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Biblical Atonement and Modern Criminal Law*

Published online by Cambridge University Press:  24 April 2015

Jerome Hall
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Extract

The organization of a Section on Law and Religion in 1976 by the Association of American Law Schools (after Watergate) was followed in 1977 by the incorporation of the Council on Religion and Law. My participation in both led to the study of theology and especially to the question, what, if anything, can a legal scholar, particularly one specialized in penal law and the philosophy of law, contribute to the literature on the interrelations of law and religion? In the English-speaking world not many legal scholars have written on this subject, and none, to my knowledge, on the interrelationship of religion and modern criminal law. I here confine my discussion to the Bible and, more particularly, to some of the writing on atonement by Christian theologians.

The central focus of Christianity is on the crucifixion and resurrection of Jesus Christ, and the relevant theme, originating in the Old Testament and frequently addressed in the New Testament, is that of atonement. Both the Old Testament and the New Testament accept and emphasize the vicarious significance of the sacrifice—the lamb in the Old Testament, Jesus in the New Testament. The one sacrificed takes on itself or himself the sins of Israel or the sins of all mankind. Likewise, the sacrifice frees all Israel or all mankind from sin, and the consequence is reconciliation with God.

Type
Articles
Information
Journal of Law and Religion , Volume 1 , Issue 2 , 1983 , pp. 279 - 295
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1983

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Footnotes

*

This article was published in Japan in a Festschrift for Justice Shigemitsu Dando upon his retirement from the Supreme Court of Japan.

References

1. See Hall, J., Law, Social Science and Critical Theory, chs. 1 and 2 (1982)Google Scholar.

2. This simplification of the difference between the principal types of interpretation will be more fully elucidated in the following discussion.

3. “… (Tertullian) displays a thorough and (it is claimed) profound knowledge of Roman Law.” (Barnes, T., Tertullian 23 (1971)Google Scholar citing Beck, Romisches Recht Bei Tertullian and Cyprian (1930)). “Secondly, knowledge of Roman law was not the exclusive prerogative of iuris consulti. It was a necessity for advocates pleading cases in court and also a normal possession of the educated man.” Id. at 24.

4. Tertullian, Apologetic and Practical Treatisespublished in 10 Library of Fathers of the Holy Catholic Church 6–12 (1854)Google Scholar.

5. Id. at 146, 366.

6. “The old Roman law conception appears … in Tertullian's portrayal of God as Judge and in his teaching that the relationship of man to Him is pre-eminently that of a criminal his judge.” Morgan, J., The Importance of Tertullian in the Development of Christian Dogma 54 (1928)Google Scholar. For examples of Tertullian's use of other legal terms, see Morgan, id. at 64-76.

7. Tertullian, supra note 4, at 358.

8. Id. at 359.

9. Id. at 370.

10. Id. at 371.

11. Id. at 353.

12. 3 Anselm of Canterbury (Hopkins, J., Richardson, H., trans., 1976)Google Scholar.

13. Id. at 67.

14. Id. at 68.

15. Id. at 55.

16. Id. at 55.

17. Id. at 69.

18. Id. at 71.

19. Id. at 102.

20. Id.

21. See Anselm's essay, The Virgin Conception and Original Sin, id. at 143. The influence of ancient Greek mythology and metaphysics on Christology is beyond the scope of this paper.

22. Calvin, J., Institution of the Christian Religion, 20 Library of Christian Classics 349 (McNeill, J.T. ed. 1960)Google Scholar.

23. Id. at 358-59.

24. Id. at 360.

25. Id. at 354.

26. Id. at 349.

27. Id. at 244-45.

28. Id. at 577.

29. Id. at 573.

30. Id. at 659.

31. Id.

32. Id. at 340. “In the dogma that the whole human race is condemned on account of the sin of its first parents, the doctrine of collective responsibility has reached its pitch.” Westermarck, , 1 The Origin and Development of the Moral Ideas 50–51 (1917)Google Scholar.

33. Calvin, supra n.22, at 509, 510.

34. Id. at 531.

35. Id. at 467.

36. Id. at 502.

37. Id. at 509.

38. Id. at 510.

39. Bushnell, H., Forgiveness and Law (1874)Google Scholar. See Rashdall, , The Abelardiun Doctrine of the Atonement, in Doctrine and Development 128 (1898)Google Scholar.

40. Bushnell, supra n.39, at 86.

41. Id. at 91.

42. Id. at 109.

43. Id. at 134.

44. Id. at 135. Bushnell says “the word justice does not occur once in the New Testament. …” Id. at 141.

45. Id. at 143-44.

46. Id. at 95.

47. Dillistone, F., The Christian Understanding of Atonement 244 (1968)Google Scholar.

48. Rashdall, H., The Idea of Atonement in Christian Theology 35 (1919)Google Scholar.

49. Cf. Mark 10:43-45; Matthew 20:26-28.

50. Rashdall, supra note 48, at 48.

51. Id. at 249.

52. Id. at 253.

53. Id. at 351-52.

54. Id. at 355.

55. Id.

56. Id. at 356.

57. Id. at 422.

58. Kung, H., On Being a Christian (Quinn, E., trans., 1976)Google Scholar.

59. Id. at 435.

60. Jesus often threatened hell, everlasting fire and “gnashing of teeth.” Matthew 5:22, 30; 8:12; 11; 23; 13; 42; 18:8, 9. “Wrath of god” is a frequent expression in the New Testament, Matthew 3:7; Romans 1:18; Ephesians 5:6.

61. Kung, supra note 58, at 421.

62. Id.

63. Id. at 422.

64. Id. at 423. Similarly, “It [redemption] is…an outstanding example of a legal notion being taken up and made into a religous notion by priests and prophets.” Daube, D., Studies in Biblical Law 42 (1947)Google Scholar.

65. Kung, supra note 58, at 424-25. Kung omits any reference to Jesus' first words on the cross—the first line of Psalm 22.

66. Kung, supra note 58, at 426.

67. Id. at 274. Kung's italics.

68. Id. at 313.

69. Id. at 435. Tillich has echoed this: “…justice is the structural form of love without which it would be sheer sentimentality … there are no conflicts in God between his reconciling love and his retributive justice.” Tillich, P., 2 Systematic Theology 174 (1957)Google Scholar.

70. Kung, supra note 58, at 314. “Thus the law is an enemy. … The Divine Love cannot be imprisoned in the categories of merit and of justice. …” Aulen, G., Christus Victor 68 (Herbent, A. trans. 1966)Google Scholar.

71. Brunner, E., The Mediator (Wyon, O. trans. 1934)Google ScholarPubMed.

72. Id. at 439.

73. Id. at 471.

74. Id. at 472.

75. Id. at 464.

76. Id. at 449.

77. Id. at 452.

78. Id. at 495.

79. Id. at 461.

80. Id. at 444.

81. Id. at 465.

82. See Hall, J., Religion, Law and Ethics, in Law, Social Science and Criminal Theory (1982)Google Scholar.

83. In Judaism “atonement… is effected through suffering by the individual himself. This is where Judaism and other religious systems differ most widely from Christianity, which does not think of atonement as affected by man's effort or suffering. … Christianity met [this problem] with its Christology.” Rankin, O.S., Israel's Wisdom Literature 122 (1954 reprint of 1936)Google Scholar. See al Farqi, I., Islum, in The Great Asian Religions 312 (Chan, W. ed. 1969)Google Scholar.

84. Psalm 19. See Buchler, A., Studies in Sin and Atonement (Intro, by Grant, F.C., 1967)Google Scholar.

85. See Robinson, H., The Hebrew Conception of Corporate Personality (1964)Google Scholar. In the thought of ancient Israel “sin was more than guilt; it was pollution. It infected the whole neighborhood … his city, his tribe or nation, and also their cattle and crops.” Grant, F., Prolegomenon, in A. Buchler, Studies in Sin and Atonement XXI, XXVII (1967)Google Scholar.

86. O. Rankin, surpa note 83 at 53-54, 70. Recent studies by anthropologists support the view expressed in the Bible, namely, that individual responsibility was sometimes advocated along with collective responsibility. One anthropologist even says: “In fact, individual responsibility always exists inside corporate groups.” In the pre-industrial societies which this anthropologist studied, collective responsibility was manifested in relation to other groups, that is, when a member of group A killed a member of group Moore, B., The Allocation of Responsibility 100 (Glickman, M. ed. 1972)Google Scholar. See Elias, T., The Nature of African Customary Law 134 (1956)Google Scholar.

87. D. Daube, supra note 64, at 162-63.

88. Westermarck, E., 1 The Origin and Development of the Moral Ideas 32, Ch. 2 and 19 (1917)Google Scholar; Hobhouse, L., Morals in Evolution 70–104 (1916)Google Scholar; Pollock, Maitland, 1 History of English Law 678 (1923)Google Scholar.

89. “for another's sin let me not suffer.” Rig-Veda ii, 28; 29; Westermarck, supra note 88, at 49. See, Deuteronomy 24:16 and 2 Kings 14:6.

90. Westermarck, supra note 88, at 61.

91. Id. at 63. Quoting Frazer: The victim must be a “representative of the community…. accepted as a substitute on the principle of social solidarity.” Id. at 67-68. See Browning, D., Atonement and Psychotherapy (1966)Google Scholar.

92. Kant, I., Religion Within The Lights of Reason Alone 66 (Greene, T., Hudson, H. trans. 1934)Google Scholar.

93. See Hall, J., General Principles of Criminal Law 240–246 (1960)Google Scholar.

94. Carlyle, T., Heroes, Hero Worship and the Heroic in History 1 (1840)Google Scholar. “Such great teachers are very few in the world. … They alone can carry us to the life divine.” Srivastava, R., Comparative Religion 241 (1974)Google Scholar.

95. Hook, S., The Hero in History 22 (1943)Google Scholar.

96. Compare Kant regarding the “superhuman.” “[H]is distance from the natural man would then be so infinitely great that such a divine person could no longer be held up as an example of him. Man would say: If I too had a perfectly holy will all temptations to evil would of themselves be thwarted in me …I too should take upon myself not only willingly but joyfully all sorrows … even to the most ignominious death, since I would see before my eyes the glorious and imminent sequel.” Kant, supra note 92, at 57-58.

97. For my support and defense of religious faith see supra note 1, at 16-26.

98. Daube, supra note 64, at 188.

99. Mannheim, H., Group Problems in Criminal Punishment 43 (1955)Google Scholar distinguishes strict liability from that imposed on members of a union or partnership by reliance on the act of members in joining those associations. But surely the act of one who buys stock or joins a union is a very slender reed on which to rest punitive sanctions.

100. Kelsen, H., Society and Nature 52, 55 (1943)Google Scholar W. McCulloch wrote that among the Koupoules of India “the greatest misconduct is the forgiveness of an injury, the first virtue, revenge.” Kelsen, id. at 64-65. Kelsen says at p. 235 that the retributive principle is the origin of the idea of causation.

101. Sidgwick, , The Methods of Ethics 281 (1901)Google Scholar.

102. Rashdall, supra note 48, at 421, 422.

103. See Hall, supra note 93, at ch. 9, and consult the Index in Hall, J., Law, Social Science and Theory (1982)Google ScholarPubMed.

104. Matthew 13: 41-44; 16:27; Mark 9:42.

105. Hall, , General Principles of Criminal Law 130 (1st ed. 1947). 307–308Google Scholar (2nd. ed. 1960). This was not a discovery or a novelty. In 1797 Kant wrote: “He must first be found to be deserving of punishment before any consideration is given to the utility of this punishment for himself or for his fellow citizens.” Kant, I., The Metaphysical Elements of Justice 100 (Ladd, J. trans. 1965)Google Scholar.