Note* Originally published in 1999 on the Law and Liberty Website, somewhat abbreviated here and presented in two parts. This is an overview of the historical principles of law that have formed the very foundations of American Jurispurdence. We would do well to refresh our understanding of these principles.
Concepts of Justice-Past and Present
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 God’s 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.
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 Paul’s 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.
ENGLISH COMMON LAW
Mens Rea began to be used after the 4th Lateran Council in 1215 during the Gregorian Reform. In the 1230’s, 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 church’s 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).
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.