Christianity and Criminal Law edited by Mark Hill QC, Norman Doe, R.H. Helmholz, and John Witte, Jr.
This volume is one of several new introductions to Christianity and Law commissioned by the Center for the Study of Law and Religion at Emory University. Each volume in the series is an anthology of some two dozen chapters written by leading scholars and contain historical, doctrinal, and comparative materials designed to uncover Christian sources and dimensions of familiar legal topics. Each volume is authoritative but accessible, calibrated to reach students, scholars, and instructors in law, divinity, graduate, and advanced college courses, as well as educated readers from various fields interested in what Christianity has, can, and perhaps should offer to the world of law. Earlier titles in this series include Christianity and Law (2008); Christianity and Human Rights (2011); Christianity and Family Law (2017); Christianity and Natural Law (2017); and Christianity and Global Law (2020). Other titles are in press on Christianity and Conscience, Constitutionalism, Economic Law, International Law, Migration Law, and Private Law. We aim to commission other such volumes on Christianity and bankruptcy law, education law, elder law, environmental law, health law, labor law, procedural law, remedies, and other familiar legal topics.
What follows are two slightly edited excerpts from this volume on Christianity and Criminal Law, which can be purchased online here.
An Overview by Lord Judge, formerly Lord Chief Justice of England and Wales
Extracted from his Preface to the volume
The Temple, where the London symposium met to debate drafts of the chapters in this volume, is quite literally the very same ground trodden by King John, the Barons, loyal and rebel, Archbishop Langton and the Princes of the Church as they tried to negotiate a settlement and thrashed out a solution for the dispute between the King and the Barons. They embodied it in a charter which became the first clause of Magna Carta itself the following June. At the time, our brilliant, emblematic Temple Church had only just been consecrated. The Temple was a place of sanctuary. To shed blood here would have been a sin imperilling the immortal soul. It was also somewhere the immortal soul – and the day of judgment was inevitable – would probably feel safe to negotiate.
And it is in this church that one of the great unsung heroes of history, William Marshal, was laid to rest. Although unsung, without him Magna Carta would have been a mere footnote in history and but one of many charters to much the same effect which were dished out by mediaeval European rulers. We are all familiar with its provisions that justice was not to be denied or delayed or sold, but the charter also provided that people would not be at risk of any penalty unless they had contravened the law of the land — not some generalized law of God, but the law of the land. The judges were required to know that law and uphold it, and the law enforcement officials, like sheriffs and bailiffs, were not to act in a judicial capacity. Those principles stand today, and quite what the law in 2018 orders and prohibits has become more convoluted. One simple phrase in a chapter in this volume says it all: “Criminal law is a vast subject.”
Here in England, and no doubt elsewhere in what I shall describe as the Christian world, we are now inundated with prohibitions or directions which, if disregarded, may produce a penalty. Where there were once Ten Commandments, we now have tens of hundreds, thousands of criminal offences, well in excess of five figures. They range from laws against driving at a prohibited speed, to a relatively recent law prohibiting anyone from causing a nuclear explosion. Quite who will survive to investigate the crime, bring the perpetrator to whichever court had survived the explosion, and where the judge and the jury, and the prison, and prison officers, to keep the defendant secure will be found are not explained. But one could argue that both speeding and causing a nuclear explosion are derived from continuing attention to the exhortation to us all to love our neighbour. With this distinction: that in many situations exhortation is no longer believed to be adequate and enforcement by criminal penalties is deemed necessary.
The chapters in this volume represent a fascinating group of studies: stimulating, learned, provocative, and profound. I have had the privilege of reading them. They make a scholarly read. My attention has been drawn to Aeschylus, war veteran of the Battle of Marathon, whose plays I tried reading at 17 years of age, and which I never did complete, to Kubrick’s Clockwork Orange, which I never saw. I have noted Bushell’s Case,1(1670) 124 ER 1006. which I know well, and Barnette’s Case,2West Virginia State Board of Education v, Barnette 319 U.S. 624 (1943). of which I was ignorant. Today’s world has been represented by commentary among many others on restorative justice, plea bargains, and presidential pardons. We have been enlightened from Plato to the modern day via all the Fathers of the Church. Christianity is some 2000 years old, but its roots are found in mysticism from the Middle East, Greek philosophy, Roman law, and of course, Judaism. This history and these foundations and the inexorable revolutions of time have commanded concentrated attention, and they have received it.
Where to begin? As more than one of the chapters does, perhaps we should start at the very beginning in the Book of Genesis itself — in the Garden of Eden, where the first crime was committed, the first trial took place, and the first sentence was imposed. The defendants were not represented. If you were defending Adam and Eve, your mitigation plea would have proceeded along the lines that this was mere theft of an apple, no doubt one of many on the same tree, and unless eaten, an apple which would have become a wizened windfall by the end of the summer. This message was undoubtedly given to the defendants by the serpent, which it is not to be forgotten was itself part of God’s creation. With forensic carriage, the advocate might have asked why such an evil spirit creature was created at all. In any event the serpent was largely to blame for introducing the idea, offering the temptation, and distorting their judgement. The prosecution’s argument would have been quite different. This was not eating any old apple. This was not a minor offence against property. This was eating an apple from a particular tree. It represented direct defiance of the only law in the Garden, a law of utmost simplicity, and constituted an irremediable breach of trust. The motive — seeking knowledge which would have made them almost Godlike — was shameful. The offence constituted a terrible threat to the whole of His magnificent creation. Every judge trying criminal cases has listened to beguiling, but mutually contradictory, submissions of this kind. And every judge must resolve how, justly, to balance them.
The sentence was expulsion from the Garden, with the additional physical punishment on Eve that was extended to all her daughters for eternity. Beyond that, all children, every boy baby and every girl baby, were marked with original sin. All humanity’s tribulations followed. The very next crime was fratricide, when one of Adam and Eve’s sons, Cain, killed another son, Abel. Was that not a direct consequence of the expulsion, just for eating an apple? Or was it an inevitable consequence of man’s fall? Or both? So that raises the question of whether the sentence for stealing an apple, even this particular apple from this particular tree, was excessive? Did it do any good? Should there have been a short period outside the Garden to show the defendants what the world outside would be like? But would not any period outside have contaminated their innocence irretrievably? So maybe, a warning would have sufficed? In the High Court of Eden mercy did not temper justice. So what was the point of the expulsion sentence? Was it simply the vindication of the law, a better society, with future generations understanding or having a clear understanding of the need to earn eternal life? Maybe, a truly merciful sentence was not realistically available. Or again, maybe, mercy was indeed shown. They were not executed. They were given the opportunity to earn ultimate redemption, assuming that is that they were not predestined to fail. Again, any sentencing judge will identify with these problems. And it can perhaps be argued that the fact that problems like these are identified daily in the criminal justice process, and are expected to be so identified, may itself be derived from the long history addressed in the following chapters.
In passing, I underline that there was no mitigation plea. The defendants were unrepresented. The judge who had laid down the law himself concluded that they were guilty and himself passed sentence. In the Garden of Eden the trial process was unfair. It is perhaps too late for a prerogative pardon.
The story of the first crime provides a vivid illustration of the societal impact that crime can have. Every society, even the most primitive, has laws. And breaches of society’s laws, even when based exclusively on religious belief, as it was very quickly discovered, could not just be left to the hereafter. Even a theocracy enforces its laws on Earth. It does not leave what are asserted to be divine laws to divine justice, but rather purports to imbue the enforcing authorities on Earth with the investment of divine agency.
This volume directly addresses Christianity and Criminal Law. Today, Christianity includes numerous, though not always consistent, beliefs and traditions. These beliefs and traditions include, among others, those of the Coptic Church and the Greek Orthodox Church, and in the Western world, those of Protestantism and Catholicism with their different manifestations and beliefs. Men and women have died horrible deaths because of their belief in or rejection of predestination or, the alternative belief, free will. In this history the Reformation is really pretty recent, and over twenty centuries the authority of the Christian Church, or more accurately, Churches, has varied within different societies, sometimes waxing, sometimes waning.3 Christianity and Criminal Law See, e.g. Euan Cameron, The European Reformation ( 1st ed. 1991).
The secular arm of the State and religious authority have at times been virtually indivisible and at others, at loggerheads. Usually that is a consequence of the struggle for power, political power, often dressed up as a religious issue, but sometimes the struggle for political power is directed to a moral issue. Was Henry VIII in breach of the law of God when he married his dead brother’s wife, and so cursed? The short answer is that he cannot have been, because he became, and apparently always had been, the Supreme Head of the Church in England. So it was just the marriage that was cursed. In passing, everyone ignores that his second marriage was equally cursed, because before he met Anne Boleyn, he had slept with her older sister. Instead of dismissal suffered by Catherine of Aragon, Anne Boleyn faced trumped up charges of infidelity. But Henry’s struggle with the Pope, however dressed up in Biblical texts, was about power. If the Pope would not provide him with the outcome he desired, that power would be placed where the desired outcome could be guaranteed.4 Christianity and Criminal Law See, e.g. Arthur Geoffrey Dickens, The English Reformation (1st ed. 1964).
Every society has had to address the immediate problem, the daily problem, of the appropriate way to deal with the individual who has committed an offence. That responsibility is ultimately carried by judges, themselves fallible fellow human beings. With the possible exception of cases involving children, and the very rare cases involving life and death decisions, if you asked most judges to identify their most burdensome responsibility, it would rarely be the law, however complicated and difficult that may often be. Rather, it would be how to deal with the post-conviction decision. So many factors are in play. There is the crime itself and how contemporary society views the crime; there is the victim and the consequences for and impact of the crime on that individual, and sometimes on wider society; there is the defendant, with all their history, and their level of culpability and their intention at the time when the crime was committed; and there is the future as well as the past. What is most appropriate, punishment or rehabilitation? This obligation carefully to balance many factors, some of which at least are in conflict (and I could give an entire lecture on the subject), is a responsibility shared by every judicial authority — the pagan, Christian, Mohammedan, or atheist — whether society has or does not have a religious foundation, or indeed is a theocracy.
One of the constant themes in this volume is achieving the appropriate balance between justice and mercy. Assessing the proper balance between them is an awesome responsibility, and perhaps throughout these discussions we should bear in mind that in every Christian country every day next week men and women will be doing precisely that. For them all, the Christian heritage does not diminish the burdens. I began practice at just about the time when the death penalty was abolished and I went to the Court at Nottingham the day after one of the very last of such sentences was imposed. The atmosphere was bleak. The court where that sentence had been passed was shut. I was told that the judge, a member of the Anglican faith, was spending the whole of that day praying in the nearby church.
The story of sin and crime and their possible overlap and the confusion between them has been a vivid aspect of history. To me one of the most interesting aspects of studying the chapters in this volume has been the distinction between the crimes which constitute offences against what might fairly be described as religious (crimes alleged to be against God in Heaven) and those which are crimes against the Church on Earth (for example, sacrilege) and the impact of the distinction on developing thinking. On a personal level, I remember with fondest love my Catholic grandmother, the most devout of women, with a burning faith and belief in the afterlife who would have been much more concerned about sin — which she would have seen as an offence offered to God, an insult to Our Saviour, who died on the cross to expiate our guilt — than about the place occupied by such a sin in the list of crimes. To her, I suspect, suicide was a sin, a mortal sin, and by comparison with mortal sin the question of whether it was a crime or not would have been trivial.
Largely, today, we live in a secular society in which the authority of the Christian Church has significantly diminished. Our beautiful churches, every single village offering testament to the worship and devotion of previous generations, are now largely empty. How many really believe, as my grandmother did, that this present life is a mere testing ground for eternity, with the immortal soul facing judgment by the Almighty, just as Adam and Eve did? The continuing role to be played by Christianity, or indeed any other faith, in the development of the criminal law will inevitably become less intense than it once was. Even if it were to diminish to extinction, even if we no longer believe in sin, as the following, distinguished, chapters demonstrate, Christianity’s continuing influence on criminal justice in Western society will abide. ♦
Lord Judge was Lord Chief Justice of England and Wales from 2008 until his retirement in 2013. He is convenor of the crossbencher peers in the House of Lords and a Distinguished Fellow and Visiting Professor at King’s College London. He was President of the Selden Society between 2007 and 2013. He is co-author of Magna Carta Uncovered (2014) and the author of The Safest Shield (2016).