The Old Testament Influence on the Concept of Fair Trials

 

The Old Testament Impact on the Concept of Fair Trials

Establish the need: Court’s legitimacy is being questioned in our time; but is the institution of courts important?

Purpose: In today’s lesson we will see how the Old Testament made an impact in Western Civilization on the concept of fair trials and legal due process that we take for granted.

1. The Old Testament influence on need for trials
2. The Old Testament influence on presumed innocence until proven guilty
3. The Old Testament influence on Trial by witness

 

Note of caution:

• I think we can talk about this subject without being a “Christian nationalist.” 
• When we are talking about Old Testament contribution it does not mean professing Christians were always consistent or that professing Christians never did a wrong.
• While this post mention Catholics it does not mean Catholicism as a theology is right; but to the degree they argued rightly from Scripture and have an impact on Western Civilization we want to note what God’s Word does for society with justice and protecting the innocent.
• Having said that it is also important to note that any religious group can also at the same time misinterpret the Bible at other instances to do what is wrong.
• With these nuances our main goal is to see how the teaching of Christianity itself through the Old Testament does make an impact on things in culture and society in a way we take for granted.

          

 

The Old Testament influence on need for trials

The opposite method is problematic

There is something problematic where if there’s a crime the suspect is punished with death right away with no process to determine and challenge the verdict of guilt.

Furthermore every social group believes there is some particular sin or sins that is such a heinous crime that it is seen as “blasphemy.” With what is considered “blasphemy: sometimes people with their sinful human nature desires to skip the legal process being afforded to the suspect.  This is dangerous.

For example Legal historian Kenneth Pennington observed: “In the middle of the thirteenth century, one of the most distinguished jurists of the age, Henricus of Segusio, summed up juristic thought when he declared that notorious crimes, especially those committed against the Church, needed no formal juridical examination.” [1]

But this is not just back then; this is a problem for people today too:

1. Think about how when people are labeled terrorist they can somehow have less rights to a trial.
2. Think about how when people are label insurrectionists they can somehow have less rights to a trial.

The History

Something though started to shift in the West in thirteenth century thinking and the legal thinkers of the time turned to the Bible for help: “Before the middle of the thirteenth century jurists accepted the right of the prince or the judge to ignore the rules of the judicial process because they considered legal procedure to be a part of the civil law, that is positive law, and, therefore, completely under the prince’s or judge’s authority. Paucapalea and the canonists introduced a different story and a different paradigm. The inexorable logic of their argument resulted in the inevitable conclusion that, if the ordo iudiciarius can first be found in the Old Testament, and if God had to respect the rights of defendants, then the rules of procedure must transcend positive law. The implications of Paucapalea’s new paradigm evolved slowly in the jurisprudence of the thirteenth century. The Bible was, after all, the cornerstone of our human understanding of divine law, and, from Gratian on, the jurists equated divine law and natural law. Consequently, under the influence of Paucapalea, between 1250 and 1300 the jurists began to argue that the judicial process and the norms of procedure were not derived from civil law, but from natural law or the law of nations, the ius gentium. Consequently, the fundamental rules of procedure could not be omitted by princes or judges. The right of a defendant to have his case heard in court was absolute, not contingent.”[2]

Introducing a new method of a defendant’s right to a trial is not easy; yet the Old Testament as Scripture was a compelling justification: “Although founded on Roman law, the ordo was new. It takes a leap of our imaginations to understand the turmoil this change must have created. We might project this turmoil into our own lives if we could imagine how we would react if our traditional procedural system were suddenly replaced by an alien set of procedural norms. Jurists of the twelfth century needed to justify these radical changes of procedure. Quite surprisingly, they found their justification in the Old Testament and ingeniously traced the origins of the ordo iudiciarius to God’s judgment of Adam and Eve in paradise.”[3]

How did the legal thinker name Paucapalea biblically ground the importance of trial process? According to Legal historian Kenneth Pennington: “Its originator was a jurist named Paucapalea. He was the first to link the ordo iudiciarius to Adam and Eve. Around 1150 he noted in his commentary on Gratian’s Decretum that the ordo originated in paradise when Adam pleaded innocent to the Lord’s accusation of wrong doing. In Genesis 3.9-12, the Lord burst into Paradise and demanded: Adam ubi es? One may note that for a Deity His question was not particularly omniscient. Adam responded to the Lord’s accusation of illegal apple picking by complaining “My wife, whom You gave to me, gave <the apple> to me, and I ate it.” God had, in other words entrapped Adam when he gave him a wife. Paucapalea’s point is subtle but was not be lost on later jurists. Although God is omniscient, he too must summon defendants and hear their pleas.”[4]

1. The ordo iudiciarius refer to legal procedures in court.
2. Note the use of the story of Adam and Eve in Genesis 3:9-12 by Paucapalea.
3. God did not pronounce a penalty until after questionings have taken place. This was seen as important for the legal realm.
4.  

Anders Winroth further explain Paucapalea’s reasoning: “One of Gratian’s earliest known successors, a professor in Bologna who may have been called Paucapalea and may have studied with Gratian, took the second step towards universal rights in commenting on Gratian’s book. He pointed out that there was due process (or as he called it ‘procedure of pleading’) already in the Garden of Eden. When Adam ate the forbidden fruit, and God prosecuted him, Adam was allowed to defend himself. He did so by blaming Eve, and by extension God, since he pointed out that it was God who had given Eve to him: The procedure of pleading (placitandi forma) seems to have been found initially in paradise, when the first man, questioned by the Lord about the sin of disobedience, used a counteraccusation and a shift of responsibility for the sin, and alleges that the guilt was placed on [his] wife saying, ‘The woman, whom you gave, gave to me and I ate.’ Paucapalea’s point was that since God allowed Adam to defend himself, and even to enter a counter-plea, God believed in due process. Human courts must, thus, also observe due process, which is part of unchanging natural law.”[5]

1. The key here: “Paucapalea’s point was that since God allowed Adam to defend himself, and even to enter a counter-plea, God believed in due process. Human courts must, thus, also observe due process.”
2. Note the argument from God’s order to man’s ordering in the legal realm; and this was done by looking at the implication of God’s Word in the Old Testament.

This trajectory of using the Old Testament to justify legal trials and procedure continued after Paucapela for according to Anders Winroth: “Later canonists continued to use Gratian’s insistence on the primacy of natural law as it appears in the Bible to make ever more complex arguments about due process and the rights of litigants”[6]

Closer look at the Old Testament Teaching

One can say sin that brings about the curse of the world is a great sin and crime.

Yet in the Fall we see God did not judge the sinners without facing them and also questioning them.

Note this is before Israel was formed, so one can say it is God’s created order.

To fortify this court motif keep in mind that even in the New Testament a believers’ salvation is understood with a trial motif; 1 John 2:1 states how “we have an advocate with the Father—Jesus Christ, the Righteous One.”= Advocate is a defense lawyer! D. Edmond Hiebert comment on the use of “Advocate” in 1 John 2:1 that “Christ’s work on our behalf as our Advocate may be undertood as involving a judicial setting, acting in our behalf as a ‘defense attorney who takes up the case of his client before a tribunal.’”[7]

 

<Transition: Of course a mere appearance of a trial is not enough; what’s the difference then between a just trial and a show trial? Other procedures within a trial matter…>

 

The Old Testament influence on presumed innocence until proven guilty

The opposite method is problematic

There are in the past and even now the assumption by certain government in certain instances the operating assumption of “Guilty before proven innocent.”

One of the horror of assumed guilt of the accused can be seen in a Marxist country I once traveled to teach theology: a third of the population was wiped out as a result of an accusation the government operating question to the accused is “Who else are you conspiring with?” that already assume guilt.

The History

Once again we see the book of Genesis gets invoked; this time to ground the principle of presumed innocent until proven guilty: “Addressing the question of whether the pope may judge a notorious criminal without calling him to court (Pope Boniface VIII had claimed such a right), Johannes Monachus (d. 1313) pointed to the Biblical stories about Sodom and Cain. God ‘wanted to prove and see before he judged’, although their crimes were obvious even to observers who are not omniscient: ‘The voice of your brother [Abel]’s blood is crying to me from the ground’ (Gen. 4:10). Summons to court clearly belongs to natural law, Johannes said. In continuing his discussion of due process at length and great complexity, Johannes even determined that ‘everyone is presumed innocent unless they are proven culpable’, thus laying down one of the basic rules of modern criminal law. His comments mattered, for they became included in the standard commentary on the Corpus of canon law, which circulated widely by manuscript and print.”[8]

1. We see the person who coined the phrase “everyone is presumed innocent unless they are proven culpable” is Johannes Monachus.
2. Who was Johannes Monachus? According to Kenneth Pennington “He was a French canonist, who studied in Paris, became bishop of Meaux and an advisor to Philip the Fair. He died in 1313.”[9]
3. Johannes Monachus invoke both the story of Cain and Abel and Sodom and Gomorrah to argue that there is the principle of presumed innocent until proven guilty.

Kenneth Pennington adds: “Johannes took medieval conceptions of due process one step further: Everyone is presumed innocent unless they are proven culpable; the law is more inclined to absolve than to condemn. Guilielmus Durantis stretched this norm to its ultimate extreme: even the devil should have his case heard in court.”[10]

 

The Old Testament influence on Trial by witness

The opposite method is problematic

Instead of trial by witness throughout history there has been trial by ordeal.

1. Trial of ordeal “was an irrational way of determining someone’s guilt or innocence…If someone was charged with a crime, he or she was deliberately injured in some way: If the injury (from a heated iron bar or immersion into hot water, for example) healed within a prescribed number of days (usually three), the person was declared innocent. If the wound failed to heal, the verdict was guilty. This method for determining innocence or guilt was also called divination, since the court was trying, through the ordeal, to divine (discover intuitively) whether the accused person was guilty.”[11]
2. Sadly Catholicism in history have used this means of looking for guilt.
3. Also Salem Witch trial some Puritans also used this means of trial.

An assumption with trial by ordeal is the principle that a suspect can be used as a witness against oneself.

Closer look at the Old Testament Teaching

The Ninth Commandment is foundational for the importance of trials by witnesses: “You shall not give false testimony against your neighbor.” (Exodus 20:16)

1. The term here for “false testimony” is not the generic word for lying but rather shaqar refers to falsehood in legal contexts.[12]
2. Notice this verse prohibits false legal testimony against others; Deuteronomy 19:18-19 require the punishment of a false witness to have the same penalty of the crime that was claimed against the victim of the false witness: “And the judges shall investigate thoroughly, and if the witness is a false witness and he has testified against his brother falsely, 19 then you shall do to him just as he had planned to do to his brother. So you shall eliminate the evil from among you.”[13]
3. Deuteronomy 17:7 also require the witness to throw the first stone for capital offense; the severity of this command also is an extra safeguard with false testimonies.[14]

God also requires more than a single witnesses: ““A single witness shall not rise up against a person regarding any wrongdoing or any sin that he commits; on the testimony of two or three witnesses a matter shall be confirmed.” (Deuteronomy 19:15)[15]

There’s other passages on requiring two or more witnesses in Numbers 35:30, Deuteronomy 17:6, etc. Yet with all these passages there’s the assumption that the witness involves others who is not the accused.  Thus we see the idea of testifying against oneself not being admissible.

The History

The Romans actually have a good legal system on the process of handling witnesses. Yet this was at one point lost in Western civilization; how? “After the fall of Rome (476), Roman law gave way to the laws of the various Germanic (also called barbarian) tribes in Europe.”[16] This is unfortunately how trials of ordeals arose after the fall of Rome.[17]

A big part of the West’s recovery of the importance of trial by witnesses is based upon the Ten Commandments being applicable to society and political dimensions.

An example of this use of the Old Testament is Johannes Althusius, a Calvinistic German born thinker on law and politics.

1. John Witte, professor of law at Emory University summarizes Johannes Althusius thought: “Althusius added a number of other fundamental ideas to this Calvinist inheritance in his two masterworks: Politics (1603/14) and A Theory of Justice (1617/18). 37 He developed a comprehensive natural law theory that still treated the Decalogue as the best source and summary of natural law but layered its commandments with all manner of new biblical, classical, and Christian teachings.”[18]
2. Althusius sees the social and political dimension of the ninth commandment: “The commandment “ Thou shalt not bear false witness” imposes the corresponding duty on all to protect the reputation and good name of their neighbors and desist from insults, lies, defamation, and slander.”[19]
3. What’s the impact of Althusius’ political theory based upon the second table of the Ten commandments? John Witte writes “the Second Table of the Decalogue, undergirded a full system of public, private, penal, and procedural rights that were to be “constituted” by the positive law of the state. Althusius expounded on each of these collections of rights at great length.  By the time he was finished, he had defined and defended almost every one of the rights that would appear in the American federal and state constitutions a century and a half later.”[20]
4. What’s the legacy? An adversial court proceeding: “For instance, common law jurisdictions typically have adversarial court proceedings in which lawyers prosecute or defend, a judge impartially determines the law, and a jury decides the facts in a case. These institutions, procedures, and conventions set England and the United States apart from continental Europe’s various civilian systems, in which court proceedings are inquisitorial rather than adversarial, with judges playing an active role in the collection of evidence and interrogation of witnesses” [21] (Andrew Forsyth, Common Law and Natural Law in America, xii).

 

 

[1] Kenneth Pennington, “Innocent until Proven Guilty: The Origins of a Legal Maxim’,” The Jurist 63 (2003) 114.

[2] Kenneth Pennington, “Innocent until Proven Guilty: The Origins of a Legal Maxim’,” The Jurist 63 (2003),114.

[3] Kenneth Pennington, “Innocent until Proven Guilty: The Origins of a Legal Maxim’,” The Jurist 63 (2003) 113.

[4] Kenneth Pennington, “Innocent until Proven Guilty: The Origins of a Legal Maxim’,” The Jurist 63 (2003), 113.

[5] Anders Winroth, “Gratian and His Book: How a Medieval Teacher Changed European Law and Religion,” Oxford Journal of Law and Religion 10:1 (February 2021). Accessed at https://academic.oup.com/ojlr/article/10/1/1/6271403.

[6] Anders Winroth, “Gratian and His Book: How a Medieval Teacher Changed European Law and Religion,” Oxford Journal of Law and Religion 10:1 (February 2021). Accessed at https://academic.oup.com/ojlr/article/10/1/1/6271403.

[7] D. Edmond Hiebert, The Epistles of John, (Greenville, South Carolina: Bob Jones University Press, 1991), 74. 

[8] Anders Winroth, “Gratian and His Book: How a Medieval Teacher Changed European Law and Religion,” Oxford Journal of Law and Religion 10:1 (February 2021). Accessed at https://academic.oup.com/ojlr/article/10/1/1/6271403.

[9] Kenneth Pennington, “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Revista internazionale di diritto comune 9 (1998), 34.

[10] Kenneth Pennington, “Due Process, Community, and the Prince in the Evolution of the Ordo iudiciarius,” Revista internazionale di diritto comune 9 (1998), 36.

[11] David L Hudson, The Handy History Answer Book, (Canton, MI: Visible Ink Press, 2013), 258. 

[12] Philip Graham Ryken, Exodus: Saved for God’s Glory, (Wheaton, Illinois: Crossway, 2005), 656.

[13] Philip Graham Ryken, Exodus: Saved for God’s Glory, (Wheaton, Illinois: Crossway, 2005), 655.

[14] Philip Graham Ryken, Exodus: Saved for God’s Glory, (Wheaton, Illinois: Crossway, 2005), 655.

[15] Philip Graham Ryken, Exodus: Saved for God’s Glory, (Wheaton, Illinois: Crossway, 2005), 655.

[16] David L Hudson, The Handy History Answer Book, (Canton, MI: Visible Ink Press, 2013), 258. 

[17] David L Hudson, The Handy History Answer Book, (Canton, MI: Visible Ink Press, 2013), 258. 

[18] John Witte Jr., “Calvinist Contributions to Freedom in Early Modern Europe” in Christianity and Freedom: Historical Perspectives, (New York, NY: Cambridge University Press, 2013), 223. 

[19] John Witte Jr., “Calvinist Contributions to Freedom in Early Modern Europe” in Christianity and Freedom: Historical Perspectives, (New York, NY: Cambridge University Press, 2013), 226. 

[20] John Witte Jr., “Calvinist Contributions to Freedom in Early Modern Europe” in Christianity and Freedom: Historical Perspectives, (New York, NY: Cambridge University Press, 2013), 226. 

[21] Andrew Forsyth, Common Law and Natural Law in America: From the Puritans to the Legal Realists, (New York, NY: Cambridge University Press, 2019), xii.