|Kirk or law?|
It is, though, less easy to track the influence of beliefs about guilt and character in the modern law. There is clear historical evidence of their importance in relation to punishment, in the penitentiary and the secularisation of rituals of confession or asceticism, as has been demonstrated by historians such as Michel Foucault and Michael Ignatieff amongst others. But what about in the substantive criminal law itself? How did religious beliefs shape or influence the grammar and institutions of the modern law? Was there a difference between criminal law in protestant and catholic countries? These are the kind of issues that have not been systematically addressed by historians or theorists.
Some answers to these questions can be found in a fascinating article in a recent Edinburgh Law Review by Chloe Kennedy. In this paper she looks specifically at the influence of Calvinism on Scots criminal law in the seventeenth and eighteenth centuries, and she finds clear traces of Calvinist doctrine in contemporary legal writings. This, perhaps, perhaps should not be surprising. The influence of the Kirk in post-reformation Scotland is well known at both a national and local level, and so we should expect that lawyers would be trained in theology and that this would be reflected in their writings and judgments. However, in the most interesting sections of the paper she looks at the relation between Calvinist ideas of guilt and will to show how the idea of 'dole' - as a kind of general mens rea or sense of evil will which is one of the central concepts in Scots criminal law - has a clear affinity with Calvinist beliefs.
This is an important contribution to the understanding of Scots law, but should also stand as a reminder to all criminal lawyers that this relation between criminal law and religion should not be neglected.