RESTORATIVE JUSTICE: A PRIMER

1710 C.R. 121, Hesperus, CO. 81326

970-259-3384

wdb@frontier.net

INTRODUCTION

I began this tome at the age of 52, while I also began a four month period of teaching general principles of law at two universities in Moscow, Russia.

In contrast to the United States, lawyers are not a significant factor in the society of the former Soviet Union. In the United States, for our roughly 250 million people, there are roughly one million lawyers. In the former Soviet Union, with about 190 million people, there are barely 30,000 lawyers.

And right here a point needs to be made: when I use the term "Soviet," I will be referring to the philosophical mind-set which ruled Russia, Eastern Europe, and Central Asia for most of the past 70 years; when I use "Russian," I mean the historical and ethnic Russian person of north-central Asia and extreme Eastern Europe.

One reason for this disparity of the number of lawyers is the historical communal approach to life in Russia versus that in the United States. We are committed to the "rights of man" -- to the inalienable rights of the individual. In part because of this (along with the Judeo-Christian concept of the unique worth of each individual), in our society the rights of the individual have become paramount to the rights of the community.

In Russia, the exact opposite has been true for over 1000 years -- in part due to the difficulties of life in the far north, and in part due to a history of a lack of private ownership of land and of property used for production of goods. The result is fewer lawyers: you need fewer in a community-centered life than in an individual-centered life.

A second reason, however, is that the experience of historical Russia with law, from the earliest of times, has been an experience with "repressive law" -- that is, the law served always to uphold the power and decree of the King (Czar or Soviet Dictator). In comparison, law in the United States has always been basically autonomous -- that is, seeking to hold the political and military leaders responsible as well as all the populace. Repressive law societies always produce less lawyers than do autonomous law societies.

I arrived in Moscow with (and possibly because of) a wide and seemingly contradictory background. I was born into the home of a lawyer/politician, my father holding the offices of Municipal Judge, County Prosecutor, and State Legislator.

I graduated from Indiana University Law School in 1966 and entered the general practice of law in Elkhart, Indiana, in the firm of my father. In the Fall of 1973 I was appointed a member of the Indiana Board of Correction, a lay-citizen advisory board to the Governor on matters of prisons. I served on the Board through the end of 1976.

In 1977 I became Judge of the Elkhart Superior Court II, a court of general jurisdiction for Elkhart County (about 135,000 people). While I exercised jurisdiction in all areas of the law (Criminal, Civil, Family, Probate, Juvenile, etc), the Court quickly took on the attributes of my personality -- an insatiable hunger for that thing which we call "justice." Thus the criminal and juvenile areas took precedence over all other work areas of the Court.

My sense of what was necessary for justice to happen, and my zeal and manner of speaking, proved more than the law and legal system could tolerate. In 1981, for provoking the law and system over an issue of mandatory sentences in some criminal cases, I was found in Indirect Criminal Contempt of the Indiana Supreme Court. Should you want more information on this, see Chapter 16 of Loving God, by Charles Colson (Zondervan Publishing House, 1983).

I chose to leave the bench in February, 1982, in the midst of proceedings by the Indiana Supreme Court to remove me. From then until September, 1983, I again practiced law privately.

But this time the way I practiced was radically different. Having suffered a great deal of pain and anguish during 1981, at the hands of the law and in the processing of a conflict, I had found peace through a surrender to Jesus Christ as Lord and Savior.

Now, in my clients, I saw the same turmoil I had experienced; so I began offering the peace which I had found. I spent far more time in counseling as a Christian than in lawyering.

In September, 1983, I left the practice of law and moved to Minneapolis to become Executive Director of the Christian Conciliation Service of Minnesota (CCS), a ministry to draw Christians in conflict out of courts and into churches for discussion, healing, reconciliation, and resolution of their conflicts.

During this time, I focused on learning and teaching principles of finding justice in the midst of conflict by choosing personal "peace-living" -- the practice of the principles found in Matt. 5:22-26 and 18:12-35.

In 1988, I left my position with CCS to pursue a role of teacher and consultant. Over the next several years, my work led me into several internal church conflicts, taking the same principles and applying them to corporate conflict settings.

In 1990, I began to minister in prisons through Prison Fellowship, the organization formed by Charles Colson, former aide to President Nixon. Here I focused on the message of reconciliation to those behind bars.

The next year I became involved with Justice Fellowship (a branch of Prison Fellowship), and began to develop some applications of principles of reconciliation to matters of the law and legal systems of the United States.

In 1993, I became involved with the international arm of Prison Fellowship, presenting to emerging nations a whole new concept of criminal jurisprudence called Restorative Justice.

My tenure in Moscow was under the International Institute for Christian Studies (Overland Park, Kansas).

Why did I choose the title of Restorative Justice: A Primer for this work?

I do not know about you, but as I wander about, I meet a lot of people who complain that justice seems to no longer exist in the United States.

As I listen to them, I find that such people fit into five categories:

(1) Those who feel they have been harmed by another -- by a crime, a tort, or in violation of a contract -- and feel they have been let down by the legal system in seeking resolution of the conflict. I will call these people victims, for that is how they see themselves, although harm-sustainers would better establish that we are not limiting this to matters of crime.

(2) Those who know they have harmed others, but who also feel that the system has failed to deliver justice to them. I will call these people offenders, or harm-doers.

(3) Those who are family members, friends, fellow workers, neighbors or acquaintances of victims or offenders, who also say that justice was denied to their friend. I shall call these people community.

(4) Those of one region -- county, state, nation -- who, based upon what they receive from the media, bemoan the fact that Justice seems to no longer exist. I shall call these people society.

(5) And those who labor within the law -- legislators, law enforcement officers, prosecutors, defense attorneys, judges, probation officers, correctional officers, etc, who so often speak with discouragement and a hint of bitterness. I shall call these people players.

Finding all of these feelings in the United States of America, a nation committed to the proposition of the Rule of Law, with highly developed criminal and civil legal systems (as opposed to many nations with nearly no civil law), is particularly disconcerting to a person of the law such as myself. To sense the law devouring us, rather than serving us, causes pain.

But the total of my study and experience says that there are things which can be done which may restore a sense of justice to people in all five of the categories. Thus, I entitle this work, Restorative Justice. But, I also call it A Primer because I am not a theologian, and I do not believe that I have all knowledge. So I see this work hopefully as beginning a foundation for discussion within the Christian community. Working together, we may be able to develop this into a true program for reform, in our nation and churches.

I devote this book to two questions: what has brought us, in the United States, to this point of frustration? What, if any way, is the way out? But two disclaimers must be made. First, I am writing as an evangelical and as a lawyer. Lawyers tend to sound and be legalistic. Their rhetoric often seems harsh, uncompromising, judgmental and condemning. We make sweeping assumptions, and hang theories on them. And we tend to be argumentative -- as though that should surprise anyone. But I love people, and I love our God who isn't done with me yet. I plead for an open-minded hearing. Second, I want to present the Mosaic Code as a model for law and procedure. I will propose that a nation which wants to thrive must acknowledge that Code and seek to incorporate its principles into its legislation. I also believe Christians should be a part of these legal processes.

But I am not a Utopian, and I fear power greatly. It was not our Lord's way. My proposals call for sacrifice, not for the exercise of power. They call for risk-taking not control-taking. They call for proclaiming the heights to which Jesus calls us, while acknowledging the depths to which we continuously plunge.

My understanding of the Bible says that our best efforts will not stop the downward slide of mankind to the point where all life on earth would end but for the return and intervention of Christ. But the Bible also says that our God is sovereign over that event. Until then, we are seed-throwers and body-snatchers (Jude 22-23).

So, instead of seeing this as a proposal for Christians to take power and coerce restorative justice principles, please see it as proposing an educational program. If one person who reads this finds peace in the midst of conflict, I will be glad. If there is just one who, after reading this, acts upon it, and thus snatches another from the fires of conflict, I will leap for joy.

SECTION 1 -- JURISPRUDENCE

Encountering Law

Because this work will present a study of law, it will be called a book of jurisprudence. Jurisprudence may be defined as: "The science or philosophy of law" (Webster's New World Dictionary 3rd College Edition).

To me, philosophers and theologians should be asking questions such as What is the source of law? What are its purposes and its methods? What will be the consequences of our choices concerning source, purpose, and method? I see this as the issue of The Rule Of Law.

On the other hand, political scientists should be asking questions like: How do we choose our laws? How do we enforce them and interpret them in a life of a conflict? I see this as Rule By Law.

Finally, there is the question for each of us to ponder: What is my attitude towards law and the legal system, respect or anger? This is the matter of being Under Law. It is a highly personal matter.

Studies in Jurisprudence ask questions such as those which I asked my Russian students: Where did you first meet law? Where else have you met law? In what forms do you find law? What are the purposes of law? How does law function? What are the sources of law? What are the results of law?

Jurisprudence does not ask questions concerning "laws of cause and effect", such as touch a hot stove, you will get burned and learn not to touch a hot stove. Nor does it ask questions about "laws of nature", such as gravity or animal kingdom life. The reason is that such "laws" do not need human involvement.

I begin with the issue of where we first encounter law. If we stop and think about it, we first become aware of law within the family. We grow up discovering that there are rules, relationships, authority structures, and power at work within the family unit.

True, these laws of family interaction are, generally, unwritten. They seem to be constantly changing. They may be based upon historical custom and usage which seem very outdated. And they can be very arbitrarily and haphazardly enforced. Yet, they are laws, for they seek to govern human behavior as that behavior works itself out within a community of other people.

And we have just met the first purpose of law: to regulate human behavior in relationship to other humans and to the planet.

As we consider our life to the moment of reading this page, we will see that we have encountered law in many places: on the street, in the playground, at school, in sports, driving a car, etc. As we look, we find customs and usage, Constitutions, statutes, rules and regulations, behaviors of superiors to inferiors, and procedures, all of which are equally entitled to be called laws because all are equally involved in seeking to govern human behavior in relationship to other humans.

At this point, we have seen a second major purpose of the law: it is to restrain people, and is backed by power to accomplish its purpose.

And we now realize that the only law we know is the law created by humans. It is enacted by humans, enforced or "processed" by them, and even defined by them.

Sometimes jurisprudence will attempt to define law based upon the type of law which a study finds in a particular political setting.

As such, law might in one locality be termed repressive, i.e., so in the control of the "King" that society must always be looking to the King for its meaning and existence. I came to a country, Russia, which has never known any law other than repressive law -- whether it was under the Tartars, Mongols, Tsars, or Soviets.

Obviously, in a repressive system, all those functioning to keep the system going look only to the King to see if they are doing the right thing. And, just as obviously, they live in constant fear that they may become the focus of the King's displeasure, and thereby the victim of the law.

Another system of law, in another place, might be called democratic, that is, it is always looking to the majority to see what to do. This might be true of the United States. However, law which always looks to a majority can be just as repressive of rights, status, property, and dignity of the individual as the repressive law of a King -- and just as lacking in moral foundation. This was what DeToqueville warned about when he wrote Democracy In America.

Or a legal system might be called autonomous, i.e., capable of holding king and people to account (known in the United States by the phrase "the rule of law"). In such a system, those in charge of the administration of the law generally look only to the "letter of the law" to justify their actions. They do not consider what factors may bring people into the system for resolution of conflicts, nor what the impact of a decision may have upon the greater community to which these people will return. These are seen to be moral or political issues, outside the scope of the law. The autonomous system fears that any attempt to address these matters would be a risk to its independence.

(This is why I had so much trouble as a Judge -- I was always asking, "Why do they come," and "What happens when they leave?" And I was always pointing to the other branches of government and trying to tell them where they were failing in the establishment of justice! But, I must admit, I did a lot of this with arrogance, which equals contempt.)

Another approach to the study of law would be to study historical principles of law (the method used in the United States until the end of the 19th Century). In that type of study, one considers principles as developed from the Common Law since 1100 A.D., and then look to cases to see how those principles have been applied by judges in an effort to bring about "justice." This would also be a culturally specific way to study law. We will do some of this in this book.

Or, jurisprudence might study how specific interactions of two or more people were dealt with, at and by law. One could then devise categories of law, and, from the cases studied, come up with a number of "principles" which would then be argued when a new case would arise. This is the method (case book study) used in law schools in the United States today.

Or we could study every system of law and procedure which is available to see what we would like to copy or avoid.

I am certain that there are other approaches to a study of jurisprudence available, but these will serve to make my point: in every instance we would still be dealing with laws of man, ever in a state of change.

For the purpose of this book, "law" shall be considered as whatever, in a given situation, passes for the rules (written or unwritten; specific or non-specific) which regulate the interactions of human beings within a society. As such, "law" will presume something created by mankind.

Here, I will present a theory of jurisprudence which may best be described as Restorative Justice.

If I prompt the reader, i.e., with what lawyers call "leading questions", I may also get you to see and acknowledge the presence of another law.

This law is also found centered in our relationships, it is always unwritten, it seems to always function perfectly, but it does not seem to come from humans. This is the law of love lived out in relationships with others.

The mother who comes to tuck us in at night, gives us a kiss, prepares our food, and washes our clothes -- and to whom we so seldom say thanks -- lives this love out in the family.

The teacher who takes us aside to speak soft words of encouragement, lives this love out in the school.

If we search out lives, in every setting of the law of humanity, we will often find examples of the law of love.

It is not fair to say that law made by humans fails to recognize this other law. Law knows that it is present. But it is fair to say that man made law, historically, has ignored this other law because it knew that it could never require a person to live out this other law of love.

As a judge I wept for what might have been, knowing that it would require love to bring it about, yet seeing myself as helpless to produce the love needed. So, I issued decisions, to people who were unwilling to decide between themselves based upon love.

Human law, coming from power and restraint, just does not know quite what to do with love.

Today I believe something different. I do not believe that human law can create the love needed to take us out of our need for law. But I do believe that human law must recognize that another system of law exists. And I believe it is possible for human law, whether written or procedural, to:

(1) Point out to the people subjected to human law that another system exists;

(2) Explain why one should choose the other system;

(3) Encourage one to choose the other system; and then

(4) Respond appropriately to one who makes the choice to seek the other system.

Today, in the United States of America, we are at an all time low in our attitude to law, the legal system, and those who administer the system.

I suggest the reason is that we know, in our innermost being, the things I have just said -- and we want to know what to do about them. To begin, we must consider the question of the source of law.

Sources of Law

I begin with seven questions:

Question 1: Is there an absolute LAW which exists, and which is in some way above all of the laws and systems of man?

Most people (including my students in Moscow), think that the law is an absolute. "In fact," they say, "if jurisprudence is actually a science, then it must be a science wherein two plus two always equals four." And they continue to study, looking for the perfect law of man which always produces four.

But they quickly become frustrated thinking about law, and deep down seem to know no law is absolute. Law appears situational rather than absolute. Does the officer, when he stops you, arrest you or just warn you? If you are arrested, will the prosecutor file charges, or let you go your way? If you are charged, will you be offered a reasonable plea agreement, or forced to trial? If you have a trial will you be convicted or acquitted? If convicted, will the judge be lenient or harsh?

Every one of these legal decisions is made by a human being, subject like us to idiosyncracies. And the law constantly proves to us how subject it is to our human frailties! Yes, we know the law is not absolute, but we keep on seeking and hoping, don't we?

Question 2: If absolute LAW exists, where do we find it?

If it is not discoverable, then it does not, in fact, exist and cannot be the LAW which we all seek. And if it is not discoverable, then the words of Oliver Wendell Holmes, former Chief Justice of the U. S. Supreme Court, become chillingly appropriate (in The Second American Revolution, by John Whitehead -- David C. Cook, Publishers; 1982; page 51): "Truth is the majority vote of that nation which can lick all others."

Question 3: Is this LAW, assuming we can find it, binding upon all?

If it is not of equally binding force upon every human being, in every period of time, in every setting of society, and in every circumstance, then it is not the LAW we seek. Elton Trueblood, A Place To Stand, (Harper & Row 1969), phrased it this way (pg 27):

The same proposition cannot be true for one man and false for another, because then the confusion would be intrinsic, and the effort to know the truth would be a meaningless undertaking.

Question 4: Is this LAW unchanging?

If it changes and is changeable, it cannot be what we seek.

Question 5: Is this LAW recognized by all?

If it is not recognized by all, then those who do not recognize it are not bound by it, and we still do not have the absolute which we desire.

"Binding" and "recognized" are not the same thing. Of the two, the first is the critical one, for if such a LAW exists, and is binding upon me, then the fact that I refuse to acknowledge (openly recognize) it does not alter its binding effect. And, depending upon the source of the LAW and the method of conveyance of that LAW to all of mankind and to me, it is possible for me to be chargeable with the knowledge of the LAW, even though I refuse to recognize the LAW.

Question 6: Does this LAW offer a final judgment of all matters in perfect justice?

If there is no day of reckoning, so to speak, then there is no LAW. If such LAW exists, transcends all other law, and is binding upon all, it must vindicate itself and its existence at some ultimate point in time, to and for all of history, and upon all who have ever lived.

Question 7: Does the LAW have an answer to the question of why we do not simply agree with one another and then live out our agreements? That is, why we do not live out love in our relationships?

Phrased differently, does this LAW tell us why we must have our laws, regulations, and processes? Does it tell us how to behave and function within what we create? My friend, Sam Ericsson, says that as he travels the world and speaks to people on matters of the law, he is always able to secure agreement to one basic proposition:

"No person wants to be treated by law, or at law, in a way which is any less than any other person is treated."

In a manner, this is a reverse of the Golden Rule: "Do not do unto me less than that which you would want done unto yourself." And, while this is certainly a starting point, and does represent question (5), it does not, I think, go nearly far enough.

John Warrick Montgomery wrote a book entitled, Law Above The Law (Bethany Fellowship, 1975). There he gives four reasons why, for him, the Bible must be the place to find this law above all laws:

An explicit, non-question-begging standard of absolute justice is provided by which the evil laws of sinful men and sinful societies can be evaluated and corrected. (p. 46)

Biblically revealed 'higher law' offers the only reliable guide to personal and national health, and thus to the preservation of individual and corporate life. (p. 47)

Together with revealed law, Scripture imparts the gospel, thereby offering not only perfect standards but also merciful help for a fallen race that continually violates them. (p. 49)

In the face of the inadequacies and failures of even the best of human justice, Biblical revelation assures us of a Last Judgment, where perfect justice

shall be rendered. (p. 51)

It is my belief that there is LAW above all our laws -- that it is discoverable, recognizable, and binding upon all, and it has been for too long neglected. It is to be found in the first five books of the Bible.

I believe that for a number of reasons:

First, if there is no discoverable and agreeable LAW above all law, then there is, in fact, no law but only power and anarchy, disguised by a membrane called "civilization," which can at any moment, like in Yugoslavia today (or Germany under Hitler), shatter in an obscene way.

Or, if we recognize that unfettered majority rule might, itself, be a form of anarchy, we can show that potential no better than through some other words of Oliver Wendell Holmes:

When it comes to the development of a corpus juris (a body of law) the ultimate question is what do the dominant forces of community want and do they want it hard enough to disregard whatever inhibitions may stand in the way. (The Second American Revolution, p. 51)

I refuse to accept that anarchy is truth.

Second, as a Christian, I see life as a whole; I do not separate social, legal, or political concerns from concerns of ecclesiastical or theological nature. All acts have both public and religious significance. There is, in all things, a continuous battle between good and evil, God and Satan. Thus, I see absolutes wherever I turn. I see reality at two levels -- that which I can see, touch, experience; and that which is of God even if I cannot see, touch, or experience it.

Third, I believe that here our choices are only two: either there is a Supreme One above all others, from everlasting to everlasting; Creator, Provider, Sustainer; the God Who has revealed Himself to mankind -- or there is not.

If the first is true, law and truth flow; if the latter is true, there is no truth, only power and anarchy; and there is no future, no meaning. All is chance -- so go for the gusto this time, because this is all you will ever get. There are no values or principles, no way to determine the "ought" from the "is." If there is no discernable, objective "right" to which man can agree, then there is not even the possibility of there being such a thing as error.

To quote Whitehead further (p. 88):

The crucial question is really one of epistemology -- the theory of knowledge. If man cannot know, according to a higher law, what is just or right in a situation, he cannot protest and criticize legitimately any particular course of action as unjust. Therefore, questions of right and wrong are resolved, in the jurisprudential view, by the political process.

Montgomery also cited a delightful tale to show the results of a law of "every man for himself" (p. 17):

Once upon a time, a hare of philosophical temperament invited a politically oriented fox to dinner. During the entree, the hare presented an interesting argument on the relativity of law and morals, stressing that each beast, in the final analysis, has a right to his own legal system. The fox did not find this argument entirely convincing on the intellectual level, but was much impressed with its practicality. For desert he ate the hare. Moral: A philosophical viewpoint can be of immense practical consequence, especially when the stakes (steaks) are high.

Fourth, I believe that the Bible is God's authoritative revelation to mankind; that its pages contain necessary and sufficient guidelines for the proper ordering of personal, social, and ecclesiastical life; that all aspects of life -- need to be brought into subjection to God. This includes our laws, legal systems, legal procedures, and the behavior of people who function in those areas.

Fifth, the Bible offers doctrines and statements unknown in all other religious systems. These relate directly to the matter of law, and confirm the validity of the Bible as the source book for LAW:

(1) The Bible states that man is made "in the image of God." (Gen. 1:25)

Now recall: if there is no god, there is no law above all law; thus, if God exists, then He must, in His very nature, epitomize all absolute, unchanging, binding upon all, LAW. If we then, as humans, are made in the image of the Author and Embodiment of LAW, then knowledge of that LAW must be etched permanently in our very nature and being.

(2) And the Bible declares exactly this situation to be true:

For this commandment which I command you today is not too difficult for you, nor is it out of reach. ... the word is very near you, in your mouth and in your heart, that you may observe it." (Deut. 30:11-14)

In point of Biblical history, this was said after the Ten Commandments and sundry laws had been given.

(3) God, both LAW and the LAW-giver, says of Himself: "For I, the Lord, do not change" (Mal. 3:6), thus fulfilling one of the requirements of the LAW -- unchangeability;

(4) And the Bible promises a day of reckoning:

The conclusion, when all has been heard, is: fear God and keep His commandments, because this applies to every person. For God will bring every act to judgment, everything which is hidden, whether it is good or evil. (Eccl. 12:13-14)

This leads me to my sixth reason -- which is related to the issue of "expect" versus "respect". I asked my Russian students, "What do you expect from the law?" (This is also a way to discover what Sam Ericsson seeks -- common ground for the law.) They said:

To be treated equally with others.

To have my rights protected.

To have my property protected.

To have my pursuit of happiness protected.

To have due process.

To have all bound by the same law.

To have a problem-solver.

But, try as we might, the laws and systems of man will always fall short. Sooner or later, our expectation will not be met. We will find that we have a "decision-maker," not a "problem-solver," to whom we are appealing. And we will find that the decisions of the law are dividing us from one another, rather than restoring us in good relationship.

Or you might address this matter of expectations from a review of the Preamble to the Constitution of the United States:

We the People of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

The fact is that everything which we the people said we would do, the Bible says God and God only can do:

And He is before all things, and in Him all things hold together. (Col. 1:17) [If we could do it well, why did I, for 5 years, spend one afternoon per week granting divorces?]

Many may seek the favor of the ruler [Judge, President, etc] but justice for man comes from the Lord. (Pro. 29:26)

Unless the Lord builds the house, they labor in vain who build it. (Psalm 127:1a)

Unless the Lord guards the city, the watchman keeps awake in vain. (Psalm 127:1b)

"Who covers the heavens with clouds; Who provides rain for the earth; Who makes grass to grow on the mountains; He gives to the beast its food. Psalm 147:8)

If we see the Preamble as only a goal to strive to, under the principles of the LAW, all will be well in our soul. But if we begin to expect the government to actually accomplish the things which only God can accomplish, we will be emotionally shattered.

Can we, nevertheless, respect the law and the system which is over us?

If we put our expectations upon the God Who will, some day, judge all things, hidden or in view, with righteousness, then we can choose to grant respect to the law, the system, the process, and those who serve in it, even when they fail us in some manner.

In the third chapter of the Book of Daniel, three men faced the dilemma: denied every legal right and process which we hold sacred (religious liberty, appointment of counsel, separation of power, impartial tribunal, facing witnesses, rights against self-incrimination), they did not swear at the king, or at the law, or at the process. Instead, they admitted what they had not done, and why they had refused. Faced with a certain death, they quietly and respectfully continued in their refusal -- acknowledging the power of the king to kill, but the power of God to save. And they stated that even if God did not save, it would not change the fact that He existed and would, some day, set all things right.

While serving as judge, I expected perfect righteousness from the law, from the legal process, and from those serving in the law. When perfection was not forthcoming, I removed my respect for the law, the system, and those who served. In short, I became an "anarchist" who had set himself above the law. I was rightly found in contempt by the Indiana Supreme Court. Today, I respect, for I have changed the place -- the Person -- where I place my expectations.

Let's hear some other thoughts from Whitehead:

Modern legal theorists define jurisprudence as the science of the law. Jurisprudence, however, encompasses more than a vague generality such as that. The Latin term juris means 'just' or 'right.' Prudentia, means 'a practical skill in the management of business affairs.' In other words, jurisprudence has to do with the administration or weighing of justice or right values. (48)

Thus, this book begins with the proposition that there is "law above the law," and hereafter I shall designate it as LAW.

This LAW is that which emanates from God, the Ever-existent One Who created and sustains all that is, Who reveals some things of Himself to mankind through nature, Who has also written to man in that Book known to Christians as the Bible, and Who entered the life of man on earth in human form as Jesus Christ.

I will use law to designate all the efforts of man -- constitutions, statutes, customs, usages, and procedures -- to rule and regulate the behavior of those who will not love.

Purposes of Human Law

Just what are the purposes of law?

We have already seen that law serves to regulate human behavior relative to our relationships.

Inherent in that purpose is the acknowledgment that if we could always agree, and always live out our agreements (or find our own way back to a good relationship when a disagreement occurs), there would be no need for either law or legal process. There might, however, still need to be a process, and people to help in that process. However, even the process would not be of law but would be of voluntary seeking after unity beyond concepts of law.

Since we seem unable (or unwilling?) to live in agreement, the law gives a place and a process where we can bring our conflicts, rather than leaving us to war against one another to the death. So, a second purpose of law is to give us a process which is able to compel us to do what we choose not to do.

This process, it is hoped, will also restrain people who perceive themselves as victims from taking the law into their own hands.

And law seeks to punish those who transgress the laws of society, or the rulings of Courts, in hope that they will not transgress again. In a civil case, as we shall see more fully later, the questions asked generally are:

(1) How much, if any, has the offender injured the victim?

(2) What remedy or remedies, if any, are appropriate to compensate the victim for the loss?

In a criminal case, however, the questions appear to be:

(1) To what extent, if at all, has the offender injured society?

(2) What sentence, if any, is necessary to punish the offender for his transgression?

Just as punishment of the offender, rather than compensation for the victim, separates Criminal law from Tort or Contract law, so there must be something about a criminal act which makes a victim compensation approach inappropriate. That which has, historically, separated these fields of law is the issue of punishment.

Historically, punishment has been seen to have five goals:

(1) Reformation means seeking to change offenders from law-breakers into law-abiding, productive members of society. It seems desirable (society gains, and nobody loses) if the offender is rehabilitated. However, everyone today seems to agree that the U.S. law and legal system do not bring about reformation.

Of course, a theory that man is sinful answers the problem, for nothing done to or for one who is a sinner by nature will change him. Rehabilitation is an inward act of the heart which then displays itself in outward actions of love, lived out in relationship and community.

(2) Restraint is simply the removal of a person, for some period of time, from the presence of others. The purpose is to incapacitate the person from committing crimes against the public. However, 99% of all offenders sentenced to prison do get out -- and studies show they come out the worse for the experience. Also, in the instances of the worst offenders, they merely find a new "public" to offend -- fellow inmates. This, of course, also means that lesser offenders, sent to prison, get doubly punished as they become the prey of the anarchist.

Further, during the time of restraint, victims often receive no restitution and family members of offenders may be placed upon welfare. All of this injures society to a still greater degree as it supports the bed-and-breakfast establishment (prison), and the incarcerated offender via taxes.

Restraint, as a form of punishment, is foreign to the Bible except for the person who, being unable to make restitution, is sold as a bond-servant for restitution (Ex. 22:3; Deut. 15:12). It is believed that the maximum period for such servitude was 6 full years (see also, Ex. 21:2).

(3) Retribution proceeds from a theory of vengeance, plain and simple: "You did something wrong. We do not like you. We will remove you from among us." Maybe this is merely the law attempting to justify itself.

Of course, this denies the dignity of the individual. And it lacks a certain display of love. We are to love the sinner but hate the sin.

Then, when we try to make sense of the particular sentence given a particular person for a particular crime, in comparison with another sentence given another person for his or her particular crime, we find the appearance of such a disparity that, once again, the law makes no sense.

It may be that we demand retribution, but the Bible makes it plain that vengeance is for the Lord and not for humans. Yet we do find support for the people, as agent for God, exacting God's retribution as punishment. We shall see this in the death penalty, in its precise Biblical application.

(4) General Deterrence operates on the theory that a certain punishment to one person will reduce the possibility of other people committing the same, or similar, offenses. Biblically we find support over and over for general deterrence, even though there is no proof that following a Godly order will universally result in such. We are forced back to faith in Him Who created and does know best. Thus, general deterrence is a proper way to view sanctions for violations of the law. But it must be viewed within a context of no prisons!

(5) Specific Deterrence is the thought that a punishment given to a person will deter that person from doing the same or similar acts in the future. However, if 75% of those released from prison are re-arrested and again incarcerated within four years of release (current figures from around the world), specific deterrence does not seem to work very well. For example, harsh penalties for drug trafficking do not even slow down the flood of drugs, whether it is because people are doing the dealing under the influence, or because of the high financial reward in light of the risk of actual punishment, or because of the constantly expanding market.

Later we will look at the very concept of punishment as a purpose for the law. For now, I have presented the ancient concepts.

In Civil law (as opposed to Criminal law), there is a stated purpose of trying to restore those who have been harmed to the position they occupied before the harm took place. This is, if you will, a shifting of the burden of loss from the one who sustained the loss to someone who ought, more properly, to bear the loss.

Civil law also establishes relative rights, powers, positions, etc. As such, it serves in yet another way to order society.

And, we must never forget that one purpose for law is to simply uphold the position of some one -- or some group -- in power. This is the "repressive" concept of law which we mentioned earlier.

These purposes seem a bit sterile, however. Can law --

(1) In its written forms -- Constitutions, statutes, and case decisions;

(2) In its procedures; and,

(3) In the actions of its servants --

serve another purposes? Can it serve to build up, rather than tear apart?

But what are the purposes of God's LAW? If He exists, and has given LAW, then we ought to seek to bring the purposes of our laws, procedures, and actions into conformity with His purposes.

God's Purposes for Law

God is, according to the Christian doctrine, in three separate but yet unified Beings -- Father, Son, and Spirit. This relationship is a mystery which the mind of man can barely comprehend, let alone adequately express.

But any consideration of the nature of God must automatically carry with it a concept of relationship. And we, the ones who have received His LAW, being made in His image, must also be relational in our basic characteristics.

Also, any consideration of the relationship between God and humans must carry with it the concept of superior to inferior, and the concept of rights and responsibilities.

Thus, we may expect to find purposes within God's LAW concerning our relationship with Him, our relationships with one another, and our rights and responsibilities, both horizontally with others and vertically with God. His LAW should define, as well as proscribe. His LAW should call as well as respond.

Prior to the Fall (Gen. 3), LAW was a part of the relationship between God (creator and superior) and Man (created and inferior). From God came "provision" (the world and all which it contained), delegated authority (for humans to rule that world), and law ("touch not the tree of knowledge of good and evil").

From the human point of view, there was:

(1) The very fact of relationship with God -- walking and talking with Him;

(2) Some responsibilities -- exercising stewardship over that created by God and entrusted to humans, and to pro-create; and,

(3) Some rights -- the freedom of an inferior living in a relationship of obedience in faith to a loving Superior whom he knows exists, sees, hears, cares, loves, and provides.

Now at this point, man had no need to create law, as all LAW had already been given by God. Even with the entrance of the family unit, law was not necessary. Relationship to each other, and to God, in respect for the LAWS created by God and written on the heart, were all that was needed.

Another way to say all this is that what we had was love lived out in a setting of relationship.

But, with the Fall, all this changed. SIN entered into the world and infected the entire universe.

I see something interesting in the dialogue between the Serpent and Eve and Adam. I say "and Adam" because apparently the best reading of Gen. 3:6 is that Adam was there while the dialogue was taking place!

God had said, "from the tree of the knowledge of good and evil you shall not eat." (Gen. 2:17) Satan said, "For God knows that in the day you eat from it your eyes shall be open and you will be like God, knowing good and evil." (Gen. 3:5, emphasis added)

Now, Satan is called the "father of all lies", and this was his first lie. Adam and Eve already knew good and evil, and they knew the difference between them. They may not have known the consequences of an evil choice, but they knew what evil was. "Good" is obedience to, and "evil" the disobedience of, LAW. One is proper relationship with God, in trust and faith, inferior to superior, lived out in love. The other is debate, argument, and rebellion against God, a denial of faith, and a seeking to be independent Him.

It was not so much that Adam and Eve listened to the serpent -- it was that, at the end of conversation, they did not go back to being trusting inferiors of a loving, providing, superior.

Please remember this point, for, as we go along, we will have many chances to deny God's simple and straight-forward instructions. We will want to debate issues which may easily be debated but which, at the end of the debate, are not for further debate, but for acceptance in faith, to be lived out in action.

For mankind, SIN is lawlessness: rebellion against all authority, beginning with the authority of God, followed by a seeking after self, utilizing power as the means to satisfy self. The best word to describe this condition is "anarchy." We normally use this term to express an attitude or approach towards our organized governmental structures, but it also is a word expressing an attitude and approach to relationship at all levels of life. In fact, anarchy defines the essence of the nature of fallen man.

Sin breaks into, and substantially defeats, love lived out in relationship. The closer we come in our relationships, the more our individual self-seeking gets in the way, and we separate rather than unite.

With SIN, came "necessity" (see The Ethics of Freedom, by Jacques Ellul; Erdman's, 1976). So long as a person selects lawlessness rather than a close relationship in obedience and faith to God (and love-lived-out in close relationships with others and with all of God's creation), it is then "necessary" for that person to:

(1) work for existence;

(2) work for identity; and,

(3) work to control others for reasons of his own sense of self- preservation.

So it becomes necessary that humans create law and process to regulate a daily state of lawlessness which they themselves bring into being.

But any law, or system, which humans create is polluted by the very power-based anarchy which infects all mankind. That leaves us without hope. If one is to be freed from necessity, that freedom must come from, and be supplied by, some source other than mankind.

God acknowledged the situation, and gave directions to us as to how we ought to inter-relate with one another. We find these directions in the Bible in the form of principles (the Ten Commandments) and case law (often inter-lineated in Bibles as "Sundry Laws").

Because these come from God, they constitute LAW. In Romans 3:19-24, the purpose of LAW, and the path to living in LAW (love lived out in relationship) are both set forth:

Now we know that whatever the LAW says, it speaks to those who are under the law, that every mouth may be closed, and all the world become accountable to God; because by the works of the law [a sense of necessity!] no flesh [person] will be justified [given right standing before God] in His sight; for through the LAW comes the knowledge of sin [that we are SINNERS by nature]. But apart from the works of the law, the righteousness of God [towards man] has been manifested, [it] being [earlier] witnessed [to] by the LAW and prophets; the righteousness of God [is] through faith in Jesus Christ for all those who believe; for there is no distinction; all have sinned and fallen short of the glory of God, being justified as a gift by His grace through the redemption which is in Christ Jesus. (Amplification added)

Thus, one purpose for God's LAW is to remind us that we are sinners, separated from Him by our rebellious self-interest, in need of a Savior so that our relationship with Him might be restored. I prefer to say that the purpose of God's LAW is restorative in nature, rather than punitive. It calls us to restoration to God and to one another. To the extent that it appears punitive, it is only declaring the consequences for a refusal to accept the offer.

Now, the LAW of the Ten Commandments serves to define the relationship between God and man as well as between man and man. Please note that it begins with a statement of grace (unmerited favor) given before telling us how to respond to that grace.

I am [existence and pre-existence] the Lord [ruler entitled to obedience] your God, Who brought you out of the land of Egypt, out of the house of slavery [unmerited favor; grace]. You shall have no other gods before me. You shall not make for yourself an idol or any likeness of what is in heaven above or on the earth beneath or in the water under the earth. You shall not worship them or serve them; for I, the Lord your God am a jealous God, visiting the iniquities of the fathers upon the children [cause and effect], on the third and fourth generations of those who hate me [the line is drawn -- love or hate; there is no in between], but showing loving kindness to thousands, to those who love Me and keep My commandments [rights versus responsibilities]. You shall not take the name of the Lord thy God in vain, for the Lord will not leave him unpunished who takes His name in vain.

Remember the Sabbath Day, to keep it holy [a provision of grace -- a day of rest in faith that He will provide for the lost labor]. Six days you shall labor and do all your work, but the seventh day is a Sabbath of the Lord your God; in it you shall not do any work, you or your son or your daughter, your male or your female servant [doing unto others as God has mercifully done unto you] or your cattle [even a dumb animal is to be respected and to be dealt with as a steward of God] or your sojourner [you cannot deny the dignity of the other upon some racial, cultural, or theological grounds] who stays with you. For in six days the Lord made the heavens and the earth, the sea and all that is in them, and rested on the seventh day; therefore the Lord blessed the Sabbath and made it holy.

Honor your father and your mother, that your days may be prolonged in the land which the Lord your God gives you. [And so many of us, failing to honor a parent, find our days short and full of agony, and we possess nothing except anger and bitterness.]

You shall not murder.

You shall not commit adultery.

You shall not steal [the right of private ownership of property as against one another, but not as against God, is acknowledged].

You shall not bear false witness against your neighbor [which is later defined by Christ as anyone within your sphere of influence at the moment and in need of that which you are able to supply].

You shall not covet your neighbor's house; you shall not covet your neighbor's wife or his male servant or his female servant or his ox or his donkey or anything that belongs to your neighbor [for you need them not; I AM THAT I AM will supply; be content and, rather than seeking self, seek to serve others]. (amplification added)

These Ten Commandments (Ex. 20:1-17) may be broken into two relational groups:

(1) Relationship with God (v. 1-11); and

(2) Relationship with others (v. 12-17).

For right relationships with others, we need a right relationship with God. It is our relationship with God, rather than law, which should then motivate our right relationship with others (that is, motivate obedience to the remainder of the LAW).

At the same time, our intentional poor relationship with another can be evidence that we are not in a right relationship with God. The Book of I John deals prominently with this issue.

Also, we ought to note the LAW of respect for others as "made in the image of God" which permeates the second portion of the law. If we understand the uniqueness of each human being, if we see each as being made in the image of God, if we see each as of great a value as we think ourselves to be, then we can quickly see why Jesus would sum up the second set of the Ten Commandments with, "Love thy neighbor as thyself."

Whitehead, (26), says it this way:

A Christian world view teaches that man is created in the image of God. The implications of man made in God's image can be summarized by saying that man, like God, has person-hood, a measure of self-transcendence, intelligence, morality, love, and creativity. In essence, to say that man bears God's image affords man a dignity above and beyond all other creatures. The fact that man and women were made in the image of God is intimately connected to the concepts of authority, and of power to govern, and to man's relationship to the revealed law of God.

We can note in the second half of the Ten Commandments that we have matters of:

(1) Physical harm to a person -- Thou shalt not murder;

(2) Property offenses -- Thou shalt not steal; Thou shalt not covet; and,

(3) Harms to community -- Thou shalt not commit adultery; Thou shalt not bear false witness against thy neighbor.

These are the three classical divisions of the criminal law -- person, property, and community.

But even with the giving of the written law, LAW remained as originally set forth in the Garden. It defined the relationship between God and Man.

God "provides." Man has stewardship over the provision. There is need for a direct and perfect relationship with God. And we are to live obediently, in faith that God knows what is best.

Likewise, LAW governs our actions towards one another.

But two problems remain.

First: how do sinners stand before a Holy God; that is, gain a restored relationship with God, if their works will not suffice?

The answer to the first problem is that God provided an acceptable sacrifice, which only He could do, and which only He could be. So He united with mankind in flesh, in the person of Jesus Christ, and allowed us sinners to kill Him.

For those who see their sinfulness, their need for salvation, and the fact that God has provided the sacrifice, the gate to a close relationship with God, and for a restoration of LAW within the heart, comes through acceptance of Jesus Christ as Lord and Savior, in faith.

With our acceptance of this sacrifice, God's Spirit comes to live within us so that we do, in truth, "walk with God." Some of the ways we do this walking are prayer, study of the Bible, meditation on Scripture, attentiveness to the Spirit, and fellowship with believers (including seeking counsel from them).

The presence of the Spirit within is the proof of the re-establishment of our close relationship with God. However, the relationship is not one of freedom as understood by man, but of a freedom springing from the relationship of a loving subordinate to a loving Superior. In this relationship, the inferior, as a loving response to the love received, seeks to know and follow LAW.

This restoration of LAW frees us from the necessity of works, and allows us to practice right relationships with others, rather than relating to others through self-centered, rebellious, power-based, anarchy. And this LAW, evidenced in the directions for life within the Bible, and in the life and statements of Jesus Christ, remains forever available to all, for it is "in our mouth and in our heart." (Deut. 30:11-14)

Thus, what I suggest is that the opposite of anarchy is not law, but LAW; i.e., love lived out in right relationships with God, with mankind, and with God's creation. It is "being right" (an inward attitude), "doing right" (an outward action), and "helping to put right that which has gone wrong" (involvement in restoration of those things which SIN has broken).

My belief is bolstered by the answer which Jesus gave to a lawyer when asked, "Which is the great commandment in the law?" The lawyer meant, Of all that which is written in the books of man, what is the most important rule for governing of all conduct?

To this, Jesus answered, quoting from the Book written by God rather than the laws of religious or secular leaders:

You shall love the Lord your God with all your heart, and with all your soul, and with all your mind. This is the great and foremost commandment. The second is like it, 'You shall love thy neighbor as thyself.' On these two commandments depend the whole law and the [sayings of the] prophets. Matt. 22:35-40.

So Christ summed up the entire theory of love-lived-out in relationship.

But a second problem remains: sinfulness is still within both us and others. As redeemed and regenerated people, we will struggle each day with doing what is right or doing what is pleasing to self (anarchy). We will even be uncertain as to which may be which! And we will live out our lives in the presence of, and within and under the institutions of, other men who are also sinners.

To survive and thrive, we need to know what are the rules of behavior for individuals and society. The question which defines the second problem is, where do we find the rules? The answer is to study, know, appropriate, and put into place the LAW given by God for right conduct in the Bible.

Law, and all institutions created by man -- such as governments, customs, practices, usages, organizations, even churches -- represent necessary constructs to control response to anarchy, and the meeting of personal needs. But, as such, they are all power-based, infected by the very anarchy which they seek to control. This does not make them evil, but it does make them power based, rather than love based.

If we use mankind's laws and processes, created by humans, from human minds, then we have something which is ever changeable. We will always argue over which law is right or wrong, which process is right or wrong. But if we, individually and corporately, use God's laws, then we have an absolute, unchangeable, and perfect source available to all through study of the Bible.

Let us now look at some other purposes of God's LAW, or that which what flows from knowledge and application of God's LAW in a person's life. Psalm 119 is often called The Psalm of the Law. It says a lot about what happens to the law-knower, to the law-follower; it states purposes:

v 1-3: How blessed are those whose ways are blameless, who walk in the LAW of the Lord. How blessed are those who observe His testimonies, who seek Him with all their heart. They also do no unrighteousness [towards others]; they walk in His ways.

v 6-7: Then I shall not be ashamed when I look upon all Thy commandments. I shall give thanks to Thee with uprightness of heart when I learn Thy righteous judgments.

v 9: How may a young man keep his way pure? By keeping it according to Thy word.

v 11: Thy word I have treasured in my heart that I may not sin against Thee.

v 24: Thy testimonies also are my delight; they are my counselors.

v 25: My soul cleaves to the dust; revive me according to Thy word.

v 28: My soul weeps because of grief; strengthen me according to Thy word.

v 38: Establish Thy word to Thy servant as that which produces reverence for Thee.

v 42: So I shall have an answer for him who reproaches me, for I trust in Thy word.

v 45: And I will walk at liberty for I seek Thy precepts.

v 49-50: Remember Thy word to Thy servant in which Thou hast made me hope. This is my comfort in my affliction, that Thy word has revived me.

v 63: I am a companion of all those who fear Thee, and of those who keep Thy precepts.

v 66: Teach me good discernment and knowledge, for I believe in Thy commandments.

v 74: May those who fear Thee see me and be glad, because I wait for Thy word.

v 98-100 Thy commandments make me wiser than my enemies, for they are forever mine. I have more insight than all my teachers, for Thy testimonies are my meditation. I understand more than the aged, because I have observed Thy precepts.

v 105: Thy word is a lamp unto my feet and a light to my path.

v 116-117 Sustain me according to Thy word that I may live, and do not be ashamed of my hope. Uphold me that I may be safe, that I may have regard for Thy statutes continually.

v 130: The unfolding of Thy words gives light and understanding to the simple.

v 160: The sum of Thy word is truth and every one of Thy righteous ordinances is ever lasting.

v 165: Those who love Thy law have great peace and nothing causes them to stumble.

I do not know about you, but to have something which is truth and ever-lasting; which gives light, understanding, counsel, wisdom, insight, good discernment, knowledge, and life itself; which revives me, blesses me, strengthens me, comforts me; which gives me companions and encourages others; which allows me to have hope, joy, peace, rejoicing, and thankfulness; which gives me a reverence for God Almighty; which keeps me pure, not sinning against God nor offending my neighbors, while allowing me to answer those who reproach me -- that is the most wonderful thing possible for living life. All of the above are good purposes for LAW.

And what might happen if a nation chose to do this, rather than just an individual?

So keep and do them, for that is your wisdom and understanding in the sight of the peoples who will hear all these statutes and say, "surely this great nation is a wise and understanding people." For what great nation is there that has a god so near it as is the Lord our God whenever we call upon Him? Or what

great nation is there that has statutes and judgments as righteous as the whole law which I AM setting before you today? Deut. 4:6-8

O Israel, you should listen and be careful to do it, that it may be well with you and that you may multiply greatly, just as the Lord, the God of your fathers, has promised you, in a land flowing with milk and honey. Deut. 6:3

God's Method for Law

We now come to the question of the methods which God offers us for dealing with conflict. Once we see His method for conflict resolution, we will then need to understand the method as also LAW. Then we will need to seek to apply LAW to:

1. our written laws (as in Constitutions, statutes, case decisions, rules of procedure) and unwritten laws (customs, usages, and traditions), etc.

2. our systems and institutions (governments,

churches, business organizations, etc)

3. and to the way in which those who control our institutions actually do their jobs (law enforcement officers, judges, prosecutors, probation ands parole officers, etc.

In the process, we should not only seek to restrain anarchy, but should also point the way to true LAW, i.e., love lived out in right relationships.

I mean to say, we should be always seeking to restore that which has been fractured by the results of both personal and communal sin.

I also believe that it is a duty for all who live under LAW, to enter into each and every one of the institutions created by humans in order to demonstrate LAW and call people towards LAW.

But God's LAW has yet another purpose. The first great purpose of LAW, as we have seen, is to call us to seek a restored relationship with Him and with one another. The second great purpose is to tell us how to seek to come back into agreement when we disagree. In short, it also gives us a method based upon love, not force.

If we can see a conflict resolution METHOD set forth in Scripture, we can see it as pointing a way to love lived out in relationship (LAW). Once we see it, we can test every constitution, statute, rule, regulation, court decision, and the acts of all those charged with management of a system of conflict resolution, by asking whether the item or act in question does or does not point the way to, offer the hope of, and/or respond appropriately to love lived out in right relationships while also complying with the standards of law set forth in the Old Testament.

In short, I propose a study of jurisprudence based upon one theory and one method, applicable to each and every situation which may ever come forth. I then propose a study of our law to show how certain well accepted principles, processes, and functions, do -- or do not -- uphold the ideal. And I propose that any discussion concerning whether a particular proposal for the future does or does not enhance the ideal is the only proper way to even consider a future course for any law, anywhere.

I begin with a statement: "If we had no conflict, there would be no law. Not only would there be no law, there would not even be, in our vocabulary, the word 'justice.'" Another way to phrase this is:

(1) So long as we agree, and live out our agreements, we do not need law or a legal system.

(2) Whenever we disagree, we have four options:

(A) Restore trust and relationships so that we again agree, and then live the old, the modified, or the newly created agreement; or,

(B) Agree to allow someone to tell us what to do, and then choose to do what we are told, all the time keeping our relationships intact which means we must develop a system of some form for telling us what to do within a loving community; or,

(D) Adopt laws and legal systems, granting to them a power to coerce, restrain and punish. This means we may try to kill one another through our agents (lawyers) on the floor of the courtroom while thinking ourselves to be "righteous".

So, let's begin with the source of conflict:

What is the source of quarrels and conflicts among you? Is not the source your pleasures [self-seeking] that wage war in your members [within the community]? You lust and do not have, so you commit murder [rebel]. And you are envious and cannot obtain, so you fight and quarrel. You do not have because you do not ask. You ask and do not receive, because you ask with wrong motives so that you may spend it on your pleasures. You adulteresses, do you not know that friendship with the world [rebellious self-seeking with the use of power] is hostility to God [love lived out in relationship]? (James 4:1-4) (amplification added)

It is obvious that whenever two seekers after self (sinners; anarchists) come into relationship with one another then, sooner or later, conflict will occur. When that takes place, only two paths are open to the combatants: a path to law and legal system, or a path to the Spirit of God wherein acts of love and righteousness will be revealed.

Both require faith. The first says that you have faith that the system will do justice. But Scripture says: "Many may seek the favor of the ruler [Judge, Jury, Politician, etc] but justice for man comes only from the Lord." Prov. 29:26

It is this inability of the system to meet our expectations which has resulted in the widespread unrest of victims, offenders, community, society and even the players today.

The second path also requires faith, for when you begin upon it you do not know what may develop. But you do know that you are being obedient. The Apostle Paul, who might be considered a lawyer by his own description of himself, summed up the options in I Cor. 6:1:

Does any one of you [no person is so unique as to be able to disregard the instruction], when he has a case [no case is so unique as to allow a person to disregard the instruction] against his neighbor [nothing about the other person can be used by you to disregard the instruction], dare to go to law [that is, the power-based systems of man created to hinder anarchy] before the unrighteous [because law cannot require something demanded by love] and not before the saints [people of God's Spirit who will help guide you to His Spirit so you may respond to the other in the conflict from love lived out in relationship]? (amplification added)

As we then search Scripture, we find the following steps towards possible resolution of conflict:

1) Go to the other person -- regardless of who you may think is at fault -- and speak of the matter:

If, therefore, you are presenting your offering at the alter, and there remember that your brother has something against you, leave your offering there before the alter, and go your way; first be reconciled to your brother, and then come and present your offering. Matt. 5:23-24

And if your brother sins, go and reprove him in private; if he listens to you, you have won your brother. Matt. 18:15

2) Confess what you need to confess (wherever you fell short of the glory of God), and forgive what you need to forgive (that in which the other fell short of the glory of God). Be prepared to do towards the other person such acts of love as God lays upon your heart to make restitution for any wrong which you may have done, or to bear the burdens of the one who wronged you:

Therefore, confess your sins to one another, and pray for one another, so that you may be healed. James. 5:16

And be kind to one another, tender hearted, forgiving each other, just as God in Christ has forgiven you. Eph. 4:32

And what does the Lord require of you but to do justice, love mercy, and walk humbly with your God. Micah 6:8

3) If there is not both resolution of the conflict and a restoration of relationship, gather two or more who will be witnesses of God's truths (law and Spirit), both to you and to the other, and go with them back to the other person:

And if he will not listen to you, take one or two more with you, so that by the mouth of two or three witnesses, every word of God may be confirmed. Matt. 18:16

Is there not among you one wise man who will be able to decide between his brothers? I Cor. 6:5

4) Should that step not succeed, the witnesses should involve the community while you, giving up a need to secure by force what should be freely done by the other person, leave discipline to the community:

And if he refuses to listen to them, tell it to the church. Matt. 18:17a

5) The community bears your burdens while continuing to confront the other until such time as a repentant heart appears. This relieves you of the necessity to resort to force:

Bear one another's burdens, and thus fulfill the law of Christ. Gal. 6:2

6) Upon appearance of a repentant heart, the community welcomes the repentant one back into full fellowship (as did the father of the prodigal son), assists in needed reconciliation between you and the other, and then assists the offender to discover the things of self-seeking which led to the offense, so that confessing and a correct walk will result:

But while he was still a long way off, his father saw him, and felt compassion for him, and ran and embraced him, and kissed him. Luke 15:20

Where there is no guidance, the people fall, but in abundance of counselors there is victory. Pro. 11:14

(7) The offender, in turn, does those acts of justice to the other (including the community) as led by the Spirit and the counsel of the community:

Owe nothing to anyone except to love one another; for he who loves his neighbor fulfills the law. Rom. 13:8

You will find me constantly referring to confrontation. That is heart of this model. That is why it is so important.

Because not all will respond to this process, and since the community (being made up of lots of self-seeking individuals) will not always fulfill its role, man creates laws, systems, and procedures to deal with that which we will not (not "cannot") deal with through the Biblical model.

But that which humans create should be capable of, at any moment, short-circuiting its process to allow the parties and the community to return to the love-lived-out-in-relationship process.

And every person who functions as an official in the systems which man creates should so function as to encourage acts of repentance, reconciliation, rehabilitation and restitution to take place.

We now have our ideal LAW and METHOD.

To review the Ten Commandments and the Sundry Laws from a standpoint of what they mean, that is, what behavior is or is not proscribed, is not my purpose. That has already been done by Rousas John Rushdoony in his, The Institutes Of Biblical Law (Presbyterian and Reformed Publishing Co., 1973). While I do not agree with all the conclusions which he draws, his overall effort is excellent.

However, what is missing remains to view our modern laws and systems, and their underlying theorems, from a Biblical perspective. We need to particularly see how they do or do not uphold the Biblical law, how they do or do not point the way to love lived out in relationship.

To see this theory in action, we will look primarily at Criminal Law and Procedure in the United States. But, first, we need to consider how the law which we have in the United States came to us.

SECTION 2 -- A HISTORY OF LAW IN THE UNITED STATES

In order to utilize a proposed model law and method, we need something with which to compare. Since my expertise in law and procedure is confined to that of the United States only, and since I consider people of the United States, and Christians wherever they may live, as the two major types of readers of this book, I choose to use U.S. laws and procedures as the primary source of comparison.

But two things must then be said.

First, I am not one who believes that God brought forth in the United States His perfect form or system. As I shall shortly hope to demonstrate, merely returning to the law as it existed in the early part of the 19th century in the United States will not solve the problem.

Second, in order to understand the American experiment -- to which a significant portion of the world, emerging from the former Soviet Union and other totalitarian systems, is looking for examples of law and system -- we must not think that our law and processes emerged from nothing in the late 1700s.

They were, in fact, products of what was brought to the North American continent from the European past. We must consider what was brought before we can begin to compare. We will study this in more detail later, but for now an overview.

In England from 1066 until 1620 (the time of the arrival of the first colonists in North America), a body of law had developed known as Common Law. It had begun as a way to resolve disputes between people under local law. But, as a lack of uniformity in law and process grew between the various political jurisdictions, the King began to assert his interests by appointing judges who rode about the country, sitting much as appellate courts. This led to a greater uniformity of law, and thus the term, Common Law came into being -- "common throughout England."

The second major development took place in 1215 when the King was, by the Magna Charta, brought somewhat under the control of the law. This has led to expressions such as, "rule of law," "no man is above the law," "we have a system of laws and not of men," and, "equality before the law."

Lex rex (law is the king), rather than rex lex (the king is law), became the watchword.

By 1620 the law in England consisted of six easily recognized main parts: Criminal Law; Civil Law in Tort; Civil Law in Contract; Civil Property Law; Equity; and Law Merchant. I will explore each of these in detail later.

Criminal law applied to those acts publicly declared, by king or legislature, to be crimes. Thus, there could be no crime without a "statute" -- a public declaration of some type.

In contrast to the need for an edict or statute, at civil law each case originally began upon its own merits, to be decided, as it were, in a vacuum. But as time went on, and in an effort to secure some uniformity in the land, the judges began to bind themselves to the decisions of the past, and to the doctrine of Stare Decisis ("to stand by decided cases; precedent." Black's Law Dictionary) was born.

Thus, to the New World came a well-developed sense of the need for law. And every principle involved in this development, from 1066 to 1789, was literally incorporated into the U.S. Constitution in 1791 by two words of the Fifth Amendment in the phrase, "due process": "No person ... nor be deprived of life, liberty, or property without due process of law; ..."

The second major influence upon the American experience was the fact that the colonies were primarily economic units under economic charters from the King. As such, the people were used to, and expectant of, freedom of choice in vocation, ownership of real and personal property, and compensation for work done based upon production rather than upon their mere existence, position, or title.

This sense of rights relative to property had been, in fact, the foundation for development of a Civil Law. If, as in so much of the world, there is no right to any private property beyond one's personal possessions, then there is no need for Civil Law -- only for a Criminal Law. In most of the former Soviet Union, for example, we see a very stunted Civil Law, and with it a general lack of respect for law.

If one cannot participate in the creation of the law; if one can never predict the imposition of the law upon them; if one can make no use of the law for his aid in time of need, then the only reasonable response is to ignore the law.

The most natural response of people to a lack of Civil Law is to develop informal community processes for the resolution of conflict, because "we the people are all we have!" And, so also, in much of the world, we find such community programs operating almost invisibly.

Historically, as a sense of rights relative to property develops, there will naturally follow a development of a sense of other personal rights. One of those "other personal rights," the right to religious freedom, was a third major influence on our nation.

Many colonists came because of religious issues. In matters of religion, they believed and acted differently than the established state religions of England and the other countries from which they first came. They wanted to be free to act in accord with their religious conscience, even though there was substantial anarchy in their beliefs and practices.

And they saw all these matters of rights and freedoms as proceeding from God the Creator, and not from society, the state, or the law.

As a fourth influence, because many of them had experienced religious and/or economic persecution by the state, they brought with them a deep mistrust for organized power. On the other hand, they knew that some self-restraint of individual freedom was necessary for greater community and individual protection because they fully recognized and understood the sinful nature of mankind.

Thus, they were willing to delegate some of their individual power to a governmental power, provided that in the delegation there were reasonable protections against the government making improper use of that power.

This fear of excessive and repressive government led to four provisions being included in the Constitution:

(1) A separation of power in a vertical direction between local, state and national levels;

(2) An effort to balance power through checks by one branch against the others;

(3) The specification of preserved rights; and

(4) A listing of a number of items which established and secured a minimal level of due process for protection of those rights, freedoms, and property.

This does not mean, however, that all which Americans founded, or that all old-world practices which were brought to America, were in accord with the Bible.

But certainly equality before the law is Biblical, and it is fundamental to the concept of rule of law. The Bible says that someday every human being who has ever lived will stand before the God who created all. At that time, every person will be judged on but one point: did they trust in God for their salvation, or did they make themselves into gods, believing they needed no salvation except that which they could provide by their own work.

In short, no color, no race, no ethnic or family background, no sex, no creed, no position, no title, no power, or national origin will have any bearing on our future with, or separation from, God. Each will stand before God on exactly the same footing as all others.

In the Old Testament, leaders were constantly exhorted to show no partiality or favoritism when sitting as judges over the disputes of the people:

You shall do no injustice in judgement; you shall not be partial to the poor, nor defer to the great, but you are to judge your neighbors fairly. Leviticus. 19:15

There shall be one standard for you; it shall be for the stranger as well as the native, for I am the Lord your God. Leviticus. 24:22

They were often condemned by the prophets for failing in this very regards.

Thus, the Bible rejects any form of legal system which, in any manner -- by design, by historical development, by force, by trick, or by bribery -- denies equal standing to any person, at any time.

Nor is the rejection limited to only a part of the law, such as proceedings in Criminal Law, but is applied to all segments of law, to legal procedures, and to the actual operational methods of the main players (lawyer, prosecutor, judge, etc).

Now the Constitution includes the following listed legal rights:

(1) Freedom of speech -- But the Courts quickly placed a responsibility upon this freedom, i.e., to not scream "fire" in a crowded theater just to see people run;

(2) Freedom of the press -- And even today, efforts to regulate such things as pornography, libel, racial and other slurs, and slander have proven very elusive;

(3) Freedom of assembly -- But again the courts quickly set a limitation against riot, and tumult;

(4) Freedom of religious belief, and a limited freedom of religious practice -- the courts soon told the Mormons that they could believe whatever they wanted, but could not have two wives. But today we can ritualistically slaughter an innocent animal as a sacrifice to a pagan god (with the amicus curie ["friend of court"] support of a large percentage of the Christian Church);

(5) Freedom to freely petition the government;

(6) An equality of these freedoms everywhere in the nation through the "full faith and credit" clause;

(7) Freedom to bear arms;

(8) The right to vote regardless of race, color, etc. While we said that government may only exist with the consent of the governed, it did take the Civil War, and a constitutional amendment to allow women to vote, before this

right was fully in place;

(9) Government could not establish state religions; and,

(10) Equal protection under law.

But, by placing these guarantees in the Constitution, we created a legal presumption in favor of our individual rights and against the law, the legal process, the government, other individuals, personal relationships, and community. In contrast, community interests in Russia have always been viewed as transcending individual interests.

Then, in the Constitution, the Founders placed the concept of Due Process which has two parts. The first is an attempt to protect the rights given. The second might be defined as "that way in which, by and through the law and its processes, the rights of a community might be found to supersede the rights of the individual." Due Process includes:

(1) A right to writ of habeas corpus -- thus the individual cannot be held in custody on an "open charge" for investigation beyond 72 hours, but must be promptly charged or released. This is largely unknown in vast areas of the world, where people may be held for months, and even years, "pending investigation;"

(2) A denial of Ex Post Facto laws and of Bills of Attainder -- laws can not be given applied retroactively, nor may the family of a convicted person be stripped of property and belongings for the offense of the member;

(3) The right to trial by jury in all crimes except for impeachment. Here the jury, on behalf of the community, had four historic functions: (a) To judge the reasonableness of the law, thereby protecting the community from the law; (b) To judge the actions of people within concepts of community standards, but under the law; (c) To report back to the community on the status of the law and legal system; and, (d) to guard against the person using governmental power and/or position improperly;

(4) The right to a trial in the State wherein the crime was alleged to have taken place, so that the local community is involved;

(5) A definition for treason and the requirement that two or more witnesses to an overt act of treason were required for conviction;

(6) The granting of full faith and credit of the legal actions of each State so that the acts of each State must be recognized by the other states;

(7) A limitation upon the possible invasion of one's person, property, papers, and effects by requiring such proceedings to be upon sworn affidavits showing probable cause, with a judicial review before such warrants would be issued.

(8) Crimes charged must be charged by a sworn document. Thus, any individual, my lawyer, and the entire community, may know of what a person is or is not charged, and who it is that makes the charge;

(9) A prohibition against being placed in Double Jeopardy. That is, government was prohibited from charging a person a second time for the same offense after the jury had acquitted; to do so would have been an undermining the findings and role of the jury;

(10) A protection against self-incrimination so that the accused does not have to give evidence against himself. This was meant to limit the potential for torture and other forms of coercion to extract a possibly false confession;

(11) Compensation for any property taken for public use. It was recognized that the people, in the guise of government, might also steal;

(12) The jury trial in Civil Law. There was a recognition that even Civil Law can by tyrannical, so the jury would have the same four functions in Civil Law as in Criminal Law;

(13) No judicial review of the facts of a case upon appeal. Here, again, there was a protection against undermining the function and responsibility of the jury;

(14) The right to a reasonable bail, so that a person's liberty might not be unduly restrained;

(15) A prohibition of excessive punishments, although the courts still struggle with what this does, and does not, mean; and,

(16) An autonomous judiciary -- a Judicial Branch of government which could hold the king, legislature, individual, and even the community to account, without fear for its continued existence.

However, in the zeal of the colonists over the matter of rights, and the protection of those rights, two things were, I think, substantially swept aside: the matter of community, and the issue of responsibilities.

In this failure were the seeds for many issues related to law and system today.

John Whitehead wrote well:

In recent years we have witnessed numerous marches on Washington in which one group or another has demanded new "rights." Frequently, such rights have not meant freedom from state control, but rather entitlement to state action, protection, or subsidy. In the process of yielding to the 'will of the people,' and creating new rights, the state inevitably enlarges itself and its bureaucracy. ... As the state creates new rights for some, it necessarily diminishes some rights for others. Someone has to lose, but there can be no appeal to any outside criterion of justice in a system where there is no god but Caesar. (p. 89)

The concept of human rights is a fertile source of confusion because of our persistent failure to be specific about the nature and source of what we call human rights. From a Biblical perspective, "rights" as such do not exist but grow out of duties and limits. There is no explicit "right to life" in the Bible, but an explicit prohibition of the taking of innocent life, from which the right to life emerges. ... The modern secular view holds that individuals have just such rights as the Constitution and other laws give them. From this humanistic base, the "struggle for rights" becomes, in effect, a conflict with other human beings to persuade, or force, them to

generate laws entitling us to the rights we seek. ... Rights must have a reference point and a specific context or they are meaningless. The reference point determines the nature of the right exercised, defining the one who possesses it, and setting limits to others who must respect it. Both the claim to and the exercise of a right therefore, can be either valid or invalid depending upon the reference point. (p. 116)

The truth is that rights grow out of responsibilities, and responsibilities, in turn, grow out of relationships.

The rights of Adam and Eve to freedom, as loving subjects under a loving Superior, were conditioned upon responsibilities to:

(1) the planet and all it contained (stewardship);

(2) one another (love as parts of each other, incomplete without each other); and,

(3) obey God (do not eat of the tree).

Relationships are just another word for community. My demand for my own absolute rights -- even for those rights which are, in fact, Biblical rights (rather than privileges granted by man) -- makes me an anarchist. I must be willing, when it is appropriate, to surrender my rights for the benefit of relationship (community). After all, Jesus did.

The early Americans colonists saw this surrender as necessary for governmental structure, and therefore the people delegated some of their power to the government. But they did not see this attitude of surrender as a factor in the general law. Thus, The Constitution is devoid of language which would point us towards the ideal of living in loving relationships rather than under threat of law -- even a good, benign, or neutral law.

But have we compared the list of rights and processes of our Constitution with God's absolute standards? Did we sow seeds in our Constitution for destruction of the very things which we desired to guarantee?

Is the very reason "we the people" have, apparently, miserably failed to "establish" the things we thought we could establish the fact that we neglected to understand where God fits into the picture? And/or, have we lost some of the protections over the years?

I will continually raise these questions throughout the rest of this book.

What are the basic rights to which each individual is Biblically entitled? I do not claim that this list is accurate or complete, but these are some of the rights which I find in the Bible:

(1) Life itself, except as taken by God or by mankind under God's delegated authority (such as in capital punishment);

(2) Freedom from the scourge of necessity -- the need to find my value and meaning through work rather than in right relationship to God and others;

(3) Freedom from a sense of having to provide all things for myself lest I perish;

(4) Liberty, which can only be found through bondage to the God who created me, has plans for me, will save me from my sins, and is my true Provider;

(5) Pursuit of a relationship with God, not through a motivation of fear or duty to obey, but a motivation to obey through love for Him Who first loved me, trusting Him Who knows me best, and knows my needs best;

(6) Meaningful "work" which God has prepared in advance for me, having taken into account my gifts, talents, and life experiences; and,

(7) Property ownership, while recognizing I am but steward of all I may ever possess, or use of the common possession. The God who delegated responsibility for care of the planet to mankind, and who constantly speaks to us of the need to provide for the widow, the poor, the orphan, and the stranger in the land, is the true Owner.

These rights, contrary to Constitutional rights, carry with them the following responsibilities:

(1) Do unto others as you would have them do unto you. This means my desire for rights must be seen, and exercised, only within concepts of relationship and community;

(2) Remember the widow, the orphan, the stranger in the land, and the land itself;

(3) Deliver the oppressed from injustice;

(4) Obey the laws of God;

(5) Live within community, in love, rather than in individualism and self-centeredness;

(6) Do justice; and,

(7) Help repair the fractures caused to community and relationship by others.

Now, for me, two critical observations are in order:

(1) To the extent that these responsibilities are binding upon the individual, they are also binding upon the corporate structures which individuals create -- e.g., government, church, and business; and,

(2) To the extent that these responsibilities are binding upon the individual, they are binding upon the him as he serves in any created institution -- such as President, pastor, or owner.

SECTION 3 -- THE CATEGORIES OF HUMAN LAW

Criminal Law -- The Issue of Public Wrongs

We can now begin to compare a number of features of U.S. laws and procedures with the Biblical LAW and METHOD. To start, let us return to the history of the development of law, as some further comparison is in order.

In the earliest history of mankind, only one form of law was generally known. It was repressive, originating from the few elites at the top of the pyramid and used to control the masses of society for the benefit of the elites. While it had many of the attributes of what we now know as Criminal Law, it was really political law in that it was designed, and functioned, to maintain in their positions those who held power, and to preserve their life in the style to which they easily became accustomed.

Now when a member of the masses was harmed either by a member of the elite or another member of the masses, this law could not be called upon for help or relief. It was arbitrary, capricious, and unpredictable. The elite could and did use it against members of the masses, but there was no reciprocal right.

This form of law occupied the legal front for the majority of the history of mankind on earth. And this is still the norm for the majority of people on the planet today.

In the earliest law in England, there were none of the terms which warm the hearts of lawyers today: Torts, Property, Contracts, Equity, or Crimes. Instead, because of a lack of legislative law and because of a lack of a place and process to turn to, people were left to blood feuds for resolution of conflict. If you hurt me, I kill you. Your brother then kills me, so my father will kill your brother. Your uncle then kills my son, and -- well, you get the picture.

It was because this was the situation of the people Israel in Egypt that God set a gracious limit upon the law, the limit of proportionality or consequence to harm. We know it as, "an eye for an eye, and a tooth for a tooth." We often read this, however, as a idea of vengeful punishment rather than a limitation upon our tendency to engage in the blood feud.

Eventually, the community (the masses) got tired of the traditional method of conflict resolution. The local Baron was also tired, and worried about the drain on the fighting force he needed to protect him from the neighboring Baron (whose Uncle he had once killed). The local religious leaders were also having a hard time putting a feud into theologically permissible behavior.

So, a local law began to appear, with an incentive to people to settle cases by compensation. People in conflict were "invited" to come and sit with people of the community to seek resolution of the conflict. Issues of "honor," and "responsibility to the community," and, yes, "love" were brought into the discussion. Compensation became the preferred result.

But when the parties could not agree, and no one could prove "truth," the parties were left without a remedy. To have a law is wonderful. To have a process is even better. But to not have a remedy means a law or process is of little value. We have words which do not help us. People in many places in the world understand this very well. I fear we, in the United States, have forgotten this truth.

In an effort to determine truth, so that a decision could be reached and a remedy ordered, trial by "ordeal," "combat," or "oaths" was instituted. In "combat," each party got a sword, and fought it out under the theory that God would protect the innocent one. If a person were found to have violated the property or rights of another -- by trial, by surrender in the middle of combat, or by dying in the combat -- he, or his heirs, paid something to the injured party and something to the local Baron.

It is interesting to note that under Biblical law, many offenses called for an extra 20% of value above the loss to be paid to the priests for the common good -- maybe this was community service restitution, a hot item in the United States today.

Dr. Harold Berman, in his book Law And Revolution (Harvard Press, 1983), states that a local community process, in contrast to repressive totalitarian law, was the norm until something interesting happened. In the middle of the 11th century, Gregory VII began the process which culminated in what we now know as the Papacy. The process was known as The Investiture Struggle, and dealt with the question of who would appoint clerics to their positions -- the local secular ruler, or the head of the Church at Rome.

To establish his position, Gregory wanted the appearance of law -- a legal justification, if you will. So he set a number of men to work researching the laws and systems of history -- primarily the Roman Civil Law and the Bible. In the process, they developed the Canon Law and Canon Legal System (which, unfortunately, later distorted into the Inquisition). Gregory then used this law and legal system to justify his appointment of the clerics as against the claim of the secular rulers to make the appointments. Eventually, a compromise was reached, granting Gregory the desired power.

But, in the meantime, the secular rulers began to develop their own laws and systems in an effort to hold power against the developing power of the Church. Such was the case in England in 1066, when William the Conqueror arrived. England consisted of many small, independent, political units, each with its own laws and processes.

William (whom Berman says was actually an agent for Gregory VII's successor, because the churches of England were supporting the local secular leaders rather than the Pope) was intent upon consolidating his power over all of England. Thus he began to establish "King's Courts," and to declare certain acts as "against the King's peace." Into this system, the injured person (whom we will hereafter call by his legal name, Plaintiff) brought an action against a wrongdoer (hereafter the Defendant).

To administer this system, William appointed his representative, called a Reeve, in every political unit, known as Shires. This Reeve had a combination of police power (to arrest) and judicial power (to determine cases). Today we have taken the two words and shortened them to Sheriff.

Then William appointed judges to ride about the kingdom and hear appeals from the decisions of the Reeves -- Circuit Judges. As the judges traveled about, they sought to apply the same principles of the law to similar cases. Thus was born Common Law; that is, a law "common to all England." We shall return to the development of this law and system later. For now, we will turn to the king's courts, and the development of the Criminal Law.

One problem with the king's courts was that even though the injured party often had to initiate the case, all monies (fines) went to the king rather than to the victim. After all, the king had to pay the judge, keep the army (the police) fed and clothed, etc. The victim did get a return of any goods which had been stolen if the goods were found in the defendant's possession.

If the defendant could not pay (the usual case), he was "punished" by the king who desired peace in the land. This meant imprisonment, branding, mutilation, or, more likely, hanging.

Thus developed the Criminal law, the key attributes of which became:

The King in England ("State" in United States; "People" in the former Soviet Union), is seen as the victim. A crime is considered, therefore, to be an act which the public desires not to be done, and which the public is willing to punish if it is done. It is considered a Public Wrong.

Because the remedy for violation of criminal law is to be a punishment, certain protections of the accused become necessary. We do not want to punish an innocent person. Thus, there can be no crime without a statute, and acts done before there is a statute are not criminal; that is, you can not be punished for a prior act if the act is later made a crime (Ex Post Facto).

The statute must set forth every material element of the conduct which is criminal, for people may not be punished without "knowledge" that what they are doing is criminal. However, we are all presumed to know the law.

The State, prosecuting the action on behalf of the people, must prove the defendant did the necessary acts (actus reus), and must prove this beyond a reasonable doubt. This means that the balance scales must tip to their near maximum against the defendant before he may be convicted. Since punishment is the remedy, we -- in the U.S., at least -- want to be certain that we only punish the guilty, not the innocent.

Next, a defendant must have done the acts with some level of knowledge -- mens rea, a "guilty mind" -- which must also be declared in the statute. Over time, and in order of importance today, the necessary mental state of a defendant was determined to be: intentional, reckless, negligent, or conduct under what is called strict liability. We will define these terms later. For now, simply remember that this is the order in which our concepts of fault in Criminal Law (mens rea) developed.

After conviction, the question is then asked: What punishment should be given to carry out the five known purposes for punishment: reformation; restraint; retribution; and deterrence (individual or general). Note the absence of restitution from the options available.

With time, crime established three major sections -- the same as in the Ten Commandments:

Crime Against Person;

Crime Against Property; and

Crime Against The Public Order.

Crimes Against Person may be categorized as:

Crime which involves the death of another person (homicide -- murder, man-slaughter, and felony-murder); or,

Crime which involves the force or threat of force against the physical body of another person but does not result in death (such as assault, mayhem, battery, rape, robbery, extortion, and kidnapping).

Crimes Against Property are distinguished by an absence of force against a person. Instead, the loss of property is the focus of the crime. In this category we find the crimes of theft, embezzlement, false pretenses, forgery, burglary, arson, and the like. Obviously, what began as a crime against property could become a crime against person if, for example, someone were killed in the process of an arson.

Crimes Against Public Order would include such matters as rioting, treason, and most of the so-called "victimless" crimes (such as pandering, prostitution, sale of pornography, drug dealing, and, until recently, abortion). Here, violence to a person may or may not be present, and loss of property may or may not be present. Instead, what is involved is a behavior perceived injurious to the integrity of community to such an extent as to warrant criminal sanctions. Sometimes we see these as "moral crimes."

Some explanations of the words concerning intent are necessary at this time.

Specific Intent. Here the requirement is for the defendant to have determined in his mind to commit at least one of the required elements of a criminal offense. For example, First Degree Murder normally requires proof of premeditation, which is an intent, found to be existent before picking up the gun, to do an act (shoot the gun), and bring about a result (kill the person).

Transferred Intent. This is used to justify convicting a person of a result which they did not intend, but which was a result of the illegal act. For example, I intend to kill A by shooting, but miss and kill B whom I love and would never kill. Nevertheless, my intent to kill A is transferred to B, and I am guilty of murder.

Implied Intent. This says that we are rational people, intelligent, and with understanding; therefore, the intent to do an act may be implied from the very doing of the act.

Strict Liability. This denies the need for any mental status. Instead, we are liable for doing the act without any defense. An example is sexual intercourse with a female under a certain specified age (Statutory Rape). Belief concerning her age -- even a reasonable belief -- is no defense. We will look at this area of the law more fully at a later point.

In addition to a theory of law designed to protect against punishment, a Criminal Procedure was developed to further safeguard human rights. All of the issues of search and seizure, for example, also flow from the punishment response of the law. Just as a restorative response will, as we shall see, change many parts of the law, so it may change many parts of legal procedure.

Torts -- The Issue of Private Wrongs

In medieval England, the victims, so to speak, were being left out in the cold. That is, if the Defendant had money, it went to the King in fines; if he had none, he went to jail or was executed. The people of England therefore turned back to the local courts, filing cases against people (offenders) who had caused them a harm.

These cases were first known as Trespass. Acts constituting trespass were considered to be unlawful interference with the person, property, or rights of another.

At first, there were three major varieties of trespass:

(1) Trespass With Force Of Arms against the person: The three classic examples of this were:

Assault -- an act which arouses in the plaintiff a reasonable apprehension of an imminent battery taking place. Fear is not required, only apprehension. Words are never enough provocation; there must be some overt physical action, although the action could be innocuous but for the words. There must be a present, apparent ability of a defendant, in the perception of plaintiff, to carry out the threat.

Battery -- An intentional touching of the person of another in a rude, insolent or angry manner. "Person" of the plaintiff includes those things attached to him at the time, and the touching can be by an agency set in motion by the defendant.

False Imprisonment -- the plaintiff must be aware that he is not free to move about at will as a result of the acts of the defendant. Confinement must be total and without freely given consent.

(2) Trespass Against The [personal, private] Property [of another] By Carrying Away -- theft being a classic example. Today we call this "exerting unauthorized control over property of another with intent to deprive the owner of the use and enjoyment thereof"; and,

(3) Trespass against real estate -- Breaking The Close ("close" being the term to designate a person's land). In the crime of Burglary, one common statutory element is "breaking and entering."

All three trespasses required proof of a specific intent to do the act which caused the harm; that is, that the act of a defendant was a volitional act (as opposed to, for example, an act done while sleep-walking or as a result of an uncontrollable reflex). But it was not necessary to prove that the harm was intended (guilty mind), or that harm even resulted. The person and property were seen to be of such value that any violation had to be responded to.

So, Trespass actually began in what is called Strict Liability, at the opposite end of the beginnings of the Criminal Law.

Trespass cases in local courts helped, but soon proved insufficient. For example, a defendant throws a log towards the road, hitting the plaintiff who is walking past. The plaintiff, being harmed, has an action in Trespass against the defendant because he was directly touched by the agency set in motion by defendant. This would be Trespass with Force of Arms. But what if, instead of hitting plaintiff, the limb lies in the highway and the plaintiff, in the dark, stumbles over it and is injured. What then?

The local courts developed the notion of Actions On The Case. Trespass became the action for direct and immediate harm without actual damages needing to be proven. Actions On The Case were for an indirect or consequential harm where actual damages did have to be proven.

But in Actions On The Case you also had to prove a fault -- that is, that the defendant did the act with some mental culpability, but not necessarily with mens rea.

Gradually, fault became the doing of an act negligently, recklessly or intentionally -- the same three concepts as are involved in Criminal law, but they developed in reverse order of relative importance in Torts. That is, today intent is the most important question in Criminal law, while negligence is the least important; in Tort, negligence is most important, with intent the least important.

For a time, Tort had a problem with the idea of liability for negligent inaction. Eventually, it developed the theory that since the Tort-feasor (the person doing an act which causes a harm) is in the best position to reduce or eliminate the consequences or risk of his behavior, he may be held responsible for failing to do so, provided only that he had a duty to act.

We now need to define a number of these terms.

Negligence came to mean "to do an act which a reasonably prudent person would, in same or similar circumstances, not do; or, to refrain from doing an act which a reasonably prudent person would do." You are, in essence, held to a mythical community standard of conduct. The community, in the form of the jury, determines its standards on a case-by-case basis.

Recklessness came to mean "the doing of an act with a heedless disregard for the safety of others, where the actor knows, or has every reason to know, that a very high risk of harm is being created."

Intentional came to mean "the act was done knowingly and volitionally, but the result of the act may not have been intended or even reasonably foreseeable."

These definitions are, for all practical purposes, the same when used in the Criminal law.

Not surprisingly, the interest and power of the king under the Criminal law soon swallowed up the old Tort actions of assault, battery, false imprisonment, theft, burglary, arson, murder, mayhem, etc.

Thus, Tort law, for a time, lost its original character of strict liability except for trespass on real property. It subsequently developed areas of strict liability involving manufacture, possession, or use of dangerous instruments, such as dynamite, escape of water stored behind a dam on one's premises, etc.

Tort law came to be seen as the wa