ownership, possession and use, Biblical law asks the same questions as our modern Property Law, plus one other:
What impact, if any, does the Sabbath Year or the Year of Jubilee have upon the case?
Moreover, under the Biblical law of vows, the questions are far fewer than under Contract Law, consisting of only the following:
Was there a vow, by a person with capacity, which has been breached, and what restitution should be made?
But in all matters of damage to person or property, regardless of how it takes place (Tort, Contract, Criminal, Property, Law Merchant, Equity, etc), Biblical law always asks these questions:
Was there a harm?
Is the defendant responsible for the harm? This is not a question of intent, negligence, or recklessness, although such issues appear in the Biblical case law. Instead it is a question of responsibility, more like our issue of Strict Liability. That is, the individual is liable for the natural consequences of his actions or inactions, without regard to what he may or may not have intended, known, etc. The reason for this approach in the Bible is that repairs to fractured relationships and community are deemed more important than issues of the mind;
Does the nature of the harm result in a sentence of restitution or of death?
If death, were there two witnesses? This is a due process issue, looking like a proof beyond a reasonable doubt, but it is still not proof of a mental state.
If restitution, is the proof sufficient to tip the scales? This is preponderance of the evidence, as in our Civil rule.
Finally, the state of the mind of the defendant who denies responsibility would be looked at, after determination of responsibility, to consider increasing the amount of the restitution. The state of a defendant’s mind is also considered in the case of manslaughter, where it might set aside the death penalty.
SECTION 4 — REMEDIES
In U.S. court proceedings, whether in Tort, in Contract, in Property, or in Equity, the case must first must be establish at law before it can be determined what remedy should be granted.
At Common Law in England, the remedies were: Compensatory Damages; and Restitution.
Compensatory Damages were designed to make good the loss of the plaintiff; the damages generally substituted for some tangible thing. Damages might be general, consequential, punitive, or nominal.
General Damages are considered to flow directly from the proven wrong. It is not necessary to prove that the damages were reasonably foreseeable by the defendant, only that they are natural and incidental to the harm and “flow” from it. In contract cases, general damages seek to restore the plaintiff to where he would have been if the contract had not been breached, they are for the loss of the benefit of the bargain.
Special Damages must be reasonably related to the injury (but for the injury they would not exist), reasonably certain in amount (not speculative), and reasonably foreseeable. Note that any time in the law there is a variation of “reasonable,” the possibility of a jury trial is introduced.
Punitive Damages are like a fine, with the money going to the plaintiff and not to the state. The purpose is to punish the defendant, to deter him from doing such acts again, and to deter other potential defendants. It requires that the defendant goes beyond bounds of decency in his conduct. Showing bad faith or malice will help establish such damages, as will proving grossly reckless conduct or conduct showing a massive indifference to the potential for harm.
Nominal Damages are at the opposite end: there is no specific harm involved, but a right has been determined. They are normally granted after proof of the right has been made and after the Court has determined that no compensatory damages have been established. Nominal damages may be as little as $1.00.
Restitution, in comparison to compensatory damages, does not aim to restore the loss sustained by the plaintiff, but to transfer from the defendant to the plaintiff any “unjust enrichment” secured by defendant (by his improper acts) which it would unjust for him to retain.
Under the Biblical LAW, restitution was the focus of all proceedings except where the death penalty was involved. Whether this restitution represented our restitution, unjust enrichment, compensation for measurable damages, or restoration to the prior position (or all of these options) is unclear. Biblical LAW may have used any or all of these elements based upon the more general concept of making whole and restoring fractured relationship.
Be that as it may, restitution ranged from 100% to 520% of the loss incurred, but without any form of speculative damages (such as pain and suffering, which we no longer consider speculative). Thus I suspect that the damage inquiry under Biblical law may have been much like our modern day inquiry.
But the Bible also makes it clear that the parties ought to first determine between themselves what should be done before approaching the Court. This, of course, is a natural example of the Biblical emphasis on direct contact between the parties, assisted as necessary by the community, without resort to playing some legal game.
We will consider Biblical rules on restitution more fully later.
In short, while the thrust of the laws of liability under Biblical LAW would work an increase in the speed of fixing responsibility and the determination of which class of reply to make (death or restitution), the rules concerning what the actual amount of restitution would be were left more capable of individual and circumstantial response — that is, it would look more like our field of Equity than law.
Well, there were times, under the Common Law, when the remedies at law just were not good enough.
That is where Equity came in. It offered, among other things: Rescission; Reformation; Injunction; Specific Performance; Equitable receivership; Interpleader; Sequestration; and Declaratory Judgment.
But in Tort and Property cases brought in Equity, plaintiff had to prove that his remedy at law was inadequate, and face a question of balancing the hardships. In Contract actions, the plaintiff also had to prove: mutuality of conditions, no out-standing conditions, and enforceability. Defendants at Equity could also raise two additional defenses: laches and “unclean hands.”
Balancing The Hardships meant that the court would look at the hardship an order against a defendant may cause the defendant versus the hardship to plaintiff if the order is not entered. If an order against the defendant then seems “unjust,” only money damages will be awarded the plaintiff.
Laches is a question of how much time had elapsed since the plaintiff knew of the problem and during which he did nothing, as well as what harm the delay might have caused the defendant.
Unclean Hands is the recognition that the plaintiff is asking the court to “do justice”, and cannot ask for that if he has, in the matter at issue, been guilty of “injustice”.
Rescission may often involve restitution by both sides, for it attempts to end the commercial relationship between the parties as though it had never been begun. Grounds for rescission are: fraud or material misrepresentation; mistake (mutual or by one but known to the other who takes advantage of the mistake rather than warning about it); duress; illegality; impossibility of performance; or failure of consideration. Generally, the party seeking to rescind must tender back anything he gained in the process. At Civil law, but not in Equity, the act of tender, and the notice of intent to rescind, rescinds the contract at that instant.
Reformation proceeds on the theory that the parties did reach an agreement but that, in reducing it to writing, something went wrong, through mistake or fraud, and thus the parties signed what they did not agree to. Here the request is made for the Court to reform a document to the original intent of the parties. An additional defense here is Ratification if the Plaintiff learns of the mistake and then continues on in the contract. Reformation is normally a first step to Specific Performance.
When discussing Reformation, we should mention that, obviously, one of the parties here does not agree that there is something wrong with the contractual document. This is also a good place to mention that contracts are, when lacking trust and good relationships, nothing but white sheets of paper covered with black dots. A contract will take on such meaning as the parties give it — or as a neutral (other than the lawyers for the parties) interprets it after a court fight.
Specific Performance is limited to contract actions. It orders a Defendant to do what he promised he would do. It is here that the terms mutuality of conditions, no outstanding conditions, and enforceability arise.
Mutuality means that if the contract is so one-sided as to be unconscionable, and it will not be ordered against a weaker party.
In No Outstanding Conditions, the Court may choose to not enforce the contract in favor of one who has not performed all that he promised. Did you notice the phrase, “may not”? No one can ever guarantee the outcome of any conflict taken through the Court process, nor even one taken through the Matt. 18 Biblical process. Sooner or later, we either trust God to right things at the end of time, or fill ourselves with anger and bitterness over failed expectations.
Injunction is an order to a defendant which may be issued by the Court independently or as a part of a damage case. It orders the defendant to do, or not to do, specific things, and can come at three stages of a case: as a Temporary Restraining Order; Preliminary Injunction; and/or Permanent Injunction. Bonds are normally required before an injunction is issued.
Temporary Restraining Orders are issued without a chance for the defendant to respond. They are not favored, are very carefully scrutinized, require the plaintiff to post a bond, and may lead to a claim against the plaintiff for damages if the order is subsequently found to have been inappropriate. There must be a hearing within 10 days of issuance of the order, with notice to the defendant required.
Preliminary Injunctions are entered for the length of a case, although they can be removed before that time. Permanent Injunctions are good until revoked.
Equitable Receivership is where the Court takes property at issue between the parties away from both parties, and places it in the hands of a third party to manage until the case is determined.
Interpleader occurs where someone with property which he knows is not his own, and faced with more than one person claiming the property, brings the property into court. The judge then orders all the conflicting parties against the property to come and state their cases — while the one who had the property may get to leave all further court processes.
Sequestration is when an officer of the Court is ordered to take possession of some property of the defendant, and then either deliver it to the plaintiff, or sell it and give the proceeds to the plaintiff.
Declaratory Judgment asks a Court to look at a contract, a statute, or a situation before a conflict has erupted, and declare the meaning of the thing at issue so that the parties may proceed without conflict.
Finally, both Law and Equity also offered the remedy of Contempt of Court. Contempt of Court is a remedy on behalf of the Court rather than of a party, although a party may ask the Court to make a finding of contempt. It is the matter of the Court upholding the honor of the law, legal process, and position of the judge.
In fact, in the Bible, refusal to abide by an order of a Court was considered such a breach of the very fabric of society that it warranted the death penalty (Deut. 17:12-13):
And the man who acts presumptuously by not listening to the priest who stands there to serve the Lord your God, nor to the Judge, that man shall die; thus you shall purge the evil from Israel. Then all the people will hear and be afraid, and will not act presumptuously again.
Being an expert on Contempt, and having been once found in contempt, I am able to say that I both understand the wisdom of this provision, and agree with it.
Under a Biblical system, it would seem that all of these would be appropriate remedies. The possible exception might be Rescission, where a person is released from a vow. The vow was a solemn matter before the Lord, so solemn that possibly there was never to be any release (see Leviticus 27:1-34 and Numbers 30:1-16).
I believe there is an implication in the Bible that our vows ought to be made in the presence of witnesses. If that were done, many rash vows, mistakes, issues of misrepresentation, and other problems of law would be avoided.
I recall working with two young men as they formed a partnership — working from a Biblical approach as they made their vows. Their wives participated, many non-legal matters were discussed, friends were brought forth and empowered to resolve conflicts which might arise, and the pact was sealed in Communion.
How different was this than in the law. In the law, normally a party seeks an attorney to prepare a contract for him. Obviously the attorney listens to the client and writes what he believes the client needs. However, most attorneys do not ask questions about a client’s life circumstances; i.e., most would never dream of asking if the client had a wife who was in agreement with the venture. The client then takes the document to the other party, who takes it to his attorney. His attorney would make changes in his client’s favor. Then the attorneys would start to ship the document back and forth, piling verbiage, luggage, baggage and garbage upon it — and all without getting the principle parties together to discuss and negotiate! God’s way is different; and better and wiser.
If we altered some of our mechanisms for entering into our commercial dealings, we might reduce this need for breaking a vow with legal imprimatur (rescission).
Today, in most of our court systems, judges sit both in Law (Tort, Property, Contract) and in Equity, and are able to move from one to the other as needed. Parties may plead alternative (even inconsistent) theories of liability, and ask for alternative remedies.
Where issues of Law and Equity are both present in a case, we have a bifurcated trial. The jury hears the part dealing with Law, and the judge rules on the part dealing in Equity. Both can go back and forth throughout trial.
I expect the procedure in Biblical times may have looked much like this, at least to the extent that the community was present and furnishing some of the protections for which we now look to a jury.
SECTION 5 — THE LAW OF STRICT LIABILITY
In the last section, I gave a very broad overview of the principle issues faced by Criminal Law, Property Law, Contract Law, Tort Law, Law Merchant, and Equity Law, in broad comparison with Biblical law. It is now time to look more deeply into the main issues presented.
We begin with the question of fault.
Criminal law seeks first to determine the mens rea (guilty mind) of the offender. That is, the offender must intend to commit a crime as defined by statute. And the Prosecutor must prove the intent beyond a reasonable doubt.
Since the state of a person’s mind is generally not able to be directly determined, the law has built up some presumptions and definitions. The primary presumptions are that: we are all presumed to know the law; and we are all presumed to intend the natural consequences of our volitional actions.
The two most important definitions concern actions which are not in conformity with community standards: 1) recklessness (a heedless disregard for the consequences of one’s actions), and 2) negligence (doing what a reasonably prudent person would not do, or not doing what a reasonably prudent person would do under the same or similar circumstances).
In the law of Torts, we find the same presumptions and definitions, although the Intentional Tort has largely been taken over by the Criminal Law.
Contract Law also focused upon the state of mind of the parties making the contract. In fact, one expression of our contract law is that we look for “a meeting of the minds”. We want a head-on collision between the minds of the two parties on each and every part of the contract before the law will legally acknowledge a contract, or attempt to give enforcement to it.
Property Law, on the other hand, began with Trespass (a violation of rights in and to property). As such, the state of mind of the offender was immaterial; the right to peaceful possession and use of one’s property outweighed any societal concern about the state of mind. This was, if you will, a matter of Strict Liability for volitional acts without, in the determination of liability, worrying about an issue of the mind.
But we also have Strict Liability in Crime, Contract and Tort.
An example of Strict Liability in Crime might be the possession of a “controlled substance”, such as some form of drug, without a valid prescription. If the accused is found knowingly in possession, he is liable without regard as to why he has the substance. Society has said this shall not be done. Or the crime of serving alcohol to a person under the age of 21 might be another example.
In Tort Law, Strict Liability exists for doing things which are considered so inherently dangerous that the individual should be responsible for damage regardless of the care which was taken to avoid damage, and without the need to prove that he did anything wrong at all. In short, fault is not an issue; only an act is needed. An example would be an individual damming up a stream on his property to create a pond, and then having the dam break. He is strictly liable for damages to people downstream. Manufacturing or transporting of some substances, such as dynamite, are other examples.
In Contract Law, Strict Liability relates to placing into the stream of commerce a product which then fails while in its expected use and causes damage. This form of liability developed because it was felt unfair to require people to prove that what went wrong with the product was caused by a faulty design or fault in production. All that ought to be needed, it was determined, was proof that the product, while being properly used, failed and caused harm; that is, it was in some manner defective.
In the matter of “Strict Liability in Crime”, legislatures (the people speaking through their elected representatives) made the decision to create the specific crimes where intent is not an issue. In Tort and Contract cases, the community, speaking through the voice of a jury, created the liabilities over time and on a case-by-case basis. This established precedent which other Courts began to follow, and the fields of ‘Strict Liability’ expanded to their present form.
The reader should perceive, therefore, that the components of Strict Liability include:
(1) No harm need be proven to have actually taken place, but the offender is situated in a way to prevent great harm by acting rightly, and is thus punished for not taking right action. Perhaps an owner allows a manufacturing plant to discharge toxic waste, but the existence of a harm cannot be proven (at least in this lifetime). Should the owner be fined for the discharge? Of course there is no apparent victim to make restitution to, but is it right to order restitution to the community for the danger posed?
(2) Rather than a design to harm a certain person, there may be a high likelihood that a random harm may happen as a result of the defendant’s act (driving while intoxicated even though no harm, e.g., an accident, occurs would be an example of this type of strict liability).
(3) The conduct may not be immoral, but it needs to be controlled for reasons of perceived public health or safety (e.g., practicing medicine without a license).
(4) Injury may occur without regard to the good or bad motives of the offender; and,
(5) Normally the penalties and stigma which attach to conviction are minor (requiring a fine rather than imprisonment). However, this is changing, today in line with the general movement towards harsher penalties in all areas of the law.
Today, we rarely question the matter of strict liability and accept that it is appropriate. We see it as necessary for the protection of rights, family, and community, and we see it as a proper statement of “we the people” in our effort to “establish justice”.
Earlier, I said that when we look at Biblical LAW, we find examples of negligence, recklessness, and intent. But I also said that Biblical LAW is a law of strict liability for one’s actions without regard to the mental state of the actor. Can both statements be true?
Both statements can be true if we always bear in mind that the statutory law is the Ten Commandments, while the cases which follow are for illustration.
It is very hard to consider a law more strict in its imposition of liability than, “Thou shalt not murder; thou shalt not steal; thou shalt not commit adultery; thou shalt not covet.” These are the Ten Commandments. Certainly if there was ever strict liability, this sounds like it.
And if we return to the Garden of Eden, we find strict liability as well: “Don’t eat of the tree or you will die.”
We see strict liability in God’s words to Noah immediately after the flood: “Whoever sheds man’s blood, by man his blood shall be shed.” (Gen. 9:6)
Where, then, do we find intentional, negligent, and/or reckless conduct? We find them in the case examples, not in the Statutes:
And if an ox gores a man or woman to death, the ox shall be surely stoned, and its flesh shall not be eaten but the owner of the ox shall go unpunished. If, however, an ox was previously in the habit of goring, and its owner has been warned, yet he does not confine it, and it kills a man or a woman, the ox shall be stoned and his owner shall also be put to death. If a ransom is demanded of him, then he shall give for the redemption of his life whatever is demanded of him. Exodus 21:28-30
Here we appear to have an example of recklessness — knowing of a high degree of danger, and in heedless disregard of the possible consequences, the individual fails to protect the public and is liable for that failure.
But, note that nowhere does it say that he did anything wrong, or failed to do something required. For all we know, he built an escape-proof pen and a flood came and washed away the pen. Then the ox gored someone before it was possible to restrain it. The case law clearly says the man is liable. This looks exactly like the dangerous instrumentality strict liability rule in Tort Law, rather than recklessness. The Bible passage says, “He did not confine it,” an absolute standard.
But what else can be said in this case? One day the man’s ox gores a person, hurting him. The owner is told of the case. The owner now must make a choice: his personal interests, or the interests of community. Does he — knowing that life is full of uncertainties, knowing that the penalty if his ox does gore again and causes death is death, knowing that God is a God of grace able to replace the ox if he elects to protect community (or can allow him to live at peace without an ox) — choose his economic self-interest, or does he see himself as having a responsibility to community which is greater than his self interest?
It seems to me that the God who judges the heart in perfect judgement just might reflect His knowledge of how totally sin has warped us in His LAWS and case examples. We may not like this possibility, but we ought to acknowledge it as a possibility.
And what about negligence?
If a man lets a field or vineyard be grazed bare and lets his animal loose so that it grazes in another man’s field, he shall make restitution from the best of his own field and the best of his own vineyard. If a fire breaks out and spreads to thorn bushes, so that stacked grain or the standing grain or the field itself is consumed, he who started the fire shall surely make restitution. Ex. 22:5-6
Now, this looks like negligence. That is, it looks like a reasonably prudent person was not present guarding the fire or the animal. But it does not say anyone was failing to do his duty.
In the first instance, we have a man who apparently thought so little of his stewardship before God that he let his land be grazed to the point that it could no longer be used for grazing. Rather than sell his livestock as a penalty for overgrazing, and properly husband the land back to where it could sustain grazing, he just turned his animal loose to wander about. Damage resulted. God does not ask us to judge the man’s mind, heart, motive, but only his actions. God says, in essence, “This man did an act; a harm resulted; he is responsible for the results of his act and must be held to account for them. He pays restitution.”
That is strict liability.
In the second case, nobody says that the man was not guarding the fire. All that is said is that he set the fire and it burned the property of another. In Property Law, we would, as with the case of the grazing animal, say that this is nothing more or less than Strict Liability in Trespass.
Well, a third place in which we think we see negligence is in what we lawyers know as the law of Bailment. Bailment is when I give you possession of my property.
In our law, we differentiate between:
(1) Bailment For Hire: I give my property to you for a price because you are going to use it for your purposes or keep it safe for me; and,
(2) Gratuitous Bailment: you are really just borrowing my property, and there is no thought of payment.
In our laws, the issue of liability turns on the type of the bailment.
What does the Bible show? Look at Exodus 22:7-15:
(v 7) If a man gives his neighbor money or goods to keep for him [sounds like bailment for my benefit] and it is stolen from the man’s house, if the thief is caught, he [the thief] shall pay double.
(v 8) If the thief is not caught, then the owner of the house [keeper of the property] shall appear before the judges to determine if he laid his hands on his neighbor’s property.
(v 9) For every breach of trust … or any lost thing about which one says, “This is it,” [general principle] the case of both parties shall come before the judges; he whom the judges condemn shall pay double to his neighbor.” (emphasis and amplification added)
Now, before continuing with the passage, let us be sure we understand the general principle: any person found to be in possession of property which is not his shall pay double the value to the owner. No one calls this person a thief, or an evil person. He is Strictly Liable for having property which he knows is not his.
Elsewhere in the Bible, we find the specific command, that, upon seeing lost or straying property, the finder is to take it into possession to safe-keep for the owner and go search for the owner:
You shall not see your countryman’s ox or his sheep straying away, and pay no attention to them; you shall certainly bring them back to your countryman.
And if your countryman is not near you, or if you do not know him, then you shall bring it home to your house, and it shall remain with you until your countryman looks for it; then you shall restore it to him. And thus you shall do with his donkey, and you shall do the same with his garment, and you shall do likewise with anything lost by your countryman, which he has lost and you have found. You are not allowed to neglect them. You shall not see your countryman’s donkey or his ox fallen down on the way, and pay no attention to them; you shall certainly help him to raise them up. Deuteronomy 22:1-4
This is one of the reasons I love the Bible. It calls us to community and other-centeredness rather than self. “Finder’s keeper’s” is not Biblical but Satanic; it divides, not heals.
Well, back to our case law. This man has not done that (returned the property), and has even, apparently, contested ownership and been found by the judges not to be the owner. It would thus be easy, particularly immediately after a verse speaking of a thief, to think the man is a thief. But he is not so judged — he is judged only for his wrongful possession: Strict Property Trespass Liability.
Now, back to the passage. We have the neighbor without the entrusted goods. The question is, what do we do? Let’s go back to Exodus 22, starting with verse 10:
(v 10) If a man gives his neighbor a donkey, an ox, a sheep, or any animal to keep for him, and it dies or is hurt or is driven away while no one is looking,
(v 11) an oath before the Lord shall be made by the two of them, that he has not laid his hands on his neighbor’s property, and its owner shall accept it [the oath], and he [the one holding the animal for the other] shall not make restitution.
(v 12) But if it is actually stolen from him, he shall make restitution to its owner [a concept of absolute duty to guard].
(v 13) If it has been torn to pieces, let him bring it as evidence; he shall not make restitution for that which has been torn to pieces.
(v 14) And if a man borrows anything from his neighbor, and it is injured or dies while its owner is not with it, he shall make full restitution.
(v 15) If its owner is with it, he shall not make restitution; if it is hired, it came for its hire. (Amplification added)
Note that we began in verse 7 with “goods or money” and took a brief divergence into improper possession. Then, in verse 10, we returned to bailment, adding a matter of animals. Animals are able to wander about on their own volition, and can also be driven off by wild animals.
We now look at what is to be done. What principles do we see?
First, if I give you an animal to keep for me (v 10), you are strictly liable for any loss (v 14), including theft from you (v 12) unless you furnish proof that you did not put the animal to your own use. If it were goods or money, and not an animal, you make a vow before the Lord (v. 8 and 11). I must then accept the vow, and end the contest. But I would also expect the presence of witnesses at the time of the vow.
If the animal just died (as animals do), you can produce a carcass and the meat. If the animal wanders off, or is driven off, you can produce the mangled carcass showing wild animals at work.
In short, I, having asked you to keep the property for me, allow you to show that you were without fault. Thus fault, as we understand it, may not be present to make you liable, but your showing of lack of fault may avoid your being liable.
We shall see again this principle — proof of lack of fault as a means to modify what would otherwise be the penalty prescribed by the law. But bear in mind that in all of these cases, Strict Liability is the starting point; lack of fault alters the penalty or even the existence of an offence. Our system reverses the process, looking first at fault rather than actions, and it reverses the burden of proof by making the State prove you had fault rather than you proving you had no fault.
But, second, if you borrow an animal from me (v 14), serving your purpose and not mine, then you are Strictly Liable for any loss regardless of the cause (including simple death of old age or theft by another). This is the strictest of Strict Liability. It may, in part, be interconnected to the law of vows, in that when you borrowed, you in essence made a vow to return (or by implication to replace), so you are liable for the promise without regard to an issue of fault.
This puts us in the right position to look at another aspect of the Strict Liability nature of God’s LAW: the Law of Vows. We find the rules in Leviticus 27:1-34 and Numbers 30:1-16. The Leviticus passage deals with vows of gifts to God rather than vows to one another, and is not properly a part of this study.
The Numbers section is noteworthy in that verse 2 sets the rule; the rest of the passage deals with the issue of the vows of unmarried women living under a father’s roof, and with issues of married women. Thus we only need to see the one verse:
If a man makes a vow to the Lord, or takes an oath to bind himself with a binding obligation, he shall not violate his word; he shall do according to all that proceeds out of his mouth.
Now, were I to take the reader on a thorough study of Contract Law, he would find something interesting. Contract law says we want a meeting of the minds; it does not say we want people responsible for their vows. In fact the vast majority of Contract Law seeks to avoid the existence of a promise as a promise.
And Christ spoke of such matters:
Again, you have heard that the ancients were told, “You shall not make false vows, but shall fulfill your vows to the Lord.” But I say to you, make no oath at all, either by heaven, for it is the throne of God, or by the earth, for it is the footstool of His feet, or by Jerusalem, for it is the city of the great King. Nor shall you make an oath by your head, for you cannot make one hair black or white. But let your statement be, “Yes, yes,” or “No, no;” and anything beyond these is of evil. Matthew 5:34-37
What was happening was that the Jews had developed a way of dealing with one another where only a vow with certain precise words was, in fact, a vow. They were avoiding their vows, just like our vast rules in Contract Law are used to avoid our vows. It was as in old England — no seal; no contract.
But God has a different plan and purpose for His laws. We make our laws as minimum standards; God makes His as maximum requirements. We seek to excuse, justify, cast blame and rationalize; He says we are without excuse. We count on our personal rights and freedoms and demand proof of fault; He sees harms done to family, friends, neighbors, community, and wants them made whole without legal niceties of avoidance.
Now when society, whether by legislation or case-law developed over a period of time, imposes Strict Liability for, for example, goods which fail (Contract Strict Product Liability), or dams which break (Tort Strict Liability), or serving alcohol to a minor (Strict Criminal Liability), we tend to applaud — unless we are a manufacturer of goods, builder of a dam, or owner of a bar,
Why, if the God of the Universe who created and sustains all, chooses to make His LAW Strict, should we constantly seek to make it into something like our own image of right and wrong instead of His image? Why must we, like Adam and Eve, keep eating the fruit instead of returning in obedient faith to the loving Giver of the fruit?
Because we want to avoid responsibility?
Because we are focused on self-interest and greed?
Because we don’t want to accept the responsibilities which are a part of life in community?
I suggest that we can see further proof of Strict Liability as God’s LAW by looking at the issue of the defenses under human law versus defenses under God’s LAW.
SECTION 6 — THE DEFENSES OF THE HUMAN LAW
Any effort to study all the defenses available, whether in the Criminal or Civil areas of law in the United States, would be impossible given the limitations of this study. Thus, what I will do is to make some very broad allegations, giving some examples in legal terms. I will then make some comparisons and contrasts with the Bible where I will be specific. As we proceed, I think you will see where some of our law is quite Biblical, and some is very much un-Biblical.
In Romans 3:19-20 , as we have already seen, one purpose of God’s law is given: “through the law comes the knowledge that we are sinners [by nature].”
Because we want to think that we are good, not sinners, and because we want to think that we can do all things by ourselves, rather than to trust, in faith, the God who provides, we fear facing truth. Think of Peter’s words in Luke 5:8 after the catch of fish almost sinks the boats: “Depart from me, for I am a sinful man, O Lord.” Or recall the words of the other disciples in Mark 5:41 immediately after Jesus has stilled the storm: “Who is this that even the wind and the sea obey Him?”
We live in fear of being found out and uncovered. And so we defend our selves when attacked. Since one of the results of the criminal law is a stigmatization — “you are an evil person, different from us, a criminal” — we seek to defend our actions which cause harm to another.
We do not understand a God Who says:
There is therefore now no condemnation for those who are in Christ Jesus. * * * And we know that God causes all things to work together for His glory from those who love God and choose to walk according to His purposes. (Romans 8:1, 28)
When we fall short of the glory of God, and sin and harm others, we see no way to make right the wrong. We are at once cut off from the one we have harmed, from others (who might discover what we have done through a slip of our tongue), and from God against whom we have sinned.
Guilt assails us, and when we look to the future, we see a tunnel of blackness with no escape; if it is a crime which we have done, the Criminal Law shows the end to the tunnel is a prison. So, we defend.
The first line of defense in a crime deals with the mind: “I didn’t mean to do it.” It is this criminal intent which the State must prove beyond a reasonable doubt to convict.
Specific Intent means that I determined in my mind to do all of the acts necessary to commit the crime. So I load a gun, walk to a another person, point the gun at them, and then shoot, killing them. The question is, were my acts premeditated, and am I, therefore, guilty of First Degree Murder?
“I didn’t mean to do it,” is the response.
So the law says, “You are presumed to intend the natural and probable results of your actions; you are guilty even though we cannot precisely prove what was in your mind.”
“All right, I intended to load and walk, but I did not intend to aim, fire, and shoot. My acts were negligent (not in conformity with a reasonable person), but not premeditated. I will plead guilty to Negligent Homicide.” (I think that, with my clean past record, I will get probation and avoid prison.)
But, even then I will not avoid the black tunnel of separation, despair, and confusion.
“No,” says the prosecutor, “what you did was reckless. Plead guilty to Reckless Homicide.” Now the risk of prison increases, and the fear returns.
Plea and sentence bargaining is also a means of defense, if we consider defense to include defending against being forced to face myself, my God, or my victim. Likewise, settlement in a Civil case may be a form of defense of my inner self.
Or I shoot at person A, miss, and kill person B whom I love and whom I would never hurt. “I did not mean to do it.” But the law has developed the doctrine of Transferred Intent; my intent to shoot A is sufficient to justify convicting me of shooting B, by transferring the focus of my intent from A to B.
If negligence or recklessness is the state of mind needed for conviction, I can always argue that my acts did not violate the community standards, and try to persuade a jury of that fact. And, I can always hope that I might be able to create some “reasonable doubt” in the mind of at least one juror and escape the hangman’s noose.
Well, as we have already seen, God’s law proceeds upon Strict Liability, not the state of the mind. Since the Biblical approach is to right the wrong which results from an act (to repair the breach) the Bible does not ask what was intended but, instead, asks what resulted.
And if a soul sin, and commit any of these things which are forbidden to be done by the commandments of the Lord, though he wished it not yet he is guilty and shall bear his iniquity [pay the consequences]. (Leviticus 5:17) (emphasis and amplification added)
Since the Bible does not authorize imprisonment, we can see that a difference in “punishment” may properly allow for some differences concerning defenses.
And don’t be thrown by the word “sin” in the passage. We see the word and start thinking intentional criminal behavior, whereas sin is any self-centered rebellion against the perfect standards of God.
For example, in Exodus 21:22, two men are fighting near a pregnant woman. She is struck in the process, suffering either miscarriage or premature birth without side-effects to herself or child. Now we could argue either reckless conduct or transferred intent, but God calls us back to the basic, “Thou shalt not,” and strictly establishes liability. Both men are liable to pay such restitution as the husband shall demand (or the judges shall determine if submitted to the judges). They are declared responsible.
Certainly, no “intent” to injure mother or child was present, but injury
took place and restitution is required. Human law builds a doctrine of language to allow it to find a person responsible for his actions (or to allow us to avoid responsibility). God merely says we did the act, therefore we are responsible; so, make right the wrong.
Another line of defense at law is the issue of causation — did my act (or failure to act) cause in fact (but for my act the harm would not have happened)? Now that is a simple and Biblical question. I drive too fast down the street, loose control, jump a curb and hit a power pole. The pole falls onto the parked car of A. Am I responsible? “Of course,” you say, “Your negligent act of driving too fast caused the accident.”
But only the jury can make the decision whether or not I drove “too fast.” And what if there were no witnesses, or skid marks to measure, or I say I blacked out? God would say, “You drove; you pay.”
But what if the pole did not fall onto a car; instead, the electric line snapped, shutting off power to a nearby hospital, and a doctor, in the middle of surgery, cannot see and the patient dies? Am I responsible for that? Is it murder or something less? Would it matter that a prior accident had weakened the pole? Or that the emergency lighting system of the hospital failed to operate properly?
Questions such as these led the law to develop the second issue in causation — the results of the actions must be reasonably foreseeable and sufficiently related to my actions to make it fair that I be held liable.
God is not fair; He is just. The two are not the same.
I recall a case, when I was an attorney, when a carnival came to town. The law said that the carnival needed a State Fire Marshall’s inspection and permit in order to operate. In ignorance of the law (maybe!), no permit was acquired. A ride malfunctioned, killing one and injuring another. There was no possibility that the inspection would have either found the defect or prevented the accident.
The carnival operator was charged with a crime, and was sued civilly in Tort. The defense was: “What relationship does my failure to procure an inspection have to do with the accident?” The defense was foreseeability.
Well, what does the Bible have to say on causation? In review of the statute law, the Ten Commandments, we find nothing looking like causation. Instead, we find a statement — “Thou shalt not.” So, let’s look at the Case Law of the Bible.
Earlier we looked at the case of the ox which was known to gore people (Exodus 21:29). This certainly looks like a case of foreseeability — the owner should have foreseen that the ox might escape and harm someone. But we saw that it was not; it was strict liability.
Another case is found in Numbers 35:16-18 where the use of an implement held in the hand makes the offense murder and not manslaughter (compare this passage with Numbers 35:23):
But if he struck him down with an iron object, so that he dies, he is a murderer; the murderer shall be surely put to death. And if he struck him down with a stone in the hand, by which he may die, and as a result he dies, he is a murderer; the murderer shall surely be put to death. Or if he struck him with a wooden object in his hand, by which he may die, and as a result he dies, he is a murderer; the murderer shall surely be put to death. Numbers 35:16-18
Now we might argue that the offender is charged with the foreseeability of the likelihood of greater harm with the use of an implement than with merely the fist. And the case of the two men fighting and injuring a pregnant woman also looks like a causation issue. But when we look further, the examples which look like a question of causation appear only in the area of what we called Crimes Against The Person. More specifically, the Biblical cases where causation looks like an issue may be limited to cases where the death penalty is involved. Since the penalty for all other harms was only restitution, it may be our legal concepts such as foreseeability did not apply. In fact, the bailment cases already referred to seem to deny the necessity of causation in favor of reparation.
Or the issue of foreseeability may only arise in the determination of the amount of restitution, and not in the determination of fault. We shall consider this further when we look at the responses of the law.
Another defense available in our Criminal Law is the argument that the proof is insufficient to convict — that there is a reasonable doubt. In our Criminal law, as previously noted, the Prosecutor has to prove each and every “material element” of the offense beyond a reasonable doubt. The “elements of the offense” are those matters which have been stated in the statute to constitute the offense. For example, the crime of Burglary involves: breaking and entering, a structure of another, with intent (mens rea), to commit a felony (a certain level of a crime). Here you see six elements: breaking; entering; structure; another (not mine or one I have a right to access); intent; and, felony. All of these elements, the prosecutor must prove “beyond a reasonable doubt” — to a point where the “finder of fact” (judge or jury) is convinced of guilt to the degree that any doubts which they may have would not be considered reasonable by them, or by a hypothetically reasonable person.
Suppose, for example, the police find me, drunk, inside your house, and there is a broken window showing where and how I entered. But did I enter with the intent to commit a felony (steal from you) or only to find a bed to sleep on? Or did I not enter with any intent, but, while drunk, fell into your house?
Because the purpose of Biblical LAW is different (that is, restoration rather than just restraining) proof beyond a reasonable doubt does not appear to be present in non-capital offenses. It appears that our Civil Law rule of preponderance of the evidence applies. Again, since the response of the law is restitution, I may be held liable for the Trespass and costs of repair of the window without regard to my state of mind.
But proof beyond a reasonable doubt is present in cases involving the death penalty. Here, we see the need for two or more eye-witnesses (Numbers 35:30): “If any man kills a person, the murderer shall be put to death at the evidence of witnesses, but no person shall be put to death on the testimony of one witness.”
Another defense under our laws involves the question of Involuntary Acts. Law requires the proof of an act done voluntarily in order to convict. Reflex actions, sleep-walking, epileptic seizures, complete blackouts, and the like would be examples of involuntary actions. In such instances, there may be no liability.
But (a famous and useful word in the Law), if I know my condition, and then act in a manner in which my condition, if it acts, will likely bring harm, I may still be liable (e.g., driving a car when known to be subject to seizures and an accident then results because of the I have a seizure).
In the Bible, even a dumb animal, which has no sense of volitional choice of good and bad behavior, is to be killed if it kills a human (Genesis 9:5; Exodus 21:28). Thus, I doubt this defense would exist under Biblical LAW. But, as we shall see in the section on punishment, the issue of involuntary acts may make a difference not in determining responsibility, but in determining remedy.
Mistake of Fact and Mistake of Law are defenses under our laws which go to the issue of Intent.
For example, I take a piece of your luggage at the airport thinking it is mine. This mistake of fact means that I am not guilty of a crime. However, rather than saying I made a mistake of fact, it can also be said I did not have the specific intent required when I took the bag — the intent to deprive you of the use, possession, and enjoyment of your property which is the intent required under law. But any claimed mistake must be an “honest mistake”.
In a Criminal case, mistake of fact may be a defense to a crime. But it is also apparent that an honest person (not a thief) will, upon discovering the error, take all necessary steps to find the owner and return the bag without loss of property (which is what the Bible commands to be done in Deuteronomy 22:1-4).
In a Tort case, mistake of fact or law may be a defense to the amount of damages — that is, it now means the owner of the suitcase must show an actual damage as a result of the temporary deprivation, or settle for only nominal damages. The same might be the case under Biblical law.
Another example might be that I set fire to your house. I think I am setting fire to my house. My intent is to raze my house in order to build another. For this to be a defense, it must be: (1) an honest mistake of fact; and (2) reasonable in that another in my position might well have made the same mistake. The question is for the judge or jury who must decide the facts of the case.
Or there is the case where I receive stolen property. The law says I must receive it knowing it to be stolen in order to be convicted. My intent in such a situation, is to aid in theft. If I receive the property, but do not know that it is stolen, I have not aided in a theft. But my statement that I did not know will not be sufficient; the jury looks at the total facts and circumstances to judge my truthfulness.
Another example of defense for mistake of fact or law is where I steal a ring having a stone in it worth $1000, but I think the stone is glass and the ring worth $20. In the State where I commit the act, the Petty Larceny statute applies if the value is under $100, whereas the Grand Larceny statute applies if it is over $100. Normally, there is a significant penalty difference, and normally the larger amount will mean a felony conviction rather than a misdemeanor. Am I guilty of Grand Larceny, or only of Petty Larceny? Generally, since I intended to steal, I am guilty as to the actual value and not my mistaken value. Here, the Biblical approach would be the same except that the amount of the restitution would be based upon the actual value of the theft.
At Strict Liability, a mistake of fact is not a defense, as the fact (act) itself is an element of the offense and what makes the offense strict. If it is a crime to serve alcohol to people under the age of 18 because the society has determined that such behavior is to be wrong per se, then my believing the person to be 19 — and even checking an identification to be sure — will not be a defense.
Because the Bible focuses on making restitution for the harm caused, none of these defenses would be considered in the determination of responsibility, although, like the suitcase at the airport, it may affect the measure of damages.
Another of our defenses concerns intoxication. Issues present are whether the intoxication was voluntary or involuntary, and the defense addresses issues of acts done, specific intent, and/or general intent. Generally, voluntary intoxication is not a defense. The reason is that we should not allow a person to escape the consequences of his action when it was freely chosen and dangerous — here, taking intoxicants. In crimes of general intent, the issue is negligence or recklessness, and taking intoxicants seems automatically negligent or reckless. Here our U.S. law is in accordance with the Bible.
Involuntary intoxication, on the other hand, is allowed as a defense if it causes precisely the same symptoms as are required in the particular jurisdiction to establish the defense of insanity. We will consider this further when we turn to the defense of Insanity.
Two other major categories of defenses are ‘Justification’ and ‘Excuse’. We start with Justification.
The theory of Justification is that the defendant behaved in a way which society does not want to deter or punish; or he performed a regrettable act but should not be placed within the stigma of being a “criminal”.
Justification includes: Self-Defense; Defense of Others; Defense of Property; harms caused while attempting to effectuate Arrest, prevent a crime, or prevent an Escape; acts done under Public Authority; Condonation; Consent; and Forgiveness.
In Self-Defense, the first requirement is that unlawful force must be used against the person claiming the justification. It must be physical and threaten real violence against the person. Words, or some minor touching, will not suffice. The force or threat of force being responded to must be imminent, as opposed to a threat to do some act in the future. Therefore, the person seeking the defense is not to have been the aggressor, unless, having been the aggressor, one finds oneself in the position where the response to the aggression was vastly disproportionate to the force, at which point one must clearly announces one’s withdrawal from the conflict. If the other continues with force, self-defense may then become a defense for the original aggressor.
Force is divided into deadly and non-deadly force, with the level of the responsive force being limited to the level of the initiating force. Retreat is always required if it can be done in safety, except where one is within one’s own home.
Your belief in the necessity of self-defense is subject to a test of reasonableness, but it is a test of “reasonable to the one claiming the defense” rather than “reasonable to some reasonable and prudent person of the general community”. That is, if any reasonable person would see the defendant as having acted reasonably under the circumstances, he should be allowed the defense of self-defense. Hindsight, always perfect, is not the measuring rod. The law looks at the setting through the eyes of the one claiming the Justification.
As to “Defense Of Others”, there is disagreement in U.S. law. If it is allowed, it is limited to situations where the one being defended would be entitled to a claim of self-defense. (Retreat, proportionality of response, and who is the aggressor are all issues for determination.). In some jurisdictions, the person whom another may defend may be limited depending upon their relationship (parent/child, husband/wife, etc).
However, if you defend someone who is not legally able to defend “self” (maybe they were the aggressor), you will be held strictly liable; your mistake is not a defense. This is because it is felt wise to deter those who are untrained and not given the power of law enforcement from efforts to rescue others. The Bible, on the other hand, because of its interest in issues of community, would call upon us to assist another in defending himself.
In matters of Defense Of Property, generally a person may use force — to prevent property from being taken or damaged, against one who is in the act of taking property. The force may be used before or during the actual crime. There is also allowance for recapturing personal property if done in “hot pursuit”. Force is not allowed if there is time to invoke law enforcement, or if you did not ask the person to stop his wrong behavior before you used force (unless such a request would, under the circumstances, subject you to undue hazard, or would be obviously irrelevant).
The amount of force one can use is extremely limited and is not dependent upon the type of property involved. Mechanical devices, such as trap-guns, may not be used without a warning. You may recall a case a few years back where a burglar, breaking into a house no longer used as a residence, lost a leg to a trap-gun. He sued the owner and recovered a very large judgment. Many people complained about the case, but it represents a historical law of mankind and is, I think, Biblical. Property rarely is seen equal in value to the individual.
And in cases of defense of others and defense of property, the reasonableness of all acts will be the standard of the hypothetical reasonable person, not one’s own personal sense of what was reasonably necessary. It is not like the plea of self-defense.
In the matter of the defense related to arrest, escape, and crime prevention, the law allows for some justification. Obviously police and other law enforcement personnel have a greater justification than does the ordinary citizen. A private citizen, called to the aid of an officer, gains the same level of defense as has the officer. But beware of making a “citizens arrest” — an ancient and honorable right — which involves force. If you make a mistake, you may be liable civilly, or even criminally, even when the person you hurt is a criminal.
Here again we have the matter of deadly vs. non-deadly force. Basically, deadly force may only be used where there is reasonable belief (held by a hypothetical person) of the commission of a felony and that the offender is displaying a high degree of danger to life and limb of others.
In the Bible, we have a case which seems to have elements of several of these defenses:
If the thief is caught while breaking in, and is struck so that he dies, there will be no blood guiltiness on his account [that is, no death penalty or having to use the City of Refuge]. But if the sun has risen on him, there will be blood guiltiness on his account. (Exodus 22:2-3) (amplification added)
As always with the Bible, we have the general, Strict Liability, Statutory Law, “Thou shalt not murder.” When we look at case law, we may be forced to draw multiple conclusions from limited facts. Thus, what I offer here is merely one person’s thoughts (mine).
First, in the Exodus 22 case, I see darkness. Therefore, the one seeking to be relieved of liability does not know if there is a weapon or not. Secondly, because of the dark, there is not the ability to identify the offender the next day. Third, at night fewer people are moving about, so community help may be less available. We may be combining the issues of crime prevention, criminal apprehension, and self-defense all in one. Each additional factor of defense increases the reasonableness of the defense itself.
Second, I see that the one who wants to be relieved of liability is where he has a legal right to be. Since it is his home, we may be combining defense of self with defense of property, and with defense of others closely related.
Thus, it appears that many of these principles of defense may be proper under Biblical law.
Turning to the defense of Consent, we find that it is limited to situations where the alleged crime committed is inconsistent with the actions of the victim in one or more elements of the offense. For example, consent is a defense to the crime of rape. Another place for defense is where mutual consent has been agreed in advance, such as to batter one another in a boxing match.
For a Biblical example on the issue of consent, look at Deuteronomy 22:22-29:
[Case 1] If a man is found lying with a married woman, then both of them shall die, the man who lay with the woman, and the woman; thus you shall purge the evil from Israel.
[Case 2] If there is a girl who is a virgin engaged to a man, and another man finds her in the city and lies with her, then you shall bring them both out to the gate of the city and you shall stone them to death; the girl because she did not cry out in the city, and the man because he has violated his neighbor’s wife. Thus you shall purge the evil from among you.
[Case 3] But if in the field the man finds the girl who is engaged and lies with her, then only the man who lies with her shall die. But you shall do nothing to the girl; there is no sin in the girl worthy of death, for just as a man rises against his neighbor and murders him, so is this case. When he found her in the field, the engaged girl cried out, but there was no one to save her.
[Case 4] If a man finds a girl who is a virgin, who is not engaged, and seizes her and lies with her and they are discovered, then the man who lay with her shall give to the girl’s father, 50 shekels of silver, and she shall becomes his wife because he has violated her; he cannot divorce her all of his days.
Again, I acknowledge the danger of attempting to apply this case law to our current laws. But I believe we are required by God to give it modern application if we have any belief that the Bible gives us guidance for life. So, I will offer suggestions. However, the issue I want to consider is the defense of consent, not the issue of penalty for some particular crime. Further, in the passage above, defense and penalty seem intertwined, and some discussion of the latter is necessary.
In the first case presented, consent is no defense when the marital state is present. It is adultery. Case law simply reiterates the statutory law, “Thou shalt not commit adultery.” The penalty for adultery, as we saw above, is death for both parties. But Case 3 will work a modification of Case 1 under certain circumstances.
In the second and third cases, engagement (betrothal) is present and the issue of consent is present. Consent is implied and is not a defense to either the man or the woman in a setting where help from the community is available but not sought by the alleged victim. There was no crying out within the city. Engagement being nearly identical to marriage, the death penalty for both is called for just as in adultery.
Consent is presumed not to exist in the third case where help of the community is not available. Thus the man is executed, but not the woman. Consent is not a defense for the man, but no consent is a defense for the woman. And apparently no evidence of force is needed because we have the equivalent of the marital condition; thus we have adultery. The lack of available help is for the protection of the woman, since the man is, in God’s view, the party first responsible for leadership in all affairs of life. This certainly looks like Strict Liability, for the man is not even allowed to raise the issue of consent.
But we must also note the reference to “just as a man rises against his neighbor and murders him.” It is possible that this becomes a modifier to Case 4 so that, in proof of physical attack, with no question of possible consent, the death penalty would be applied rather than forced marriage.
The fourth case looks like what we would call rape — we see force (“he seizes her”). What troubles us is the penalty. We have always thought that the Biblical penalty for rape was death. Now it appears that perhaps it is death only when it is in the setting of the marital relationship (including betrothal) and there is no community help available, or if force is clearly established. If there is no evidence no of force, or no marital/engagement status, the penalty is perpetual marriage. However, another provision of the Bible says that if the father refuses to allow his daughter to marry the man, the man shall pay the dower of a virgin and she would be free to marry someone else. (Ex. 22:16-17) But, would he be free to marry another? An interesting question!
And what do we have if the girl is not a virgin, and there is no evidence of force? Is she executed for being a harlot, and does the man go free? We are not given information here. We don’t even know how such a case might get into the courts! (Here, as with all that I write, I invite discussion and dialogue — which is why I call this A Primer, and not a textbook.)
Is it possible that the issue of consent is so fraught with danger that it is to be severely limited in application? What if we made the second and third cases concern one of two men who have a fight, and then one files a lawsuit for damages? The other man claims that the fight was consensual. If taking place in the city, and with no crying out, does that mean consent was present, and if taking place in the country that it was without consent? Obviously, how these cases are interpreted ought to make us very cautious in our behavior, as well as our judgments and interpretations of the Biblical case law in the first instance.
Another defense under our law is known as Condonation (no longer in existence, for all practical appearances). In this case, suppose I do a criminal wrong to A. Later, A and I (A knowing I did the wrong) begin interacting just as though I had done no wrong whatsoever. The condoning by A of my act releases me from liability; since the Bible sees the victim as the true victim (rather than the State as victim), if the true victim condones, perhaps it is right to end the matter right there. But this defense may not be available in matters of the death penalty where other issues are at stake. And A, having condoned, now reasserting his “case,” might mean I should, out of love, make restitution without the need for Court.
One way in which this used to become an issue was when, in Civil Law, a spouse asked for divorce based upon the statutory grounds of adultery, and then again entered into sexual intercourse with the offending spouse. The two parties were said to have “condoned” the prior acts and one party could not then claim them as grounds for divorce.
The defense of Forgiveness looks almost identical to the defense of Condonation.
Because of the biblical interest in reconciliation and restoration, condonation and forgiveness ought to be acceptable defenses. However, there is the possibility of what we call enabling — where one party always gives in as their way to deal with conflict. In so doing, the other party escapes any true confrontation. Therefore, it might be best to have the community, in some manner, test defenses such as condonation and forgiveness.
Our defenses of law collected under the theory of Excuse are: Infancy, Necessity, Duress, Coercion, Compulsion, Insanity (including Involuntary Intoxication), Entrapment, and similar theories.
We start with Infancy. Historically, the Criminal law, because of its emphasis upon mens rea, held that a child under the age of 7 could not possibly commit a crime. They could not have an evil mind. They were not rational nor able to fully understand the difference between right and wrong (as though we adults do!).
Then, between the age of 7 and 14, our law presumed that a child could not commit a crime, but that presumption could be overcome with the burden of proof and persuasion upon the State’s Attorney to do so beyond a reasonable doubt. Above the age of 14, the child was treated fully as an adult.
Since Tort Law quickly took on the concept of fault, the rules concerning Infancy passed into the law of Torts. In Contract Law, minors (normally under a legislatively-determined specified age) were considered incapable of entering into contracts, and they could avoid a contract after attaining majority, with an exception for contracts for what were considered to be necessities of life.
The problem of Infancy has arisen only lately in Property law, for historically a child has owned nothing. Whatever the child had was considered to be the property of the parent. The concept of infancy in Property law is now very much as in Contract Law.
The first modification of the rule of infancy in Criminal and Tort law was to recognize the mental age as well as the chronological age of an individual as constituting Infancy. This is how the 7 to 14 age bracket was developed as a question of understanding. The question was now asked whether or not this particular child, in this age bracket, understood the nature of the act as being wrong.
The second modification to the rule — and by far the more meaningful — was the development of the entire Juvenile Justice System. In this system, all matters involving those under the age of 18 are started in a separate legal system. The rules of evidence and procedure are vastly different from those in the adult criminal system, and there is professed rehabilitative focus to the system. However, based upon the nature of the crime and the criminal history of the child, there may be a transfer of the child to the adult system even when under the age of 18.
Biblically, we find no defense for infancy except in the area of vows of unmarried women living at home (Numbers 30:3-5):
Also, if a woman makes a vow to the Lord, and binds herself by an obligation in her father’s house in her youth [we do not know what this might mean], and her father hears her vow and her obligation by which she has bound herself, and her father says nothing to her, then all her vows shall stand, and every obligation by which she has bound herself shall stand. But if her father shall forbid her on the day he hears of it, none of her vows or obligations by which she has bound herself shall stand; and the Lord will forgive her because her father has forbidden her. (Note the similar provision for wives in verses 10-15.)
It might be right to apply these concepts in Contract and Property areas to minors as a whole. Biblical case law is, as said earlier, illustrative, not determinative.
Nor do we find any special Court procedure for infants. Again, we must bear in mind that restitution is the major penalty, under God’s LAW, so the law and procedure may be different than when punishment is the primary purpose and end product of human law.
Necessity, Duress, Coercion, and Compulsion defenses are sometimes referred to as a “choice of evils.”
In Necessity, the defendant does a criminal act, knowingly and intentionally, defending against the criminal charge by saying the act had to be done in order to avoid a crime of greater harm taking place.
Generally, there must be a condition of emergency. The defendant must be without fault in causing the emergency, and there must be a clearly identifiable greater harm. It is for the jury to determine the reasonableness of the acts of the defendant, but the question of balancing the harm is for the judge to decide as a matter of law. The jury is then bound by the judge’s decision on that part of the case.
Presenting a recent situation may be a better way to present these issues:
In the United States, people have been charged with the crime of trespass for picketing or blockading abortion facilities. Their defense was that the crime of trespass is insignificant in comparison to the crime of taking a human life (which they claim would be the result of the abortion). They generally have not been allowed to present such a theory to a jury until the medical profession proved that the human being is biologically fully in existence at the point of the third cell, a time we may properly call “conception”. Once this medical evidence was offered, Necessity began to be allowed as a defense by a number of judges.
However, when the protestors went beyond trespass, turning to violence to property or persons (albeit still far short of life-threatening), the necessity defense was not generally allowed. The level of legality in the performing of abortions recognized by the Roe v Wade decision of the United States Supreme Court in 1973 overcame the technical legal defense. In short, what has been taking place is a balancing of various rights, duties, legal theories, medical facts, actions, harms, public interest, etc. — the law in motion.
Duress, Coercion, and Compulsion bear a resemblance to Necessity. There
(1) a criminal act by the person claiming the defense;
(2) an act coerced by another, under threat of imminent death or serious bodily harm to the one claiming the defense or to another person;
(3) coercion such that the hypothetical reasonable person would have been unable to resist;
(4) no reasonable alternative available; and,
(5) a situation where the defendant did not willingly participate in creating the circumstances which now give rise to the claim of defense.
The danger with these defenses is that they undermine our need to see God as our ultimate source of protection and provision. If we allow defenses beyond the area of self-defense (or possibly also defense of others or of property), we not only reduce our individual dependence upon God, but we undermine the responsibility of community. In the Bible, it is clear that the community has a responsibility for enforcement of the law as well as obedience to the law. One should be able to present the circumstances which constitute possible necessity or duress to the community for their assistance so that the person need not commit a crime.
There is the following Bible passage, difficult to perceive in actual operation, which seems to fit here:
If a slain person is found lying in the open country in the land which the Lord your God gave you to possess, and it is not known who has struck him, then your elders and your judges shall go out and measure the distance to the cities which are around the slain one. And it shall be that the city which is nearest to the slain man, that is, the elders of that city, shall take a heifer of the herd, which has not been worked and which has not pulled in a yoke; and the elders of that city shall bring the heifer down to a valley with running water, which has not been plowed or sown, and shall break the heifer’s neck there in the valley. Then the priests, the sons of Levi, shall come near, for the Lord your God has chosen them to serve Him and to bless in the Name of the Lord, and every dispute and every assault shall be settled by them. And all the elders of that city which is nearest to the slain man shall wash their hands over the heifer whose neck was broken in the valley; and they shall answer and say, “Our hands have not shed this blood, nor did our eyes see it. Forgive Thy people Israel whom Thou hast redeemed, O Lord, and do not place the guilt of innocent blood in the midst of Thy people Israel.” And the bloodguiltiness shall be forgiven them. So you shall remove the guilt of innocent blood from your midst, when you do what is right in the eyes of the Lord. Deuteronomy 21:1-9
Here, leaders of the community seem to be saying that they are sufficiently in touch with the people that they would know if one of the community held animas against the deceased. They may, in fact, be saying that they have investigated and discovered no one who might have had a reason to kill. This would certainly add an impetus to the two passages in Matthew calling us to quickly seek out the person with whom we have a problem, and be reconciled (Matthew 5:23-26 and 18:12-35).
The community had a far-reaching role in the matter of conflict under God’s LAW. Necessity, Duress, Coercion and Compulsion all seem, to me, to encourage denial of community responsibility.
And obviously, none of these defenses would be allowed in a matter calling for the death penalty in the Bible except under the theory of Self-Defense; nor are they allowed in any homicide case under our laws today.
Entrapment is a defense in our laws where it is established that the police unfairly invited or encouraged the commission of the crime — where the originating intent for the commission of the crime resides within the official and not within the offender. Obviously, the prior criminal history of the defendant is of critical interest, for it would show predisposition, or a lack thereof, for committing the crime.
One question which must be asked is, “Whose conduct is on trial — the officer’s or the defendant’s?” The answer to that question, made by the judge in the case or by the legislature in statutory language, will greatly influence issues of the rules of evidence, burden of proof, causation, mens rea, etc. under human laws.
I do not see, in the Bible, Entrapment as a defense, for it denies one’s responsibility for the harms which his acts may cause (the central measuring rod of the Bible).
This then brings us to the defense of Insanity, and its lesser included defenses of Diminished Responsibility, Mental Disease or Defect, and Irresistible Impulse.
It should be noted, at the outset, that any effort to fully examine this subject would triple the length of this work. A look at this subject, to be relatively complete, would have to look at the intertwining of the issues of burden of proof, rules of evidence, status of the medical, psychological, and psychiatric sciences today, role of the jury versus role of the judge, the sentence of the defendant upon each of the various verdict possibilities, and several other factors. Therefore, I will give only the briefest overview.
Historically, insanity was not a defense. The original idea was that people should be held accountable for their acts without regard to the state of their minds — in short, Strict Liability. Even when what is known as the profession of psychology and psychiatry began to develop, it was thought they were far too speculative for use in the field of Criminal or Tort Law.
The first change did not come until 1843, in England, in the case of a person named M’Naghten. That case laid down the concept that because of the requirement of mens rea, no person should be convicted who was incapable of knowing, as a result of mental disease or defect, at the time of doing a criminal act, either:
(1) the nature or quality of the act itself (almost like sleep walking); or,
(2) whether the act was right or wrong.
Mental disease or defect was essentially a demonstrable incompetency by reason of mental prowess (e.g., an infant, or long-standing signs of mental irregularity such as would almost always result in institutionalization). Thus the first modification of the historic position that insanity was not a defense introduced an objective, not subjective, test.
The next change was the allowance of irresistible impulse: so that, while the defendant might know the difference between right and wrong, and might know the nature and the quality of the act being done, his mental disease or defect may have caused the person to lose the power to freely choose which act to do, the right or the wrong. In fact, the crime is then seen to be a product of the disease or defect, for the person is no longer a free agent. You can see that a subjective standard now enters.
Diminished responsibility, or capacity, is the latest development. But, it is more a rule of evidence than of defense in that it comes in only to: (1) negate mens rea; (2) mitigate the grade of the offense; or (3) avoid a capital sentence.
Whenever the insanity defense is raised, there will generally be two trials: the first to determine guilt as though no defense of insanity were offered, and the second to decide what to do with the guilty but possibly insane offender. It is normal for the same jury to hear both cases.
The second great difference at trial time is that now a defendant in most U.S. jurisdictions has the burden of proof (and in some instances beyond a reasonable doubt) that he was, or is, insane. Oftentimes in the past, the prosecutor had to prove the defendant sane — sometimes beyond a reasonable doubt.
The third trial feature deals with the question of whether the defendant was insane at the time of doing the act, and/or is insane at the time of trial. The first question is for the jury, but the second is for the Court and consists of whether or not the defendant is able to adequately aid in his defense. If the defendant is unable to aid in his defense, we then turn to the question of what to do with him until he gains the ability to assist. This question is not unlike the questions presented once a conviction of the crime has taken place; the jury turns to the question of insanity, and the Court considers the penalty.
So we will look briefly at that aspect of the matter. A typical Jury has 4 options:
(1) Guilty (a complete denial of the insanity defense);
(2) Not Guilty (the insanity defense has no bearing on the decision);
(3) Not Guilty By Reason Of Insanity (the crime was done but insanity prevents imposition of a normal punishment); or,
(4) In a few places recently, Guilty But Mentally Ill (the insanity defense is rejected, but the Jury believes that mental health treatment, not punishment, is needed).
If the defendant is found Not Guilty By Reason of Insanity, another hearing is held to determine what should be done with the defendant, whether hospitalization, out-patient treatment, etc. Here there is no jury. If the defendant is hospitalized, it is normally for an indefinite term, even though the penalty for the crime may have had a definite upper limit. The standards for mental heath commitment are generally: Dangerous to Self; Dangerous to Others; Gravely Disabled and Unable To Provide For Self.
If committed, the burden of proof will then be upon the defendant to secure discharge in a separate hearing.
If a defendant is found to be unable to assist in his defense prior to trial, the same type of hearing is held to decide what to do with him until he attains competency — hospitalization, out-patient care, etc — and the same rules for commitment exist at such a hearing.
That, in brief, is the insanity defense.
I find no insanity defense, in any of its forms, within the Bible. As previously noted, the dumb ox is to be put to death for its non-volitional acts (as we understand the term). We are declared to be responsible for our actions. Any diminution of this principle weakens the entire LAW. However, and I know this sounds like a broken record, remember that our Biblical penalties are far more limited than under human law.
Another defense to consider is the contributory action of the other party who is harmed. It has never been looked upon with favor in Criminal Law, but enjoys a position in Tort Law.
A defense of Contributory Negligence in Tort was, until recently, the general rule of law. Two vehicles, both being driven negligently, have a collision. Under the Common Law, neither could recover regardless of the respective level of their negligence. If one were 99% at fault and the other 1%, the black-letter of the law said neither party recovers. But it is probable that past juries have responded by finding liability and then reducing the damages in many cases. Since their deliberations are secret, we can only surmise this.
Lately the Contributory Negligence rule has broken down, and most jurisdictions now have Comparative Negligence in Tort actions. Under that doctrine, the respective contribution of each party to injury is balanced, and an award to one is reduced by the percentage of blame which that one had in the causation process.
Biblically, in such cases, it may have been that each party was considered to be responsible for the damages of the other, in full. But this is speculation on my part.
The final area of defense that I want to address under our law involves issues of Contract Law. But rather than offer specifics, which would require adding unduly to the length of this work, I offer only a comment.
All of human law in the field of Contract — after it is established that there was an offer of contract and an apparent acceptance of the offer — is designed to establish whether or not the minds of the parties had a head-on collision. Of course, this is a matter of intent, just as we have intent in the Criminal law. If anything less than that took place, there is no contract.
God’s law seeks only to determine what a person actually promised, and then calls that person to honor the vow regardless of the acts of the other party.
“For My thoughts are not your thoughts, neither are your ways My ways,” declares the Lord. “For as the heavens are higher than the earth, so are My ways higher than your ways, and My thoughts than your thoughts.” (Isaiah 55:8-9)
His thoughts, incorporated into His LAWS, when compared to our laws, trouble us. But they are His. Now the choice for us is, What to do with that which is His?
In no place in the LAW is this issue of choice more clearly the issue for us than in the matter of the response of the law to violations of law.
SECTION 7 — THE RESPONSES OF LAW
If there is any single place where human law and God’s LAW diverges most radically, it is in the matter of the response of the law to its violation. We see the difference between the two laws, and we immediately cry, “No; it can’t be that way. It won’t work. We want protection, security, certainty — and to stigmatize the evil one among us.”
We also want to separate the issue of harm into the issues of Criminal and Civil law. We do not want Strict Liability for harms caused; we only want to be liable for what our intention was, or was not. Oh, yes, when pushed we will acknowledge that we should be responsible for our Torts. But that keeps us separate in our minds from those who are heinous criminals. We just made a negligent mistake; we are not like “them”.
Yet, Christ made it very clear that, before God, the issue is always the status of the mind and the heart. If you doubt this, reread the Sermon On the Mount (Matt. 6-8).
And the Bible makes it clear that we are all like one another — sinners, falling constantly short of the glory of God; and all without excuse.
The Bible sets forth four responses to violations of the LAW. But in so doing, it does not call a person a criminal or a tort-feasor. In fact, the best possible biblical definition would be a Harm-Causer.
In order of the percentage of cases to which a particular response applies, the biblical responses are:
(1) restitution from the one causing harm to the one harmed;
(2) bond-servitude for not to exceed 6 years if the harm-causer could not pay the restitution;
(3) whipping; and,
(4) the death penalty.
The first rule of biblical response is proportionality; that is, what is required of the offender is proportionate to the harm done. However, in assessing harm, God, family and community are also seen as victims. Proportionality also addresses the question of the mental state of the harm-causer where evil is, in fact, shown.
If ox or sheep were stolen and not found (Ex. 22:1) the penalty was five ox or four sheep. An ox had a value beyond being a beast of burden and an implement for farming. The ox also needed to be trained to the voice of the master. So, when the ox was not found, the owner would lose service and time; thus, a multiple was applied to the determination of value.
Likewise, a sheep produced a crop, and took time to train before a crop could be harvested.
But the multiplication of the amount of the loss also represented a message to an intentional offender: crime does not pay; you do not profit by taking from another and selling it for your own gain.
You shall have one law for him who does anything unintentionally, for him who is a native among the sons of Israel and for the alien who sojourns among them. But the person who does anything defiantly, whether he is native or an alien, that one is
blaspheming the Lord; and that person shall be cut off from among his people. Numbers 15:29-30
However, if the stolen property were found, then the restitution was only double: restore the one taken and pay another equal amount as damages (Exodus 22:4). No new time for training would be involved, but the ‘crime does not pay’ message was still present. In either event, all restitution goes to the victim and not the state.
But if the loss were through negligence or recklessness rather than theft, the penalty was replacement (Exodus 21:34- 5, 36 and 22:12, 14), or value restitution (Exodus 22:5-6). In some instances, 20% was added:
When a man or woman commits any of the sins of mankind, acting unfaithfully against the Lord, and that person is guilty, then he shall confess his sins which he has committed, and he shall make restitution in full for his wrongs, and add to it one-fifth of it, and give it to him whom he has wronged. But if the man [victim] has no relative to whom restitution may be made for the wrong, the restitution which is made for the wrong must go to the Lord for the priest, besides the ram of atonement, by which atonement is made for him. Numbers 5:6-8
Note, however, we are dealing here with a person who has confessed his sin.
And did you note that in each of the previous two passages, wrongful acts are declared to be against God first, only secondarily against man?
Furthermore, damages were to be limited to specific or actual loss, not speculative loss, pain and suffering, and similar phrases used in human law. In the following passage, note the words, “go unpunished”:
And if men have a quarrel and one strikes the other with a stone or with his fist, and he does not die but remains in bed; if he gets up and walks around outside on his staff, then he who struck him shall go unpunished; he shall only pay for his loss of time, and shall take care of him until he is completely healed. Exodus 21:18-19
It is possible that God wanted us to recognize that life is not fair — pain, discomfort, etc. are a part of the reality of a fallen world. We are to live with it, rather than seek someone to “blame” and “pay up”.
There are also several indications, such as Exodus 21:22, 28-30, that the parties were to work out the matter of restitution directly between themselves, utilizing the courts only if they were unable to agree. This would agree with the New Testament conflict resolution model of Matthew 5:22-26 and 18:15-17.
Finally, restitution also meant confession before the community and, if there were no apparent victim, paying a fine of 1/5 the value of the sacrifice required (or wrong done) to the common treasury (Leviticus 5:6-8, 15-16; 6:2-7).
Benefits of a restitutional model, as compared to a punishment model, include:
(1) A restitutional model brings both victim and community into the confrontational process towards the offender, into the accountability and restoration of the offender, into the bearing of burdens of victims, and into the demonstration of love lived out in good relationships and community which is displayed towards both victim and offender.
(2) A restitutional model avoids stigmatization. By this I mean that our current model does everything possible to allow us to see ourselves as different from them. It results in our condemning the sinner and his heart. We pile guilt upon the offender rather than working in harmony with the Holy Spirit in bringing conviction upon this person, using the sense of shame built into us and our conscience. Instead, we impede the Spirit by giving the person yet another place to blame: “they never gave me a chance”.
(3) A restitutional model limits the need for an adversarial system which throws people into denial and avoidance; instead it gives impetus towards repentance and confession.
(4) A restitutional model simplifies massive parts of our law. It speeds up fixing of responsibility. It speeds up by removing defenses.
As noted, the second level of response would be that a harm-causer who could not make restitution might be sold into bond-servitude, Exodus 22:3. However, this appears to have been limited to no more than six years in duration by the Sabbatical Year (see Exodus 21:2 and Deuteronomy 15:12).
Obviously, a family or community could ransom a person from this bondage. And the bondage could not be what we consider slavery, for there are many Biblical injunctions concerning treatment of bond-servants.
As a judge, I heard many cases of single young men who probably would have been able to gain much from loving, regular, supervision by an adult whom they had harmed. If we are willing to think broadly about what “bond servitude” might look like in our modern society, that remedy just might be something to consider. It would definitely not be working on a chain gang!
The third response was whipping. We see it in two places, Leviticus 19:20 and Deuteronomy 25:1-3:
If there is a dispute between men, and they go to court, and the judges decide their case, and they justify the righteous and condemn the wicked [that is, the one found responsible who will not acknowledge his responsibility], then it shall be if the wicked man deserves to be beaten, the judge shall then make him lie down and be beaten in his presence with the number of stripes according to his guilt. He may beat him forty times but no more, lest he beat him with many more stripes than these, and your brother be degraded in your eyes.
I find this passage fascinating because:
First, the judge must view and directly control the penalty. In our system, the judge does neither.
Second, there is the recognition that punishment can be degrading. We have not learned that lesson. Restitution done within the community is not degrading, although it may be public.
Third, there is a level of public punishment that is appropriate but it must be carefully considered and administered. It is my belief that this represented a step between restitution and capital punishment for those showing themselves to be habitual offenders. It was, if you will, a final warning to “mend your ways”, at the same time calling upon the community to redouble their efforts to snatch this one from the fire if possible.
Fourth, note that the one being whipped was being called “your brother”. We are all sinners, worthy of death. It is not “we” vs. “they”, “law-abiders” vs. “criminals”. We are all brothers in crime, i.e. sinners.
This brings us to the issue of the death penalty. The death penalty was shown to be the penalty in each of the following cases:
1. Murder: by lying in wait or done presumptuously [having “boiled up in arrogance, pride or rebellion,” resulting in acts taking the life of another]. Exodus 21:12-14; Numbers 35:16-23; Leviticus 24:17; Deuteronomy 19:11-13.
2. Striking or cursing a parent. Exodus 21:15, 17; Leviticus 20:9; Deuteronomy 21:18-21; Mark 7:10.
3. Being an habitual offender. Deuteronomy 21:18-21.
4. Kidnaping [with or without physical harm to the person]. Exodus 21:16; Deuteronomy 24:7.
5. The practice of sorcery, witchcraft, medium, spiritist, soothsayer, dreamer of dreams, inciting to follow false gods, inciting to apostasy, being a false prophet. Exodus 22:18; Leviticus 19:26, 31; 20:6, 27; Deuteronomy 13:1-11; 17:2-7; 18:20.
6. The practice of bestiality. Exodus 22:19; Leviticus 18:22-23, 29; 20:15-16; Deuteronomy 27:21.
7. Child sacrifice . Leviticus 20:2.
8. Adultery. Leviticus 18,29; 20:10-21; Deuteronomy 22:22-26.
9. Incest and related crimes. Leviticus 20:11-12, 14.
10. The practice of homosexuality or lesbianism. Leviticus 18:22,29; 20:13.
11. Harlotry. Leviticus 21:9; Deuteronomy 22:13-21.
12. Intercourse with an engaged virgin in a city with no crying out by the woman. Deuteronomy 22:23-29.
13. Intercourse with an engaged woman in the country where crying out would do no good [man only to be put to death]. Deuteronomy 22:23-27.
14. Profaning the Sabbath. Exodus 31:14-15; 35:2; Numbers 15:32-36.
15. Refusing to abide by a Court decision. Deuteronomy 17:8-13.
16. Blasphemy, idolatry, and sacrificing to false gods. Exodus 22:20; Leviticus 24:10-16.
Remember, these are illustrative first (the Ten Commandments being declaratory), and declaratory second.
Now, if we look carefully, every case of death can be placed into at least one of the following three categories:
(1) A direct affront against God (sorcery, blasphemy, idolatry, and violation of Sabbath, for example).
(2) A massive violation by a person of the very image of God in which he, as a person, was made (bestiality, homosexuality, harlotry for example) or massive denial of the image of God in which another person is made (murder, kidnaping, incest for example).
(3) A grave potential for destruction of the family (adultery and abuse of parents for example), or of the community (refusal to comply with a court order; being an habitual offender for example), the two basic building blocks of society.
The death penalty, in short:
(1) upholds the dignity and position of God;
(2) upholds the dignity, position, and creative purpose of God’s finest creation, the human person; and
(3) upholds the dignity, purpose, necessity and creative purpose of God’s finest institutions, the family and community.
Rather than to have us focus on whether or not we would want any of these to be a capital offense, I want to invite us to look at the nature, type, and massively grievous level of breach of relationships which are featured in this list. I consider it fair to say that death is exacted in those situations which demonstrate a total and complete rejection of God and His LAW. True anarchy is at the door, and the response of the death penalty is appropriate.
However, if we are going to use the death penalty, then regardless of the risks involved, we must end the current system which puts a person on death row for years while one appeal after another is attempted. No, I don’t have a ready alternative, but I can recognize that this is degrading and cruel to the one under the sentence of death.
To further understand the issue of the death penalty from a Biblical perspective, it might be well to look at the issue of murder versus manslaughter from the Biblical vantage point.
In the United States, we often have two or more classes of murder (i.e., First Degree, Second Degree, Felony Murder) and two or more classes of Manslaughter (Voluntary or Involuntary). In part, these distinctions came into being as a result of our punishment model. The punishment changes as the name of the offense changes.
The difference between First Degree and Second Degree Murder is normally the difference between premeditated (an intent formed in advance of the act) as compared to an intent to kill but not formed in advance (e.g., in the heat of sudden passion).
Manslaughter is further separated from murder based on death from acts of negligence, recklessness, irresistible impulse, and similar terms which negate premeditated intent.
The other reason for our law forming the various classes of murder and manslaughter was to limit the death penalty application. Not knowing how to deal with offenses under biblical LAW, we needed to differentiate in order to give an appearance of our sense of fairness.
Our system focuses upon actions and the offender. God’s LAW focuses upon the results of the act, and the impact upon victims and community. The Bible starts with the proposition that any taking of life is murder, for which the penalty is death. We see this in Genesis 9:6: “Whoever sheds man’s blood, by man his blood shall be shed.” In the Ten Commandments, it was said, “Thou shalt not murder.” And, in Exodus 21:12, it says: “He that smiteth a man, so that he die, shall surely be put to death.” God’s LAW always begins in Strict Liability.
But in the very next verse (Exodus 21:13) we find the first limitation: “But if he did not lie in wait for him, but God let him fall into his hand, then I will appoint you a place to which he may flee.”
Here it is not the state which must prove intent, but the defendant who has an opportunity to prove a lack of intent, and thus avoid the death penalty.
Then in verse 14, we have case law to assign murder rather than
manslaughter: “If, however, a man acts presumptuously toward his neighbor, so as to kill him craftily, you are to take him even from My alter, that he may die.”
Guile means “with shrewdness or craftiness” (similar to lying in wait, or premeditated), while presumptuous means “acting proudly, rebelliously, or arrogantly” (similar to some of our “heat of sudden passion” or “irresistible impulse” reasoning) or “to boil up or seethe” (again, sounds like intent).
In Numbers 35 and Deuteronomy 19, we have the matter of the Cities of Refuge, the places appointed by God for the person who kills another in what the Bible calls manslaughter. Here the offender chooses to run to the City of Refuge to give himself up, knowing that he will be taken back to face the law of the city in which the killing took place.
Note this very well: he does not flee and then have the priest shelter him against the law. His shelter is only from the bloodslayer, and not from the law. He must submit to the law, and the priest must see that he does so. Should he refuse to submit to the law, the priest would need to turn him out of the city of refuge and into the hands of the bloodslayer.
In our law, flight from the scene of a crime is a fact which the jury may consider as an indicator of guilt; in the Bible, it was an indicator of innocence and willingness to face judgment. God’s ways are truly different than ours.
In Numbers 35:16-23, there are situations given which distinguish murder from manslaughter:
1) a weapon in the hand equals murder, while no weapon in hand is manslaughter;
2) existence of enmity or hatred (a matter for testimony by the people who knew the victim and the alleged offender men) establishes murder, while lack of these means manslaughter;
3) hurling a stone rather than simply dropping one without awareness of the presence of another separates the offense; and,
4) a true accident distinguishes the offense (Deuteronomy 19:5 where the head of the ax comes off).
But here again, the burden of proof seems to be upon the one claiming the exemption from the death penalty, rather than upon the state.
Nevertheless, if the defendant establishes that he is only liable for manslaughter, he still must remain in the City of Refuge for the remainder of the life of the Hugh Priest. This looks like imprisonment. I suggest that it was grace to those who had lost their loved one (not having to see the manslayer each day), grace to the manslayer (who need not fear for the blood feud), and grace for the community (which could continue to relate in love to both sides without appearing to be choose sides).
As added protection in cases of the death penalty, two eye witnesses were necessary to convict, and the witnesses were required to cast the first stones. With this went a severe penalty for perjury: the penalty to be applied to the allegedly guilty person was visited upon the perjurer.
So, as you think about the death penalty for adultery, homosexuality, witchcraft, etc., keep in mind that private acts were not subjected to the law but only open and notorious act in flagrant and blatant disregard of the LAW, the Law-Giver, and the community. Here again, we see how the LAW in responds to anarchy.
When I suggest only death and restitution are options for punishment, I am accused of not understand reality. “What do we do about an offender who is virtually an animal and who, regardless of what love is displayed to him (granting him a restitutional opportunity) will continue to prey upon people?” What can be done about the drug dealer, the habitually violent, the pusher of pornography, if we have no prisons?”
I am not ignorant; I have served as a Judge. I have served in corrections, and I have some knowledge of what prisons can and cannot accomplish.
If you think that prisons can accomplish anything other than temporary incapacitation, you should have been with me in Poland, in October, 1993. Leaders of correctional systems of 27 nations gathered, announcing, “We are not the source of the problem nor the solution to the problem.” They then stood around a camp fire and sang (to the tune, “We Shall Overcome”) SET THE CAPTIVES FREE — and they meant it.
For now, and in defense of my rationality, let me merely say that I see four answers to the question of what will happen with the violent or repeat offender:
(1) We must change from our current “State-as-victim-with-punishment-as-purpose” model of the Criminal law to a model of Confrontational/Restorative Justice. That will be discussed later. For now, simply understand that I am speaking of speedy and direct confrontation of offenders, by victims and community, encouraging confession and repentance, and offering reconciliation. This should reduce substantially the number of people entering the Criminal Law system, only to be made worse for the experience.
(2) One or more of the situations that deeply concern us (drug trafficking, mafia activity, pornography, etc.) might be considered such a massive violation of family or community as to warrant the death penalty. That is a legislative decision. I see Biblical case law as illustrative, but not “strict” as with the Ten Commandments. Therefore, the concept of “massive violation” is what controls, not the specifics mentioned or not mentioned in the case examples. In 1994, in Singapore, a non-Singaporean was executed for being in possession of four kilos of cocaine. Considering the tremendous damage to individuals, family, and community which this drug causes, who is to say that their choice of response was not Biblical?
(3) The offender flees the community; or,
(4) The offender continually hardens his heart to the point where he: (a) murders; (b) is killed during an act of rebellion; (c) refuses a lawful order of the court thereby incurring the death penalty; or (d) proves himself, by his repeated behavior, to be an habitual offender, and such a “son” as to be executed under the principles and guidelines of Deuteronomy 21:18-21:
If any man has a stubborn and rebellious son who will not obey his father or his mother, and when they chastise him he will not even listen to them, then his father and mother shall seize him and bring him out to the elders of his city at the gateway of his home town. And they shall say to the elders of his city, ‘This son of ours is stubborn and rebellious; he will not obey us; he is a glutton and a drunkard.’ Then all the men of his city shall stone him to death; so
shall you remove the evil from your midst, and all Israel shall hear of it and fear.
I list the fourth possibility because all my experiences show me, and I also believe that the Bible teaches, that unaddressed sin in one’s life will eventually lead to total loss of that life (see Matthew 18:35; Hebrews 6:4-6, and the life of Pharaoh at the time of Moses as examples).
Yes, many more people, and even the entire community may suffer further loss before that happens, but love always faces the risk of loss, just as Christ did when He faced the cross. In the taking of the risk, we acknowledge that God is, when all is said and done, the true provider and protector. (Ecclesiastes 12:13-14) In fact, one reason I look to the Bible for all of my reference points is that the Bible teaches that there will come a day when God will make all things right.
Man will, in his systems and efforts, always come up short, but God will not.
Finally, to those who ask if I understand reality, allow me to ask two questions:
(1) Without the death penalty, what deterrence can you offer through your law?
(2) If God exists, and has told us what is to be done, why do we, like Adam and Eve, continue to argue, and then eat of the tree?
SECTION 8 — CURRENT PROBLEMS WITH THE LAW
Much earlier I raised the question of whether or not our forefathers brought to the United States some bad seeds for our law, and the question of whether or not we have given away some of the protections against tyranny. It is time to return to those subjects.
One major error which our country imported from England was the model for Criminal Law: “Crime is against the state and punishment is the purpose for the law.” However, please do not blame our ancestors in England. Criminal Law has always carried with it these two flaws, regardless of the nation in which it operates.
Now it is not that punishment is not Biblical. In fact, we see it in many places in the Bible. And there is the sense that God punishes man with Hell for man’s rejection of God/Christ. But therein is the difference between what I am calling the “Restorative Justice” model and the “Punishment” model. God offers us restoration and reconciliation (grace), and then applies punishment and discipline and consequences — law, if you will — only upon our rejection of the offer. But, even then the punishment is for the purpose of redemption, and the Father waits to bestow blessings upon the repentant prodigal who returns. God’s process begins one place, and may end in another depending upon our choices. Our process begins and ends at only one place, punishment.
Behind punishment lies fear. In fact, fear is a fundamental aspect of all of our laws and legal processes: fear of punishment; or fear of loss of finances, position, power, prestige, appearances, etc. The fear model, focused as it is on punishment (not restoration, restitution, and reconciliation), has led to the current condition of the Criminal and Civil law in the United States.
To protect us, we have rules upon rules upon rules, to the point of incomprehensibility by the average citizen. These rules bog the system down, and deny the speed needed to establish justice:
Because the sentence against an evil deed [note: evil deed, not evil man — no mental state of man is involved] is not executed quickly, therefore the hearts of the sons of men among them are given fully to do evil. Ecclesiastes 8:11 (amplification added)
The system which was to serve us is then presided over by technocrats of the law (lawyers). The sense of an average citizen, left outside, is that the system is a massive failure.
The fear model has also worked a massive change in the nature of the role of the attorney. Time was when the lawyer was an adviser and counselor to a client. Today he is most often an adversarial technocrat of law and rules.
Also, when we choose to focus upon punishment rather than restitution; when we move away from harms against victims and community, where people are entitled to face their offenders and be made whole by their offenders; when crimes are against the State with fines payable to the State and punishment is imprisonment by the State, then it is necessary for lawyers to try to protect their clients from a harsh and punitive law and system. They become technocrats of the law, rather than counselors to people in conflict.
Another problem is that we teach U.S. law students by what is known as “case study”. That is the way I learned. We study case after case after case, searching for principles to give later to the judge on behalf of our clients. The problem is that we can never be sure that somewhere there is not a case we have missed, the apparent principle of which would change the outcome of the case we are considering. Fear drives even the lawyer.
Faced with such a dilemma, U.S. lawyers resort to work which is process-driven rather than principle-oriented; that is, they see that they properly apply each and every rule of process, without regard as to whether something right takes place at the end of the process. They justify their existence by being able to tell themselves that they followed the rules, and made the system work — never mind that their clients lie dying on the side of the road. The system remained intact and unchallenged.
No outcome is “right”; only a proper process is “right”.
In this process, we lose sight of the negative impact of the proceedings upon the heart of our clients. Soon we believe that anything other than a most zealous representation of their clients under all of the rules is malpractice. We become a blind guide to a blind person — and blind to the pain within our clients, their families, the victims, and the fractured community.
This model, on the Criminal Law side of the ledger, leaves the victim (at his expense rather than governmental expense) to seek reparation through a Civil system where, in all probability, he will still neither meet his offender nor receive restitution. If he does get compensation, it will be either through his own insurance company (to which he had to pay a premium) or by paying a lawyer and losing a part of what he recovers to the lawyer.
Then the victim, and community, are further punished as the legal system takes the monies which offenders may have and gives it to the state as fines rather than to victims as restitution. Then we incarcerate the offender in a tax-supported bed-and-breakfast center for training with anger, bitterness, and resentment. And we provide lessons of how to better commit crime.
Is it any wonder that victims and communities are crying in a wilderness of confusion over what has gone wrong with the system?
So we have imported bad along with the good from the Old World. We have also made some substantial modifications to the system along the way which have not helped. The first modification deals with the matter of the Jury and its function.
The jury began as a check against Indictments (criminal charges) which were issued by the king and then tried by the king’s officers. What we then had was the law-maker (king), determining in his own mind (upon hearsay), that a crime had been committed. He then issued the Indictment, and sent his paid employee (Sheriff or Judge) to hold the trial.
Of course, this was before autonomy of the judiciary was established. But you can see where the jury, in such a setting, would be a vehicle for keeping a community informed as to the general justice (or lack thereof) available within the legal system. The people could know the law, but law, in its day to day application, can bring tyranny while still looking good on the printed page. (If you don’t understand this, just read Stalin’s constitution, or ask any Russian; they understand it very clearly.)
In the field of the Criminal Law, the ancient concept of jury included the right of the Jury to determine the ‘law of the case’ as well as the “facts of the case”. That is, they could judge the rightness of the law as well as the wrongness of the offender (or wrong-doer in a Civil case).
If the jury, informed of the law, and viewing the facts, felt that the law was, in that case, in some manner unjust, they could nullify the law by refusing to convict.
But, as a result of certain situations, most notably the refusal of juries in the southern part of the United States to convict a white person of certain crimes against black people, the courts developed a rule that while the jury was still the judge of the law, they could not be told that they had the right to nullify the law. In fact, they were told that they could “not so judge the law as to render it null and void and of no force and effect.”
Following this development, politicians found a fertile field for votes by complaining about the leniency of judges. Playing upon the fears of the people, and the desires of people to be protected in person and property, politicians began seeking office on platforms of “getting tough on crime”.
From this came a move by legislators to mandate minimum terms of incarceration in any number of crimes. The courts, as a natural expansion of the anti-nullification doctrine, began holding that it was improper to tell the jury the penalty. Instead, the jury was to make its determination of guilt or innocence without regard to the penalty, so that they might not be swayed by pity. The result of all of this has been a forced plea and sentence bargaining process. More on that in a moment.
The Bible also says that pity is not to influence any judgment. However, the Bible did not offer punishment and prison as a model, but offered restitution and restoration within the community. This is love-lived-out in relationship. And, as we shall see, a system of confrontive but restorative justice is neither lenient nor pitying.
Two wrongs not only do not make a right, but they can remove one. An example will show what concerns me:
The man was 26 years old. His prior criminal record consisted of a conviction, at the age of 18, for forgery of a $25 check at a clothing store. Then, when he was 22, he broke into a used clothing store at night and stole clothes. Now, at 26, he tried to forge a credit card for some $75 of clothes, and was arrested before leaving the store. Because he had two prior convictions, the prosecutor chose to charge him with being an Habitual Offender.
After jury trial and conviction on the charge of forgery — a trial required only because of a mandatory prison sentence of from 2 to 8 years in prison because of the prior convictions — the jury was informed of the habitual charge. After hearing uncontested evidence of the two prior convictions, the jury retired to deliberate.
Two hours later, the jury sent out a question: “What does it mean (what is the penalty) if we find him to be an habitual offender?” I responded, in writing, that I could not answer the question under Indiana law as the jury was not to know the penalty.
They deliberated another two hours before convicting. As I accepted their verdict, I then told them of the penalty: a minimum of two years on the forgery plus another 30 years for being an habitual offender and that there could be no suspension of the sentence. The jury moaned in disbelief. I invited them to send me letters with their thoughts.
Ten of the twelve jurors wrote to me. Each said that if this was an example of our justice system, they wished never again to participate.
Two told that the jury concluded, after getting my note, that if they convicted the young man it would guarantee that he would get special correctional treatment.
I tell you a truth from my experiences — the people, sitting in judgment of offenders whom they get to meet and to know, will never be more severe than the law. In fact, they will routinely be less severe, for they can choose to grant a degree of mercy, which the law seems unable to do. They can also see and respond to a repentant heart as the law cannot.
Now, it may be that the jury was not used in the Biblical system. As we have seen, the community was very much a part of the process. But it appears that cases were submitted to a judge, or a panel of judges. However, when we look at the judge, as a secular and a Biblical official, we will see some differences which may require a jury in our secular and pluralistic societies.
Well, there is another way in which we have emasculated the protections of the jury. We have created a field of the law, called Administrative Law, in which there is little right to a jury. Yet fines and other penalties may be levied for the benefit of the state. In the matter of Administrative Law, several additional factors are present.
First, administrative agencies were created by Congress to work in certain areas of law where a crisis was thought to exist, or where grave social concerns were evident, or where unfettered free commerce might lead to mass confusion. Some examples are: the Bureau of Land Management, Civil Aeronautics Board, Civil Rights Commission, and Equal Employment Opportunity Commission.
These agencies were given the power to make rules and regulations (declared by Congress to have the force and effect of law) to carry out their functions, and to administer these rules and regulations. Because the agencies were focused on only one area of the law, they could hire people experienced in the area, leading to a sense of administrative expertise in the particular area.
These agencies, however, function within the Executive Branch of our government. Yet they have legislative powers (making rules and regulations), and judicial functions (holding hearings in disputed matters wherein they enforce the rules which they have created). Whereas the Constitution explicitly separates the three kinds of power into three branches of government, Administrative Law recombines them and thus violates the clear intentions or principles of the Framers.
The agencies quickly piled rules upon rules upon rules, and developed languages all their own. Because of lack of clear guidelines or supervision, there is almost no way to know if bureaucrat A in Indiana is interpreting the rules in any way similar to bureaucrat B in Colorado.
Meanwhile, courts began to adopt a doctrine of expertise. “Who are we,” said the courts, “to try to look into something so difficult and complex as the matters which these agencies are dealing with? They are, after all, the experts. We will not look at their decisions except on matters of law, and then only on appeal.”
Suddenly we have the regulating, judicially determining bureaucrat interpreting the laws he himself has made, with no reasonable check expected upon appeal (and with all of the expense which appeals can mean). In such a situation, the checks and balances envisioned by the Framers has been lost.
And no jury to look to the reasonableness of the law even though that law can exact penalties of fines, triple damages, and confiscation of property.
Another case will describe this situation:
My client came to me with an order of the Indiana Air Pollution Control Board to stop burning wood on his property, with a threat of a large fine should he not stop. As I read the quoted regulation issued by the bureaucrats, I found to my amazement that it was illegal to burn wood in the State of Indiana. I had a large fireplace in my home, and we loved having fires in the winter.
Thinking that the legislature could not be so stupid, I turned to the statutes which created the agency, and discovered that the agency had changed the language, for burning wood was not illegal under the statute. So I wrote the bureaucrat, giving statute, regulation, and legal propositions, and suggested that he did not have a case.
I received a letter back advising me that litigation on such a matter would be very long and expensive for my client, so we ought to sit down and agree to something so that he, the bureaucrat, would look good. I advised him that I had lived a number of years for the opportunity to prove to the people of the State of Indiana what was happening to them, and I begged him to sue so I would have my chance. We never heard another word.
Faced with increasingly harsh penalties on the criminal side, and with increasingly complex rules in both civil and criminal law, we lawyers were left with no recourse but to bargain our cases. In criminal law, we have Plea Bargaining and Sentence Bargaining; in the civil law, we have Settlement.
In a criminal case — let’s say Robbery: taking by force from the person of another — we may see a mandatory sentence of imprisonment (let’s say 10 years). A defense lawyer says to the prosecutor, “Let’s make a deal. Let my client plead guilty to theft, and he will agree to a sentence of 4 years (which, with “good time”, means two years). Otherwise we will demand a jury trial, and make you and the court waste all that time.” So the prosecutor accepts, and the man pleads guilty. Case closed.
I still am troubled by the case where I convinced my client to plead guilty to a misdemeanor (a less important crime) although I believed him to be innocent. The problem was that if he were convicted of the charge as filed (a more serious crime), he would have a felony on his record which would have a great impact upon his ability to get work. To avoid the possible stigma, he plead guilty. But note how fear and uncertainty ruled the day, not facts. Take away the stigmatization and punishment concepts and the case would have been handled entirely differently.
God’s law does not label us, but it does ask us to make recompense for a harm we may have caused.
In the criminal case, the man pleads guilty to a crime he technically did not do in avoidance, while accepting imprisonment out of fear. He is given no opportunity for grace, or to be treated, in his mind, as a unique individual.
In a civil case, the bargain is over money, of course. But the results are the same: the parties may make the decision to accept the settlement, but they never face each other. Everything is cloaked in legal mumbo-jumbo.
So the settlements are constructed by the attorneys for the parties, without direct confrontation between the parties. The parties approve the settlement, but they do not have any “ownership” in the settlement even though money and releases exchange hands. Again, the jury does not get to see the law in action except in exceptional cases. People are left to judge the law and system based upon reports from a friend (normally based upon a less than satisfying personal experience) or reports from the media, sound-biting a complex case into 30 seconds.
Another modification to our system involves the matter of the Juvenile Justice System.
Just over 100 years ago, some people became rightly concerned about the age at which a young person who had not yet reached his eighteenth birthday (juveniles) was being sent to prison, work-house, etc. These same people were rightly concerned about the conditions in communities from which these children came (often the poorer communities) and the quality of their home life, possibly alcoholic or otherwise abusive.
Thus they began a movement to alter the legal system through which the young would pass when brought into contact with the law. They specified a commitment to rehabilitation, education, positively influencing home life, and other very laudable goals. However, in the process they forgot about confrontation and accountability, and began to give the youthful offender reason to excuse and justify his behavior — “I am just a product of my environment.”
But the Bible says:
Fathers shall not be put to death for their sons, nor shall sons be put to death for their fathers. Everyone shall be put to death for his own sin. Deuteronomy 24:16
Then, not being content to deal only with “Delinquents” (the new word for a young criminal), they began to move into family life with a concept of “Dependant and Neglected Children” (now a “Child In Need of Services”). This led to a proliferation of social agencies trying to reform the family into the social scientist’s idea of what a proper family should be.
Did you think only the Communists could think of such things? I often wondered, as I sat wondering what to do as juvenile judge, if I was really that much different from those in other countries who take children away from families and place them into “training centers”.
And here, as in administrative law, judges soon began to defer to the sociological, psychological, and psychiatric experts. They forgot that God might also be an expert.
And yet another matter which must be considered as influencing where we are today is the essential abandonment in the United States of the death penalty.
First, God appointed the death penalty, and placed upon man the delegated responsibility to carry it out. Therefore, it is not murder (which is precluded by the Sixth Commandment) when society, under the law, takes a life.
Second, God stated His reasons for the death penalty: “For in the image of God, He made man” (Genesis 1:27). If we begin to argue and debate this matter, we face the same issue as Adam and Eve: Will we, at the conclusion of the debate, come back, in faith, to the author, and be obedient, or will we rebel?
Third, Jesus, the Christ, God in flesh, made it very clear that the moral, societal-governing LAW which was to restrain evil and build up love-lived-out in good relationships was not being changed by Him in any way:
Do not think that I came to abolish the Law or the Prophets; I did not come to abolish but to establish. For truly I say unto you, until heaven and earth pass away, not the smallest letter or stroke shall pass away from the law, until all is accomplished. Whoever then annuls one of the least of these commandments, and so teaches others, shall be called least in the kingdom of heaven. But whoever keeps and teaches them, he shall be called great in the kingdom of heaven. Matthew 5:17-19
That LAW, in including the death penalty for the rebellious son of Ex. 21:18, would address the following case:
A man who was 52 years old had spent 20 of his adult years in a variety of prisons. He had been convicted of (if I recall correctly): two federal charges of selling narcotics; two forcible rapes; and two armed bank robberies. He was before me for having broken into 12 houses in Elkhart County, stolen property of a large value, and greatly damaging the houses just for the spite of it.
The prosecutor (the same man who charged the 26 year old with being an habitual) could have charged this man with 12 separate counts of burglary, each count carrying up to 20 years in prison, and the sentences could have been made consecutive. In addition, and he could have charged this man with being an habitual offender. In short, there could have been a maximum penalty of 270 years.
Instead, the prosecutor granted a plea bargain and dismissed all the charges except one, for a maximum of 20 years.
Do you see why I have some problems with the U.S. legal system?
In short, what we find today in the United States is an adversarial, process-driven, settlement-oriented, system that is presided over by a disinterested neutral, for management of conflict. Let me pick this apart a bit.
Adversarial: In our system, one person is put against another as in a contest. The hope is not resolution but pure victory for one side only — even though we think victory equals resolution. In this process, the individual party thinks only of himself and has no interest in the issue of what impact his actions may have upon himself, his family, his community, or the other party.
Process-driven: In our system, a premium is placed on the ability to know the rules and apply those rules better for self than for the other person. Here the lawyer is king. Only he can function in the arena. He is virtually indispensable.
I have encountered this problem frequently as I show a Christian, in conflict with another Christian, where the Scripture calls us to sit down with people from the church and talk — not judge; just talk. But along comes the lawyer (often even the Christian lawyer) who shows either why “it won’t work”, or tries to convert the discussion into the normal legal adversarial warfare.
Settlement-oriented: The fact is that a vast majority of all cases in the United States, whether criminal or civil, are settled without trial. There is no face-to-face confrontation, in love, with one’s wrong acts, and with a call to confession, repentance, forgiveness, restitution, and burden bearing.
Disinterested neutral: Judges in the United States, for the most part, serve as referees between lawyers, but with one major difference. If a referee sees some violation on the playing field, he whistles the game to a stop and imposes a penalty. In the courtroom, the judge usually only blows the whistle if someone asks him to.
Judges, like the statue of Lady Justice, seem to be blindfolded. They do not look at what brought the parties before them, they do not look at issues other than law and fact, and they do not look to see what impact a decision may have upon a party, the family of the party, or on the “community” of the party.
Dispute resolution: We recognize that conflict is an inevitable part of life. Therefore, we want to provide a way for resolution of the conflicts so that people need not take the law into their own hands. I find it interesting that, as I asked my Russian students what they wanted from law, one said, “A problem-solver.” No, you will get a decision-maker under our system, and that is a far cry from a problem-solver.
The fact that punishment (as an effort of society) fails to state that a given behavior is wrong does not mean that it is not appropriate for society to make the declaration that certain acts are wrong. The problems are in the methodologies of processing cases, and in the form of options offered those who violate the rules at they time they are brought before the law. It is here more than anywhere else, that we have lost sight of the Biblical LAW.
Our desires for deterrence and rehabilitation are very appropriate; but our methods, coming from a misunderstanding of the source, purposes, and functions of law, and from the failure to recognize and take into account the sinful nature of mankind, fail.
If the purpose is to deter the one doing the act, and to see that person rehabilitated, then we should use a model that points to love lived out in good relationships rather than a model aimed at merely restraining anarchy. A purpose to restore can also deter, but a purpose to deter can not restore.
Dan VanNess, in, Crime And Its Victims (Inter-Varsity, 1986), offers the following insights into what I have been describing:
As a defense lawyer, I thought of victims purely as witnesses for the prosecution. … [But] Crime is first of all an encounter between a victim and an offender. It is an unexpected personal crisis in the life of a person brought on by another, and it undermines the victim’s view of the world and of other people.” (pg. 20) [And the same can be said of a case in Civil Law.]
Technically, the Defendants were not accused of robbing and beating other people. They were accused of breaking laws established by the State. The criminal justice system would not deal with the very real problem of the terrifying ‘relationship’ that had been created between those victims and the offenders. (Pg. 23)
The job of the criminal justice system is not to recover the victim’s loss. It only determines whether crimes have occurred, and then how to sentence the Defendants who are convicted. (pg. 25)
Because of the penalties facing defendants, they are provided with significant constitutional protections. Because the victims are not a party to the trial, they have none. Considerable amounts of money will be spent to punish Defendants found guilty, particularly if they are sent to prison. Until recently, no money was available to compensate victims. (pg 28)
The extent to which prisoners feel that they themselves are victims is remarkable. They believe that the criminal justice system did not work for them the way it is supposed to, that the things they experience in prison are far worse than they deserve for breaking the law. (pg 57)
If these observations are accurate, then we might expect to see a certain product of such a system, a product of separation of people, division of community, and choosing up of sides, with no one happy.
And, I suggest, this is exactly what you do see:
People who feel victimized by others still see themselves as a victims long after the end of the process.
People who may have offended others see themselves as having been offended by the process.
Friends of victims make the anger and confusion of their friends their own, as do friends of offenders.
People in general, hearing of cases through the media, lose peace, and,
Those functioning in the system will tell you the system is not working.
In short, everyone is searching for justice — which was supposed to be the end-product of the process! But it seems to not be present.
These are the products of our system: division of family, friends, and community; confusion; anger and bitterness; and a constant cry for justice.
And what about (as we focus on punishment) the issue of the conditions inside society which incubate and breed the potential for crime, conditions of poverty, racism, family and community disintegration, etc.?
Where is the responsibility of the community? Is it to be called to account? How can the community participate?
What is the problem? The guilty are being convicted and sent to prison, aren’t they? Why get so worked up?
I am upset because the offender was never confronted. I meet him in prison and I hear: “My lawyer was incompetent. The police manufactured the evidence. The judge was biased. If I hadn’t been brought up in the ghetto, this would not have happened. The prosecutor gave Sam a better deal than me,” and so on.
Excuse, justification, rationalization, blame-casting. Sounds like Adam and Eve in the Garden: “The woman You gave me made me do it;” “The devil made me do it.”
Our process begins in fear — open your mouth and you will go to prison (or go bankrupt). Neither confession nor forgiveness are seen as an option.
It is fight, fight, fight; deny, deny, deny.
God says something different. I quoted it earlier, but did not carry the thought through. It represents the basic difference between the hope He offers, and the despair our law offers. Look at the words again:
There is therefore, now no condemnation, for those who are in Christ Jesus. … We know that all things work together for the glory of God when those who love Him walk according to His purpose. (Romans 8:1, 28)
God says, in essence: “All right, a mistake was made and a harm has resulted. See the mistake, name it as sin, confess it as sin to me, go to the person you have harmed, confess to them, and then seek to do what you are able to in repairing the wrong. From this effort, good will come. The future is not a dark tunnel with no end. Instead of fear and confusion, I offer you peace and hope. Just take a step in faith.”
This is the message missing from our laws and systems.
The question for every human being, every time they do that which is wrong or fail to do that which is right before God and man, is whether they will confess the wrong done, seek to make right any harm caused, seek to learn why they chose wrongly (an internal motivational check), and commit themselves to right behavior in the future. Or will they deny, rationalize, justify and blame. The first path leads to freedom, the second to bondage. And those words do not relate to your place of residence, but to the state of your soul.
What is needed is a repentant heart. What normally comes first, however, is a remorseful heart. A remorseful heart is aware of the wrong, but looks around to see if any one knows what has happened, or if there is a way out of the box. The Bible says, “The heart is more deceitful than all else and is desperately sick; who can understand it?” Jeremiah 17:9
Now, each day which goes by without confrontation of the offender with the wrong done increases the probability that the offender will begin to:
(1) excuse the behavior (“Well, after all, everybody is doing it.”); or
(2) rationalize the behavior (“Well, no one really got hurt.”); or
(3) justify the behavior (“Well, he made me do it.”); or
(4) cast blame somewhere else (“Well, if I hadn’t been born in the ghetto.”).
Thus, mere delay of proper confrontation — at which our system is very adept — negatively impacts the possibility of rehabilitation and restoration.
Likewise, if the prosecutor, for whatever reason, never charges all of the crimes of which he is aware against the offender, or compromises the charges through plea bargaining, an offender is left without having to face his guilt or his own true nature. If he bargains over the sentence, he gives up the possibility of grace, and then blames the legal system for being too harsh to him. And, never having to face the person (victim) or the people (family; community) harmed by an act also deprives offenders of needed confrontation.
The total effect is that the offender leaves the process (with or without imprisonment) unimpressed at the least, and spewing obscenities at the worst. The system has failed to teach the offender anything.
The issue of massive discretion of the prosecutor enters into the plea and sentence bargaining issue because, in most places, the prosecutor has a wide range of crimes from which to choose, depending upon the acts done. To understand this, simply recall the two habitual offender cases which I mentioned. In the first case (the stolen clothes), the prosecutor could have charged the man with as little as Attempted Petty Larceny because the amount involved was less than $100. In that case, the maximum penalty would have been one year in prison.
As you consider these matters, think about the Biblical response available in each case.
I am upset because victims are not given the opportunity for healing, nor to receive timely restitution.
I am upset because the community is not confronted with its obligations.
The United States today is the most litigious society the world has ever known. It is to the shame of the Church in the United States that it has forsaken its historic conflict resolution role, found in Matthew 5:22-26; 18:15-20; and I Corinthians 6:1-8.
It is further to the shame of the Church that so many of the conditions of society which may be considered a breeding ground for crime — without detracting from the individual’s accountability for criminal actions — are the very things which God charges His people with providing:
Is this not the fast which I choose — to loosen the bonds of wickedness, to undo the bands of the yoke, and to let the oppressed go free? To break every yoke? Is it not to divide your bread with the hungry, and bring the homeless poor into your house; when you see the naked to cover him; and to not hide yourself from your own flesh? Isaiah 58:6-7
To the extent that the community is a necessary part of any system of law — and we shall see that it is — then we must have the church brought back into its proper place in the process of conflict resolution.
You see, we have also lost our sense of community along the way of the development of the law.
And I am upset that justice is being denied.
All this has taken place in the United States — and the vast majority of the public senses that there is no justice.
Dan VanNess has also said:
Individuals can ignore the law (Amos 2:6), the powerful can impose unjust laws (Jer. 34), and the whole community might agree to overlook just provisions of the law for mutual convenience (Jer. 31:31-33). But there can be shalom only when people are both just and righteous (Jer. 6:14; Is. 59:8). The law may point the direction, may give instruction, but if the people do not follow that way, it is limited in its power to restrain them. It is a
fragile fence which can be crossed by a people bent on ignoring or perverting it. Law and justice are linked, but are not the same thing. This is critical to our understanding of justice in society. Law may indeed promote order. But the order may not be just. (pg 124)
Then, what is justice?
Where are we to find it?
How are we to realize it?
And what does it mean when the Bible says we are to “do Justice?”
SECTION 9 — THE QUESTION OF JUSTICE
Our study has now brought us to where we may consider things which might move us closer to the justice we seek from our system of law.
It is here that we move to what Prison Fellowship has taken to calling “Restorative Justice.” I have modified the language because, while the focus will be upon matters which we call crimes, the same issues and principles are present in civil cases, which I wish to include.
Restorative Justice is based on the premise that wrongs cause injuries to victims and communities. So, a restorative justice system should:
(1) open avenues for repair of the injuries. It cannot force, but it can offer alternatives
(2) actively involve harm-doers and harm-sustainers in a process of conflict resolution at the earliest possible time, in the least threatening but most truly confrontational manner possible
(3) understand that in promoting justice, the government is responsible for preserving order (obedience to rules, which requires application of power) while the community is responsible for establishing peace (people living in good relationships with one another
(4) offer harm-doers restoration through confrontation with truth, confession, facing of victims, and making right
(5) offer harm-sustainers restoration by an opportunity to be heard by the system and by the harm-doer, and then by releasing anger, bitterness, and a sense of helplessness, through forgiveness and trust that God will make all matters right in the end and,
(6) offer communities restoration by being a part of the process of confrontation and restoration of harm-doers and harm-sustainers.
Within this is a further concept: justice is, first and foremost, a personal, internal, relational, emotional, and even spiritual concept.
If the reader has any doubt of this, we could start by putting 20 of us in one room and then beginning to discuss the Anita Hill/Clarence Thomas matter, or the Rodney King case, and see how many opinions concerning justice would be found in the room.
In Russia, we talked about President Yeltsin using tanks against the Russian Parliament in October, 1993, and the invasion of Chechnya in December, 1994.
Second, justice becomes an issue only in the setting of conflict — whether actual or perceived. An individual may become involved in a conflict in any of the following ways:
(1) As an offender;
(2) As a perceived victim (Note: he doesn’t actually have to be a victim but only to perceive himself to be one);
(3) As a member of the “community” within which the conflict arises;
(4) As an insider involved in a process which seeks to resolve the conflicts of others — as a Law Enforcement Officer, Defense Attorney, Prosecutor, Judge, Juror, Correctional Official, Probation or Parole Officer, Counselor, Pastor;
(5) As an outsider making judgments about the conflict between others.
From my studies and observations, I have concluded that justice will be done to or by me when:
(1) As an offender, I see my fault, acknowledge it to all necessary people, and seek to do what I can to right the wrong, without expectation that anything good will happen to or for me;
(2) As a victim, I come to forgiveness in my heart, then confront the offender (face to face, or in writing) with the nature of the offense done and harm caused, and then I release to God the outcome of the matter, without any expectation that the other party will be, in any manner, changed by my actions. I may even extend myself towards a restored relationship with my offender, or offer to bear burdens of my offender;
(3) As a member of community, I avoid choosing a side other than God’s side in a conflict. I then do what I can to bear some of the burdens of victims, and attempt to restore fellowship with
offenders, even though there is no response;
(4) As an insider in the process, I do the best I can to help all participants behave as they ought, so that they may feel justice was done, without expectation that all (or any) will listen or change;
(5) As an outsider, I detach myself from taking sides and urge for restorative justice principles to be extended to a larger part in the system.
Inherent in all of this is another truth:
We will never have justice until we as individuals determine that our system may not be the best under the circumstances, but it is trying to be fair, is peopled by individuals trying to do good and not evil, and that it has made a decision with due deliberation.
“We,” as individuals in a society watching the system, are all outsiders if we are not offender, victim, community, or insider. We have to be willing to give the benefit of the doubt to the system and those running it. We cannot demand perfection from a system populated by imperfect people.
As an outsider, I cannot make a judgment as to who was telling the truth in a particular case without risking loss of peace. I probably do not have sufficient facts to know absolute truth. And since I was not an insider charged with the duty of judgment, I should refrain from making judgement if I desire peace.
I cannot determine that the system was flawed, and that someone lost justice, without risking my own peace.
If I lose peace, I will begin to cry out for justice.
None of this means I cannot make some judgments and work for change, but it means I must do so without any expectations of success, or I will again lose my peace.
I can discuss the system relative to the case of Anita Hill and Clarence Thomas, but I must do so without siding with either of them as individuals. I can applaud and/or criticize their actions, as well as those of the ones making the decision, but I cannot make another’s offense my offense.
Well, if all of this is true, then it follows that:
(1) Justice can never be systematized;
(2) To the extent that we give the impression that we can ‘establish’ (systematize) justice, we perpetrate a lie;
(3) The lie results in people having an expectation that the government can accomplish something which is impossible;
(4) When expectations fail, people lose peace; and,
(5) When a sufficiently significant number of people in a given society lose the same peace relative to the same expectation, respect for authority will end, and riot or revolution will begin.
I believe we are on the brink of that today in the United States. Los Angeles in May, 1992, and the Ross Perot phenomenon (an unknown looking like a potential savior), may be examples of this.
We placed our expectations upon man and he let us down. It is time to place our expectations upon God, and seek to bring our system into closer conformity with His.
Now, I am ready to define where and how I believe justice can exist, in terms of the individual, and in terms of the system (society).
(1) Justice will exist, relative to any one conflict, only within the heart of any party, participant, or onlooker, and then only to the extent that the person behaves in a right manner relative to the conflict.
(2) Justice will exist to the extent that there is a system for redressing grievances, which system is seen by the vast majority of people as being fair in its methodology — provided that they do not expect it to bring (1) into existence.
Because we have not taught (1), and because our system today operates without understanding (2), there is no sense of justice in our land. There is a mechanism to redress grievances, although few consider it to be fair or just.
So, what is to be done?
Before I offer suggestions, I must begin with a disclaimer.
In Christianity, there is something called Christian Reconstructionism. There is also something called Theonomy. I have written extensively in an effort to compare our laws and system with the Biblical law and system. I want to offer suggestions for change. But what am I? What labels do I wear?
These two terms are loaded with baggage today. I know that I cannot prevent anyone who reads this from forming his own conclusions about me. But I can at least try to say what I think I am.
Ronald H. Nash, in his book, Great Divides (NAV Press, 1993), defines a Christian Reconstructionist as: “.. in the broadest terms, simply a Christian who believes it is his or her responsibility to challenge the anti-Christian character of society and culture.” (p. 155) Therefore, I am a Christian Reconstructionist. That is an honored and historic term. It is only in discussing the “how to challenge society” that the Body of Christ gets divided. I welcome that discussion, however.
Nash goes on to say that a reconstructionist may be either postmillennial or non-postmillennial. A postmillennialist is one who, in essence, believes that the world, under a growing influence of Christians leading Christ- centered lives, the convicting power of the Holy Spirit, and the spreading of the Word of God, will become so “Christianized” that it will open the door for the return of Christ for His 1,000 year reign on earth.
I am not a postmillennialist. I believe we are, and have been since the flood, headed down-hill for Armageddon. I do not believe that we can turn the tide. We may plateau for a season, but then it is down again. However, I do not participate in matters of law for the purpose of changing society. I participate because it is a field ripe for the harvest and I may, in my participation, help snatch one from the fire.
Dr. Nash then says that a Theonomist is:
A postmillenial reconstructionist who believes that God’s model for reconstructed human society is found in the entire Bible, both Old and New Testaments, including the civil code of the Pentateuch. … one who believes in the abiding validity of the Mosaic law as a part of God’s model for human society. (p. 160)
However, I am a non-postmillennial theonomist.
My theonomy does not include any of the sacrificial, dietary, dress laws, etc. which were, I believe, set aside by the death and resurrection of Christ. Instead, I limit my theonmistic views to the Ten Commandments as illustrated by the Case Law.
However, this still does not answer the question which most concerns people about reconstructionism. The question people really want to know is: “How far is Biblical law to be applied to secular society?”
I have no answer. I want to say, “As far as a secular society will let allow it to go.” But that is flippant — and very frightening.
Does that frighten you? Well, it would frighten me if I had any expectation that a secular society would allow it to go anywhere! Let me clarify.
Our Lord used force only one time — in cleaning His temple. It was His. He had the right to do so. In all other respects, He simply lived a life which was so radical, and spoke quiet words which were so radical, that the world had to kill Him. His mere presence was that offensive to the ways of the world.
Pardon me; we had to kill Him because His ways were so offensive to our ways.
Pardon me, again. I had to kill Him.
Jesus consistently rejected the power option, and refused to give the power option to His disciples. To use the law and system of man as a pointer to the LAW and METHOD of God is not, I submit, a violation of the denial of the power option. Using the law and system of man to attempt to force someone into the LAW and METHOD of God would be a violation.
Yes, I would press for the death penalty if I were a member of a legislature. I would set forth the categories just as I have in this book, and try to explain the rationale — and then let what happens happen. I would not scream, rant, and rave like I used to: like the noisy gong and clanging cymbal of I Corinthians 13:1. When I have spoken what I believe God wants spoken, in the manner in which He wants it spoken, I can cease my efforts to change things, and allow Him to carry forth.
An example may help:
A friend once called and said he thought God was calling him to run for judge. He wanted to know what I thought. My reply was: “If God is calling you to run, then run. But never forget that He called you to run, not to be elected. Thus, run as unto the Lord, not as unto getting elected. If you should get elected, we can them talk about how you will serve as unto the Lord.”
He did not get elected — he campaigned on the kind of ideas I have been expressing, and the secular society rejected him. But did he, just possibly, snatch some unknown person from a fire? I don’t know, but God’s Word says that His Word will never return void.
Now you may judge the suggestions which follow in light of my philosophy as expressed in the above paragraphs. I will begin with a consideration of how the various players in the system ought to consider playing the game.
SECTION 10 — RESTORATIVE JUSTICE — SOME PROPOSALS
And so we have the philosophy, the ancient history, and the modern status of our U.S. law. How do we consider bringing Restorative Justice into being?
Four general comments are in order:
First, as I have said, I am not a theologian. Thus, I see this effort of mine as an invitation to the Christian community to begin some dialogue on the concepts presented. The suggestions which follow are only suggestions.
Second, it may seem that I am lawyer-bashing. I am not. I may bash lawyer activities, but I am a lawyer. I know what I did, and why. I wish I had known, in those days, what I know now. I wish someone had spoken to me of the things of which I now speak. And I firmly believe that a lawyer who will continuously ask himself, in every setting with every client, “What does it mean to be a minister of reconciliation?” (II Corinthian 5:17-20), is in a position to offer as much healing as any physician.
Third, as you read these thoughts, think of the young who may be rescued, not of the hardened offender. Just as the poor will always be with us, so will the unrepentant. But we still must try to rescue all we can.
Fourth, we must re-think the impact upon the willingness of the community to fulfill its role of the roots and methods of our system. In this regards, I have often wondered about the advice of Jethro to his son-in-law, Moses, recorded in Exodus 18:8-24.
Six hundred thousand men (plus women and children) of Israel had crossed the Red Sea on dry ground, and then watched as Pharaohs army was drowned. They had seen bitter water made sweet, received manna and quail, and defeated a local tribe in battle. They had been on the road less than 90 days. Jethro, in response to what he has seen, probably has become a believer (saved?). Celebrating his acceptance of the God of his son-in-law, he goes to sleep. The next morning, he looks out and there are 300,000 sets of men standing in a line before Moses with conflicts for decision! Jethro goes to Moses and says, in essence: “This won’t work. Appoint judges over the thousands, hundreds, fifties, and tens. You be the Appellate Court.”
This suggestion comes from a new believer, who never claimed it came from God. Moses never checked with God if he should do this. Yet the story is used as a justification for much of our legal system efforts.
We say our God is a God of orderliness, and so He is. We see major disorder in this passage, and an orderly proposal, so we say the proposal is good, and construct our systems of conflict management based upon the suggestion. However, I see the proposal as negatively impacting love lived out in good relationships, for this proposal utilizes power, and encourages others to use power, to compel what ought to be agreed upon instead.
And I see community being cut out in the process.
As long as there was only Moses, there was the possibility that two people in a dispute, getting a bit discouraged about the inability to get to Moses, might decide to talk with each other directly rather than through their lawyers or the judge (Matthew 5:23-24; 18:15). They might even get some others to step out of the trial waiting line to help them (Matthew 18:16-17). They might begin by what they had in common — made in the image of God — with expectation that God might reveal to them what to do with the conflict if they related in love to one another.
We do not see that God sanctions Jethro’s proposal. In fact, in Numbers 11:10-17, we see Moses asking for more help, and God “takes of the Spirit who is upon you [Moses]” and puts it upon the 70. Might it have been that the Spirit of God upon Moses was sufficient for the tasks of Moses? Is it at all possible that God wanted the people to rely upon Him, His Word, and the counsel of one another, rather than a complete judicial system?
All I know for sure is that the community is responsible for obedience to the law and for law enforcement before we ever get to the responsibility of the government. If a community is unwilling to fulfill its role, and if we are unwilling to go to the community if help is needed (see below), then we must, out of necessity, revert to the law of power and restraint, and not the LAW of love-lived-out in good relationships.
In colonial days in the United States, there were some experiments with citizens providing ‘night watches’ and ‘day watches’. This was before the idea of a paid police force came into vogue. It was deemed a part of citizenship to give up one or more nights per month to patrol the streets of the community. It was recognized that street patrols are an effective deterrent to crime.
But when the system seemed unable to prevent all crime (and it never can!), the demand of people for protection brought us the police officer, a paid professional with power. And as a government is always happy to enlarge its borders (gather more jobs for patronage of politicians to keep their power bases intact), it was happy to take our taxes, establish the police, and enable us to avoid what is, first and foremost, our responsibility. Today we complain about police corruption and brutality.
At the present time inhabitants in some locations are organizing “neighborhood watches”. Here, citizens agree with one another to look out for one another. In some areas we have, literally, made the neighborhood unsafe for crime, and once again safe for the community.
While I was a judge, we embarked upon a massive, multi-faceted campaign of public awareness, education, and system change at all levels on the matter of drugs.
Our first step was to hold meetings in the schools for parents of children ages 10 and above. We gave them needed information concerning how to recognize a drug problem in their child should it arise. We also advised them of steps which they could take to deal with it, and where in the community they could turn for help.
But we also gave them information on how to recognize drug trafficking if it was taking place in the neighborhood, and we gave them a place to report suspicious activity while remaining anonymous. There was a 24 hour telephone number with a live person on the other end.
Then we went to the schools and asked for a change in policy. Until then, if a student was found in possession of drugs or alcohol, he was expelled for the rest of the school year. This, of course, put students on the street, where they posed a further problem.
In the schools these students had friends who were concerned about them. But the friends could not report them for help because of the nature of the penalty (because of the punishment model, again).
The school officials agreed that if they discovered a student in possession of drugs because another student made a report (anonymously of course), and if it was a first offense, then there was no expulsion. Instead, the parents were called in, along with the guilty student, and help was offered. Each school then held a convocation for all students at which the change in policy was announced.
Finally, the judges, working with the prosecutor, came to an agreement on a way to speed up cases involving drugs, and to an agreement on their sentencing philosophy. The result of all of this was that, for a time, drug trafficking radically diminished in the area.
We need to continue to explore and encourage ways to involve the community at all levels of the system.
When I became a judge, the court had functioned by creating a jury panel list at the first of the year, and then using that panel list for the entire year. I sensed a need to involve more citizens, so I changed this to create a new list quarterly. But I also changed the workings within the quarter so that as many people as possible had the opportunity to sit in the court, and/or in the jury box, for some portion of at least one trial.
I was seeking an informed public, although I could not have told you why it was important to me. For the same reasons, I tried to get school teachers from the 5th and 6th grades to bring students in to watch criminal court proceedings of guilty pleas and sentences. An informed public, including the future public, is our best hope for a sense of public peace.
I find it interesting that the Soviets considered one of the prime purposes of the law to be the education of the people in proper socialist- communistic behavior. In that connection, they had “Comrades Courts” meeting in apartment blocks. Some of their courts held hearings in factories and schools as a way to show the people law in action. Furthermore, it would be a rare court session which did not, as a part of any judgment, analyze and lecture upon the behavior of all concerned — parties, friends, and community — as to how their behaviors did or did not relate to Marxist-Leninist philosophy (which was actually a theology).
Now, let us look at some of the key players in our existing criminal justice system.
I believe there are a number of requirements of legislators and legislatures as they function in the legal setting:
(1) Legislators must do their homework concerning the criminal justice system. Prisons, the preferred method of punishment today, are neither the source of the problem nor the answer to the problem. Prisons cause pain, regardless of how good their conditions may be, and prisons incapacitate a person for a period of time. In light of the 150 year history of prisons, to suggest that prisons can ever do anything more than merely incapacitate, is to fool ourselves.
This does not mean that we may allow prisons to be inhuman. Nor does it mean that beneficial programs should not be offered to those who are in prisons. But it does require recognition that prisons do not deter, rehabilitate or reform. They can breed more hatred and violence, and they can teach the one confined how to be wiser in matters of crime. What I am saying is that money invested in prisons is probably counter-productive. There are definitely places where monetary expenditures will increase the potential for Restorative Justice to take place, but prisons are not one of them.
(2) Legislators must respond with truth to voters instead of statements which inflame. If legislators were fully educated in matters of crime, punishment and jurisprudence, if they refused to be swept up in periodic tides of citizen vengeance, and if they spoke truth to the people, then we the people would have a higher level of comfort towards the law.
(3) Legislators should declare as policy that we are seeking confrontation, reformation, and restitution, and not punishment. They then should measure all legislation against that policy. If we change our purpose, we can lessen the negative impact of the process, and the logjam caused by our protective rules. All this has the potential to encourage confession and acceptance of responsibility.
(4) Legislators must leave sentencing to the judges. Legislators do not generally meet the offenders who pass through the process of criminal judgment, nor do legislators generally meet victims in the presence of their offender. There is no way to fully judge the heart of either except in their face-to-face meetings. It is proper for legislators to fix upper levels of punishment, but not mandatory minimums. Even ‘sentencing guidelines’ are suspect, for they give an offender a place to cast blame — “I was not responded to as ‘me’ but only as some piece on an arbitrary grid-work.”
(5) Legislators should insist upon quality training of judges, prosecutors, law enforcement officers, and all others who come into contact with both victims and offenders in the criminal justice system. This training aims at making them agents for restoration, but with a full understanding of the need for, and methods of, confrontation.
(6) Legislators should require appropriate Pre-Sentence Reports for judges before sentence is pronounced. Legislators can also state what is to be in the report, and can provide needed resources to see that such requirements are carried out.
(7) It is also the role of the legislator to wrestle with the issue of the death penalty, and the manner in which all appeals in death cases will be conducted. They need to consider eliminating the quasi-judicial (and maybe the quasi-legislative) roles of the administrative law system. They need to reconsider what, if any, juvenile legal system there should be, what it should look like, and how it should function.
(8) Legislators might also want to re-think the matter of fines and limit their applicability to offenses with true public impact (drug dealing, pornography, industrial pollution, etc.) or cases with a commercial/economic motive. In the Bible, as we have seen, some orders of restitution were multiples of the loss. Maybe we could double the loss, with half to the victim and half to the state.
(9) Legislators should also provide for a proper education in jurisprudence for the students who will be the next generation of leaders.
(10) Possibly most importantly, legislators should provide enough courts and judges to process the cases with speed and without the necessity of plea or sentence bargaining. Under these circumstances, I believe that 95% of all criminal cases in the United States could be disposed of within 30 days of arrest with full constitutional rights in place, with full due process, with confronting and restorative principles included. I believe plea bargaining is not only harmful, but it is unnecessary.
The Law Enforcement Officer
Turning now to law enforcement officers, I believe they should represent the first line of a loving and proper confrontation. They also should represent the first point of potential contact of an offender with potential community support, the first point of contact with victims, and the first place to which victims and community may be invited to meet their offenders.
At arrest, the officer should spend time discovering facts about the community from which the offender comes, and those people from within that community who could have potential positive influences upon the offender in the future. For example, when I meet people in conflict, I begin with asking them not about the conflict, but about who they know, trust, respect, and see as having wisdom. If they know the other party to the conflict, I ask them who they think the other party might know, trust, respect, and see as having wisdom. Then I seek to draw these people — the communities — into the process. I know that they will have more impact upon the parties than will I, the “professional”. They are, after all, acquaintances and friends; I am not.
Where better to look for loving, confronting, responsibility-building people than in the Church? Is not the Church called to be like the father of the prodigal son, ever looking down the road in hope, willing to run down the road when the prodigal is seen approaching? What is a prodigal other than a repentant criminal heart headed home? Who better to test sincerity of heart than people of heart?
And are not we, the Church, given the responsibility for taking the poor, downtrodden, homeless, orphan, widow, and stranger in the land into our homes, and feeding and sheltering them until they may walk on their own? We are not told to build half-way houses, but to be half-way houses — and there is a difference.
I read recently of a man named John Augustus. In 17 years, from 1841 to 1858, in the city of Boston, he rescued almost 2,000 people from lives of crime. He simply would appear at the criminal court, with heart and eyes looking for a spark in the eyes of one who had been arrested, that spark which indicated repentance. He would then seek that one’s release into his custody, and work with him individually, meeting his needs as a servant. His success rate was unbelievable!
John is considered the father of the modern U.S. Probation System, but that system, unlike John, does not have such a fine track record. On the other hand, the probation officer today is paid for doing his work, and is not seen by the offender as a friend but as a part of the state and its system, designed to punish and repress.
When an officer finds people from the community willing to get involved, he invites them to the police station, possibly along with the victim or victims of the offender’s actions. This is the earliest and best time, place, and opportunity to confront, while offering hope.
If in the process of confrontation an offender displays a repentant heart, a contract for restitution might be made at the station, co-signed by the supporting community, and the offender would be released without further proceedings. A full record of the proceedings should be kept, however, along with the written confession and a copy of the contract. This is not so much for future use against the offender as it is to establish the appropriateness of the decision to release should questions arise from outsiders; that is, should “we the people” (the outsiders) complain that there was too much discretion or leniency in the process.
Another major function of the officer is to discover all other offenses which this offender may have done prior to being caught. Here, again, a system focused on restitution rather than punishment by imprisonment, coupled with a loving community, may increase the willingness of an offender to freely and fully confess. The additional victims are then also brought into the process, contracts entered into, etc.
Finally, officers should be the front line of contact with victims, letting them know what is taking place, asking them if they want to meet the offender and seeing how their “communities” are or are not assisting them in dealing with the results of the crime. Tangible love expressed to victims at the time of a harm should lessen the guilty one’s sense of victimization, and improve the possibility of his healing.
Possibly a proper function of the police would be to create victim service centers. These centers, if created, should be manned by volunteers, not paid professionals. Not only would they exist to reach out to victims, offenders, family and community of victims and offenders, but they would also repeat to the community that the system is working, something the jury used to do.
Finally, concerning the matter of restitution, we should avoid creating government restitution bureaus, which is a current trend through Victim Reparation Funds. This should not be a role of the government, but a role of the community. If the government takes over the role of the community, it enables the community to avoid its responsibilities, just as one who gives a bottle of alcohol to an alcoholic has enabled the alcoholic to avoid facing the truth of about himself.
Now, I accept the fact that some cases will go past an arrest and into the trial stage. For that reason, we will briefly discuss the Prosecutor.
The Prosecutor continues the confrontation of an offender started by the law enforcement officer by filing all known charges and never bargaining. Charges may be modified when further investigation shows that, because of the true nature of the offense, or the offender, the charges were originally misstated; but the prosecutor does not do the modification as part of any agreement with the defendant. He does it unilaterally.
Prosecutors should not, I believe, comment on any case publicly, at any time other than in open court as a part of the court proceedings. To do so opens a door for a defendant to cast blame: “I never had a chance; the prosecutor tried me in the press, and I couldn’t get a fair jury.” Never, never, never allow an opportunity for denial. Defendants have more than enough pressure from within themselves causing them to deny (their natural desires and effort to cover their sin) without our adding any opportunities!
Prosecutors also continue the relationship of the process to the victims, the community of the victims, and the community of the offender.
Should an offender at some point indicate repentance, the prosecutor should be willing to defer further proceedings until there is a full written confession and contract of restitution counter-signed by the community (as surety) and victim (through direct confrontation and negotiation).
Another function of the prosecutor may be the training of police officers on how to act under the ideas already set forth.
If legislators should continue to use mandatory sentencing, and if the courts continue to keep the jury in the dark as to the nature of the offender and the nature of the penalty, then the prosecutor might want to consider using a Grand Jury for all original decisions as to the chargeable offense. Here the citizens of the Grand Jury would be shown the facts concerning the offender, the offense, the various charges, and penalties available. They could exercise a moderating influence before the charge was selected and filed. And the offender, seeing himself treated with dignity and compassion at this point in the process, might elect to confess and accept the restorative justice option.
Finally, and this is for the police as well as for the prosecutor, the use of criminals as informants should be abolished. For example, using a person already charged with a crime as an informant against others gives the informant an excuse to rationalize what they then think to be any improper sentence in their own case. And sometimes, as in drug cases, an offender/informant will be sent back onto the street to make further drug sales — putting him back into the very sin he must forsake, and into further denial. These are harmful practices.
The Defense Attorney
Now for a look at the defense attorney. The true value of an attorney is to help an offender become an accountable and responsible member of society, to assist in repentance, rehabilitation, and reformation.
One thing which defense attorneys can do is to simply begin to do what they used to do, i.e., ask the client if he committed the crime. If the client acknowledges the crime, the lawyer should help in the construction of the community sentence, working with the prosecutor, victim, and representatives of community.
The lawyer must also confront the efforts of an offender to justify himself/herself. For example, for every person in the ghetto who steals, I can show you another who does not. For every person from a broken home who riots, I can show you another who does not. True, circumstances can harm us, but we still have the choice as to how we will deal with the wrong. To my fellow lawyers, I say: “There is a live person here, who needs to deal with his or her faults if they are to find justice. Help that process; don’t hinder it.”
At the same time, for the hardened heart and the repeat offender, we will still have a system adversarial in nature, where the attorney will have to function as a zealot. But those should be the exceptional cases rather than the norm.
Now, remember, I am speaking about the first time offender, not the hardened offender. I have practiced law this way, and discovered that the young ones will accept such a sermon delivered by the lawyer. They come looking for counsel for life, so let’s give them a chance. Oh, “young” has more than a chronological feature to it.
Maybe a case will help illustrate this:
My 19 year old client while somewhat intoxicated, with some friends, struck a man in the face and then threw gasoline at the man, while lighting matches and throwing the lit matches at him. Fortunately, no fire resulted.
He was charged with Attempted Murder, which at the time carried a mandatory 20 year minimum prison sentence without possibility of suspension or probation.
As I reviewed the matter with him, I advised him that he was guilty of every material element necessary to convict him of the crime. After a review of the law, the penalty and the procedures available, I gave him a short sermon about needing to make a confession because of the danger to the emotions and the soul which denial represents. I told him he would be more free in prison, having taken full responsibility for his actions, than he would be on the street if, by some miracle, through denial and game-playing, he managed to defeat the charge.
He agreed to plead guilty, without any hope, and without any attempt to plea bargain. The next day, during his effort to plead guilty, the prosecutor (not the one in the preceding cases) saw the repentant heart and, on his own initiative, reduced the offense to Attempted Voluntary Manslaughter. For this offense, the penalty was suspendable.
The judge sentenced the young man to 10 years in prison, and then suspended all but 5 months to be served in the local jail. The judge then added the stipulation that if the young man got admitted to college by the end of 5 months, he would be freed — which indeed took place.
I am attempting to present a comprehensive approach to the matter of harms done, and a way for dealing with cases. I know that not all law enforcement officers will always behave properly, but that does not relieve a prosecutor from proper behavior. Not all prosecutors will always behave as they should, but that does not relieve a defense lawyer from correct action.
Nevertheless, all must be trained, and we then hope for the best. Just as an offender cannot justify his crime by what someone in the system does or does not do, so no person in the system can justify his failure to act righteously because someone else in the system acted unrighteously.
Enforcement officers and attorneys in a case cannot function in the system I propose unless, of course, judges are trained and willing to operate their courts so that the potential for confrontation and restoration is enhanced, and so that knowledge by the offender of his guilt and responsibility is maximized.
Perhaps we should ask why we even have judges?
I picture our world as a seething sea of depraved, self seeking sinners, held in place by a thin dam which we call “civilization.” At any moment, this dam threatens to break forever, possibly at Armageddon. In the meantime, sitting there trying to stick fingers in a leaking dike, is the judge. And he, or she, has a special role in the biblical scheme of things: “Consider what you are doing, for you do not judge for man but for the Lord who is with you when you render judgment.” II Chronicles 19:6
If we search the Bible, we will find no similar language for those who legislate or for those who administrate. The judge is a peculiar person, for he gets all of that which we are unwilling to deal with in love. And I can tell you that a judge will, unless he is very careful, start to think that the entire world is like what he sees in court.
The judge exists to insert light into the darkness of conflict. This means confrontation of all who come before him, with the truth of their actions and inactions — including the law, the system, and those who function in the system. Obviously, a judge should know the measuring rod of the Bible if he is to fulfill his function, and should be selected because of that knowledge and commitment.
What are some of the things the judge ought to do?
First, the judge, so to speak, oversees the lawyers. If a prosecutor begins to routinely plea or sentence bargain, a judge must invite friendly “discussion”. Possibly a superior of the prosecutor is invited to join the conversation. Maybe a panel of community people, or experts in the field of crime and punishment will sit in on the meeting to train the prosecutor.
Likewise, if a defense lawyer is constantly attempting to delay, deny and avoid for their clients, the judge must ask for discussion. Historically, a lawyer was considered first of all to be an Officer of Court. This meant a primary responsibility to the system and community rather than to the client. If we replace the punishment model with a restorative model, we ought to be able to require the defense lawyer (except in the hardened offender cases) to revert to the role of an Officer of Court.
The reader may be aware of the fact that, in China, the prosecutor has a responsibility to find and present to the court all evidence which he can on the good features of the defendant, and the defense attorney is obligated to find and present all incriminating evidence against his client!
Second, the judge should assure a full and complete confession of the offender at the time of any guilty plea by asking any questions not asked by counsel. Every single fact of the offense must be fully spoken from the mouth of the offender. Each piece not spoken sits, like a stick of dynamite, waiting to explode in excuse or justification. It also leaves the victim without vindication and the community without adequate knowledge of the truth of the offense and the offender.
If the offender, hardened and calloused, refuses to openly confess his crime, but still wants to plead guilty, then the witnesses should come forth and speak in the presence of the offender.
Third, since we lack a jury as a tool of community awareness, the judge should become the chief spokesperson to the community. There is a need for, and methods available to, community participation in the system. Rather than a jury, the judge speaks to the question of whether or not the system is working. To muzzle a judge takes away that possibility.
We need victim assistance, community service restitution, victim-offender reconciliation, drug-alcohol treatment (both in-patient and after-care), and budget, family counseling, basic educational, and job-skill training, to name only a few programs. And we need real live and caring people from the community, as volunteers, not paid workers of the merciless State — to do these things.
Fourth, the Judge must assure that he has the finest, the most detailed, Pre-Sentence Investigation Reports which are possible regardless of what the legislature may or may not order. My pre-sentence reports were, generally, six to eight pages of legal size paper, single spaced. They gave me the basic facts of the offense, together with the offender’s version. These included a past criminal record, education record, work record, and family history. Often there was attached a drug-alcohol or psychological profile. School records of the youthful were also often attached. What I wanted was to know more about the offender than he knew about himself.
Fifth, since the Judge will, hopefully, have very wide discretion, and a multitude of options to work with at sentencing, he should sentence with two questions in mind:
(1) If an offender does not acknowledge the offenses, what is needed to continue the process of confrontation?
(2) If an offender appears repentant, what is necessary to encourage personal growth, engage the community in helping that growth, see to it that the victim is compensated, and offer healing for the wounds which have been caused?
A Sentencing Alternative
I have noted previously the historic functions of the jury, and how we have lost the protections the jury was to perform. But I have also noted that the jury may not have been known in the biblical system. Finally, I am proposing a system with a Restorative Justice focus which contemplates even more people not coming before a jury.
Yet, I want the community involved even more deeply in the process. One problem is that “we the people”, focused upon self and security, will always think the system is too lenient. Our current system, however, makes all offenders (and their communities) think it is too harsh. How can we combat both ends of this problem? Here is an idea:
After conviction (or a guilty plea), a Pre-Sentence Report would be prepared and reviewed by the judge. Both prosecutor and defense attorney have an opportunity to add anything they desire to the written Report. The judge then conducts a Sentencing Hearing with the defendant present. At the conclusion, the judge announces what he believes to be the proper sentence, but does not enter the sentence.
If either party feels the sentence is not appropriate, he may ask for a review by a community panel. This panel might be called up just as I called people for jury duty, so that a broad cross-section of the community would be involved, and so that many people would take part rather than a permanent few. Obviously, these people will be a voice for the community, but also a voice back to the community.
The panel then reviews what the judge had available, and has the opportunity to meet and hear from the defendant in person. The panel is not allowed to know the sentence suggested by the judge, however. The panel then announces what it feels might be an appropriate sentence.
Following this, the judge enters whatever sentence he desires; he is not bound by the recommendation of the panel.
I am willing to propose this because, if the judge is not bound by minimum mandatory penalties, my experience says that the panel will never be more severe than the judge. We could at least try this, couldn’t we?
As we re-think our law and system, we need to consider unique approaches to unique issues. While at the Second International Conference on the Future of Corrections (sponsored by the United Nations), in Poland in 1993, I had an interesting conversation with a representative of the Czech Republic’s prison system. He was lamenting the fact that Gypsies accounted for a very small portion of the population of his country, but a very large portion of the prison population — and almost all were in prison for non-violent property offenses.
(I must digress for a moment. In Estonia, in 1993, theft of a bicycle meant a three year prison term. Where there are no cars, or public transportation equal to the need, a bicycle is very much like a horse in the Old West of the United States, the theft of which meant hanging.)
I asked the Czech official if it was true that theft by trickery was a mark of honor to a Gypsy. He said it was. I asked if it was true that a Gypsy never stole from another Gypsy. He also agreed with that. I suggested the following:
When a Gypsy is arrested for theft, invite the Gypsy “elders” to attend all proceedings so that they can see the fairness of the process. After conviction, fix a penalty (along a multiple restitution concept), and then offer him for ransom back to the tribe. They would probably be harder on him then the legal system. The representative loved the idea, but I don’t know if they have tried it out or not.
RETURNING THE SYSTEM TO THE COMMUNITY
For Restorative Justice to work, I believe we need to seek to return the court to the community. We often have our courts located in massive buildings, with many courts, all central to a territorial jurisdiction. But thousands, hundreds of thousands, and millions of people in one area, even though only 24 miles across as in Moscow, is too large a territory for a community.
Community is something other than artificial boundaries of governmental units. It is friends, family, neighbors, and people already in our life — possible even with a “divine appointment” to help us when in need.
Moscow is full of large apartment buildings. Many of those buildings are, themselves, only one of several buildings focused around a park, lake, or school. Perhaps an individual building might represent community; maybe several buildings in a cluster would be such a community; maybe a church parish boundary would be a source of a community. Maybe it is a circle of friends, or family.
What I suggest is that we search for communities, wherever they may be, and establish courts in them. These courts might use lay judges, or even panels of citizens, with special, abbreviated proceedings, and flexible rules. Or a trained judge, and needed staff and recording equipment, may “travel circuit”, as we did years ago in the United States, moving from community to community as business demands.
Then based upon the nature of the offense and the known nature of the offender, we may offer (or force) a defendant, at time of arrest, to move into either an informal community judgment and sentence model, where he pleads guilty in a restitutional model; or else he is dealt with in the more normal adversarial system (which does not preclude the restitutional model). We might even retrain lawyers to be advocates for truth in these community proceedings.
The offender might even be invited to place one or two people on the panel whom he trusts and respects, and whom he feels he can listen to during the process. In this way, he will sense greater care and concern for him as a person, and be encouraged to be open and truthful.
However, we should not professionalize these proceedings; that is, we should not use the same people repeatedly as the panel of judges. Instead, we should continuously bring in new people. As mentioned earlier, the Soviets did this. But they had the wrong theology as a base.
We must also have some way to supervise these community courts, for there is always the possibility of some lynch mob mentality taking over. True justice means constant vigilance by every person in society.
A further idea might be that we consider a way for people to proceed without lawyers, or convert all lawyers into representatives of the interests of community as well as clients. I do not offer specifics, but I do issue the challenge to seriously consider these issues.
Testing For Repentance
How do we test the genuineness of a possible change? How do we test for repentance?
Change can come at any time in a person’s life, so I am going to assume we have been dealing with an offender whose behavior has warranted incarceration (I am not so naive as to think we are going to abolish prisons).
One day, it happens — Charlie wakes up like the son in Luke 15. He is sitting in a pig pen of his own making, a prison. Now he is repentant. There are three questions:
How do we find out that he is repentant?
How do we check it out?
How do we get him released if it is true?
First, we may find out because he will behave differently. He will no longer be crying for justice. His countenance will change, his speech will soften and a light of peace will come into his face. Someone will see this. In fact, I think we should have people employed (or volunteering) in our prisons whose only function is to interact with offenders, looking for just such lights. Correctional officers can be trained to look for this, as can those who may be presenting any therapeutic programs within the prison.
Well, the one who sees the spark begins some cautious conversation — some gentle probing: “Charlie, you seem different. What’s happening inside you?” If Charlie is in the process of changing, he will want to talk, but hesitantly. So the responsible person should be patient and let him ramble.
If a genuine change is detected, the officer or volunteer should ask Charlie who, outside of the prison, might be available — who he trusts, respects, sees as wise and mature. Then find these people and bring them in for further conversation. If Charlie doesn’t know of any, find out where he would go if released, and then seek some people from a church in that area to function as a possible community for Charlie.
Now comes the actual testing. With several people gathered together, start quietly asking Charlie why he is where he is. Ask him what he has done, for which he was or was not caught and punished. Ask him who he has harmed. Ask him if he is willing to meet those whom he has harmed here at the prison, to face them.
A repentant heart will respond positively, perhaps not all at once, and perhaps with a hint of fear or reluctance, but it will respond at some level. Be patient; this person is just beginning a process of growth. The more open he is in conversation, the more acknowledging of the wrongs he has done (with specific facts of the offenses), the less he places blame on any one or any thing, the more willing he is to face victims and community and to seek to make right the wrongs, the higher the likelihood that he is repentant.
Then carry a message to the victims. “Charlie would like to meet with you. We think he is different, but you need to see for yourself. Come back with us.” Assuming the victims will do so, further meetings are held. By the end of this time, there should be significant agreement among those meeting Charlie that he is, or is not, repentant.
Third, if Charlie is repentant, then let him out. It is really quite simple — open the door and let him out.
However, the community should be there to lead him out. It should be there offering housing, employment, counsel, encouragement, and especially accountability.
But, even if a community is not there, set him free; you will only be acknowledging that which God has already done. Possibly we keep a modified, but intensive parole system in place for people like Charlie where the state acts like community. The point is, Charlie should be set free, albeit with some sort of safety net in place.
The Civil Side to Restorative Justice
All that I have said has been primarily focused upon the criminal justice process. But everything which is true about confrontation and restoration in what we call criminal cases is also true of civil conflicts. The Bible does not differentiate between Crime and Tort in its language, nor should we.
Therefore, some comments relative to the civil side of the ledger are in order. We must consider how we may develop a system for the civil law which will be an impetus for face-to-face confrontation and reconciliation, rather than leaving us purely to litigation as our method.
The fact is that, just as in criminal cases, the vast majority of civil cases never result in those who consider themselves victims ever meeting the one they believe offended — or vice verse.
And, as in criminal cases, the vast majority of civil cases are settled without trial, but by a settlement agreement which is signed by each party and in which no party has any ownership. The agreements are coordinated by the lawyers, not the parties directly involved.
Now, I know this will seem to be lawyer bashing, but under the Common Law in England, there were three fascinating crimes which we no longer acknowledge: Common Barratry, Maintenance, and Champerty. All three were misdemeanors.
Common Barratry was for people who “commonly stirred up suits and quarrels between people.”
Maintenance was for people who “officiously meddled in a suit which did not belong to them, by, for example, assisting a party with money or otherwise to prosecute or defend a case.”
Champerty was for people who “made a bargain with one of the parties to, in return for some assistance with the case, divide the proceeds of the case at completion.”
It is, today, very common for an attorney to take a case for a plaintiff on the basis that the attorney will advance the expenses for processing of the case (to be paid back by the plaintiff if the case is not successful) and to take a percentage (normally 1/3) of the recovery. If there is no recovery, the Plaintiff owes nothing but the expenses advanced by the lawyer. Probably in the vast majority of all cases where no recovery is made, the lawyer never even seeks to collect the expenses; he simply writes them off as a cost of doing business.
This looks like a combination of Maintenance and Champerty. Obviously, the lawyer now has an interest in getting something from the case. Therefore, he has a direct interest in any settlement.
On the other side is the defense attorney — often representing an insurance company or large corporate producer of goods. This lawyer gets paid by the hour, for each and every hour of work which he does on the case, with no one to ever say if the work was necessary. He can easily be in violation of Common Barratry, i.e., stirring up the case so that the case continues on, rather than seeking reconciliation which might put an end to his services (and income).
To my way of looking at this, the question is not how many lawyers are acting unrighteously, but rather what is the almost unconscious effect of our system upon the action of the lawyer, and how does that effect the client.
Take the typical civil auto accident case, for example. At the first meeting between the Plaintiff and his attorney, the question of the value of the case will automatically arise. If we could actually survey the original estimates, I fear we would find they always substantially exceed the amount of an ultimate settlement. I also wonder what percentage of the time the defense lawyer tells his client at the first meeting that he is not liable, and will not have to pay anything.
In the following hypothetical case, let’s assume the lawyer for the plaintiff suggests that the case is worth $100,000. Some time later (normally very much later, as our cases move very slowly), the plaintiff’s lawyer says to his client, “I think we need to try to settle this case. After all” … and then comes a list of factors which might result in a less than favorable verdict if the case were tried. “So I suggest that we try to settle for $75,000.”
“What,” thinks the plaintiff, “happened to the other $25,000?” But the plaintiff has no way to judge this matter other than to rest upon the advice of the his lawyer. So he goes along with the proposal — and his lawyer writes a letter proposing the settlement to the lawyer for the defendant.
The defense lawyer calls in his client. I wonder how often the conversation goes something like this: “Plaintiff (never use the name) has offered to settle this for $75,000. Who does that malingering charlatan think he is? Well, knowing his attorney like I do, I shouldn’t be surprised. So we have some hard thinking to do. I know I told you I didn’t think you were liable, but (oh, the beauty of that word to the lawyer — “but”),” … followed by a string of reasons why the defendant should make a counter-offer.
The defendant, just like the plaintiff, has few options. So his lawyer writes the plaintiff’s lawyer, and offers some much lower amount. Would you like to guess about the conversation which occurs when the plaintiff’s lawyer talks to the plaintiff about the letter?
And the letters go back and forth, and the amount drops on the one side and rises on the other side until, one day, we have a settlement. Each party signs, the one paying saying that he pays without any admission of wrongdoing, and the other accepting while feeling wronged.
And they have never spoken directly to each other, let alone spoken to each other in an atmosphere which might encourage openness, confession, forgiveness, mutual seeking of what to do to make right the wrong, with people of their communities present to help.
No, I am not bashing lawyers — I am only commenting upon our behavior. We do it from ignorance, having never been taught the biblical alternative.
I also recall the time I asked my client, a defendant, if he had caused the accident. He said that he had — he had gone through the red light, half asleep. I asked him how he felt now about the situation, and he acknowledged feeling a bit angry, being short with people, having kicked his dog. I asked if he had told the plaintiff that he knew he was at fault, and that he was sorry.
“Well, of course not,” he replied. “My insurance company said that I couldn’t talk to the plaintiff, and the lawyer for my insurance company told me the same thing — something about having to cooperate with him in the defense of the case.”
I pointed out what the Bible says: “Confess your faults, one to another, and pray for each other, that you may be healed.” James 5:16 I then asked whether he thought his anger might be some thing that needed healing through confession.
He, of course, wanted to know what impact this might have on the case — the suit was for more than his insurance coverage. I told him it would make no negative difference unless he intended to commit perjury, and deny he caused the accident — because one day they would ask him that question.
After some further discussion, he said he wanted to meet the plaintiff and confess. We called the insurance company to tell them what we were going to do and got screamed at and threatened with loss of insurance, refusal to defend, and refusal to pay any settlement or judgment. However, by this time my client had crossed over from the law side to the love-lived-out-in-good- relationships side of the ledger, so we met with the plaintiff and his lawyer.
Later, the plaintiff and the defendant went fishing together. Still later, they — not their lawyers — crafted a settlement. I tell you the obvious truth: these men had ownership of that settlement. And they were not left, at the end of the case, with anger, confusion, or disillusionment.
So, what might be done with our present civil cases?
First, we must take every opportunity to reduce the size of the battle field. For example, because we have 50 sets of state laws and procedures, we have battles over which court, in which state, to file suit. To the extent we are able to make our laws and processes uniform, we would reduce the size of the field. In the laws related to merchants, through State adoption of the Uniform Commercial Code, we have been able to accomplish a great deal.
We might establish a Defective Product Arbitration Panel process, where an independent organization would review the issue of defective product, and make participation in such a process required before suit is filed. Then, if the panel found that the product was defective, and the manufacturer sought to defend on the issue of liability (as opposed to the issue of damages), then if the manufacturer lost at trial he would have to pay the attorney fees of the plaintiff. And, of course, the reverse could be true for the plaintiff who persisted and did not win. Or maybe it should be the lawyer who must pay — a way to punish true Champerty.
Do you recall the “as you sought to do it unto the other, so it shall be done unto you” provision in the Bible for witnesses who testify falsely? Perhaps we need more power in judges to correct what amounts to abuse of the law and process and issue penalties for “bad faith”.
I know a case in which the parties had signed an agreement to arbitrate any conflict which might arise under their contract. Sure enough, a conflict arose — and one refused to arbitrate. This forced the other party to file a lawsuit, in agony over violation of I Corinthians 6 (both parties were Christians, and the one refusing arbitration also refused all efforts under Matt. 18). The Court ordered the refusing party to, in essence, “honor your vow — arbitrate,” but had no power to order that one to pay all the legal costs of being forced to honor his vow. We need to consider these matters further.
In the same way, we might have professional peer panels for doctors, dentists, lawyers, and others accused of malpractice.
There could be a requirement of face-to-face meetings by the parties, with or without their attorneys, but conducted by people trained to confront with gentle love. This would not be mediation or arbitration, as we know and understand these terms. It would seek reconciliation of attitudes, feelings, emotions, while seeking honest ownership and acknowledgment of one’s actions. It would be hoped that, through the process, hearts might be changed which would allow the parties to then construct a settlement. In this way, the parties own the settlement, and not the lawyers.
Finally, the Christian Church must reassert its proper and historic role in conflict resolution. It must preach and teach its people when in conflict that they are to come first to the Church, not to the lawyer (I Corinthians 6:1). It must be willing to enforce discipline against its people who refuse to participate in the Biblical model. This model is not a model of judgment (“Who made me a Judge among you,” said Jesus to the two young men in conflict) but of confrontation in love, with truth (“But beware every covetous thought,” added our Lord and Savior).
And in this matter of the Church, our Christian leaders must take the lead. Far too often, we see our men of stature refusing to meet in a biblical process. If we, the people of Christ, want others to follow us, then we must take the high road at every turn: “Then the leaders led in Israel; then the people volunteered; to the blessing of the Lord.” Judges 5:2
It is as I told my students in Moscow:
“You are going to be the future leaders of the law in your nation — a nation unused to rule of law. Therefore, you do not walk over the grass; you do not walk the wrong way in the Metro tunnels; you do not throw litter on the ground. At every moment, in every thing you do, you consider that the entire world is watching, so be a right example. And always give your client the best; give him the truths which set people free.”
Much more could be said. But I seek only to create discussion, so I close with the story of Philip, and what is possible.
Philip, 26 years old, a member of an Indian tribe in the Canadian Northwest, while drunk, attacked a police officer with a baseball bat. This was his tenth felony offense over a 10 year period, all of which had involved violence and alcohol. On the last few occasions, Philip had been sent to prison, each time for a longer period of time.
But something different happened this time, something of community.
First, the officer ran away. Rather than shoot Philip, or risk injury to anyone, the officer, knowing where he could find Philip the next day, simply left the scene. The next day, Philip was taken into custody.
When the judge arrived several days later, he was met by the tribal leaders. They told the judge that they had been debating why they had people like Philip, and why they had so much alcohol abuse, and other community problems. They told the judge that past efforts, including sending Philip to prison, had obviously not worked. They wanted to try a different way — what they historically had known as a Tribal Healing Circle.
The judge had come with one question in mind: How long do we send Philip away for this time? He agreed to the tribal proposal. He did not know that instead of a two day trial, he would be in the village for four weeks.
The trial ended with a community sentence, in which many different individuals, the community, and Philip, all agreed upon an alternative way to deal with the past, the present, and the future.
Here are some of the words of the judge:
“In any decision making process, power, control, the overall atmosphere and dynamics are significantly influenced by the physical setting and especially by the places accorded the participants. Those who wish to create a particular atmosphere, or especially to manipulate a decision-making process to their advantage have, from time immemorial, astutely controlled the physical setting of the forum. Among the great predator groups in the animal kingdom, often the place secured by each member in the site where they rest or hunt, significantly influences their ability to control group decisions. In the criminal justice process (arguably one of contemporary society’s great predators) the physical arrangement in a Courtroom profoundly affects who participates and how they participate. The organization of the Courtroom influences the content, scope, and importance of information provided to the Court. The rules governing the Court hearings reinforce the allocation of power and influence fostered by the physical setting.
“The combined effect of the rules and the Courtroom arrangements entrench the adversarial nature of the process. The Judge, Defense, and Crown Counsel, fortified by their prominent places in the Courtroom and the rules, own and control the process — and no one in a Courtroom can have any doubt about that.
“If the objective of the process is now to enhance options, afford greater concern to the impact upon victims, shift focus from punishment to rehabilitation, and to meaningfully engage the community in sharing responsibility for decisions, it may be advantageous for the justice system to examine how court procedures and physical arrangements mitigate against these new objectives.
“In this case, a change in the physical arrangements of the Courtroom produced a major change in the process.
“Arranging the Court in a circle without desks or tables, with all participants facing each other, with equal access and equal exposure to each other, the dynamics of the decision-making process were profoundly changed.
“Everyone around the circle introduced themselves. Everyone remained seated when speaking. After opening remarks by the Judge, Defense Counsel and Crown Counsel, the formal process dissolved into an informal, but intense, discussion of what might best protect the community and extract the Defendant from the grip of alcohol and crime.
“The tone was tempered by the close proximity of all participants. For the most part, participants referred to each other by name, not by title. The circle focus dramatically changed the roles of all participants, as well as the focus, tone, content and scope of discussions. The following observations denote the obvious benefits generated by the circle setting:
“(1) The foreboding Courtroom setting discourages meaningful participation beyond lawyers and judges. It contributes to encourage the community to believe judges uniquely and exclusively possess the wisdom and resources to develop a just and viable result. They are so grievously wrong! Counsel, due to the rules and their prominent place in court, exude such confidence and skill that lay people commonly perceive as a prerequisite to participate. The circle significantly breaks down the dominance that traditional Courtrooms accord lawyers and judges. In a circle, the ability to contribute, the importance and credibility of any input, is not defined by the seating arrangements. Questions about the community and the accused force discussions into a level of detail usually avoided in the courtroom by sweeping assumptions and broiler platitude. The circle denies the comfort of evading difficult issues through the use of obtuse, complex, and technical language.
“(2) The circle drew out the person behind their role, and encouraged a more personal and less professional contribution. It fostered a greater sense of equality between lay and professional participants. The sense of equality and discovery of significant common concerns and objectives is essential to sustain an effective partnership between the community and the justice system.
“(3) The circle, by enabling the offender to speak for himself, and by enabling others who have known him all of his life to share their knowledge, substantially improved the Court’s perception.
“(4) The circle, by enhancing community participation, generates a richer range of sentencing options. The circle forges a collective desire for some- thing different. Fuelled by the expanded and responsive flow of information, the circle participants worked towards a consensus, towards a unique response to a problem that had plagued the community for 10 years and had stolen ten years from the life of the defendant.
“(5) The circle, by engaging everyone in the discussion, engaged everyone in the responsibility for finding an answer. The consensus-building approach fostered not just shared responsibility, but instilled shared concern to ensure the sentence was successfully implemented.
“(6) This was the first time the Defendant heard anyone from the community offer support. He could no longer believe that the police and the community were solely interested in removing him from their midst. These comments within the circle drew him into the discussion.
“(7) Many offenders perceive only the State as the aggrieved party. They fail to appreciate the very human pain and suffering they caused. Absent any appreciation of the victim’s suffering, offenders fail to understand their sentence except as the intrusion of an insensitive oppressive State bent upon punishment. The circle affords an important opportunity to explore the potential of productively incorporating the impact upon victims in sentencing.
“(8) The Courtroom, ideally suited to meting out punishment with its potentates on raised podiums — appropriately robed in black — retains its historic function as a degradation ceremony. This atmosphere is counter-productive to developing a constructive rehabilitative plan or genuinely inspiring offenders (except out of fear) to pursue rehabilitation. Punished by a community, the offender must face his sentencers daily. Punished by a Court, the offender confronts disapproval of a stranger, enforcing strange laws, whose punishment carries the authority of the State.
“(9) Despite the appalling track record in either stemming the rising tide of crime or in rehabilitating offenders, communities persist in placing excessive reliance upon the justice system. In effect, conflicts are stolen from the community by the justice system. Properly processed, conflict is an essential element in building the foundation of community spirit and pride, and most importantly in building the ability to cooperatively develop
community-based solutions to social problems. The circle discussions highlighted the severe limitations of the justice system and the consequent value and necessity of community members assuming responsibility for community well-being.
“(10) The Court’s process, often preoccupied with the administration of law, is not sufficiently alive to the reality of what happens in the community before and after a sentence is imposed. The circle discussions force community members to see beyond the offender, and to explore the causes of crime. This search inevitably leads to assess what characteristics in the community precipitate crime, what should be done to prevent crime, and what could be done to rehabilitate offenders.
“(11) After several offenders have been processed through the circle, circumstances within the community that directly or indirectly influence criminal behavior will become patently obvious. Circle participants, in gaining an appreciation of factors contributing to crime, may exert pressure to realign community expenditures and may stimulate local business to recognize their best interests are served by developing community based alternatives to prevent crime. Circles reveal that community based support systems are necessary to reenforce and sustain courageous struggles against substance abuse or other personal difficulties. The discussions generate a collective will to constructively intervene to help individuals and families obviously in trouble.
“These changes to the sentencing process are not the making of a panacea. They are relatively small steps in a very long journey to move the criminal justice system from its destructive impact on people and communities to doing what it should — working closely with communities to prevent crime, protect society, rehabilitate offenders, and process conflict in a manner which builds, not undermines, a sense of community.
“In Philip’s case, as with many others, jail sentences are unfortunately not simply the last resort, but the most expedient means of sweeping out of the community, off the case docket, a difficult problem. Crime will mysteriously disappear, society naively presumes, if criminals are sent away to jail. … The intended purpose of jail sentences must be subject to the scrutiny of what actually takes place in jail. and of what objectives jail can realistically achieve. … [Philip’s] record demonstrates at best the
ineffectiveness of jail in fostering law abiding conduct, at worst the record confirms that those who re-offend the most are those who have been punished the most. The criminal record, the information shared by Philip in the circle about his experiences in jail, and the singularly constant theme in all professional assessments, provide compelling reasons to conclude that further punishment, particularly incarceration, would continue to lock Philip into a life of crime and self-destruction. Philip’s life of crime, exemplifies in human terms the futility and destructive potential of unnecessarily long and too frequently employed jail sentences. All major studies have echoed the same message: “jail must be a last resort”, “all other alternatives must be explored”, “much greater restraint must be exercised in the use of jail sentences.”
[Excerpts from: R. v Moses, Yukon Territorial Court, “Reasons for Sentencing,” of His Honour Judge Barry Stuart, January 9, 1992. ]
Healing circles can be, I believe, created systemically. What do we have to lose by trying?
[Mr. Bontrager is available for speaking, teaching, and technical assistance to churches, Christian colleges, ministries and businesses on resolving conflict Biblically.]