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Christianity and Criminal Law, edited by Mark Hill, Norman Doe, R. H. Helmholz, and John Witte

by
16 July 2021

Michael Doe senses the legal system’s limits 

THIS collection of essays will be welcomed by the academics and practitioners in criminal law for whom it is primarily intended. Those outside that circle should be grateful that thee former are seeking to connect their faith with their professional lives, and in particular should acknowledge our debt to those who carry out the heavy responsibilities of the judiciary, but may feel that Christianity raises deeper questions about criminality and the response of our legal systems.

The various chapters address a wide range of issues. They describe how in Old Testament times there was an intermingling of sin and crime, and again, in medieval Christendom, where the Church lived in a beneficial and sometimes dominant relationship with the State. But between these periods the Early Church lived on the edge of the law, and, ever since, minorities such as the Anabaptists have refused to be judges, while others have juggled with where duty and responsibility lie, St Augustine of Hippo with his two cities and Luther with his two Kingdoms.

It’s a pity that there’s nothing here about law in Catholic social thought since Aquinas. That might have challenged the way in which human rights are reduced to legality, so that if you steal a man’s lunch, that’s a crime, but if you cut international aid and thousands die of hunger, that’s only a sin.

The more historical chapters tracing the relationship between Christianity and crime feel more academic than relevant, given the separation of law and religion at the Enlightenment. But they rightly refuse to let the secularisation thesis hide the fact that activity now regarded as criminal often originated in what was considered sinful, and that the modern belief in personal responsibility and the right of the individual to be treated fairly can also be traced back to canon law and church courts.

Unfortunately, in this Anglo-American cast of contributors, there is nothing about places where religion is still in control. So blasphemy is seen only in a Western context, with nothing about Islam here, let alone in places such as Pakistan. And sexual crimes are said to have moved from fault-based to harm-based, with no mention of those African Christians who want to criminalise homosexuality because they see it as sinful.

A fundamental question running through the book is the relationship between justice and mercy. One definition given is that punishment is social and forgiveness is personal, but mercy may reduce punishment as far as crime control or restributive desert allow. Amnesties and presidential pardons are criticised, careful parole is defended, and the tension between mercy and the increased part played by victims is duly noted.

There is a good chapter on Restorative Justice as a way forward between utilitarianism and retributivism, but it’s largely concerned with how countries can best recover from breakdown, as in Rwanda, or in a South Africa dealing with the heritage of apartheid, and little on what it could mean for individuals. Indeed, what happens to the person who goes from court to prison is hardly mentioned: physical coercion may have moved from torture to mere incarceration, but our increasing concern for mental health in society as a whole has not yet invaded penal policy. During lockdown, who gave a thought to what was happening in our prisons?

That leads to other issues that seem outside the contributors’ legal comfort zones. What is the relationship between a Christian emphasis on individual moral responsibility and mental illness? The criminal law works on assumptions about adult human capacity, and sentencing policy remains nervous about any wider questioning of culpability. And why are more than a quarter of UK prisoners from a BAME background? Are these communities more sinful, or is the formation and operation of the criminal law tied up with the distribution of wealth and power in a way that most of its exponents would prefer not to examine?

It may be unfair to ask of this book what these eminent lawyers and scholars did not set out to present. Or it may be that those at the top of any profession — judges, barristers, civil servants, even bishops — are happier carrying out their duties, without which the institution would flounder and many people would certainly suffer, than facing up to the more radical questions that the gospel may raise.


The Rt Revd Michael Doe is Preacher to Gray’s Inn and an hon. assistant bishop in Southwark diocese.

 

Christianity and Criminal Law
Mark Hill, Norman Doe, R. H. Helmholz, and John Witte, editors
Routledge £120
(978-0-367-85825-4)
Church Times Bookshop £108

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