On criminal law and religion

There is a massive gap in our understanding of the relation between religious beliefs and institutions and the criminal law. This is all the more surprising given that the languages of religion and law draw on the same sets of concepts. We routinely talk in criminal law about guilt, wrongdoing, judgement, moral character and conscience and so on, yet these terms are treated as though they have no deeper history in our religious and cultural institutions and beliefs. This seems very strange: if we want to understand the nature of guilt or judgment then why not engage with theologians, who have been discussing such matters for hundreds of years? This failure might seem even more surprising in Scotland where one of the distinctive features of the criminal law is its explicit use of religious concepts, such as evil and wickedness, as concepts of mens rea.

Kirk or law?

In other respects this neglect is more comprehensible. The development of the modern law, in Western European countries at least, is routinely understood in terms of a process of secularisation, in which the law frees itself from superstition or enchantment, escaping direct religious influence. Institutionally this meant a separation between church and state. This was reflected in the conduct of trials, the training of lawyers, the rituals of judgment and punishment. In content, this is seen in the declining importance of crimes against religion (such as blasphemy or witchcraft) and the gradually declining importance of crimes directly derived from religious precepts, such as adultery. Indeed, the absence of crimes such as blasphemy or adultery comes to be seen as a marker of modernity or civilisation with respect to other systems (such as Pakistan or Iran) where such crimes continue to exist. Notwithstanding this it is clear that our systems still struggle to engage with religion - such as crimes committed in the name of religion (such as honour killings) or the protection of religion as an aspect of identity (hate crimes) - although interestingly these now tend to be treated as matters of cultural difference, reflecting the secularisation of perspective.

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.


John Calvin

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.

 

On the fall and (possible) rise of treason

One of the most notable changes in the criminal law over the past few centuries is the decline in importance of the crime of treason. In the early modern period treason was one of the organising ideas of the criminal law. Offences against the sovereign were not only the most serious form of crime, but other serious wrongs were also conceived of as forms of treason. Thus, murder of a father or a master was understood as 'petit-treason' - not only the wrong of killing but a killing made worse by breach of the relation of trust between killer and victim. If not exactly regular occurrences, treason trials were a feature of the political and religious conflicts of the seventeenth and eighteenth centuries.



The long decline of treason began in the nineteenth century. While political conflict did not decline, the authorities began to find other ways of dealing with it, more often than not avoiding the kind of direct confrontation that a treason trial entailed. There were famous instances of treason prosecutions in Britain in the twentieth century - notably of diplomat and Irish rebel Sir Roger Casement in 1916 and William Joyce (Lord Haw Haw) in 1945 - but these stand out because of their rarity rather than as indications of any more general usage of the criminal law. Possibly the most famous treason trial of the twentieth century was that of Nelson Mandela in 1956 - but that in itself tells us something about the use of the crime, as it was a defensive and authoritarian regime that sought to suppress political dissent



It is not hard to explain this decline. Treason trials were state trials, moments of political importance where the criminal law was used against opponents (or alleged opponents) of the state. The use of the criminal law in this way politicised the law, and carried potential to deligitimise the law as its use for political ends challenged the appearance of neutrality. The definition of the crime also required proof of motive - that certain acts were directed against the state or person of the sovereign. This gave the accused a kind of platform either to challenge the state directly, by arguing that it was illegitimate, or more indirectly, by arguing that their motives were to protect the state against itself. And so we find that political opponents of the state were prosecuted in other ways, such as for breaches of public order. The use of minor offences that were easily proven and which gave little opportunity to use the courtroom to mount political challenges was more effective in defusing political tension - a development that also reflected the professionalisation of policing. And as political democracies became more established there was also, it has to be said, a greater tolerance of political dissent and protest. This is not to say that direct forms of political resistance are tolerated in the modern state, but that in the criminal law they are targetted by novel crimes such as terrorism offences, which are, at least in name, more targeted at particular forms of conduct.



In this context it is somewhat surprising to find some US academics pressing for a renewed recognition of the importance of treason. The argument, stated briefly, is that treason as a crime of disloyalty, should be understood as a transgression of political boundaries. It is thus argued that citizens owe duties to the state and that treason breaches these duties. The crime of treason is thus connected to the sense of loyalty that as citizens we ought to owe to the political community of which we are a part. Once again this would make treason central to the criminal law, for almost every crime could then be seen as a crime against the community - breaking the bond of trust or loyalty that we owe to others.





Sir Roger Casement,
tried for treason in 1916



Now this is all very well as way of linking criminal law to a sense of political obligation, but this kind of approach seems dangerous. The first question that we might ask is a broad one: can it really be said that we owe a strong sense of loyalty to the state in this sense in the modern world? I am sceptical about this for it is surely the case that in modern, multicultural democracies this kind of strong sense of loyalty is surely absent. Most modern states have large populations of non-nationals, of recent immigrants, of different ethnic or religious communities. It might be realistic to require that these groups or individual members of these groups acknowledge an obligation to obey the law of the state in which they live, but to require something stronger, the kind of commitment that 'loyalty' suggests, is surely too much. This would also raise questions about criteria for membership. When can it be said that a person belongs to a political community in the sense that they owe a duty of loyalty? And what would happen with the kind of divided or multiple senses of belonging that are common in the modern world?

It also seems to me that this approach would cause problems in criminal law terms. The crime of treason is notoriously inchoate. Historically it required imagining the death of the sovereign, but even modern definitions tend to focus on some sense of conspiracy or plotting against the state - that is to say it is criminalises a person for their political designs rather than their conduct. Surely it is better to prosecute a person for their conduct if it is an existing crime, than to invent new crimes, by which I mean that if a person is planning some sort of political violence against the state or its symbols they can already be prosecuted for this, without the need to reimagine the crime of treason.

The decline of treason is a long and interesting story, and there is much interesting research that could be done into this. Its possible rise is another story altogether, and it is to be hoped that it is short-lived.

On the sentencing of David Gilroy

David Gilroy

Today is apparently a historic day in Scotland (indeed the UK), as for the first time permission was granted to allow TV cameras to film the sentencing of a convicted killer. So David Gilroy, who was found guilty last month of the murder of his girlfriend, Suzanne Pilley, and of concealing her body, was sentenced to life imprisonment, to serve at least 18 years.
You can watch it here, but before you get too excited, you should be aware that the conditions for the filming are strictly controlled. There is no view of the courtroom, no view of the accused, and the cameras are permitted to show only the judge as the sentence is delivered.

I have written in a previous post about the principle of televising sentencing, and I have no particular desire to repeat the same arguments at any length. In that post I suggested that this development was limited by, on the one hand, the blatant attempt to control the type of information or situation that was filmed, and on the other by the fact that it was not likely to be particularly entertaining. With these thoughts in mind it is worth viewing the video. It is hard to see much that is either of public interest or will interest the public here. The video is very dry and at nearly five minutes long requires a certain degree of concentration. Lord Bracadale is seated on the bench, in full judicial robes, against a rather drab brown wooden background (see above). He is filmed from below - no doubt to emphasise the authority of the judge (replicating the position of the public in the courtroom): we look up at such figures. His delivery is undramatic, narrating the facts of the case and explaining the sentence. He does not look into the camera and, save for a moment at the very end,exhibits a studied lack of awareness of its presence. He is no doubt making eye contact with the accused - but we cannot know this for sure (and we cannot see or hear any reaction), and as a result of this we are positioned as an observer of what appears to be a process of communication or explanation, but where only one side of the process is visible.

And this is the major limitation. The filming adds little to a written account, because it is only the judge's words and his studied neutrality which is shown. What might make it interesting, or explain how this is a social process, is excluded - and of course we must fall back on traditional resources to learn about this - the impressions of the journalist in the courtroom of the reaction of the accused, the statements by family or police on the steps of the courtroom. This is the familiar staging of the criminal trial in the television age.

Much has been written about how this represents a new commitment to openness, but I cannot see this. Of course it might be thought that showing this is better than showing nothing, but what is shown is so limited and controlled that I cannot see in it any real commitment to open justice.

On responsibility and criminalisation

One of the commonplaces of criminal law theory is that responsibility acts primarily as a constraint on criminalisation. This is in part seen as a matter of certain types of legislation introducing e.g. strict liability, where it is argued that reading in a requirement of responsibility (or mens rea) would limit the impact of the law. But it is mostly because the principle of responsibilty - that punishment of individuals by the state is only justified where individuals have chosen to break the law - is interpreted as a constraint on state power, a way of establishing the limits of permissible state action.

This is undoubtedly a powerful argument, but it should not exhaust or limit our own thinking about responsibility and criminalisation. What I am concerned with here is the question of how responsibility might help to shape or define the scope of that which is criminalised, which is something which has been neglected in criminal law theory. This requires that we think about responsibility not just in terms of capacity or choice, but as something which has more substantive content. This thought might be captured by asking not only who we are responsible to, but also what we are responsible for: that is to say that responsibility is not ony a matter of answering to others for our conduct, for there also have to be pre-existing expectations about the scope of our duties, roles or relations with others. These are also important questions of political theory, for the exact nature or scope of these duties (as parents, as officers within an organisation, as citizens) are not given but will be shpaed by the kind of society or political community that we live in. It thus seems that to think of responsibility primarily in terms of limits is to put the cart before the horse, for how can we talk of limiting state power without having first talked about the nature of the state.

On standing your ground (again)

The focus of my previous post on this topic was the law, and in particular the definition of what it means to 'stand one's ground'. But it is important to remember that the impact of laws such as these also depends on the social context in which they are enforced (or not). It is fascinating then to read this story which traces a correlation between US states with 'stand your ground' laws, weak gun control laws and an apparent rise in the numbers of justifiable homicides.

Little surprise there, you might think. One final thought, though. The article wants to see the problem of increasing homicides in terms of the nexus between weak gun control and permissive laws, but it may be that it is the background culture which produces both. Either way, the problem is that of how to stop the escalation.

On seriouness

One of the axioms of modern thought about criminalisation is that criminal law should be reserved for the most serious matters. The thought is that there is a continuum of responses to forms of wrongdoing - from informal responses to civil law, to certain kinds of regulatory response, to the use of criminal law as a last resort. While this is rarely examined it is assumed, I think, that this legal response tracks social attitudes or beliefs, that criminal law should be used sparingly. It is, moreover, assumed to be the case that criminal law, as the expression of state power should be used as sparingly as possbile in order maximise individual freedom.

An anglo-saxon penny

But is it necessarily the case that the role of criminal law must be conceived in this way? A fascinating piece of research on the relations between theft and homicide in Anglo-Saxon England raises questions about this. The argument of this piece of research, published by TB Lambert in the most recent issue of Past and Present, is that there was a significant disparity in the way that the royal courts treated theft and homicide. He suggests that theft was regarded primarily as a criminal offence, but killing was understood primarily as offence against the victim and their fmaily rather than the king. Theft (and other property offences) accordingly were tried in the royal courts and attracted severe punishment, while homicide could be resolved by the payment of appropriate compensation to the family of the victim.

This distinction came about, Lambert suggests, because killing was seen as an open honourable offence, while theft was a dishonourable secret one. Thus a killer would be expected to admit the offence openly as a matter of honour and to make redress possible. Theft, by contrast, was a secret offence, the perpetrator was unknown and the victim could not know how to get redress. Lambert is at pains to stress that both were regarded as serious wrongs - but that seriousness did not automatically mean that criminal law was the appropriate remedy.



An Anglo-Saxon helmet, from Sutton Hoo

 What might this mean for thinking about criminalisation? Well, first it is interesting to note the reversal in the understanding of the relative seriousness of theft and homicide. Theft was one of the most serious criminal offences at the time and homicide was not, whereas in the modern world we tend to believe the opposite of this. This at least should give pause for thought to those who suggest that there is a core understanding of wrongs and their relative seriousness which is common to all (or most) societies which makes the core of the criminal law. It follows from this that we must pay attention to how the category of crime is constituted. Lambert suggests that this starts to occur from the late twelfth century, with the grouping together of theft and homicide under a single royal jurisdiction - a development that he suggest was connected to the ending of the practice of feuding. Most important for the point here it suggests, as Lambert points out, that seriousness and wrongdoing do not automatically track each other. Both theft and homicide could be thought of as serious wrongs at the time, but only one of these was thought to be a matter of primarily public concern. That this was so was connected to forms of social organisation, legal jurisdiction and undertandings of violence and honour.

This is obviously of enormous historical interest, and if true would require a substantial rethinking of the history of crime and law. But should any of this trouble the legal theorist, who might well respond that historical development after the twelfth century merely underlines the normative claim that criminal law should be reserved for the most serious offences; that the modern position is best, and correct as well. I think that there are two possible responses to this. The first, and weaker, point would be that this at the very least reveals the contingency of some of the assumptions underlying our normative thought. We should beware making claims about the universality of some of our beliefs or intuitions, because such claims can be easily undermined. The second point though would raise deeper issues of method to point out that the ordering of seriouness is not primarily a moral issue but a matter of legal ordering. The moral weighting we might give to certain conduct must be understood through the lens of legal jurisdiction. From this perspective we may not want to argue that the modern position is wrong, but that it must be understood primarily as a legal and political question of state power rather than as a question of moral theory.

On standing your ground

The killing of Trayvon Martin in Florida has rightly been attracting a lot of attention. While much of the discussion has been about the alleged racism of his assailant, George Zimmerman, and that of the Florida police in not arresting and charging the man, as well as the broader social and cultural significance of the case, it is worth reflecting on the place of the criminal law in this. Underlying the incident is Florida's unusually broad law on self defence, based on the so-called 'stand your ground' principle. To what extent might this law, with its broad definition of the circumstances in which it is permissible to attack an assailant, have contributed to the killing?

The law on self defence is contained in s.776.012 and 013 of the Florida Statutes. The relevant section reads:

A person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013

S.776.013 then goes on set out that a person is presumed to have a reasonable fear of imminent peril (and is thus permitted to use lethal force) where this was used against an unlawful entrant of a building or vehicle, where the person believed that an unlawful entry was occuring or about to occur. It goes on to state that a person attacked in a place where they have a right to be has no duty to retreat and can meet force with force, and that the person attempting to unlawfully enter another person's building is presumed to be doing so with intent to use force or violence.

The first thing that is notable is the feature that is remarked on by most commentators, namely that there is no duty to retreat, or that one can stand one's ground, whether attacked in the street, on one's home, or in one's car (carjacking). In some circumstances this might seem admirable. If I am attacked in my own home by an intruder, why should I have to run away (or not have the option of running away), as is required by the law of self defence in many jurisdictions, before I can defend myself, my family or my property? This seems to rely on the idea of the home as a particular kind of place of safety  - and is linked by some commentators to the idea that 'the Englishman's home is has castle' (the common law is, of course, English in origin). This seems less defensible in the context of some public interactions, though. It may be better for the law to encourage people not to stand and fight when attacked (so-called 'make my day laws, after the Clint Eastwood character in the movie Sudden Impact) , both for their own safety and the safety of the public more general. And to conceive of standing one's ground as a virtue requires a particular sense of honour or character which is neither universally shared nor admired. It is also surely a very masculine virtue, encouraging a particular sort of reaction.

Go ahead, make my day...

However, there is more. An even more striking feature of the law here is that there are a lot of presumptions at work: that the initial victim is presumed to have a reasonable fear; and that the unlawful entrant is presumed to intend violence. These then structure the other rules which are framed in more familiar terms of reasonable belief: reasonable belief that a forcible entry was occurring; or reasonable belief that force was necessary to prevent death or violence. But we might ask what a reasonable belief would be under these circumstances. If the law is presuming violent intent, even where it is absent in fact, then it is surely almost always reasonable to believe that lethal violence is necessary in response. And moreover to legislate a presumption of reasonable fear on the part of the initial victim may create a situation where the person who wishes agressively to defend their property may do so with impunity - the question will then become that of where the defence of that property begins and ends, and that is once more framed in terms of reasonable belief.

All of which brings us back to the original question of whether a law framed in these terms might have contributed to the killing. The answer, at least to my mind, is that even a restrictive reading of the statute allows enormous leeway to the initial victim - to the extent that the fact of their victimhood is presumed rather than established in fact. This is not just a question of the right to stand one's ground, as that surely could be framed in such a way that it was not surrounded by such broad presumptions. More than this, however, there is evidence from other cases that not only is Florida's law framed in broad terms but that it is also interpreted in a very broad way by the judiciary, allowing the pursuit and stabbing of intruders. Taken altogether these have produced a lethal combination which seems permit far more than self defence.