A. Biblical Judgment

Tracing the origins of criminal justice and Christianity begins in the Hebrew Bible. Typically described as the “Old Testament,” the writers of this work shaped three particular images of their God: creator, judge, and redeemer. Of the three, the “judge” imagery is typically associated with the face of God that exhibits justice through reward or punishment. This role was not limited to the earthly judge in the modern world, but was also bound up with the responsibilities of making the law and punishing those who transgress it; the legislative, executive, and judicial functions all rolled into one. When scripture speaks of God-as-judge, the metaphor corresponds to all three functions. Thus, God as the author of the Ten Commandments is inextricably tied to the judgment of humanity and the discharge of punishment.

God's characterization as judge begins in Genesis and continues throughout the Bible when God must evaluate an individual's obedience to the law. The book of Psalms portrays God as “righteous,” and as one who “shall judge the world in righteousness, and shall judge the people with equity.” The heavens trumpet his fairness, for “he will judge the world with righteousness, and the people in his truth.” God's verdicts never stray from justice because “[r] ighteous art thou, O Lord .... Thou hast commanded justice by thy testimonies and truth especially.”

In scripture, God doles out punishments to individuals or entire peoples; some punishments are even metaphysical. In the story of Adam and Eve, in what has been called the “first reported criminal trial,” God punishes this couple for disobeying his orders not to eat from the forbidden Tree of Knowledge. For leading Adam astray with the apple, Eve and all women are forced to bear the pains of childbirth and subjugation by their husbands. Aside from the feminist or metaphysical ideas implicated in this narrative, the biblical story of humankind also offers a model of humans as fallible beings, prone to deviating from God's authority. This remarkable subtext speaks to the general nature of humans: Creation's very first creatures broke the law--far from being ontologically pure and innocent, humans are hardwired to deviance. This story was no fluke since the couple's offspring did not fare better, with their son Cain slaying his brother Abel. From these early episodes, a particular narrative emerges that recognizes God as lawgiver and humans as lawbreakers. The lessons of scripture regarding punishment are unmistakable, and as a result of humanity's will to disobey, punishment is a constant in human existence.

In Hebrew traditions, the model of judicial leadership was the royal court, with the king serving as God's human extension. This ideal is portrayed biblically through King Solomon, the ideal judge and monarch. More practically, there were local judiciaries consisting of village elders, magistrates, and officers. Priests also played a role as judges, and they are described as functioning alongside other royal appointees or the king himself. A monarch's power to punish derived from the theological concept of “covenant,” a sacred agreement between God and his people. The model of the covenant transferred godly power to the rulers such that their authority was seen as ultimately coming from God, which simultaneously implied that a sin against the law was a sin against the deity. From the covenant between God and his chosen people came the Ten Commandments and the many biblical laws based on these precepts. Accordingly, it has been argued that the practice of conducting trials passed from God to humans as reflected in biblical narrative.

Having inherited this portrait in Hebrew scripture, the Christian Bible paints a powerful image of God as Judge. The Christian faith inherited a God who is both a loving father and a righteous judge, who combines mercy and justice; the belief that God is a righteous judge and that Christ will return to judge humanity played a critical role in the development of the legal values of the Eastern as well as the Western Church. For the Gospel writers, Jesus's entire life and ministry are the embodiment of divine justice. According to the traditions of Matthew, Mark, and Luke, Jesus's central mission was the announcement and establishment of the Kingdom of God on Earth. In the book of Romans, God's judgment is sharply divided from mere mortal judgment: “But we know that the judgment of God is according to truth against them which commit such things. And thinkest thou this, 0 thou man, that judgest them which do such things, and doest the same, that thou shalt escape the judgment of God?” Similarly, it is God who judges the “secrets of men,” which includes Christians as well, “[f] or we know him that hath said, Vengeance belongeth unto me, I will recompense, saith the Lord. And again, The Lord shall judge his people.”

Perhaps the most significant images of Jesus's judicial stature are those that describe the second coming when he will judge the whole Earth on the final day of reckoning. “Judgment Day” or “Final Judgment” is the most important event in the lives of believers, which is found in ancient cannon and creeds. The second coming is known by a host of names including the the “Last Day,” and “Day of the Lord.” On this day, Christ returns as the judge of the world: “See, I am coming soon; my reward is with me, to repay according to everyone's work.” Although the different authors who write about the Final Judgment focus on different terms and themes, there are nevertheless a number of common convictions that emerge. At the Final Judgment, the close of history, all people, alive and dead, will appear before the judgment seat of God, and they shall receive their payment for their works in the body, whether good or evil. There will be a separation in which the righteous will depart into eternal life and the wicked will go away into eternal punishment. For those excluded from salvation, Jesus repeatedly invokes a place of unquenchable fire where there will be “weeping and gnashing of teeth.”

Judgment Day stands as a paramount millennial concept and event-to-come in much of Christian tradition. As described in New Advent's Catholic Encyclopedia, “[f] ew truths are more often or more clearly proclaimed in Scripture than that of the general judgment.” Within Catholic Church history, this doctrine is found “all times and in all places.” In this narrative, however, the Son does not judge alone--he has the help of his twelve disciples: “[v] erily I say to you, that when the Son of man shall sit in the throne of his majesty, ye which followed me in the regeneration, shall sit also upon twelve thrones, and judge the twelve tribes of Israel.” Of particular interest here is the translation of “judge” from the word krinontes, which is rooted in the Greek word krino, and like other words deriving from this root, including “crisis” and “crime,” krino not only translates to ““judge,” but also to “accuse” or “condemn.” This linguist connection indicates how the very notion of “crime” and “criminal” link to biblical antecedents.

To the casual observer, this depiction of a judge and twelve jurors bears an uncanny resemblance to practically any criminal courtroom in the United States. Even though some states allow numerical variation, the trend in American trials has been typically to require a judge and jury of twelve to try and convict a criminal. Although the relevance of the number twelve in Western civilization could stem from a number of other concepts, legal commentators themselves attest to its religious origin. While history shows that different numbers have been used at different times, early legal writers repeatedly invoke the number twelve and tie it to Christian origins. Other aspects of religious influence included “prayers for relief,” the “witness” who “swore” before giving “testimony,” and doing so on the Bible itself.

Jury trials were not native to England, but are believed to have been imported by Norman Kings. The Norman conquest brought the “trial by battle,” structured on an adversarial system that gave the legal concept of “defense” a physical meaning and instilled the notion that divine intervention would come from God to make the righteous party victorious. In the English development of the trial system, “[t] he judge presided over a ... trial that was a symbolic reenactment of the ... trial by battle.” In History of Trial by Jury, William Forsyth notes that the ancient Norman monarch, Morgan of Gla, is credited with inventing and adopting the trial by jury around 725 A.D. The king called his brainchild “Apostolic Law”: “‘[f] or,’ quoth our regal and pious namesake, ‘as Christ and his twelve Apostles were finally to judge the world, so human tribunals should be composed of the king and twelve wise men!” In 1164, the Constitutions of Clarendon prescribed twelve sworn men to judge disputes between lay and clergy, which has been described as the gradual introduction of the trial jury. By the end of the 1300s, the “necessity for a jury of twelve members was finally regarded as essential .... The intrinsic merits recognized in the number twelve, and its multiples and submultiples, also undoubtedly played a part in the matter.” This would be the rationale given later in the 1600s by jurist and Parliament member, Sir Edward Coke, whose writings on the common law dominated the legal landscape in England for a century and a half:

And it seemeth to me, that the law in this case delighteth herselfe in the number of 12, for there must not onely be 12 jurors for the try all of matters of fact, but 12 judges of ancient time for tryall of matters of law in the Exchequer Chamber .... [T] hat number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, etc.

This rationale would be echoed a century later in John Proffatt's treatise on jury trials:

[T] his number is no less esteemed by our own law than by holy writ. If the twelve apostles on their twelve thrones must try us in our eternal state, good reason hath the law to appoint the number twelve to try us in our temporal. The tribes of Israel were twelve, the patriarchs were twelve, and Solomon's officers were twelve.

The custom of trial by jury was a central element of the American colonists' vision for its legal systems, which highlighted its stature, as the Commentaries of Blackstone described: “[T] he liberties of England cannot but subsist so long as this palladium remains sacred and inviolate.” For trial by jury, that “most transcendent privilege,” he required a jury of twelve. Despite the long and distinguished career of the number twelve for juries, when the United States Supreme Court confronted the question of how many jurors were necessary for a trial, it claimed that the number twelve was “wholly without significance ‘except for mystics.”’ Holding that a six-member jury satisfied the requirement, the Court rejected the twelve-person requirement as “a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” Rather than indicate the true significance, the Court discounted religious interpretation as ““superstitious.”