Concepts of Justice past and present

Historical development of theories of crime and punishment

Part 1 of 2 Parts
by
John A. Sterling

"The deterioration of a government begins almost always by a decay of its principles." Montesquieu

Introduction

No discussion of the present state of law without considering first a brief history of rule of law vs. rule of men. Law in America is undergoing change, sometimes in a direction which is frightening to some observers. This brief work is an attempt to define the concept of Civil Justice and to apply that concept to current theories of crime and punishment. Crime has been called a social problem, a political problem, a spiritual problem, and an economic problem. It is impossible to formulate public policy on the subject of crime unless one comes to grips with the complexities of the problem and the dynamic interplay of its various components.

Biblical principles

OLD COVENANT

The history of crime begins in the first book of the Bible which dates back at least seven thousand years. Whether the Genesis account of Cain and Able is accepted as historical fact or allegory, the principle of retributive justice is as old as recorded history. In Exodus 21: 24, the oft misquoted "Eye for an eye" verse, when read in context is a statement of the modern "rule of proportionality" standard used on our courts today. That is, the pay-back (penalty) is proportionate to the harm actually caused. This is a legal principle in Biblical, Rabbinical and Common Law. It has nearly always been understood (until fairly recently when scarcely anybody is a bible scholar) that this verse was not a literal eye but representative of the "worth" of an eye. In other words, the context of Exodus 21 is "value for value" (lost wages, use, ability, etc.)

In Deuteronomy 17:6 the modern principle of "two or more witnesses" is found. This is a requirement that direct testimony, corroborated by other direct testimony, be the standard of admissible evidence in capital cases. Besides setting a standard for capital punishment, this verse and the following verses (8-13) acknowledge that there will be hard questions of law which should be decided at the appellate level (in this historical context, the clergy). When principles of justice seem to be in conflict with the law, it is given to the wisest and best educated to discern and judge the law. For example, when verse 8 speaks of , "between blood and blood" , it means that a distinction needs to be made between "degree of culpability" in cases of murder and homicide. The ancient principle of common law appeals is also found in these verses. Finally, in order that the people may know of these distinctions and intricacies of the law, the appeals judges are charged with teaching the public concerning the law (Deut 17:9-10). It is a system that has worked, in one form or another, for at least 7,000 years.

While principles of retributive justice have been emphasized, the deterrence principle is not neglected. In Deuteronomy 17:12-13 , the death penalty is pronounced on men who refuse to obey the edicts of the court. The principle herein articulated is that legitimate government, being conducted in accordance with the principles of God, is a sacred trust and that the conditions of continued blessing for nation depend on the observance of Godís law. Thus, to keep people from destroying good government (by holding in contempt the law of the land), the death penalty is imposed on those who act "presumptuously" with regard to established law. Lest this be dismissed as harsh and barbaric, it is important to keep in mind that there were very few laws of this magnitude, the rest being subject to lesser sanctions (remember, the law of proportionality).

When the ONLY principle of punishment applied is deterrence, however, the system becomes dangerous and destructive. Deterrence alone breeds a "zero-tolerance" atmosphere where "the letter of the law" is paramount and "the spirit of the law" is suffocated.

NEW COVENANT

The New Covenant, written nearly two thousand years ago, reflects a continuation of the Old Covenant legal principles. The distinction, however, (which is completely lost on many modern-day "theologians") is that the same principles of law which were external before, are internalized through the Spirit of Christ. I Tim 1:7-9 reveals that not only were there people (then, as now) who wished to teach the law but who were ignorant of the principles upon which the law was founded. Further, they delighted in arguing the minutiae while ignoring the broader truth (sounds vaguely familiar). Verse 8 affirms that the purpose of the law is good when it is used lawfully (in accordance with the principles). Verse 9 explains that purpose for the "external" law is to keep rebellious people in check and is completely unnecessary for a "righteous" man.

Having a judiciary which misuses the law in order to achieve personal/ political ends is not just a modern day phenomenon. History abundantly records acts of malfeasance in every culture. It is especially troubling when the judiciary is also the clergy. In Acts 3:1 through 4: 20, a kind deed which harmed no one, the healing of a lame man at the temple steps, results in the arrest of Peter and John for "breaking the law." The principle here is that acts of kindness, charity, and good works, should not be unlawful even they are politically incorrect. Indeed, they cannot be unlawful according to scripture. In the apostle Paulís second letter to the Corinthian Church, he speaks a word in defense of his gospel team. In the course of his long journeys and his ministry in those churches, he says (II Cor 7:2) "...We have wronged no man, we have corrupted (spoiled) no man, we have defrauded (fooled) no man." The inward "spirit" of Christ manifested itself externally by the keeping of the "letter" of the law.

GRECO-ROMAN

One of the principle causes of the fall of the Roman Republic into the Roman Empire (about 125 BC) was that the patricians (ruling class) changed the leadership back and forth. As in politics today (human nature has not changed) the rules changed back and forth , creating confusion and ambiguity. The political power changed hands between ruling "families" or "caucuses" and each ruling group sought to impose sanctions and prohibitions on the others. The resulting lack of "moral" basis (ambiguity) in the law, created (and still creates) inevitable breakdown. When the people donít know what the rules are, everyone is liable to be a law breaker. The Roman republic was strong, central, organized, and efficient. The Roman Empire was rotten from the inside out because of "Political Crimes" not "Moral Crimes"

Too often, the modern legal system in America is said to be derived from the Greco-Roman principles. If one understands the philosophical principles upon which system is founded, it would be difficult to maintain that position, for the two systems are fundamentally different. The Roman Empire nevertheless borrowed something from virtually every culture that it absorbed, eventually becoming quite cosmopolitan. In 375BC Constantineís son introduced some elements of Christian doctrine into some parts of Roman law. In 450BC Theodorus divided Roman Law into five parts with a Christian basis scattered throughout. In the early 500ís, after Justinian was killed, his wife Thedora was responsible for having many nearly lost documents copied and libraries restored .

Judaism and Christianity hold a world-view that places man (the object of creation) in relationship to the Creator. Roman world-view is unitary- that is mono-level- with no Creator. Hence, the origin of law can be no higher than man himself. Judaism and Christianity hold that God is the Source of the law and that the only legitimate law derives from God and is, therefore, just and immutable. Roman law is relative, that is, not fixed in accordance with eternal principles. Roman law is subjective and can (and did) change with the political climate. Greco-Roman law looked only at the technical violation of law. If the law said an act was prohibited, then it was bad because the law said so (Mala Prohibita). This makes prosecution very easy because it eliminates the need for any cumbersome evidentiary rules. Although not much of a system for dispensing "justice", such a system is well-suited for maintaining social order. Roman law was therefore more streamlined and perhaps more efficient in a bureaucratic sense than Rabbinical law (Biblical Law) which was morality based. Judaism and Christianity hold that certain acts are "morally repugnant" and are wrong because they do harm. Such acts are evil in and of themselves (Mala en Se). Further, the Roman system holds an imperial view of government power. It emphasized the absolute power of the state. Policy was paramount and Roman law did not trouble itself with whether it was good or bad policy in the moral sense. Judaism and Christianity do not share the imperial principle of government but, rather, hold the covenant view (more about covenant theology in part 2).

ENGLISH COMMON LAW

Importance of Mens Rea (having a guilty mind) or "criminal intent"

Mens Rea began to be used after the 4th Lateran Council in 1215 during the Gregorian Reform. In the 1230ís, Bracton ( law clerk for Judge Raleigh) reached back to Augustine and wrote material that was influential for the next 550 years of jurisprudence. Bracton was influenced by the Roman notion of culpa (fault) and Catholic churchís emphasis on moral guilt. These legal principles were not new ideas, but were resurrected as a result of theological reforms within the Catholic church. These principles were prevalent during the development of English Common Law and, subsequently, during American Colonial law period. In this historical period, judgments from the court began to reflect the two component parts of a criminal violation, "Actus Reas" (guilty act) plus "Mens Rea " (guilty mind).

John Locke, in his Treatise on Law and Government, introduced a concept later used in many of our founding documents; the state of nature. (1690) "..the state all men are naturally in, and that is a state of perfect freedom to order their actions and dispose of possessions and persons as they see fit. Civil authority is a proper remedy for the inconvenience of the state of nature. Every man or government is in a state of nature when there exists no civil authority to settle a dispute between them. They have not surrendered themselves to a common judge."

When public policy is shaped by people with a Christian world-view, the presupposition is that man is sinful (rebellious against the authority of God) and therefore in need of external constraint. The establishment of civil authority is, first, an acknowledgment of that "natural inclination", and second, a covenant among men to submit to a common judge in order to bring social order and protect their property. Such a covenant, or contract, is binding on all parties and is sworn before God as affirmation of the Divine Judgment if either party should break the covenant. This is the reason for "oaths of office" which we still practice even though many who give their solemn word have no intention of submitting to the burden of their office.

Sir William Blackstone was a legal scholar during this period whose Commentaries on the Law of England became the guiding influence on English (and American) Law for three hundred years. He developed and articulated many legal principles which are Biblical in origin and anyone familiar with the U.S. Declaration of Independence and Constitution will recognize the principles advanced by Blackstone. Among those principles are the theories on Civil duties . Every citizen who wishes to share in the benefits of social order, for example, must share in the responsibilities required of such order. In other words, there can be no liberty without responsibility. Another Blackstone principle is that civil government only has authority in matters of peoplesí relationships with each other. It has no authority to regulate or govern matters of man and God. Although the concept has been twisted completely around today, "separation of church and state" meant that government should stay out of religion. (religion, as understood by most of the founders, was some variation of Christianity although, to some, might include the five major world religions of the world at that time).

Blackstone advances the theory that if conduct does not violate Godís law or hurt your neighbor, it cannot be made illegal by the civil authority. Writing in 1765 (eleven years before Adam Smith wrote on economic theory) Blackstone pointed out that restraint of individual right should be easily recognized by all those who are being asked to give up a right for the "necessary" needs of the state. Today, it seems that the public is less aware of just how much individual liberty they have been asked to sacrifice for the general welfare.

Recently, certain "authorities" have maligned Blackstone for contradicting himself in his Commentaries. They fail to understand that Blackstone functioned as subject of a King who took a dim view of people who disagreed with him. One must be delicate in such situations. Blackstone sets up the theory of law at the beginning of his four volume Commentaries, then issues his personal commentary on the application of the actual laws in place in England at the time. It is shallow and improper to assume that Blackstone concurs with the principles OR the applications of the English law, where it contradicted his theories. Jeremy Bentham, who died in 1832, was an aggressive voice for legal reform in England. An atheist, he was profoundly influenced by Darwinism and the "enlightenment" which denied God and elevated human reason. Bentham (the atheist) and Blackstone (the Theist) were contemporaries in England who were at philosophical odds and modern legal theorists can generally trace the roots of their theories to one of those two men and their respective world-views.

The list below is a partial list of the principles of criminal justice which became part of the written law during this period.
1. Justice is proportionate to our actions,
2. Justice is retributive,
3. Justice is vindicatory, (provides sanction against the offender)
4. Justice is compensatory (restores to the victim),
5. Judgment under the law is declaratory (declares what is right).
6. Judgment under the law is remedial (corrects what is wrong),
7. Judgment under the law is directive (directs behavior),
8. Burden of proof "beyond reasonable doubt" equates to moral certainty.
9. Inalienable right to property. Citizens cannot be forced to give up rights to property unless they are found guilty of a crime which amounts to forfeiture.
10. Citizens cannot be treated like criminals unless they have been tried and convicted as criminals.

Other principles which emerged during this period are pertinent to development of our three branches of government as they constrain them all equally. These include:
1. No human law or justice can preempt "natural (or Godís) law"
2. Absolute rights are God given
3. God has placed on every civil authority the responsibility to insure that absolute rights are not infringed.
4. Upon citizens, the government is additionally charged with protection of citizenship (relative) rights.

COLONIAL AMERICA

The Colonial period in America saw changes to the English Common Law which reflected the cultural and social differences that were developing in the new nation. In many ways the law in America became more complex, reflecting the influence of "enlightenment" philosophy and, at the same time, reacting to the concentration of power in the hands of the leaders. Conflicting ideologies and shifting demographics resulted in a natural state of checks and balances in the criminal justice system. The power of the jury to decide both "the facts and the law" acted as an informal reform of the system without the cumbersome legislative process. (for more information on the subject of jury nullification, see JURY NULLIFICATION: The Top Secret Constitutional Right , by Regent University Professor James Duane.) When this produced inconsistent and often contradictory results, the "rules of evidence" were strengthened. The power of the judge was balanced against the power of the jury; the citizen against the state; the state against the federal government.

At times, when the checks and balances were perceived to be excessive and the citizens believed that justice was being denied, vigilantes and lynch mobs sought justice through extra-legal means. Interestingly (perhaps frighteningly), vigilante justice was often met initially with widespread public acceptance which reflected the huge dissatisfaction with the system. But, as vigilantes exercised more power, they became corrupted by their successes and they quickly lost public support. Vigilante justice is a case where the "cure" is often worse than the disease!

At the foundation of all of this conflict within the system is the "concept of justice" which was rooted in the Bible and was the philosophical core our social order. Knowledge is power but too little is a dangerous deficiency and too much can be used as tool of tyranny. "My people are destroyed from lack of knowledge. Because you have rejected knowledge, I also reject you as my priests; because you have ignored the law of your God, I also will ignore your children." Hosea 4:6

MODERN THEORY

As criminal law developed in the 20th century, American Jurisprudence moved further and further away from common law principle that a crime consisted of two elements, a guilty deed [ Actus Rea ]plus a guilty mind [Mens Rea]. The requirement of an act is one that is evidence of a choice being made and choice, of course, brings into question the state of mind (drug induced, emotion induced, medical/psychological aspects). In an effort to make the criminal justice system more uniform and predictable, judges and legal theorists sought to marginalize the element of "intent". They sought to blur the lines between criminal law and civil law by minimizing, or eliminating altogether, the requirement of mens rea.

Oliver Wendell Holmes Jr. sat on the United States Supreme Court in the 1800ís and was largely influential in bringing to the court a distinctively "Darwinian Positivistic" legal philosophy. Holmes argued in favor of utilitarian "strict liability" conformity to rule of law which does not require criminal intent. It is sufficient to prove merely that an act was committed which is in violation of the law (Mala Prohibita) and the punishment is established with regard to its deterrent effect on others.

If the intent is to create "order" in society at the expense of "liberty", then this theory is what the doctor ordered. By eliminating the burden of proof on the prosecution to produce evidence of "intent" to do harm, the government is free to create a third "classification" of law under which they can impose "sanctions" on the accused. Sanctions are not "punishment" (which is one of the ways of distinguishing criminal conduct) therefore resulting in greater social control by bending, without breaking, the constitutional protections in the Bill of Rights. Holmesí philosophy, coupled with Benthamís theory of sanctions, set us back 700 years in legal theory.

Conflicting and competing philosophies of Positivism vs. Common Law , cause a see-sawing back and forth in Legal opinion. No unified theories of crime and punishment seem to be held among judges or congressmen or presidents. For a government to maintain social order without becoming tyrannical there must be a cohesive, consistent, historically validated foundation. It is vital for the future of the United States that there be a return to the founding principles of law and government. Failure to anchor jurisprudence firmly in the rock-bottom of historical principles will allow the great ship of state to drift too far towards the rocky shoals of liberalism, making it impossible to avoid the ruination of Rome.

There is a place for deterrence, for retribution, for rehabilitation, and for incarceration all blended into one system. If such a criminal justice policy were based upon justice and fairness (as revealed in the Bible) it would not be a problem to balance these various aspects (or tools) of administering justice.
End of Part 1

Part 2: The application of these principles to modern case law


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