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 Introduction by Mark Hill QC
Extracted from his Introduction to the volume
In the view of the famous student of comparative law Henry Sumner Maine (1822–88), the earliest days of European criminal law were marked by a decidedly religious character.1 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (1861), reprinted in Beacon Series in Classics of the Law 1–19 (10th ed. 1963). It was God who first instructed men that they were not to commit murder. It was God who alerted men to the dangers of perjury. If a king issued a similar law, he did so as God’s chosen ruler, giving specific form and force to what was at bottom a religious command. Maine was far from alone in this characterization of religion’s early link to law. Indeed, variations of the theme of religion’s relevance to the growth of Western legal systems continue to appear in the works of modern historians.2 See, e.g., Der Einfluss religiöser Vorstellungen auf die Entwicklung des Erbrechts (Reinhard Zimmermann ed., 2012); Thomas Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence (Faculty of Political Science of Columbia University eds., 1923); James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (2008). Maine’s view also long held the field among European and American lawyers, theologians and historians. Brent Strawn’s chapter, which opens this volume, supports our recognition of Maine’s characterization of the historical tie between law and religion. The law of crimes, Strawn demonstrates, is “profoundly godlike when seen through ancient eyes.”
Today’s law, however, appears to have lost this ancient character. Making a causal connection between our criminal law and religious commands is a habit we are widely regarded as having outgrown. Time and opinion move on. Religion now belongs within the private side of modern lives, not within the public world of courts and crime. The Age of Enlightenment’s signal achievement was to break the existing link between law and religion. Heikki Pihlajamäki’s magisterial contribution to this volume explores the complexity of this subject. He shows that religion did remain a force to be reckoned with, even among most Enlightenment thinkers. Subject to this amendment, a significant one, Pihlajamäki’s chapter does not deny the gradual impact of secularism on this subject. He would agree. To many recent commentators, the Christian religion appears to stand as an obstacle in the way of reaching desirable goals within their own systems of criminal law. Religious history — replete with witch hunts and incineration of heretical dissenters — is thought to be ample evidence of the wisdom of religion’s relegation to the sidelines of public life and penal law.
Why, then, does it make any sense to produce a volume devoted to investigating the relationship between Christianity and the criminal law? And once produced, why should anyone read it? Answers to this objection are found in the chapters which follow, but it is worthwhile to identify some of the threads that tie them together. Several good reasons exist for undertaking an investigation into the connections between crime and religion. Different sorts of readers will take an interest in the subjects found in this book’s chapters. Some of these interests will seem immediately obvious to most of us. Others require more thoughtful consideration of religion’s legitimate role in modern criminal law. Whilst more challenging, they are also the more deserving of scholarly attention and thought.
The Immediate Interests of the Subject
Several groups of potential readers will profit in an immediate way from the essays in this volume. The first is made up of the men and women whose professional careers intersect with its subjects — religion and criminal law. The clergy are the most obvious members of this group. Virtually all Churches — Catholic, Protestant and Orthodox — have canons. They contain rules and legal principles touching on various offences and offenders.3 See, e.g., Mark Hill, Ecclesiastical Law (4th ed. 2018). They establish court systems, enact procedural rules, and provide definitions of both wrongful conduct and available remedies and penalties. Norman Doe’s chapter draws upon his own pioneering spade work in exploring this subject,4 See Norman Doe, Christian Law: Contemporary Principles (2013). and several other chapters in the volume add to the work he has done. The chapter by R. H. Helmholz on the mediaeval canon law’s treatment of criminal law provides an historical example. A good number of basic Western criminal law concepts of mens rea, actus reus, and causation, as well as basic crimes against persons, property, religion and morality, have roots in the mediaeval Christian sources and their antecedents in the first millennium.5 See, e.g., R.H. Helmholz, The Spirit of Classical Canon Law(2010).
A real need exists today for greater knowledge of this subject among the parochial clergy. Few would dispute that this knowledge is too often slight or even non-existent, and Doe’s chapter provides an attractive start for opening up greater knowledge on this topic. Not only that, the book’s utility may also prove immediately useful to the clergy in several ways. For instance, they provide an abundance of material that is of potential use to the clergy in their capacity as preachers. Some of it will enliven their sermons. John Stinneford’s chapter, for example, includes the fascinating showing that today Adam might have been convicted of the English offence of “scrumping” (taking fruit from a common orchard or garden). This is, at most, a misdemeanour, a minor infraction of the law, but the story in the Book of Genesis reminds us that God’s commands go beyond simple obedience to existing law. A comparison with Adam’s action with the modern law of scrumping will bring that point into dramatic focus. His fate will confirm the preacher’s point. This book is full of such treasures.
Another group of professional men and women who will profit in an immediate way from the essays that follow are lawyers — specifically, lawyers whose practice includes disputes in matters connected to religious life. This has been a perennial field of contention, and it remains an area of litigation to this day. It sometimes seems to be growing in frequency and importance. The laws of most Western countries guarantee religious freedom to its citizens. What, then, happens when that freedom comes into conflict with secular laws? This is not a new question. It has a long history. Consider, for instance, the example and the effects of the fourteenth-century English statutes of Praemunire.6 25 Edw. 3, Stat. 3, c. 22 (1351); 27 Edw. 3, Stat. 1, c. 1 (1353); 16 Ric. 2, c. 5 (1392); see also W. T. Waugh, The Great Statute of Praemunire of 1353, 37 Eng. Hist. Rev. 161, 173–205 (1922); E.B. Graves, The Legal Significance of the Statute of Praemunire of 1353, in Anniversary Essays in Mediaeval History by Students of Charles Homer Haskins 57, 57–80 (Charles Taylor, ed., 1929). These statutes sought to curtail the Church’s freedom of action by restricting rights of appeal to the papal court. Nathan Chapman’s chapter on Crimes Against the State addresses similarly significant questions which laws like these now raise. It is a continuing problem, one that involves conflicting but legitimate loyalties. His analysis begins, as do that of several other of the present authors, with the writings of St. Augustine. The treatment of this subject by the ingenious Bishop of Hippo is not identical with what today’s analysis will yield, but the chapter demonstrates both how old the question is and how varied Christian responses to it have been. Augustine also still has something of value to say about the legal treatment of the conflicts that arise, and this volume provides a ready entry into his thoughts on the subject.
A further group of readers who will find subjects of immediate utility in this volume’s chapters consists of the students and teachers in universities and law schools that offer courses and seminars in law and religion. This has become a growing field of study. The current Directory of Law Teachers in the United States lists 104 teachers of courses and seminars on the subject, and the Association of American Law Schools’ section on law and religion claims more than 450 members.7 See The AALS Directory of Law Teachers 1567–68 (2017-2018 ed., 2018). Academic centres devoted to the study of law and religion have also sprung up to become established institutions at several American universities — Emory, Brigham Young, Pepperdine, St. John’s in New York, Notre Dame and Villanova, for example. Since 1998, Cardiff University in the United Kingdom has had a successful Centre for Law and Religion, and other centres have popped up on the Continent, in South Africa, Southeast Asia and Australia. There is now an International Consortium for Law and Religion Studies, together with various regional consortia. Several of the chapters in this volume will help students in these institutions go beyond a concentration on the constitutional disputes that test the limits of religious freedom. The breadth of its essays, including both history and future possibilities for change, will help lawyers and theologians gain an inside look at the character of religious law itself. Such a look will also take them well beyond the current case law. It will put current controversies into a larger perspective.
A still further group of readers who will find material of interest in this book’s chapters is that made up of men and women who take a serious interest in their own religion. Although there has been an apparent decline in the size of this population over the last fifty years, the professedly Christian share of the population in the United States is still over two-thirds.8In 2014, it stood at 70.6%. How many among that number take a serious enough interest in the faith they profess to prompt them to take up and read a volume about law and religion is anyone’s guess. No surveyor’s list attempts to distinguish between the nominal and the serious. The latter cannot be an empty category, however, and the chapters that follow will interest its members in several ways. Lord Judge’s Preface to this volume is testimony to the interest the contents of this volume have had for him, and his interest is only one example among many. There are readers who have found and will find interest in the intersection of past and present thought about crime and religion. What is laid out in the books of the Bible and is explored in the works of interpreters of Scripture is capable of deepening the faith of religious men and women. Likewise, the second of Nathan Chapman’s chapters, which concludes the volume, raises questions over the participation of Christians in matters of governmental judgment, firm in the faith that God uses human judgment, which is inherently rebellious. What better note on which to finish but a return to the profoundly theological questions which are ever-present in the intersection of Christianity and the criminal law, and which will continue to be asked in the current and future generations.
The Wider Interests of the Subject
The worth of this volume’s chapters is more than a matter of immediate utility. They provide a good deal of food for thought — thought that both can and should have real consequences. Law and the Christian ministry are learned professions. To be complete, even to be respectable, each field of inquiry requires some familiarity with history. Several aspects of current criminal law are hard to understand without such familiarity. Theology is also shallow and unconvincing if its history is ignored. The nature of both professions thus invites attention to basic questions of legal theory. It is natural for us to ask why certain acts deserve to be condemned and punished while other seemingly similar acts do not, and religion always requires deep thought about basic problems of right and wrong. This volume helps in the process of giving serious consideration to the future possibilities of present actions. Richard Garnett’s thoughtful and fascinating study of today’s law concerning attempts to commit criminal acts provides one example. In fact, several of the book’s chapters also illustrate the possibilities for profiting from the subject’s past, as they also shed light on some questions of current moment and dispute. Three particular themes found in several of the following chapters demonstrate the volume’s value.
The first of the three themes is the ubiquity of concern in the chapters for questions of criminal law in the works of the great theologians of earlier centuries. A concern for law and crime appears in the works of virtually all the greatest Christian thinkers. The treatment of crime in the works of St. Augustine, Thomas Aquinas, Martin Luther, John Calvin and many other theologians from the past figures prominently in several of the chapters. As a matter of course, these theologians dealt with crimes against God and the Church and religious matters like simony, blasphemy and heresy. That coverage was a matter of necessity. The need is made explicit in Jeroen Temperman’s chapter on the subject. He shows how inevitable and valuable criminal law’s inclusion in the thought of Christian theologians and canon lawyers has always been. The questions those theologians and lawyers touched ranged widely and were well beyond subjects intimately tied to the immediate interests of the Churches. For instance, most crimes were also sins. Their inclusion in manuals used to direct human beings’ conduct in the world was only to be expected. It is also worthy of particular note in the Protestant tradition. The great reformers discussed in the volume’s pages were not antinomians. Even Martin Luther, whose scathing remarks about lawyers and Christianity are sometimes quoted to demonstrate his antipathy towards law, actually had useful and positive things to say about law’s value, not excluding its criminal side.9 See also John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (2002). As the volume’s chapter by Mathias Schmoekel demonstrates convincingly, while Luther differed from his Catholic opponents about the proper forum for administering a public regime suited for the detection and punishment of criminals, he did not differ with them about its necessity.
Perhaps the most thought provoking examples of the volume’s utility for serious thought are those chapters that discuss aspects of the modern criminal law that had their origins in Christian law and thought, but have largely lost touch with those origins in their modern form. We have forgotten where they came from. For example, a person’s right to remain silent in the face of a charge of criminal conduct, a privilege enshrined in the Constitution of the United States, found initial support in the mediaeval Church’s laws. Under the maxim Nemo tenetur prodere se ipsum (no-one is bound to betray himself),10 See Decretales Gregorii IX (the Liber Extra of 1234), at X 5.1.14 (Veniens ad sedem), in Aemilius Friedburg, ed., Corpus iuris canonici, 2 vols. (Graz: Akademische Druck- und Verlagsanstalt, 1959), 2:col. 737. confession of one’s private sins was owed to God, but not to one’s temporal governors. This is just one of several examples brought forward and discussed in Peter Collier’s helpful chapter in this volume, in which the practical experience of recently serving judges and practitioners augment the high-vaulted scholarship of the academy. Nor has this connection entirely disappeared from modern law. David McIlroy’s chapter on the historical influence of Christianity on the development of mens rea as a requirement for punishing criminals provides a clear example, even though modern criminal lawyers rarely recognize the connection.11 See Elizabeth Papp Kamali, Felony and the Guilty Mind in Medieval England (2019). Chloë Kennedy’s essay also demonstrates that many parts of modern criminal law have their roots in traditional Christian beliefs. What she calls the “tenacity of Christian norms” is illustrated by the modern resistance to permitting assisted suicide. Suicide (self-murder according to medieval ways of thought) is no favorite of our own legal systems. Few of us living today would wish to see a stake driven through the heart of the man or woman who had committed suicide, but we still punish anyone who drives the stake at the request of a volunteer. Similarly, David Etherington’s chapter, which deals with several aspects of our law’s treatment of offences against the person, opens up a subject of continuing importance by exploring its roots in its Christian past.
A second, long term appeal of this volume, one touched upon by several of its contributors’ essays, is the help Christianity provides in the evaluation, criticism, and reform of modern systems of criminal law. The imperfections of the past have not all disappeared, and the Bible itself invites the justified criticism of some of today’s practices, as Markus Bockmuehl’s chapter demonstrates in scholarly detail. The trial of Jesus provides the most prominent of the several examples upon which his essay touches. Condemnation at the behest of a mob is a stain upon the administration of justice in any age, and Pilate’s capitulation to one stands as a warning against it. The possibility of similar present-day occurrences remains. For example, the “War on Crime” that was declared by American President Lyndon Johnson in 1965 — and re-voiced by Prime Minister Tony Blair in the 1990s — as a way of combating urban unrest may have had some positive results, but it also went too far by a large margin. Too often, people have been imprisoned for trifling offences. Today, the United States imprisons the same number of people with criminal records as it has four-year college graduates. Nearly half of black American men have been arrested for criminal activity by the age of twenty-three. At bottom, the dramatic overcrowding and inhuman conditions in American prisons that have followed this Declaration of War have been the unfortunate aftermath of a surrender to the crowd. The chapter by Sir John Saunders gives a detailed account of the current intent of the English system of parole, whereby offenders are rehabilitated into life outside the overcrowded and under-funded prison regime.
A particularly telling criticism of the misuse of a religiously inspired institution is also found in Albert Alschuler’s exploration of the current exercise of the pardoning power vested in the American president and the governors of most US states. Mercy in the exercise of jurisdiction over crime is a part of the inheritance of Christianity — there is little doubt about that. Jeffrie Murphy’s authoritative chapter explores the benefits which the Christian duty of showing mercy brings to all those who administer the criminal law. The law itself can sometimes go very wrong when this duty is forgotten or ignored. The example of Jesus’ treatment of the woman taken in adultery is one among many. God himself is merciful, as explained in Deuteronomy 4:31. Additionally, Matthew 5:7 writes, “Blessed are the merciful, for they shall receive mercy.” The Christian roots of the modern pardoning power, the power to temper justice with mercy, are evident in its history.
However, as the chapters also demonstrate, these are powers that can be misused. Alschuler shows that they are being misused in the United States today. The power to pardon was meant to be a force for good. It was designed to remedy individual injustices. Instead, recent American presidents have employed it to reward those who have made large monetary contributions to their own political and personal funds. Pardons, like medieval indulgences, seem to be for sale. As his chapter demonstrates, the biblical records make it clear that Jesus “would have disapproved of partisanship towards the rich and powerful in granting clemency”. An analogy with the sin of simony — the payment of money for obtaining a spiritual office — also provides a telling argument against the modern misuse of a religiously-based institution. The connection between law and Christianity provides a way, perhaps the best way, of demonstrating that the right to pardon was not meant to be converted into a fund-raising technique.
A third source of interest in the contents of this volume inheres in Christianity’s power to generate new ideas and institutions in the administration of criminal law. Daniel Philpott’s chapter is particularly eloquent on this score. It shows the utility which initiatives based on the Christian duty to forgive have served in the commissions established in the wake of transitions from dictatorships to democratic regimes. South Africa’s Truth and Reconciliation Commission led by Archbishop Tutu is the most celebrated of these transitional bodies. There have been a surprising number of them, as Philpott’s chapter demonstrates, and a connection with the Christian religion has been a feature of many of them. He treads on solid ground in finding the inspiration for their establishment in “God’s willingness continually to restore his covenant with the people of Israel”. These institutions have within them a similar mixture of mercy and practical sense. The commissions do promote forgiveness and reconciliation, but they also call for the public recognition of past wrongs on the part of the perpetrators of those wrongs. This requires an open admission of guilt, wherever it is feasible, by the men who have done wrong. It is not “cheap grace” — open repentance is required. These commissions provide an example of Christian principles being put to a novel and profitable use.
John Witte’s chapter on what he calls “sex crimes” provides an equally fascinating example of religious law’s capacity for new uses. Adultery, sodomy, and the like were long public crimes in Western law, and they were acts condemned and punished in the courts of both Churches and kings. The justification given for their criminalization is spelled out in this chapter’s exploration of the thought of Thomas Aquinas, who stated it clearly and connected its purposes with the law of nature. Somewhat surprisingly, Aquinas also provided a partial justification for permitting the practice of prostitution. Attempt to abolish it, he held, and the consequences would be worse. “[T]he carnal appetite is always alive” and “prudential and practical concerns” must be considered in shaping the law designed to govern human conduct. In recent centuries, as Witte recognizes, the “modern secular State” has undone most of the traditional criminalization of sexual offences, including most aspects of prostitution. But his chapter also shows that this development has not rendered Christianity irrelevant. The Churches have a responsibility to promote a higher standard of behaviour than does much of our criminal law. Their members should not be silent simply because a question of criminal law has arisen which conflicts with religion. There are also contentious modern questions of public law where the voice of Christianity still needs to be heard. The question of polygamy’s possible legalization in Western law, a question once thought to have been settled in the negative by its conjunction with the growth of the Church of Latter Day Saints in the nineteenth century, is bound to arise again. Witte’s contribution calls for Christian voices to be heard when it does.12 For fuller treatment, see John Witte, Jr., The Western Case for Monogamy over Polygamy (2015).
Each chapter in this collection of essays is followed by a list of books and articles which provide fuller treatments of the themes covered in the chapter itself. In a few cases, they lead to fuller treatments written by the authors of the chapters themselves. In all cases, they amplify and refine what is found in each of the texts that precede them. These references are well worth following up. Taken all together, they demonstrate that this volume is more than the sum of its parts. Virtually all of its subjects demonstrate that a connection between law and religion, one akin to the connection that Henry Sumner Maine perceived so many years ago, is worth study today. Christianity’s place in the criminal law has been diminished, but it has not been wholly lost. ♦
Mark Hill QC is an Associate Professor at the Centre for Law and Religion, Cardiff University; the University of Pretoria; Notre Dame University Law School, Sydney; and King’s College London. He practises at the Bar in London.