Who judges?

Traditionally in our legal system there are distinct roles in ensuring that the Law is obeyed.

The Police are responsible for enforcing the Law. This means that they seek to prevent crimes being committed by acting to pre-empt criminal activity. It means that when someone has broken the law they have the power to arrest them. It also means that they are responsible for gathering evidence to identify the likely suspect although it is the Crown Prosecution Service who determining if there is enough evidence to bring a prosecution.

Judges are responsible for ensuring that there is a fair trial.  They are also trained lawyers and it is their responsibility to determine on matters of Law. The Jury decide on the facts, they determine if the criminal act took place and therefore the guilt of the suspect but they are guided by the Judge on whether or not the law was broken. The judge will also consider the severity of the sentence too. They determine what justice looks like in this situation.

That may be a little simplistic, but I hope you get the gist. Now why am I writing about law and justice on a Christian blog? Well the aim of Faithroots is to get us thinking about how what we believe affects how we live.  One aspect of that is how our beliefs affect our interaction with wider society with culture, with work with politics and authorities. Some of these things are sometimes put under the class of “Public Theology.” Our concern for those things echoes Dutch politician and theologian Abraham Kuyper’s argument that there is nothing within this creation that the Lord does not claim as his.

Believers should be people who love justice and who care both about love and truth.   This week in response to a high-profile case (Dominic Cummings), we have started to think about how we make decisions about what is both morally and legally the right thing to do.  I’m planning a few more posts about those types of decisions as we think about morality and ethics.

First of all, I would like to highlight a challenge within modern legal systems. I am not sure that I have any great solutions but I want to help us be aware of the moral maze in which we operate.

A modern legal system like ours will become increasingly administrative. Rather than there being a few laws that you might break leading to you being arrested and taken to court, there are a whole host and increasing number of rules and regulations that you might break and then rather than facing an investigation and trial you are likely to receive your punishment on the spot. If you park somewhere that you shouldn’t or for too long you are likely to be fined and a traffic warden has the authority to impose the fine. If you are caught speeding, then the police have the power to issue a fine and you will have points added to your Driving Licence.

These regulations tend to have two things in common. The first is that they operate on strict liability.  In other words, we are not interested in things like motive or intent. You either parked in that spot or you didn’t.  You either were speeding or you were not. You either left your home during lockdown or you did not.  Secondly, the expectation is that the punishment is minor. You pay your fine and you get on with life but apart from a little inconvenience there is no real lasting effect. You are free to go on and your reputation is intact. There is usually an opportunity to appeal and take the matter to court as well so safe guards are in place.

However, there are challenges. Strict Liability assumes that there is no discretion and no personal judgement involved. The reality is that the authorities are likely to use some discretion. If you put your foot down to get to the hospital when your wife is in labour or pull up on double yellow lines to help someone who has got into difficulty merciful police and traffic wardens are more likely to offer assistance than issue tickets (we hope).  This point becomes particularly pertinent around the COVID-19 regulations as I highlighted when writing about the Dominic Cummings case.  We have regulations that appear to suggest strict liability. As I mentioned above, this means it is the police who determine if someone should pay the fine for stepping out of the home. However, the water gets muddied once we start to provide excuses. Someone has to make a judgement call on whether or not their actions are justified by a reasonable excuse. This is not really strict liability at all because we are now being asked to assess a person’s decision-making process.

This struck home for me this week as I watched the coverage of the Cummings affair. Now we are all entitled to our opinions. As I’ve explained elsewhere, my personal opinion is that the rules were broken, that the excuse was not reasonable. However, that remains just my personal opinion and you are free to disagree with me.  The media have been quick to jump in. They’ve decided that Cummings is guilty.  Yet, they do not actually have either legal training or legal authority enabling them to pronounce a verdict. Then we have been told that Durham police have investigated the matter retrospectively and determined that a minor infraction was committed. Again, is it really in their power to determine this? The problem is that in this case, guilt does not just lead to a minor punishment causing inconvenience, but a man’s reputation and job is on the line.

It is my concern that the growth of this type of administrative law is unhealthy. It makes it harder and harder for people to know whether or not they have broken any laws.  Further, we are seeing a subtle shift in the assumptions that underpin our legal system. The first assumption is that you are innocent until proven guilty. That means the burden of proof is on the prosecutor to prove guilt. However, we are increasingly putting the burden on the suspect to prove their innocence.  Secondly, our legal system, in contrast to many European ones, functions on the assumption that unless something is expressly forbidden then it is permitted. However, the weight of regulation is shifting the balance here too so that we increasingly operate on the basis that if we are unsure that the law permits something then it is forbidden.

How do I interact with these issues as a Christian? Well, there are no specific Bible passages telling us which legal philosophy is best. So we should be careful about rushing to judgements. However, there are some important principles to remember.

  1. It is God alone who can read hearts. Therefore, true and final judgement belongs to him
  2. Our heart motives matter and so we need to be careful about pursuing legal matters for the wrong motives such as revenge or personal gain.
  3. Our hearts can be deceptive. So, we need to be careful whether in response to the law of the land, rules within church or God’s Law. I can assume that I am acting for the best motives and have reasonable excuse but I need to be ready to allow God’s Word and faithful friends to challenge me.

In a future post, we are going to think a bit more about ethics and Christian life.

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