Theological Sources of Western Criminal Law
Anselm's theory that satisfaction was required for man's dishonoring of God reflected preexisting legal concepts more than the new legal concepts that were soon to be superimposed on it.
Anselm conceived satisfaction in terms of the kind of self-abasement by which a serf appeases a lord whom he has dishonored. Christ's self-sacrifice was not presented -- as it was later, especially after the Reformation -- in terms of punishment for crime (Christ being the substitute), but rather in terms of penance in the older sense, that is, in the sense of works of contrition, leading to reconciliation of the victim with the offender. 37 Because Christ as the representative of man had offered himself as a propitiation for man's sin, God's honor was restored and he could be reconciled to man. This expressed a leitmotiv of criminal law among the people of Europe in the period before and during the eleventh century. A crime was not generally conceived as an offense directed against the political order as such, or against society in general, but rather as an offense directed against the victim and those with whom he was identified -Âhis kinfolk, or his territorial community, or his feudal class. It was also an offense against God-a sin. A normal social response to such an offense was vengeance on the part of the victim or of his kinship (or other) group. At the same time, tribal and local and feudal law between the sixth and eleventh centuries placed great emphasis on penance, restitution of honor, and reconciliation -- as an alternative to vengeance. In addition, royal law and imperial law of that earlier time were based on similar concepts and consisted largely of customary rules and procedures protecting the rights of the royal or imperial household and of the persons under its protection. Occasionally kings would issue "codes" of law, restating and revising the customary law, but, on the whole, royal or imperial jurisdiction over crimes was extremely limited. The relative lack of a universal criminal law -- and the predominance of local customs -only emphasizes the fact that crime was considered for the most part to be an offense against other people -- and at the same time an offense against God -- rather than an offense against an allÂembracing political unit, whether the state or the church.-181-
The same was true in the monasteries, whose penitentials______ codes of sins and penances__________________________________________ formed an
important source of the new canon law of crimes of the twelfth century. Offenses by monks were confessed and punished, secretly, preliminary to the reintegration of the offender into the local monastic community. For the most part, each monastery had its own penitential rules. These rules also came to be applied very widely to the laity in the ninth, tenth, and eleventh centuries.
Penance, restitution of honor, and reconciliation: these were the stages through which atonement for crime or sin had to pass. The alternative was blood feud, or outlawry, or excommunication.
And so the atonement was presented by Anselm as an act of penance ("oblation") and reconciliation, in which the God-Man offered himself as a sacrifice. Yet the argument ultimately depended on another premise which was not fully articulated, namely, that a punishment (and not only a penitential satisfaction) was required by divine justice, not for mans original sin, or "natural sin" (as Anselm preferred to call it), but for "personal sins" ("actual sins") committed by baptized Christians. By the sacrament of baptism they had the benefit of Christ's atoning sacrifice -- the infinite debt of their original sin was paid; however, liability for their subsequent sins remained, and that liability, it was implied, they must themselves assume, by undergoing punishment.
That implication was derived from the sharp distinctions that were drawn: (1) between universal original sin, which was removed by baptism, and "actual" sins subsequently committed by individual Christians; and (2) between satisfaction, which was a payment sufficient to restore the victim's honor, and punishment, which was a payment commensurate with the gravity of the offense.
Anselm expressly rejected the alternative of punishment as an appropriate sanction for original sin, since, he said, to be commensurate with the offense it would have required man's total destruction. God, who "has made nothing more valuable than a rational creature capable of enjoying him," did not want man utterly to perish, and so he permitted his honor to be restored by the self-sacrifice of his Son. 38 Thus God has forgiven mankind its state of sinfulness: the human race is absolved from the consequences of its inherited tendency toward greed, pride, power, and other forms of contempt of God. God accepts man as he is. But this very absolution imposes an added responsibility on each individual not to choose voluntarily to do those things that are prohibited. If he does so choose, he is to be punished for it -- not destroyed, not hated, but made to pay a price commensurate with the offense, that is, with the illegality. In contrast with mankind's ( Adam's) original sin, the actual sins of individual, baptized, penitent Christians need not entail their destruction in order to be commensurate with the illegality; they may be-182- expiated by temporal punishments in this life and in purgatory. Even those consigned to eternal punishment are not totally destroyed.
The new concepts of sin and punishment based on the doctrine of the atonement were not justified in Germanic terms of reconciliation as an alternative to vengeance, or in Platonic terms of deterrence and rehabilitation, or in Old Testament terms of the covenant between God and Israel -- though elements of all three of these theories were present. The main justification given by Anselm and by his successors in Western theology was the concept of justice itself. Justice required that every sin (crime) be paid for by temporal suffering; that the suffering, the penalty, be appropriate to the sinful act; and that it vindicate ("avenge") the particular law that was violated. As St.
Thomas Aquinas said almost two centuries after Anselm's time, both criminal and civil offenses require payment of compensation to the victim; but since crime, in contrast to tort, is a defiance of the law itself, punishment, and not merely reparation, must be imposed as the price for the violation of the law. 39This is usually called a "retributive" theory of justice, since it rests on the premise that a "tribute," that is, a price, must be paid to "vindicate" the law. In the United States the retributive theory has often been associated with the avenging of the victim rather than the avenging of the law -- which is quite another matter. I would call the former "special retribution" and the latter "general retribution." Historically, it was in the wake of the Papal Revolution that Western man experienced the substitution of general retribution (the vindication of the law) for special retribution (the vindication of the honor of the victim) as the basic justification of criminal law. Yet the phrase "general retribution" does not exhaust the depth of the change. The doctrine of the atonement added other dimensions to the ideas of tribute and vindication. On the one hand, the sinner who broke the law was, indeed, considered to be not only a sinner but also a criminal, a lawbreaker, and hence liable not only to repent but also to pay a price for the violation of the law; but on the other hand, the lawbreaker, the criminal, was also a sinner, whose guilt consisted not only in the fact that he broke the law but also, and more significantly, in the fact that he voluntarily chose to do evil. Thus there was a strong emphasis on the moral (or rather, the immoral) quality of his act, that is, his sinful state of mind when he committed it.
At the same time the association of crime with sin, and of punishment with atonement, gave the criminal or sinner a certain dignity vis-a-vis his accusers, his judges, and his other fellow Christians.
They, too, were sinners; they, too, were candidates for unknown torments in purgatory and eventual admission to the kingdom of heaven. This alleviated the element of moral superiority that generally accompanies a retributive theory of justice. For example, the executioner was required to kneel183- down before the condemned man at the last moment and to ask his forgiveness for the act he was about to commit. Thus, although the association of crime with sin created an infinite responsibility on the part of the criminal toward God, the attribution of sin to all members of society, including the law abiding, served somewhat to de_emphasize self_righteous indignation as a component part of criminal law. 40 All Christians shared a common, sinful humanity.
The belief in the moral equality of all the participants in legal proceedings provided a foundation for a scientific investigation of the state of mind of the accused. In the tract Concerning True and False Penance, the author developed the remarkable theory that a judge who examines a person should put himself in that person's position in order to discern what he knows and to elicit from him, by subtle questioning, that which he may wish to conceal even from himself.
For one who judges another... condemns himself. Let him therefore know himself and purge himself of what he sees offends others... Let him who is without sin cast the first stone (John 8:7)... for no one is without sin in that it is understood that all have been guilty of crime... Let the spiritual [that is, ecclesiastical] judge beware lest he fail to fortify himself with science and thereby commit the crime of injustice. It is fitting that he should know how to recognize what he is to judge. Therefore the diligent inquisitor, the subtle investigator, wisely and almost cunningly interrogates the sinner about that which the sinner perhaps does not himself know, or because of shame will wish to hide. 41
Finally, the doctrine of the atonement gave a universal significance to human justice by linking the penalty imposed by a court for violation of a law to the nature and destiny of man, his search for salvation, his moral freedom, and his mission to create on earth a society that would reflect the divine will.
There were marked similarities here with the Judaic concept of the covenant which God had entered into with his chosen people. From that covenant were derived the Ten Commandments and the multitude of Biblical laws based thereon. Each of those laws was sacred; every violation was a breach of the covenant. In the Western view of the atonement, God had entered into a new covenant, now with all mankind, represented in a person who was both human and divine, the God-Man. Under the new covenant, however, the Biblical law was dissolved: man's sinfulness was wiped out by Christ's sacrifice. Henceforth baptized Christians were able to live righteous lives without any need for law. Yet despite this newfound grace, they voluntarily chose to do evil. And so a new kind of law was needed -- human law, not sacred in the old sense, though inspired by the Ten Commandments as well as by other Biblical texts. Human law would judge men on earth, leaving to God's sacred justice the judgment of their eternal souls. Yet it was also-184-
the mission of human law to help prepare men's souls for their eternal destiny. The priesthood in particular, being God's representatives on earth, had the task not only of caring for souls through the administration of the sacraments, including penance, but also of promulgating and enforcing rules of ecclesiastical law and cooperating in the promulgation and enforcement of rules of secular law; and these ecclesiastical and secular laws, though human and not divine, were nevertheless intended to reflect the divine will and hence to have an ultimate validity. Therefore______________________________________________________ to vindicate that ultimate
validity___ violations had to be punished. "The law must keep its promises." 42______________________________________________________________