“Harold J. Berman on the Revitalization of Criminal Law and Religion”
The age we live in can be defined in part by its skepticism: skepticism of our national history, of our traditions, of our institutions. Commentators from various ideological persuasions have bemoaned the collapse of important American institutions. According to Gallup polling, major American institutions have suffered a decline in public confidence over recent years, including organized religion, Congress, the presidency, public schools, media, and many more. This phenomenon seems only to be accelerating amidst the Covid pandemic. Public confidence in only a few institutions has remained stable or, in the case of the military, actually improved.
In response to the data, scholars have investigated the potential causes of America’s declining confidence in institutions, explored the possible ramifications of widespread societal distrust in their efficacy, and imagined solutions to a skeptical America. Yet there remains no consensus around the causes or solutions to the problem. What scholars do agree on is that the erosion of confidence in institutions is not a positive sign for a society’s overall health.
Perhaps the most conspicuous decline as of late is public trust in the police and the criminal justice system. Gallup reported in 2021 that only 20% of U.S. adults had confidence in the criminal justice system, while little more than half had confidence in the police.
Some of the most incisive critiques of our criminal justice system concern the unequal treatment of racial minorities in encounters with police; police brutality; and the overrepresentation of black Americans in criminal convictions and sentencing. In the last decade, these critiques left the halls of academia and think tanks and spilled out into the streets in response to the police killings of Michael Brown, Breonna Taylor, George Floyd, and many more. Criticisms have centered on the militarization of police, mandatory minimum sentencing, and mass incarceration. Despite a recent dip in the incarceration rates over the last decade, the United States remains the world leader of incarceration, with over 2 million individuals held in jails or prisons, a rate of 639 inmates per 100,000 – a striking 13% higher than the nearest country, El Salvador, at 564 inmates per 100,000. Other Americans, however, have lost confidence in the criminal justice system due to rising rates of murder and violence and have supported increased local police funding in their communities.
A lack of confidence in our criminal justice system is doubtless an immense problem. To restore public faith in institutions, such as the criminal justice system, reform is needed. Concerted efforts must be taken to revive public trust in criminal law. These efforts to reform the law and revive public trust, I argue, will have the highest chance of success if they take religion into account.
A now-obscure book by the celebrated scholar Harold Berman offers a way forward. Harold Berman is considered by many to be the father of the interdisciplinary study of law and religion. A true polymath in the legal field, Berman wrote on a range of subjects throughout his career, but is perhaps best known for his legal history of the West. Berman was invited to give the Lowell Lectures on Theology at Boston University in 1971, a time which he described as characterized by deep social unrest. Berman converted the Lowell Lectures into a small book entitled The Interaction of Law and Religion.
In its opening pages, Berman writes of a general demoralization that was taking root in society and its institutions and that he claimed had led to the birth of various radical movements. Most of these radical movements were unsuccessful in changing society, argued Berman, because they “offered no viable alternative institutional structures and processes with which to replace the existing ones” (13). As a result, the establishment simply reverted to reasserting law and order, negating the chance of any one radical movement obtaining.
Berman believed that the demoralization and decline of society’s institutions was due to the rupture of the necessary links between law and religion:
When prevailing concepts of law and religion become too narrow, and hence the links between the two dimensions are broken, a society becomes demoralized. The existing institutional structures and processes lose their sanctity, and conversely, the sacred values upon which the society is founded are viewed as mere hypocrisy. Eventually, such demoralization may yield to widespread demands for radical change (12).
For Berman, law and religion – rather than existing in totally separate spheres – share a common foundation. Both concepts are interdependent. Not only do law and religion share “certain elements, namely, ritual, tradition, authority, and universality,” but Berman maintained that if one goes back behind the law books “to the processes by which it is made, interpreted, and applied, one sees the symbols of the sanctity which infuses it” (13-14). His contention stands in contrast to modern theories of law that have propounded a “dualism” which defines law and religion as radically separate. Berman asserted that it was only through overcoming “these dualisms” and a subsequent synthesis of law and religion that “the key to the future” could be uncovered (16).
But what would such a synthesis of law and religion look like? What Berman did not suggest was “to prop up the legitimacy of the old legal system with various religious devices plus a return to the Puritan ethic” (40). Instead, he suggested that “law reform will not work — until it finds rituals that effectively communicate its objectivity, until it recovers its sense of ongoingness and of binding power, until it rediscovers its relationship to universal truths concerning the purpose of life itself” (40).
Berman, then, was not advocating for a theocracy based upon a particular denomination or sectarian notion of church-state relations. Nor does he appear to be advocating for an explicitly Christian approach to law (though his reference to the importance of the history and tradition to law certainly points to the larger Christian tradition in the American and larger Western context). To be sure, Berman wrote from a particular cultural place and perspective. Yet he searched for a theory of law that would be universal in its application by focusing on the deep questions of the purpose of life. He knew that law, like religion, must be believed in if it were to maintain its legitimacy and power in society.
Moving beyond the theoretical, Berman sketched out what some of the practical implications of his theory might look like. He called for “new forms of investigation, new forms of hearing, and new forms of custody which will dramatize humaneness and sympathy in the treatment of offenders, on the one hand, and, on the other hand, the indignation both at their offenses and at the conditions which produce the offenses” (41). Ahead of his time, Berman also advocated for the decriminalization of victimless crimes such as drug abuse and prostitution. Yet he also called for new procedures or “liturgies” for dealing with people who commit victimless or moral crimes by “enlisting the participation of the community — of psychiatrists, social workers, and clergy, and also of family, friends, neighbors, and fellow workers — before, during, and after the case is heard” (41-42). Berman reasoned that a religious conception of law required the condemnation of crime but not condemnation of the offender himself. Instead, the offender deserved to be treated humanely and creatively, which also required not treating him as a sick or ill (42).
The national demoralization Berman described more than 50 years ago seems strikingly similar to that of today. The growth of radical movements in response to demoralization seems to be increasing as America has become all the more politically polarized. But after 50 years, America seems not closer but further from the synthesis that Berman so desired. Law and society appear to be more secular and less moored to their original religious underpinnings than in 1971. For example, polling data have demonstrated the phenomenon of the growth of the “nones” or the religiously unaffiliated as a category in America since 2007. Similarly, confidence in organized religion is only at 37% of the adult population, down significantly from the 65% Gallop reported in 1973. One important exception to these signs of growing secularism is the Supreme Court’s more sanguine approach to religion and religious free exercise cases, not least due to the recent appointments justices Gorsuch, Kavanaugh, and Barrett.
In sum, though, the data are clear: America seems to be becoming less confident in institutional religion and to be growing more secular. Still, America’s drift toward irreligion cannot simply be considered a refutation of Berman’s point that institutions and the law perform better when connected to the religion that historically undergirds them. We might even posit that the continued decline of many of America’s most important institutions could be evidence of Berman’s point exactly.
Berman’s contention that much of our law – criminal law included – has been shaped by religion is a matter of historical record. His argument that law and religion are deeply intertwined remains compelling. Moreover, his argument that our institutions must be believed in and trusted (like religion) in order to maintain their relevance and legitimacy in a society also remains compelling as well. The latter is especially the case given America’s commitments to various constitutional freedoms and democracy, rather than authoritarianism and totalitarianism. Religion could provide the grounds for the reform and revitalization of the criminal justice system, and could, as Berman argued, lead to more humane and restorative ends than what we currently have.
The question becomes, in the increasingly secular age of the religious “nones”, whether a desire for greater religious influence on our criminal justice system and a rediscovery of criminal law and religion could ever be obtained. But if our institutions continue to decline as they have, only time will tell what the future may hold for the American experiment. ♦
Peter Wosnik is the owner and founder of Wosnik Law, LLC, which is a trial-based law firm serving the Metro Atlanta area. Wosnik is a graduate of Emory University School of Law (Juris Doctor) and Candler School of Theology (Master of Theological Studies) where he received the Savage-Levey scholarship in law and religion.
Wosnik, Peter. “Harold J. Berman on the Revitalization of Criminal Law and Religion” Canopy Forum, March 31, 2022. https://canopyforum.org/2022/03/31/harold-j-berman-on-the-revitalization-of-criminal-law-and-religion/.