Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man; for the judgment is God's: and the cause that is too hard for you, bring it unto me, and I will hear it (Deut. 1:17).
Men are to fear God more than they fear men. Moses warned judges not to fear any man to the point of rendering false judgment in God's name. He who is ordained by law to speak as God's judicial representative must speak an honest word. This is the basis of the overriding principle of biblical law: the rule of law. "One law shall be to him that is homeborn, and unto the stranger that sojourneth among you" (Ex. 12:49).(1) The corollary to the rule of law is the principle found in this verse: no respect of persons. This law is repeated throughout Scripture.(2)There is a theocentric framework for this law: God as supreme judge. "For there is no respect of persons with God" (Rom. 2:11). "And, ye masters, do the same things unto them, forbearing threatening: knowing that your Master also is in heaven; neither is there respect of persons with him" (Eph. 6:9). "And if ye call on the Father, who without respect of persons judgeth according to every man's work, pass the time of your sojourning here in fear" (I Pet. 1:17). The warning is clear: "But if ye have respect to persons, ye commit sin, and are convinced of the law as transgressors" (James 2:9). Judges must render impartial judgment in God's name, on His authority. This was not a seed law or a land law. It was a cross-boundary law -- perhaps the cross-boundary law: the rule of God's law.
The governing principle of biblical civil justice is victim's rights.(3) To achieve the rule of law in specific case law applications, the judge must protect the victim. The judge must declare his judgment in terms of God's law and the evidence in front of the court. Nothing must interfere with his declaration: not bribes, not favoritism, and not fear of repercussions. "Ye shall not be afraid of the face of man; for the judgment is God's."
Fear: An Inescapable Concept The civil judge hands down judgment in God's name. He acts as a representative of God, declaring God's judgment in history. This is what makes a civil judge a minister of God. Men are to fear him because of his office as God's judicial representative. "For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil" (Rom. 13:4).
Men must fear God. The fear of God is the beginning of wisdom. The Old Testament declares this repeatedly. "And the spirit of the LORD shall rest upon him, the spirit of wisdom and understanding, the spirit of counsel and might, the spirit of knowledge and of the fear of the LORD" (Isa. 11:2).(4) Men will either fear god or fear some aspect of the creation. They will either begin with God's wisdom or man's wisdom, but the beginning of wisdom is fear. The man who fears nothing is a fool. He has not understood the threat of God's eternal negative sanctions. "And fear not them which kill the body, but are not able to kill the soul: but rather fear him which is able to destroy both soul and body in hell" (Matt. 10:28).
The judge is cautioned not to fear the face of man. This language is obviously symbolic. No one fears the face of man. Men fear the vengeful impulses which lie behind grim faces. "But unto Cain and to his offering he had not respect. And Cain was very wroth, and his countenance fell" (Gen. 4:5). Cain's face foretold trouble to come for Abel. No judge is to fear such a face. He is to fear God and hell, not those standing before the bar of justice.
Unrighteous men are to fear a righteous judge. "For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil" (Rom. 13:4). In a perverse society under the rule of evil men, a righteous judge must live under the threat of negative sanctions.(5)
Time Perspective and Sanctions Basic to all human action is the concept of time preference. We act in the present. We are responsible in the present. We consider the future in making our decisions in the present, but we value the present more than we do the future. We apply a discount to the future. Economists call this discount the rate of interest.(6)
People vary with respect to their assessment of the importance of the future. Some people are more future-oriented than others. They understand that success in the future is heavily dependent on actions taken in the present. They are willing to sacrifice present enjoyment for the sake of future enjoyment. They will save money at a much lower rate of interest compared to the rate which must be offered to a present-oriented person in order to persuade him to save.
Edward Banfield has defined class position in terms of time perspective. An upper-class person is more future-oriented than a middle-class person, who is in turn more future-oriented than a lower-class person.(7) An upper-class person may not have more money early in life than a middle-class person -- a medical student, for example -- but over time his devotion to thrift and hard work will normally produce personal wealth.
This insight regarding time perspective has implications for law enforcement, especially sanctions. If a person is extremely present-oriented, he cares little about the distant consequences of his actions. He discounts the future pain so heavily that present enjoyment looms far larger in his decision-making. Even if he thinks he may be caught, tried, convicted, and sentenced, he dismisses the end result as relatively meaningless. He subordinates then to now.
Because God's law must be implemented without respect to persons, both the present-oriented person and the future-oriented person face the same civil sanctions. The existence of time preference tells us that a greater number of present-oriented people will commit crimes than future-oriented people. They fear the future less. The threatened civil sanctions do not appear equally threatening. Economic theory tells us that when the price of anything is lowered, more of it will be demanded. The price of criminal behavior is perceived to be lower by a present-oriented person than by a future-oriented person.
Capital Punishment To deal with extreme present-orientation, God's law establishes the sanction of execution. The magnitude and permanence of this negative sanction impresses even the present-oriented criminal. Discounting death to zero price takes a unique degree of commitment to the present. Most criminals are not this present-oriented.
The biblical case for capital punishment rests on the principle that some crimes are an especial affront to God. He demands that the convicted criminal be delivered immediately into His court. In the case of murder, the victim cannot announce a lesser penalty. Unlike Jesus on the cross, who asked God to forgive those who persecuted Him, the murder victim is silent. God therefore requires the criminal's execution.
A positive side effect of capital punishment is the inability of the criminal to gain revenge against those who condemned him. Those who commit crimes so heinous that the State may not legally punish them with anything less than execution are unable to threaten judges and jurors. When the State substitutes other penalties, the criminal can later seek revenge. In the name of leniency to criminals, the State places at risk those law-abiding citizens who announced judgment in God's name.
In the United States, the abandonment of capital punishment was accompanied by an unprecedented increase in crime, 1960 to 1975.(8) It was an era in which traditional conservative humanism was visibly replaced by various forms of liberal humanism. The State substituted new sanctions for old. It sought to heal evil men rather than condemn them. It sought to rehabilitate criminals rather than punish them. The healing State became the lenient State -- lenient on criminals, but harsh on their victims and those who lived in fear of criminals. This was consistent with left-wing humanism's concept of the State as an agency of healing, of positive sanctions.
The previous decade had launched an era of judicial activism,(9) but in 1960 there were still signs culturally that an older conservative humanism prevailed in the thinking of the general public. Yet within one decade, 1960 to 1970, this older attitude was abandoned by policy-makers and judicial theorists. For decades, liberal elitists and academics had called into question the legitimacy of traditional negative sanctions against crime. The 1950's marked the last decade of the common man's dam of resolve. As Irving Kristol has written, "Prior to the victory of modern liberal dogmas in the early 1950s, the police and the courts could cope with common street crime, as well as burglaries or robberies, without having to defer to a catalog of criminals' constitutional rights, most of which, at the time, were still undiscovered. It may have made for less perfect justice, but it did deter wanton criminality among the young and ensured a more trusting, less fearful society."(10) A new judicial activism silenced conservative critics. The book title chosen by Karl Menninger, one of the reformers, said it all: The Crime of Punishment.(11) The liberal elite succeeded in persuading voters to abandon "wild west" justice: the justice of predictable negative sanctions. The result was an unprecedented increase in crime.
Liberty and Justice Liberty requires the rule of law. The rule of law means predictable law. Men must believe that evil-doers will be punished if the evidence testifies against them. Their victims will be economically rewarded by criminals, even if this means selling the criminals into slavery until their victims are repaid.
The predictability of the law increases the likelihood that negative civil sanctions will be imposed. The criminal already discounts the personal cost of negative future sanctions. High time preference -- a steep discounting of the future -- is one aspect of criminal behavior generally.(12) If the criminal understands that most crimes go unsolved and that most solved crimes go unpunished, his heavy discounting of the future drives his present costs of crime almost to zero. This increases the amount of crime in society: as the cost of something falls, more of it is demanded. By increasing the predictability of negative sanctions, the legal system decreases the amount of crime by raising its cost to criminals.
There is another aspect of discounting: the victim's. The victim estimates the likelihood of negative sanctions' being imposed on the criminal. If the likelihood is low, why go to the trouble of seeking justice? Why take the risk? Also, will the victim be rewarded if the criminal is convicted? Is there the possibility of positive sanctions? The more likely the positive sanctions, the more likely the victim will cooperate with law-enforcement officials in solving the crime.
The first stage in the retreat of a society from the rule of biblical law is the substitution of an ideal of social revenge for the biblical ideal of victim's rights. The ideal of victim's rights is always abandoned by the humanist State, which regards all crime as crime against the State. The humanist State imposes negative sanctions, but always at taxpayers' expense. The symbol of this legal order is the prison. The negative sanction of prison brings no positive sanctions to victims except in the sense of revenge. The biblical judicial ideal of victim's rights fades; it is replaced either by a theory of social revenge or by a theory of criminal rehabilitation. They can trade places back and forth in the public's estimation over time, as each is tried and found wanting.
In both cases, the citizenry fears the criminal. In the first case, the criminal is locked up for years. He is removed from the presence of law-abiding people. He associates with a caste of professional criminals in prison. He is prohibited from making economic restitution to his victims. Citizens fear the criminal's social redemption ("buying back") through personal restitution ("paying out"). They have no trust in biblical law as a means of restoration. They trust only in the State's vengeance. "Lock him up and throw away the key!" In the second case, he is paroled early and released back into society before he makes restitution to his victims. Citizens receive into their midst hardened criminals. They learn to fear these men, who in turn fear neither God nor law-abiding men.
When the fear of evil men undermines a community's fear of God, that community is eventually going to experience tyranny. The worst men will claw their way to the top through the imposition of fear. A subculture based on rule by fear has an enormous competitive advantage in a society that fears men more than it fears God. When this subculture becomes dominant, the rule of law becomes the rule of criminals.
The mark of a community's commitment to liberty is its commitment to biblical law. God's law must be enforced. The countenances of the citizenry must be set against the countenances of criminals. The citizenry represents God. Their ordained civil agents represent them before the face of God and represent God before the faces of criminals. Civil authority flows from God to citizens to the civil magistrate.(13) They are judges insofar as they bring sanctions, positive or negative, against their ordained representatives. They are told not to fear the face of man.
Conclusion The rule of law requires the honoring of the principle of no respect for persons. God's law is unified, for it reflects His moral unity. It is universally binding, for He is universally sovereign. Judgment should not be made unpredictable through the imposition of unpredictable sanctions. "Different strokes for different folks" is not a biblical principle of justice.
When the sense of justice departs from a society, that society becomes vulnerable to appeals by criminals, guilt-manipulating politicians, revolutionaries, tyrants, and others who offer to get even with the present order: the politics of revenge. When statist revenge is substituted for personal restitution, a society searches in vain for a judge who will bring stability, peace, and justice. When statist rehabilitation is substituted for personal restitution, a society also searches in vain for stability, peace, and justice. In both cases, liberty is at risk. The predictability of just laws becomes either the predictability of unjust laws or the unpredictability of any law.
The issue here is hierarchy. The law is enforced by legal representatives, who serve as God's agents and also as the community's delegated agents. The judge must not fear law-breakers, for he declares God's law. He must fear God, not men. Criminals must fear judges, who speak in the name of God and who mandate God's civil sanctions. One mark of a disintegrating social order is the criminals' loss of fear of the law. When judges in turn fear law-breakers, this fear spreads to the entire society. Courage is basic to law-enforcement as well as to military orders. There is supposed to be a covenantal hierarchy of fear: judges must fear both God and the voters; criminals must fear God and the judges. The society of Satan is based on a perverse hierarchy: criminals fear other criminals; judges and citizens fear criminals. They fear the faces of evil men.
Footnotes:
1. Gary North, Moses and Pharaoh: Dominion Religion vs. Power Religion (Tyler, Texas: Institute for Christian Economics, 1985), ch. 14.
2. Deuteronomy 16:19; II Chronicles 19:7; Proverbs 24:23; 28:21.
3. Gary North, Victim's Rights: The Biblical View of Civil Justice (Tyler, Texas: Institute for Christian Economics, 1990).
4. Job 28:28, Psalms 111:10, Proverbs 1:7; 9:10; 15:33.
5. Today, Colombia is such a nation. Drug lords, working in collusion with former Marxist revolutionary guerilla groups, threaten law enforcement officials with murder and kidnapping. They place bounties on the lives of policemen and judges. Assassinations and bombings are common. Two missionaries were kidnapped and executed in 1995. A judge who upholds the law there takes his life in his hands. A judge who believes that God has his life in His hands is in a better position psychologically to uphold the law.
6. Ludwig von Mises, Human Action: A Treatise on Economics (New Haven, Connecticut: Yale University Press, 1949), ch. 19.
7. Edward Banfield, The Unheavenly City: The Nature and Future of Our Urban Crisis (Boston: Little, Brown, 1970), ch. 3.
8. James Q. Wilson, Thinking About Crime (New York: Basic Books, 1975), ch. 1; U.S. Senator James L. Buckley, "Foreword," Frank Carrington, The Victims (New Rochelle, New York: Arlington House, 1975).
9. The symbolic figure here was U.S. Supreme Court Chief Justice Earl Warren, beginning with his appointment to the Court in 1953. The "Warren Court" was decidedly liberal.
10. Irving Kristol, "The Way We Were," Wall Street Journal (July 14, 1995).
11. Karl Menninger, M.D., The Crime of Punishment (New York: Viking, 1968).
12. Edward Banfield, "Present-Orientedness and Crime," in Randy E. Barnett and John Hegel III (eds.), Assessing the Criminal: Restitution, Retribution, and the Legal Process (Cambridge, Massachusetts: Ballinger, 1977), pp. 140-41.
13. Gary North, Leviticus: An Economic Commentary (Tyler, Texas: Institute for Christian Economics, 1994), ch. 4.
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