Blame and the Purpose of Judgment

Job's Evil Dreams: William Blake's 1805 illustration to the Book of Job reveals Job's God as Satan, the Accuser, inhuman with cloven hoof, accusing Job from the Book of the Law. The serpent entwining Job’s God is that same serpent who tempted us, in the garden, to eat of the tree of the knowledge of good and evil; to see evil in the world, in others, and in ourselves, and to ourselves become accusers.

I have been troubled by the seemingly unquestioned assumption, even here at the College of Law, that a proper purpose of the judicial system is to punish people for their sins. In a discussion of Truman Capote’s In Cold Blood, for instance (which we read as part of a “perspectives” course), a central focus of the discussion was whether the two convicted killers “deserved” to be executed for their crimes.

Bernhard Schlink’s The Reader, dealing with post-war Germany, most saliently presents this assumption. The Reader depicts post-war trials of low-level Nazi prison guards, which became trials for moral crimes rather than for acts which were “criminal” under the German legal system as it existed when the acts were committed. Michael Berg, the fictional narrator of The Reader, as a young post-war law student, joins a seminar devoted to following a trial of female former prison guards, one of whom freely confesses her actions but is bewildered by accusations of criminality . The students and their professor wrestle with the problem of what we would call ex-post-facto laws which criminalize acts after their commission (a practice which in the United States, of course, is explicitly prohibited by the U.S. Constitution):

I do remember that we argued the prohibition of retroactive justice in the seminar. Was it sufficient that the ordinances under which the camp guards and enforcers were convicted were already on the statute books at the time they committed their crimes? Or was it a question of how the laws were actually interpreted and enforced at the time they committed their crimes, and that they were not applied to them? What is law? Is it what is on the books, or what is actually enacted and obeyed in a society? Or is law what must be enacted and obeyed, whether or not it is on the books, if things are to go right? (The Reader, pp. 90-91)

In any case, “It was evident to us,” Berg says, “that there had to be convictions.” If law is “what must be enacted and obeyed, whether or not it is on the books,” then there “had to be convictions” for moral crimes. But if a law not on the books must be obeyed, where does one go to discover the law?

The prophet Jeremiah (31:33-34) records a revelation from God that there will come a time when it will no longer be necessary for even the least of men to be instructed in the law, because, God says, "I will put my law in their minds and write it on their hearts.”

"This is the covenant I will make with the house of Israel
after that time," declares the LORD.
"I will put my law in their minds
and write it on their hearts.
I will be their God,
and they will be my people.

"No longer will a man teach his neighbor,
or a man his brother, saying, 'Know the LORD,'
because they will all know me,
from the least of them to the greatest."

But has that time come? Can we decide that the least of men and women (like Hanna, the pitiful illiterate woman on whom judgment falls in The Reader) is obliged, under pain of imprisonment, to know what law must be obeyed, whether or not it is “on the books”? Is punishing people for their sins a legitimate function of the judicial system? I think it is not, and I think we damage the judicial system and our culture and ourselves when we use it that way.

There is no doubt that our judicial system retains vestiges of its ancient origins, in which moral judgment was a prominent feature. Despite the historic evolution of law which has moved away from this tendency, we still see it. For instance, jurors are required to pronounce, in our criminal trials, not just whether the facts alleged by the prosecution are proved beyond a reasonable doubt, but whether the accused, beyond a reasonable doubt, is “guilty.” In the concept of guilt is rooted moral judgment. As recently as 1994, Victor v. Nebraska, 511 U.S. 1, examining the constitutionality in two criminal cases of the jury instructions on reasonable doubt, found it necessary to object to a common instruction to jurors that, to convict, they must have “an abiding conviction, to a moral certainty, of the guilt of the accused.” (511 U.S. 1 at 4.)

Sentencing is commonly based on what a defendant “deserves.” See, for example, Bible v. State, 162 S.W.3d 234, (Tex. Crim. App., 2005), in which the Texas appeals court refused to find error in a prosecutor’s statement to a jury that “you are on this jury because you believe that there are crimes that have been committed and defendants who exist that deserve the death penalty. Because you appreciate the fact that there is [sic] some people born you just can't do anything else with.”

So the endorsement of the use of the judicial system to pass moral judgment is not merely an outsider view; it is embedded in prevailing judicial practice. Nevertheless, I think it is a mistake.

Jesus said, “Judge not, lest ye be judged.” This is true not merely because Jesus said it. Rather, Jesus said it because it is true. When we authorize and legitimize blame, blame becomes a demonic force. People who nurse a grudge and nourish blame, by telling themselves they are entitled to engage in it, send forth into the world that demonic force, which can come back and harm them just as it harms others. It can harm them more easily because they have given blame authority. Since they have affirmed that it is right to blame, they cannot defend themselves when the blame turns on them. Or, as we say, when they begin to blame themselves, which they do as they learn that they cannot claim to be any less of a sinner than those others they condemn, as we all learn eventually. Endorsing the use of the judicial system for the purpose of moral condemnation gives a big impetus to this demonic force I describe.

The Purpose of Judgment

I am not suggesting that the judicial system abandon its responsibility to protect us from harm. I am suggesting that judgment be oriented to the future rather than to the past. We should not shut our eyes to spiritual depravity displayed by criminals. Disposition and sentencing should take it into account for the danger it bodes for the future. To the extent that criminals show no sign of rehabilitation, we must guard ourselves against them, perhaps to the extent of executing them.

Judgments of execution bring the most heightened focus to the use of the judicial system to pass moral judgment. I believe one reason many people are against the death penalty is that it is inextricably tied up for them with moral condemnation. They know intuitively they shouldn’t base execution on moral condemnation, and so they believe there should be no executions at all.

I want to describe a scenario which helps me feel clearer on this question: Imagine a small nomadic tribal group, basically an extended family, which relies for its very survival on all its members being sane enough to not jeopardize dangerous necessary tasks like taking herds of animals across fast-moving, swollen spring rivers. A member of the group who couldn’t or wouldn’t stop acting in an anti-social, reckless way could endanger the survival of the whole extended family. I imagine that the family might have to kill such a person to survive, even though they might not want to, even though they continued to love him, and even though they might not condemn him morally. This illustrates for me how “sentencing” and even execution can function without moral condemnation. I think this is how judgment should function.

Jesus’s admonition – “Judge not lest ye be judged” – and the truth it expresses, which I urge should guide the way we look at this question, echoes the Biblical story (Genesis, Chapters 2 and 3) of our expulsion from the garden of Eden as a result of “eating of the tree of the knowledge of good and evil”:

And the LORD God commanded the man, saying: 'Of every tree of the garden thou mayest freely eat; but of the tree of the knowledge of good and evil, thou shalt not eat of it; for in the day that thou eatest thereof thou shalt surely die.'

And they were both naked, the man and his wife, and were not ashamed.

Now the serpent was more subtle than any beast of the field which the LORD God had made. And he said unto the woman: 'Yea, hath God said: Ye shall not eat of any tree of the garden?'

And the woman said unto the serpent: 'Of the fruit of the trees of the garden we may eat; but of the fruit of the tree which is in the midst of the garden, God hath said: Ye shall not eat of it, neither shall ye touch it, lest ye die.'

And the serpent said unto the woman: 'Ye shall not surely die; for God doth know that in the day ye eat thereof, then your eyes shall be opened, and ye shall be as God, knowing good and evil.'

And when the woman saw that the tree was good for food, and that it was a delight to the eyes, and that the tree was to be desired to make one wise, she took of the fruit thereof, and did eat; and she gave also unto her husband with her, and he did eat.

And the eyes of them both were opened, and they knew that they were naked; and they sewed fig-leaves together, and made themselves girdles. And they heard the voice of the LORD God walking in the garden toward the cool of the day; and the man and his wife hid themselves from the presence of the LORD God amongst the trees of the garden.

And the LORD God called unto the man, and said unto him: 'Where art thou?'

And he said: 'I heard Thy voice in the garden, and I was afraid, because I was naked; and I hid myself.'

And He said: 'Who told thee that thou wast naked? Hast thou eaten of the tree, whereof I commanded thee that thou shouldest not eat?'

When we “eat of the tree of the knowledge of good and evil,” when we see evil in the world, when we pronounce moral judgment, when we authorize the Accuser (Hebrew הַשָׂטָן - Satan) within ourselves, we become afraid, because we intuitively understand that the Accuser we have unleashed is not subject to our control, but is truly a demonic force, and we sense that we too are naked to accusation.

Eating of the fruit of the tree of the knowledge of good and evil, i.e., passing moral judgment, is a compelling idea for us because we think that to pass moral judgment is to be like God. The image of the judge issuing moral condemnation doesn’t seem wrong to us because we are still seduced by the serpent. (“Ye shall be as God, knowing good and evil.”)

William Blake suggests, in his illustration to the Book of Job above, that the God many of us believe in, who rewards and punishes - the judge-god who approves or condemns - is actually the Accuser, Satan. In the Book of Job, Satan convinces God to let him test Job - to see if Job will continue to praise God when Job believes God is punishing him, as he had praised God when he believed God was rewarding him for his virtue. In punishing Job, Satan is able to make Job feel accused of sin, because Job, like many of us, believes the physical conditions of his life are rewards for virtue or punishments for sin. Blake reveals the God that appears to Job, the judge-God in which many of us believe, accusing us from the Book of the Law, to be in fact Satan, the Accuser, the inhuman demonic force that humankind unleashes by eating of the tree of the knowledge of god and evil, by legitimizing blame.

If we believe in a God who issues moral condemnation, it is difficult to wean ourselves from a belief that our judicial system, too, should do so. But we must extricate ourselves from this belief. We have to look deep into ourselves, confess that we are become the Accuser, and repent.