Continuation of Concepts of Justice
Copyright, 1999, John Sterling
Sir William Blackstone was a legal scholar during this period (mid-to-late 1700’s) 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 peoples’ 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 God’s 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 God’s) law"2. Absolute rights are God given3. 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.
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
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 1800’s 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. Holmes’ philosophy, coupled with Bentham’s 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 II