Christianity and Criminal Law

Mark Hill QC, Norman Doe, RH Helmholz, John Witte, Jr., Mark Hill QC, Norman Doe, RH Helmholz, John Witte, Jr

• Publisher: Routledge
• Year: 2020
• ISBN:
  9781000071559
• Edition: 1
• Topic: History
• Subtopic: Social History
• Index: History

This collection, by leading legal scholars, judges and practitioners, together with theologians and church historians, presents historical, theological, philosophical and legal perspectives on Christianity and criminal law.

Following a Preface by Lord Judge, formerly Lord Chief Justice of England and Wales, and an introductory chapter, the book is divided into four thematic sections. Part I addresses the historical contributions of Christianity to criminal law drawing on biblical sources, early church fathers and canonists, as far as the Enlightenment. Part II, titled Christianity and the principles of criminal law, compares crime and sin, examines concepts of mens rea and intention, and considers the virtue of due process within criminal justice. Part III looks at Christianity and criminal offences, considering their Christian origins and continuing relevance for several basic crimes that every legal system prohibits. Finally, in Part IV, the authors consider Christianity and the enforcement of criminal law, looking at defences, punishment and forgiveness.

The book will be an invaluable resource for students and academics working in the areas of Law and Religion, Legal Philosophy and Theology.

1 Introduction

Mark Hill QC¹

1 This introduction is the work of several hands – those of Norman Doe, Dick Helmholz and John Witte, Jr., as well as my own. Not only have they brought into the light the points of continuity and similarity we had identified in planning this project, but they have also uncovered several additional connections which emerged from the revised drafts of the chapters. I am grateful for their help and for their company in completing this project.

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.² 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 characterisation 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.³ 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 characterisation of the historical tie between law and religion. The law of crimes, Strawn demonstrates, is “profoundly godlike when seen through ancient eyes”.

2 Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas, 1st ed. 1861, republished in Beacon Series in Classics of the Law (Boston: Beacon Press, 1963), 1–19.

3 See, by way of example, James Q. Whitman, The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (New Haven and London: Yale University Press, 2008); Reinhard Zimmermann, ed., Der Einfluss religiöser Vorstellungen auf die Entwicklung des Erbrechts (Tübingen: Mohr Siebeck, 2012); Thomas Oakley, English Penitential Discipline and Anglo-Saxon Law in Their Joint Influence (New York: Columbia University Press, 1923).

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 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 identifying 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. While more challenging, they are also the more deserving of scholarly attention and thought.

1.1 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 offences and offenders.⁴ 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,⁵ and several other chapters in the volume add to what 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.⁶

4 See, e.g. Mark Hill, Ecclesiastical Law, 4th ed. (Oxford: Oxford University Press, 2018).

5 See most recently Norman Doe, Christian Law: Contemporary Principles (Cambridge: Cambridge University Press, 2013).

6 See, e.g. R.H. Helmholz, The Spirit of Classical Canon Law (Athens, GA: University of Georgia Press, 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 starting point. Not only that. The book’s utility may prove immediately useful to the clergy in several ways. For instance, it provides 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, to take just one 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 and 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 – 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.⁷ They 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 similar large questions which laws like this one now raise. It is a continuing problem, one that involves conflicting but legitimate loyalties. His analysis begins, as does 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 thought on the subject.

7 25 Edw. III, st. 3, c. 22 (1351); 27 Edw. III, st. 1, c. 1 (1353); 16 Ric. II, c. 5 (1392). See also W.T. Waugh, “The Great Statute of Praemunire of 1353”, (1922) 37 English Historical Review 173–205; E.B. Graves, “The Legal Significance of the Statute of Praemunire of 1353”, in Charles Taylor, ed., Anniversary Essays in Mediaeval History by Students of Charles Homer Haskins (Boston and New York: Houghton Mifflin, 1929), 57–80.

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.⁸ 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.

8 See The AALS Directory of Law Teachers 2017–2018 (Washington, DC: West Publishing and Foundation Press, 2018), 1567–8.

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 50 years, the professedly Christian share of the population in the United States is still over two-thirds.⁹ 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 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 Christiansin matters of governmental judgment, firm in the faith that God uses human judgment. What better note on which to finish but to return to the profoundly theological questions which are ever-present in the intersection of Christianity and the criminal law, which will continue to be asked in the current and future generations.

9 In 2014, it stood at 70.6%; see the statistics compiled by the Pew Research Center, “America’s Changing Religious Landscape”, 12 May 2015, https://www.pewforum.org/2015/05/12/americas-changing-religious-landscape.

1.2 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 it. 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 apparently similar acts do not, and religion always requires thinking seriously about the 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 dealing with 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 well as shedding 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 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, religious matters such as simony, blasphemy and heresy. That coverage was almost as 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 they touched on ranged widely, 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.¹⁰ As the volume’s chapter by Mathias Schmoeckel convincingly demonstrates, 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.

10 See also John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002).

Perhaps the most thought-prov...

Table of contents

• Cover
• Half-Title
• Series
• Title
• Copyright
• Dedication
• Contents
• List of contributors
• Preface
• Acknowledgments
• 1 Introduction
• PART I Historical contributions of Christianity to criminal law
• PART II Christianity and the principles of criminal law
• PART III Christianity and criminal offences
• PART IV Christianity and the enforcement of criminal law
• Index