Criminal law research is not ideal summer reading. But Elizabeth Kamali’s work, at Harvard Law School, resides at an interesting intersection between law, theology, and history.
A key area of her research revolves round the difference between plea-bargaining (increasingly a key feature of American criminal trials) and medieval legal systems.
Plea-bargaining encourages admitting guilt in return for softer sentences. Pleas are effective, for courts and lawyers. Kamali, however, is concerned about their impact on defendants.
But, the more interesting dimension that arises from thinking about her research is the difference in logic between plea-bargaining and the essence of older systems of trial. As Kamali reminds us, in medieval times, the focus was on intentionality.
This is intriguing for anyone interested in religions, because the fundamental aspect of determining guilt in all monotheistic religions is: intention. Defining intention was a rich topic for religious scholars. Does intention always spring from human free-will? Or is it sometimes the external layer of Divine inspiration? Scores of Jewish, Christian, and Islamic treatises addressed this question. This was particularly important – or problematic, depending on your view – when acts of violence (say, murder, or mass-murder) were committed in the name of God. And the “sacred texts” have several examples of elaborations on the rationale behind such acts. In these contexts, the human will was, explicitly, rendered irrelevant, for the act, according to the texts, was done not only in God’s name, but much more importantly, by Divine determination.
Religious scholars (of the three largest monotheistic religions) – who, in medieval times were also judges – were mindful of this supposed channelling of Divine Will in human acts. They repeatedly wrote of “Divine justice”, which, rarely if ever, expressed itself in a single act. This meant that any specific act of lasting impact ought to be contextualised within a chain of events. And so, Divine justice, in this view, is the end of a story. Understanding the end – let alone deciding upon it, if you were a judge – necessitates knowing the history, the characters, the underlying issues, and perhaps crucially, looking at all of that through a specific moral prism that, the theologian/judge believed, is superior to any other. The implication, for medieval theologians/judges, was: the insistence on the morale of the story and its compatibility with their understanding of Divine justice, as opposed to the transactional way of thinking inherent in plea-bargaining. Otherwise, those medieval theologians/judges would have abandoned the notion of justice gleaned from almost all classic interpretations of “sacred texts”.
These interpretations of Divine justice, whether in stories in the “sacred texts” or in medieval trials, often led to certain viewpoints that actually justify acts of violence that most modern legal systems would consider crimes. And so, often, we find perspectives in which the perpetrator of the act of violence is seen as a righteous party. Here, religions were neither lenient nor forgiving; they were not offering ways out to perpetrators of violence; and in most of these cases, the rationale was not about God’s mercy. Rather, the perspectives here situate the Divine justice within a bigger whole, that is Wisdom – which, in its wholeness, incorporates but transcends any human conception of justice.
The vast majority of modern legal scholarship have acute reservations on this way of ascribing righteousness, let alone determining guilt. Already, legal and philosophical literature is awash with rationale detailing why this way of defining and scoping justice has always, throughout history, been highly problematic. For example, Voltaire’s writings include such piercing and scathing critiques. But most classic understandings of monotheistic religions stick to their perspectives.
Religions also, of course, give us redemption. This concept is not alien to modern legal systems. But it is rarely applied in practice. Perhaps, this is why, in some of the most inspiring works of art in human history (for example, nineteenth century Russian literature) redemption – or the prospect of redemption - was granted after a long journey of internal torture and an excruciating quest for salvation. Here, redemption – or again, the potentiality of redemption – is one expression of Divine Wisdom, which incorporates, but goes beyond, human understanding of justice and mercy. (Of course, for some of the Russian thinkers of that era, God could be thought of through the prism of monotheistic religions, especially Orthodox Christianity, but also through a rich understanding of human consciousness that is linked to a connected internal and external unfolding Wisdom).
These different aspects compelled medieval theologians/judges to define, deliberate on, and to contextualise intention. And here, Kamali’s reminding us that guilt in medieval courts was almost equated with “sin”, is valuable. That’s because sin, in medieval times, was not merely breaking the prevailing law. It was meditated, persistent perpetuation of, or indulging in, a certain behaviour that was “forbidden” because, in the religious view, it negates Divine or Natural Law. For a theologian, this tantamount to a rejection of Divine Wisdom. And so, in this context, determining criminal responsibility was a grave decision, because the theologian was not just judging someone’s culpability in a “crime”; he was opining on the purity, and in classic interpretations: the destiny, of his soul. It is not surprising, as Kamali tells us, that whilst punishments in medieval courts were severe, most of the verdicts were actually acquittals.