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The Three Uses of the Law: A Protestant Source of the Purposes of Criminal Punishment?*

Published online by Cambridge University Press:  24 April 2015

John E. Witte Jr.  and
Thomas C. Arthur
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Extract

Recent writings have uncovered a robust interaction between the spheres and sciences of law and religion. Law and religion are conceptually related. They embrace closely analogous concepts of sin and crime, covenant and contract, righteousness and justice. Law and religion are formally related. They both have patterns of liturgy and ritual, concepts of tradition and precedent, sources of authority and power. Law and religion are methodologically related. They maintain analogous hermeneutical methods of interpreting texts, casuistic and rhetorical methods of argument and instruction, systematic methods of organizing their doctrines. Law and religion are professionally related. They both have officials charged with the formulation, implementation, and demonstration of the norms and habits of their respective fields. Law and religion are institutionally related, through the multiple relations between political and ecclesiastical officials and institutions.

Type
Articles
Information
Journal of Law and Religion , Volume 10 , Issue 2 , June 1993 , pp. 433 - 465
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1993

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Footnotes

*

This article builds, in part, on John Witte, Jr., “The Three Uses of the Law”: Towards a Protestant Theory of Criminal Law in Luis Lugo, ed, Religion, Public Life and the American Polity 176 (U Tennessee Press, 1994). We would like to thank Frank Alexander, Eliza Ellison, Brooks Holifield, Paul Kuntz, and Steve Ozment for their helpful comments on an earlier draft of this article and M. Christian Green and Annie Jacobs, both joint degree candidates in law and religion at Emory University, for their excellent research assistance.

References

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2. See further discussion in Witte, John Jr., A New Concordance of Discordant Canons: Harold J. Berman on Law and Religion, 42 Emory L J 523, 538–44 (1993)Google Scholar. See also Berman, Harold J., Faith and Order: The Reconciliation of Law and Religion (Scholars Press, 1993)Google Scholar; Berman, Harold J., The Interaction of Law and Religion (Abingdon Press, 1974)Google Scholar.

3. We borrow this phrase from Pelikan, Jaroslav, Foreword, in Witte, John Jr. and Alexander, Frank S., eds, The Weightier Matters of the Law: Essays on Law and Religion xii (Scholars Press, 1988)Google Scholar.

4. Patristic and scholastic theologians had, of course, recognized the idea that the natural or moral law has different functions in the life of the individual and community. The Protestant reformers, however, were the first to develop a systematic theological doctrine of the “uses of the law” (usus legis), which they wove into their doctrines of God and man, sin and salvation. Luther was apparently the first to give prominence to the doctrine. In his 1522 Commentary on Galatians 3, Luther spoke of “three-fold use of the law” (drey wysse am brauch des gesetz), though in this tract as well as his 1531 Commentary on Galatians, he focussed only on the civil and theological uses of the law. Luther, Martin, Epistele am newen Jar tag ad Galats 3 (01 1, 1522)Google Scholar, in Luther, Martin, Werke, Kritische Gesamtsausgabe (Hermann Bohlau, 1883–1979), at vol. 10/1: 449, 457 (“Luther, WA”)Google Scholar. Martin Bucer, in his 1525 Latin translation of Luther's sermon, rendered Luther's German phrase as triplex usus legis, a Latin phrase which other reformers adopted. See Luther, , WA, at vol 10/1: 457 n 2 (cited in note 4)Google Scholar. Philip Melanchthon, writing in 1535, and Calvin, writing independently in 1536, were apparently the first to expound systematically all three uses of the moral law. See Melanchthon, Philip, Loci communes theologici recens collecti recogniti a Philippo Melancthone (1535)Google Scholar, reprinted in Bretschneider, G.et al, eds, Corpus Reformatorum (C.A. Schwetschke et Rlium, 1834–1860), at vol 21: 405–406Google Scholar (“Melanchthon, CR”); Calvin, John, Institutes of the Christian Religion (1536)Google Scholar, quoted by Hesselink, I. John, Calvin's Concept of the Law 268 (Pickwick Publications, 1992)Google Scholar (“Ex his colligi potest, quale officium it quis sit usus legis. Tribus autem partibus continentur.”). For further discussion, particularly of the early development of Melanchthon's formulation of the doctrine, see Ebeling, Gerhard, Word and Faith 62–78 (Leitsch, J. trans., Fortress Press, 1963)Google Scholar.

For discussions of this Protestant doctrine, and its biblical and theological antecedents, see Alexander, Frank S., Validity and Function of Law: The Reformation Doctrine of Usus Legis, 31 Mercer L Rev 509 (1980)Google Scholar; Augsburger, Daniel, Calvin and the Mosaic Law (PhD Diss, University of Strasbourg, 1976)Google Scholar; Bring, Ragnar, Gesetz und Evangelium und der dritte Gebrauch des Gesetzes in der lutherischen Theologie (Wissen schaftliche Buchgesellschaft, 1943)Google Scholar; Dowey, Edward A. Jr., The Third Use of the Law, 46(3) Social Progress 20 (11 1958)Google Scholar; Elert, Werner, Eine theologische Fälschung zur Lehre vom Teritus usus legis, 2 Zeitschrift für Religions-und Geistesgeschichte 168 (1948)CrossRefGoogle Scholar; Gentry, William C. Jr., A Study of John Calvin's Understanding of Moral Obligation and Moral Norms in Christian Ethics (PhD Diss, Southern Methodist University, 1970)Google Scholar; Haikola, L., Usus Legis (Lundequistska bokhandeln, 1958)Google Scholar; Sundquist, Ralph R., The Third Use of the Law in the Thought of John Calvin (PhD Diss, Columbia, 1970)Google Scholar.

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6. See, for example, Melanchthon, Philip, Catechesis puerilis (1558)Google Scholar, Art on “De Usu Legis,” in Melanchthon, , CR, (cited in note 4), at vol. 23:103, 176–177Google Scholar; The Geneva Catechism (French ed 1542; Latin ed 1545), in Calvin, , Opera, (cited in note 5), at 6, 80Google Scholar; [Lutheran] Formula of Concord (1577), Part 6, reprinted in Triglott Concordia: The Symbolic Books of the Ev. Lutheran Church 805 (Concordia Publishing House, 1921)Google Scholar.

7. On Protestant theories of natural and moral law, see Berman, Harold J. and Witte, John Jr., The Transformation of Western Legal Philosophy in Lutheran Germany, 62 S Cal L Rev 1573 (1989)Google Scholar; Bohatec, Josef, Calvin und das Recht (Scientia Verlag, 1991)Google Scholar; Krause, Otto, Naturrechtler des sechszehnten Jahrhunderts (P. Lang, 1982)Google Scholar; Lang, August, The Reformation and Natural Law, in Calvin and the Reformation 59 (1959)Google Scholar; Liermann, Hans, Zur Geschichte des Naturrechts in der evangelischen Kirche: Eine rechts-und geistesgeschichtliche Studie, in Festschrift für Alfred Bartholet zum 80. Geburtstag 294 (P. Lang, 1950)Google Scholar; McNeill, John T., Natural Law in the Teaching of the Reformers, 26 J Relig 168 (1946)CrossRefGoogle Scholar; Wolf, Erik, Rechtstheologische Studien 3–23 (V. Klostermann, II 1972)Google Scholar.

8. Among sixteenth century Protestant reformers, Lutherans tended to emphasize the theological use of the moral law consistent with their emphasis on the doctrine of justification. Calvinists tended to emphasize the educational use of the moral law, consistent with their emphasis on sanctification. See, for example, Luther, , WA (cited in note 4) at vol 10:454; vol 40: 486Google Scholar (calling the theological use “the true office and the chief and proper use of the law”); Calvin, , Institutes (cited in note 5), at bk 2, chap 7.12Google Scholar (calling the educational use the “third and principal use”). See also Luther, Martin, The Freedom of a Christian (1520)Google Scholar in Dillenberger, John, Martin Luther: Selections From His Writings 67ff (Anchor Books, 1961)Google Scholar (a typical early passage of Luther, which speaks of the “discipline of the outer man” by “the spirit of fatih,” rather than the discipline of the law). In part, on the strength of these passages in Luther's writings, recent Lutheran writers have deprecated, and occasionally denied altogether, the third use of the law. See discussion in Elert, Werner, Law and Gospel 38ff. (Schroeder, Edward H., trans, 1967)Google Scholar; Joest, Wilfred, Gesetz und Freiheit: Das Problem des Tertius Usus Legis bei Luther und die neutestamentliche Parainese 48ff. (Vandenhoeck Ruprecht, 1968)Google Scholar; and Berkhouwer, G.C., Faith and Sanctification 163ff. (Eerdmanns II 1952)Google Scholar.

For our purposes, the differences between the Lutheran and Calvinist formulations of the uses doctrine should not be exaggerated. The influential Lutheran writer Philip Melanchthon stressed the educational use of the law from 1535 onward, and his formulations appear in several authoritative Lutheran confessions and theological tracts of the sixteenth and seventeenth centuries. See Melanchthon, , CR (cited in note 4), at vol. 21:406Google Scholar. See also the summary of the Lutheran position on the three uses of the law in the Formula of Concord (1577), Part 6 (cited in note 6).

9. Calvin, , Institutes, (cited in note 5), at bk 2, chap 7.10Google Scholar.

10. Calvin, , Institutes, (cited in note 5), at bk 2, chap 7.10, bk 4, chap 20.3.Google Scholar; Calvin, , Opera, (cited in note 5), at vol 52, 255Google Scholar; Melanchthon, , CR, (cited in note 4), at vol 1: 706–708Google Scholar.

11. Melanchton, , CR, (cited in note 4), at vol 22:151, 250Google Scholar.

12. Calvin, , Opera, (cited in note 5), at vol 39: 66Google Scholar.

13. Calvin, , Institutes, (cited in note 5), at bk 2, chap 7.10Google Scholar.

14. Luther, , WA, (cited in note 4), at vol 40: 481–486Google Scholar. See also Calvin, , Institutes, (cited in note 5), at bk 3, chap 4Google Scholar.

15. Calvin, , Opera, (cited in note 5), at vol 50: 535Google Scholar.

16. Calvin, , Institutes, (cited in note 5), at bk 2, chap 7.6Google Scholar.

17. Melanchthon, , CR, (cited in note 4), at vol 21: 406Google Scholar.

18. Calvin, , Institutes, (cited in note 5), at bk 2, chap 7.12Google Scholar.

19. See, for example, Calvin, , Institutes, (cited in note 5), at bk 2, chap 8.6Google Scholar; Melanchthon, , CR, (cited in note 4) at vol 1: 706–08Google Scholar; 1 Bucer, Martin, Deutschen Schriften 36ff. (Stupperich, R., ed, Gutersloher Verlagshaus C. Mohn, 1960)Google Scholar. See also discussion in Köhler, Karl, Luther und die Juristen. Zur Frage nach den gegenseitigen Verhältnis des Rechts und der Sittlichkeit 104ff. (Verlag von Rud. Besser, 1873)Google Scholar; Berman and Witte, (cited in note 7), at 1588-95, 1623-35.

20. See especially Romans 8:28-30 and Gal. 3:21-29 and the reformers' commentaries thereon in Melanchthon, , CR, (cited in note 4), at vol 15:654–678Google Scholar; 25 Luther's Works (1955), 371–78Google Scholar; 26 id 327-58. Calvin also follows this sequencing from predestination, to justification, to sanctification in the arrangement of Books II and III of his Institutes.

21. Luther, , WA, (cited in note 4) at vol 7: 50Google Scholar.

22. These three soteriological steps also corresponded roughly with the three persons and offices of the Holy Trinity—the civil use with the office of God the Father, the creator and sustainer of all persons; the theological use with the office of God the Son, the savior and redeemer of the elect; the educational use with the office of God the Spirit, the counsellor and purifier of the redeemed saints. See Hesselink, , Concept, (cited in note 4), at 251Google Scholar; Jacobs, Paul, Prädestination und Verantwortlichkeit bei Calvin 103ff. (Wissenschaftliche Buchgesellschaft, 1937)Google Scholar.

23. On Hegendorf's reputation, see von Stintzing, Roderich, Geschichte der deutschen Rechtswissenschaft Erste Abteilung 249–50 (Verlag von R. Oldenbourg, 1880)Google Scholar.

24. See Hegendorf, Christoph, Die zehen Gepot der Glaub, und das Vater unser, fuer die Kinder ausgelegt (1527)Google Scholar. An expanded version of this tract, which we have not been able to locate, was published in Latin in the early 1530s, and translated as Domestical or housholde Sermons, for a godly housholder, to his children and famyly, compiled by the godlye learned man Christopher Hegendorffyne, doctor (Reiginalde, Henry, trans. 1543)Google Scholar.

25. Id at Sermon 1, Prooemium.

26. This has been argued most forcefully by Karl Barth and his student Hermann Diem. See Diem, Hermann, Dogmatik: ihr Weg zwischen Historismus und Existentialismus (Wissenschaftlich Buchgesellschaft, 1955)Google Scholar (arguing that the three uses doctrine died after the Reformation because it gives the law priority over the Gospel, it suggests stages of justification, and it is a sort of “Trojan horse” for smuggling natural law into theology). See further discussion in Quin, Coslett, The Ten Commandments: A Theological Exposition 32 (Lutterworth Press, 1953)Google Scholar. Even sympathetic accounts of the uses doctrine generally focus only on the early Reformation era.

27. See, for example, Bonhoeffer, Dietrich, Ethics 303ff (Smith, Neville H., trans, Bethge, Eberhard, ed, Macmillan, 1955)Google Scholar; Brunner, Emil, Dogmatik (Zwingli-Verlag, 1960), at vol 2: 131ff; vol 3: 306ffGoogle Scholar; Brunner, Emil, The Mediator: A Study of the Central Doctrine of the Christian Faith 441ff.(Wyon, O., trans, Lutterworth Press, 1934)Google Scholar; Barth, Karl, Ethics 58ff (Braun, R. Dietrich, trans, Seabury Press, 1981)Google Scholar. For other modern accounts, see, for example, Ebeling, , Word, (cited in note 4), at 74ffGoogle Scholar; Vidier, Alec R., Christ's Strange Work: An Exposition of the Three Uses of God's Law (rev ed, SCM Press, 1963)Google Scholar; Quin, , Ten Commandments, (cited in note 26) at 31ffGoogle Scholar. Our colleague Paul Kuntz also discusses the doctrine at length in his forthcoming volume on the history of the Decalogue.

28. Hooper, John, A Declaration of the ten holy comaundementes of allmygthye Cod …. (Parker Society, 1548)Google Scholar, reprinted in 1 Early Writings of John Hooper, D.D. 281–82 (1843)Google Scholar.

29. The Catechism of Thomas Becon, S.T.P. (Ayre, John, ed, Parker Society, 1844)Google Scholar.

30. Bullinger, Heinrich, The Third Decade — Of the Use or Effect of the Law of God … The Eighth Sermon, in 2 The Decades of Henry Bullinger 235–45 (Parker Society, 1850)Google Scholar.

31. See Wilson, H.A., Episcopacy and Unity 39 (Longmans, Green, 1912)Google Scholar; Vidler, , Strange, (cited in note 27) at 34 (noting that, in 1586, Convocation and Archbishop Whitgift directed the lower clergy in England to procure and study Bullinger's tract)Google Scholar.

32. See references in Vidler, Strange, (cited in note 27). For a suggestive tabular summary of the three types and offices of law set out by Hooker, see Paget, Francis, An Introduction to the Fifth Book of Hooker's Treatise on the Laws of Ecclesiastical Polity 99 (Clarendon Press, 1899)Google Scholar. We wish to thank Paul Kuntz for bringing this table to our attention.

33. Quoted by Davies, Horton, The Worship of the English Puritans 232–33 (Oxford Univ. Press, 1948)Google Scholar.

34. See, for example, Prayers and other Pieces of Thomas Becon, S.T.P. 56–63 (Ayre, John ed, Parker Society, 1844)Google Scholar (a series of prayers against idolatry, swearing, pride, whoredom, covetousness, gluttony, idleness, slandering, and other general offenses arising out of the Decalogue).

35. See, for example, Smalley, John, The Perfection of the Divine Law; and its Usefulness for the Conversion of Souls: A Sermon Delivered in the College Chapel in New-Haven … in 1787 16–28 (Josiah Meigs, 1790)Google Scholar; Coetlogon, C.E. De, The Harmony Between Religion and Policy, or Divine and Human Legislation 24ff. (J.F. Riverton, 1790)Google Scholar; Hopkins, Ezekial, An Exposition of the Ten Commandments (G. Whitfield, 1799)Google Scholar.

36. Arte Catachisme Conteining The Soume of Christian Religion by Mr. Smauell Rutherfurd cap 33 (c 1644), in Mitchell, Alexander F., Catechisms of the Second Reformation 226 (James Nesbit, 1886) (citations and question numbers omitted)Google Scholar.

37. The Westminster Assembly's Shorter Catechism Explained, By Way of Question and Answer Part II, Q 40.25, 28 (3d American ed, Towar, J. & Hogan, D.M., 1831) (citations and question numbers omitted)Google Scholar.

38. See Witte, John Jr., Blest be the Ties That Bind: Covenant and Community in Puritan Thought, 36 Emory L J 579 (1987) and sources cited thereinGoogle Scholar.

39. Among numerous primary sources, see especially Hooker, Thomas, The Faithful Covenanter (Green, Bushell, Allen, 1644)Google Scholar; Bulkeley, Peter, The Gospel-Covenant; Or the Covenant of Grace Opened (2d ed, M. Simmons, 1651)Google Scholar; Cotton, John, The Covenant of God's Free Grace (M. Simmons, 1645)Google Scholar. Among secondary sources, see especially Miller, Perry, Errand into the Wilderness (Belknap Press, II 1956)Google Scholar.

40. See especially Holifield, E. Brooks, The Era of Persuasion: American Thought and Culture, 1521-1680 98–99 (Twayne Publishers, II 1989)Google Scholar (arguing that the Puritan description of man's positions under the covenant of works and covenant of grace simply restated Calvin's three uses doctrine).

41. Westminster Confession of Faith (1647), Art 19, reprinted in 3 Schaff, Philip, The Creeds of Christendom With a History and Critical Notes 640–42 (Harper & Bros., 1882)Google Scholar (citations and subpart designations omitted). See also the summary of this position in the Catechism, Shorter Westminster, QQ. 93–97 (1647)Google Scholar, reprinted in Mitchell, Catechisms, (cited in note 36). See, for example, The Savoy Declaration of 1658, a classic congregational confession, which tracks the Westminster formulations closely:

The Moral Law doth for ever binde all, as well justified persons as others, to the obedience thereof.… Although true Believers be not under the Law, as a Covenant of Works, to be thereby justified and condemned; yet it is of great use to them as well as to others in that, as a rule of life, informing them of the Will of God, and their duty, it directs and bindes them to walk accordingly, discovering also the sinful pollution of their nature, hearts and lives, so as examining themselves thereby, they may come to further conviction of humiliation for, and hatred against sin, together with a clearer sight of the need they have of Christ, and the perfection of his obedience. It is likewise of use to the regenerate, to restrain their corruptions, in that it forbids sin, and the threatnings of it serve to shew what even their sins deserve, and what afflictions in this life they may expect for them, although freed from the curse thereof threatened in the Law.

A Declaration of the Faith and Order Owned and Practised in the Congregational Churches in England; Agreed Upon and Consented Unto by Their Elders and Messangers in their Meeting at the Savoy, October 12, 1658, reprinted in The Creeds and Platforms of Congregationalism 354, 387 (Walker, Williston, ed, repr ed, Pilgrim Press, 1960)Google Scholar. See other exam. pies collected in Mitchell, Catechisms, (cited in note 36) and discussion in McNeill, John T., The History and Character of Calvinism 403ff (Oxford Univ. Press, 1954)Google Scholar.

42. Willard, Samuel, Sermon 149, Question 40 (01 14, 1700)Google Scholar, reprinted in Willard, Samuel, A Compleat Body of Divinity [of1726] 568–72 (Johnson Reprint Company, 1968)Google Scholar (spelling modernized and citations and numbering omitted). Similar sentiments on Question 40 appear in Thomas Watson's weighty seventeenth-century volume A Body of Divinity, reprinted several times in England and in America. See, for example, a later American edition published in Philadelphia, Watson, Thomas, A Body of Practical Divinity (T. Wardie, 1833)Google Scholar, and a London version, Watson, Thomas, A Body of Divinity Contained in Sermons upon the Assembly's Catechism (new rev ed, T. Wardle, 1881)Google Scholar.

43. See, for example, 2 Ridgeley, Thomas, A Body of Divinity: Wherein the Doctrines of Christian Religion are Explained and Defended 300–307 (new rev ed, Wilson, John M., ed, R. Carter, 1855)Google Scholar.

44. The adherence of the American Free Churches to the uses doctrine is consistent with the teachings of one of their earliest leaders, Menno Simons, who embraced at least the civil and theological uses of the law. See Menno Simons, Reply to Gellius Faber (1554), in The Complete Writings of Menno Simons 623, 718 (Herald Press, 1956)Google Scholar: “This is the real function and end of law: To reveal unto us the will of God, to discover sin unto us, to threaten with the wrath and punishment of the Lord, to announce death and to point us from it to Christ, so that we, crushed in spirit, may before the eyes of God die unto sin, and seek and find the only eternal medicine, and remedy for our souls, Jesus Christ.”

45. See discussion in Lindström, Harold, Wesley and Sanctification 75–83 (Francis Asbury Press, 1980)Google Scholar.

46. Reprinted in 2 Wesley's Standard Sermons 37, 52–53 (Sugden, Edward H. ed, 5th ed, Francis Asbury Press, 1964)Google Scholar. See further, Witte, John Jr., The Educational Value of Law and Religion, in Occasional Papers issued by the United Methodist Board of Higher Education and Ministry, No. 92, 5–7 (10 1, 1994)Google Scholar.

47. See, for example, Clarke, Adam, Life, the Gift of the Gospel; Law, the Ministration of Death [Sermon on Galatians 3], in 1 Clarke, Adam, Discourses on Various Subjects Relative to the Being and Attributes of God 156–72 (3d ed M'Elrath & Bangs, 1830)Google Scholar.

48. On early Lutheran theories, see Maurer, Wilhelm, Die Kirche und ihr Recht Gesammelte Aufsätze zum evangelischen Kirchenrecht (Mohr, 1976)Google Scholar; Liermann, Hans, Deutsches evangelischen Kirchenrecht (Vandenhoeck & Ruprecht, 1933)Google Scholar. On early Calvinist theories, see Bohatec, Josef, Calvins Lehre von Staat und Kirche (Scientia Verlag, 1961)Google Scholar.

49. Among Lutheran writers, see, for example, Luther, WA, (cited in note 4), at vol 6: 267ff; vol 19, 626ff; vol 32, 394ff; Melanchthon, , CR, (cited in note 4), at vol 22: 224ff, 615ff and (cited in notes 49-52 and accompanying text)Google Scholar. See also discussion in Mayer, H., Die Strafrechtstheorie bei Luther und Melanchthon, in Festgabe für Binder 77 (1930)Google Scholar; Naucke, Wolfgang, Christliche, aufklärerische, und wissenschaftstheoretische Begründung des Strafrechts (Luther - Beccaria - Kant), in 2 Christentum, Säkularisation und modernes Recht 1201 (Vallauri, Luigi L. and Dilcher, Gerhard, eds, Nomos Verlagsgesellschaft, 1981)Google Scholar. See Calvin, , Institutes, (cited in note 5) at bk 4, chap 12.4-6Google Scholar; 20.3,9 and discussion in Monter, E. William, Crime and Punishment in Calvin's Geneva, 1562, 64 Archiv für Reformationsgeschichte 281 (1973)Google Scholar; Foster, Herbert, Calvin's Programme for a Puritan State in Geneva, 1 Harv Theo Rev 391 (1908)CrossRefGoogle Scholar; Baur, J., Gott, Recht und weltliches Regiment im Werke Calvins, in Schriften zur Rechtslehre und Politik 44 (H. Bouvier, 1965)Google Scholar.

50. On Melanchthon's influence on European law and legal thought, see Berman, and Witte, , Transformation, (cited in note 7), at 1635, 1650–60 and sources cited thereinGoogle Scholar.

51. Melanchthon, , CR, (cited in note 4), at vol 22: 152Google Scholar.

52. Melanchthon, , CR, (cited in note 4), at vol 22: 224Google Scholar.

53. Bucer, Martin, De Regno Christi (1550)Google Scholar, translated in Melanchthon and Bucer 153, 383 (Pauck, William ed, Westminster Press, 1969)Google Scholar. On the widespread influence on Bucer, see id at 155-73.

54. Among the numerous relevant treatises in the seventeenth and eighteenth centuries that had influence on the criminal law of England and America, see, for example, Blackstone, William, Commentaries on the Laws of England (1765), bk 4, chap 1 (Kerr, Robert M., ed, 1962)Google Scholar; Grotius, Hugo, On the Law of War and Peace (1625), bk 2, chaps. 20, 21 (Kelsey, Francis W., trans, Bobbs-Merrill, 1965)Google Scholar; Hobbes, Thomas, De Cive (1642), chap 14 (Lamprecht, Sterling P., ed, Appleton-Century Crofts, 1949)Google Scholar; Hobbes, Thomas, Leviathan (Dutton, 1651), chap 28 (McPherson, C.B., ed, 1968)Google Scholar; von Pufendorf, Samuel, The Law of Nature and Nations (1688), bk 8, chap 3 (W.A. Oldfather, ed, 1964)Google Scholar; Rutherforth, Thomas, Institutes of Natural Law, Being the Substance of a Course of Lectures on Grotius De Jure Belli et Pacis, bk 1, chap 18 (3d ed, 1799)Google Scholar; Sanderson, Robert, Bishop Sanderson's Lectures on Conscience and Human Law (1647), Lect 8.10–25 (1877)Google Scholar; Selden, John, De Jure Naturali et Gentium juxta disciplinam Ebraeorum libri septem, bk 1, chap 4; bk 4, chap 11 (1695)Google Scholar; Wilson, James, Lectures on Law (1790-1792), in 2 The Works of James Wilson 337–482 (Andrews, James D., ed, 1896)Google Scholar. Excerpts from these and many other early modern sources are included in Montagu, Basil, The Opinions of Different Authors Upon the Punishment of Death (London, 1809 reprint W.S. Hein 1984) (3 vols)Google Scholar.

Among the writings of the later eighteenth and nineteenth centuries most critical for the development of Anglo-American criminal law are those by Beccaria, Voltaire, Bentham, Romilly, Eden, and others excerpted in Ezorsky, Gertrude, ed, Philosophical Perspectives on Punishment (State Univ of New York Press, 1973)Google Scholar and discussed in 11 Holdsworth, W.S., A History of English Law 556ff (Methuen & Co Ltd, 1938)Google Scholar; Beattie, J.M., Crime and the Courts in England, 1660-1800 (Princeton Univ Press, 1986)Google Scholar; Radzinowicz, Leon, A History of English Criminal Law and its Administration from 1750 (MacMillan Co, 1948–1986)Google Scholar. For discussion of contemporaneous American writers and developments, see, for example, Powers, Edwin, Crime and Punishment in Early Massachusetts, 1620-1692 (Beacon Press, 1966)Google Scholar; Nelson, William E., Emerging Notions of Criminal Law in the Revolutionary Era, 42 N Y U L Rev 450 (1967)Google Scholar.

55. For a convenient collection, see Montagu, Opinions, (cited in note 54).

56. The most valuable such sermons were the so-called “execution sermons” delivered by eminent ministers and/or jurists on the occasion of public executions. For an account of such sermons, delivered in England and America from the early seventeenth to the later nineteenth centuries, see Sharpe, J.A., ‘Last Dying Speeches’: Religion, Ideology, and Public Execution in England, 107 Past and Present 144 (1985)CrossRefGoogle Scholar; Bosco, Ronald A., Lectures at the Pillory: The Early American Execution Sermon, 30 American Quarterly 156 (1978)CrossRefGoogle Scholar. For English samples, see Edwards, David, Sermons to the Condemned (1775)Google Scholar; Hamilton, Richard W., A Sermon Preached at Leeds … on Occasion of the Execution of Mr. Joseph Blackburn, Attorney at Law, for Forgery (4th ed, 1815)Google Scholar. For American examples, see Mather, Increase, The Wicked Mans Portion, or A Sermon Preached at the Lecture in Boston in New England … 1674 (1675)Google Scholar; Mather, Increase, A Sermon Occasioned by the Execution of a Man Found Guilty of Murder (2d ed 1687)Google Scholar (“Mather, 1687 Execution Sermon”); Strong, Nathan, A Sermon Preached in Hartford … At the Execution of Richard Doane (1797)Google Scholar.

57. Not only the writings of sixteenth century Protestant jurists, but even those of later civilian and common law writers on criminal law draw on the magisterial reformers. A standard mid-eighteenth century handbook on crimes by Antonius Matthaeus, for example, includes several citations to Melanchthon, Calvin, and the English Protestants William Ames, Peter Martyr, and William Perkins. See Matthaeus, Antonius, On Crimes: A Commentary on Books XLVII and XLVIII of the Digest (1761) 61–64 (Hewett, M.L., ed and trans, Juta, 1987)Google Scholar.

58. It was common, particularly in colonial America, to draw criminal law provisions directly from the Bible, and to classify criminal laws in accordance with the commandments in the Decalogue. See, for example, the section of capital crimes in The Book of the General Lauues and Libertyes Concerning the Inhabitants of the Massachusets (1648) and the extensive commentary on crime and sin against the Ten Commandments in Willard, , Divinity, (cited in note 42), at 563–784Google Scholar. For other such examples in colonial America, and English analogues, see, for example, Flaherty, David, Law and the Enforcement of Morals in Early America, in Fleming, Donald and Bailyn, Bernard, eds, Law in American History 203 (Little, Brown, 1971)Google Scholar; Friedman, Lawrence M., Crime and Punishment in American History 1–58 (Basic Books, 1993)Google Scholar.

59. See, for example, Mather, , 1687 Execution Sermon, (cited in note 56), at 13Google Scholar. (“[The Magistrate] is a minister of God, a Revenger to execute wrath upon him that does Evil, . Rom. 13.4Google Scholar. Private Revengfe] is evil; but publick Revenge on those that violate Laws of God, is good. The Magistrate is God's Vice-gerent. As none can give life but God; so none may take it away but God, and such as He has appointed.”) (italics deleted); Hancock, Thomas, He is the Minister of God to Thee for Good 12 (1735)Google Scholar (“The magistrate … must exercise this power [of punishment], in imitation of God, for the good of man.”); Stonestreet, George, The Especial Importance of Religious Principles in the Judges and the Advocates of the Courts of Law 28–29 (1822)Google Scholar (“The justice men seek at an earthly tribunal is, when impartially and mercifully administered, both an emblem and an emanation of that essential attribute which we adore in the Almighty. … the punishments, which at your hands await the workers of iniquity, while they preserve the order of society, serve also to vindicate the moral government of God over His creatures, and to warn men of that heavier vengeance which must hereafter await the impenitent sinner.”). See the summary in Willard, , Divinity, (cited in note 42), at 617–42Google Scholar and other sources cited in Witte, John Jr.How to Govern a City on a Hill The Early Puritan Contribution to American Constitutionalism, 39 Emory L J 41, 51–62 (1990)Google Scholar. For parallel concepts in England, see McGowen, Randall, The Changing Face of God's Justice: The Debates Over Divine and Human Punishment in Eighteenth-Century England, 9 Criminal Justice History: An International Annual 63 (1988)Google Scholar.

60. Quoted by Bodenheimer, Adolf, Recht und Rechtfertigung 118 (Mohr, 1907)Google Scholar.

61. See particularly Beccaria, Cesare, On Crimes and Punishments (1764) (Paulocci, Henry trans, Bobbs-Merrill, 1963)Google Scholar; Bentham, Jeremy, Introduction to the Principles of Morals and Legislation (1798), in 1 Bentham, Jeremy, Works (Bowring, John and Tait, William, eds, Simpkin Marshall, 1843)Google Scholar; Bentham, Jeremy, Theory of Legislation 272ff (Dumont, E.et al trans, 1904)Google Scholar; Holmes, Oliver Wendell Jr., The Common Law 43 (Howe, Mark DeWolfe, ed, Belknap Press, 1963, 1882)Google Scholar.

62. See, for example, Pufendorf, , Law of Nature and Nations, (cited in note 54), at bk 8, chap 3.9, 11, 12Google Scholar; Grotius, , Law of War and Peace, (cited in note 54), at bk 2, chap 20.7-9Google Scholar.

63. Quoted in 2 Boswell's Life and Letters of Samuel Johnson 447 (1906)Google Scholar. See also Pufendorf, (cited in note 54), at bk 8, chap 3.11, who emphasizes the value of general deterrence for the victim of a previous crime. “[A] victim of violence can be secured from that of others, not merely by any form of punishment, but by one that is open and public, and serves as example and warning. That is the reason why executions are usually held not in secluded corners of prisons but in the most frequented places, and with terrifying features [which] may be able to strike fear in the hearts of the common sort.”

64. But cf Kant, Immanuel, The Metaphysical Elements of Justice (1785) 100 (Ladd, John, trans, Bobbs-Merrill, 1965)Google Scholar: “Judicial punishment (poenis forensis) is entirely distinct from natural punishment (poenis naturalis). In natural punishment, vice punishes itself, and this fact is not taken into account by the legislator. Judicial punishment can never be administered merely as a means to promote some other good for the criminal himself or for civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else.”

65. Smith, Sydney, Elementary Sketches of Moral Philosophy 252 (2d ed, Harper & Bros., 1860)Google Scholar.

66. Fuller, Lon L., The Morality of Law 3–9 (Yale Univ Press, rev ed 1964)Google Scholar.

67. See particularly Strong, at 66ff (cited in note 56).

68. Mather, Cotton, The Call of the Gospel Applied Unto all Men in General, and Unto a Condemned Malefactor in Particular 58 (2d ed, Richard Pierce, 1687)Google Scholar.

69. A number of early modern jurists spurned retribution as a purpose of punishment on the argument that this was the function of moral law and divine punishment. See, for example, Grotius, , Law of War and Peace, (cited in note 54), at bk 2, chap 20.4.2Google Scholar. (“one man is so bound to another by ties of common blood that he ought not to do harm to another save for the sake of attaining some good. With God the case is otherwise. … For the actions of God can be based upon the right of the Supreme Power, particularly where a man's special desert is concerned, even if they have in view outside themselves.”); Blackstone, , Commentaries, (cited in note 54), at bk 4, chap 1.2Google Scholar (“As to the end or final cause of human punishments. This is not by way of atonement or expiation for the crime committed; for that must be left to the just determination of the Supreme Being: but as a precaution against future offences of the same kind.”); Beccaria, , Crimes and Punishments, (cited in note 61) at 28Google Scholar (“If God hath decreed eternal punishments for those who disobey His will, shall an insect dare to put itself in the place of Divine justice or pretend to punish for the Almighty who is Himself all sufficient.”); Hobbes, De Cive, (cited in note 54), at chap 3.11; Bacon, Francis, On Revenge (1597)Google Scholar, in Bacon, Francis, Essays or Counsels Civil or Moral 11 (Dutton, 1906)Google Scholar.

70. Henry Fielding, quoted by Bodenheimer, , Recht at 177, (cited in note 60)Google Scholar. See also Welland, J., Difficulties Connected With Punishment as Part of the Divine System of Government 12 (R.C. LePage & Co, 1864)Google Scholar: “[P]unishment may be inflicted for some benefit [of] pointing out that sin is not to be regarded as a solitary act, beginning and ending in ourselves, but as an offence and injury to the supreme Law, and so to all, for the law is the life of the community.”

71. See, for example, Crime and Punishment, Mather, , 1687 Execution Sermon, (cited in note 56) at 10–13Google Scholar, and discussions in Powers, (cited in note 54), at 517 and Witte, , Blest Be the Ties, (cited in note 38), at 590ffGoogle Scholar. Likewise, Kant argues that a criminal must be punished so that “the bloodguiltiness may not remain upon the people.” Quoted by Newman, Graeme R., The Punishment Response 193 (Lippincott, 1978)Google Scholar.

72. 2 Stephen, James Fitzjames, A History of the Criminal Law of England 81 (Macmillan, 1883)Google Scholar. See also Goodhart, A.L., English Law and the Moral Law 93 (Stevens, 1953)Google Scholar (“[I]f this retribution is not given recognition, then the disapproval may also disappear. A community which is too ready to forgive the wrongdoer may end up condoning the crime.”).

73. See, for example, Seiden, , De Jure Naturali, (cited in note 54), at bk 1, ch 4Google Scholar (in addition to the purposes of deterrence and reformation “we should set another called the end of satisfaction, or purgation, or expiation, as though a deviation from law were made up, as it were, and the consequent inequality of action corrected.”). This agitation for confession was a constant refrain of the execution sermons. See, examples in Sharpe, Last Dying Speeches, (cited in note 56); Bosco, (cited in note 56).

74. See the numerous sentiments collected in Montagu, , Opinions of Different Authors, (cited in note 54) at vols 2 and 3Google Scholar. On the history of the penitentiary in England and America, see, for example, Beattie, Crime and the Courts, (supra note 54), at 520ff; Radzi-nowicz, , English Criminal Law (cited in note 54), at vol 5Google Scholar; Ignatieff, Michael, A Just Measure of Pain: The Penitentiary in the Industrial Revolution (Pantheon Books, 1978)CrossRefGoogle Scholar; Forsythe, W.J., The Reform of Prisoners 1830-1900 (Croom Helm, 1987)Google Scholar. On the important influence of the Quakers on prison reform, see, for example, Jorns, Auguste, The Quakers as Pioneers in Social Work 162 (Brown, Thomas K., trans, Patterson Smith, 1969)Google Scholar.

75. Lance Falconer, quoted by Moberly, Walter, The Ethics of Punishment 124 (Archon, 1968)Google Scholar. See also the discussion of the penitentiary as “moral hospital” in Kramnick, Isaac, Eighteenth-Century Science and Radical Social Theory: the Case of Joseph Priestly's Scientific Liberalism, 25 J of Brit Stud 1 (1986)CrossRefGoogle Scholar.

76. See Sharpe, Last Dying Speeches, (cited in note 56); Bosco, Lectures at Dillory, (cited in note 56).

77. See, for example, the classification of crimes in Blackstone, (cited in note 54), at bk 4, chaps 4-17, which begins with “Offenses Against God and Religion,” a scheme followed by the many English and American writers on criminal law, who modelled their analysis on Blackstone's. In the seventeenth and eighteenth centuries, a number of English societies for the reformation of manners and morals emerged, both to promote legislation against various forms of public and private immorality and to catalyze judicial enforcement of these provisions. Radzinowicz, , English Criminal Law, (cited in note 54), at vol 2, 1–15Google Scholar. On American analogues, see Friedman, (cited in note 58), at 31-48; Flaherty, David, Privacy in Colonial New England (Univ Press of Virginia, 1972)Google Scholar.

78. 18 Geo 3, c 17. Similar sentiments were part of American theories of the penitentiary. See, for example, Report of the Board of Inspectors of the Prison for the City and County of Philadelphia (1791), in Montagu, Opinions, (cited in note 54), at vol 3, 284–285Google Scholar:

We have … kept in view three principal objects: The public security, The reformation of the prisoners, and Humanity towards those unhappy members of Society … The second object we have pursued by moral and religious instruction, by promoting habits of industry, by a separation of the sexes, by the prohibition of spiritous liquors, by exclusion of improper connexions from without, and by confining the refractory to solitude, low diet, and hard labour.… Bibles and other books of practical religion, have been provided for the use of the prison: The clergy of the different denominations in the city and suburbs provide divine service once a week, commonly on Sunday mornings, and other edifying persons have at all times access to the prisoners.

79. de Beaumont, Gustave and de Tocqueville, Alexis, On the Penitentiary System in the United States and its Application in France 58–59 (1833) (Lieber, Francis, trans, repr ed, Augustus M. Kelly Publishers, 1970)Google Scholar. See also Swift, Zephaniah, A Digest of the Laws of the State of Connecticut 260–61 (S. Converse, 1823)Google Scholar: “[I]t is vain to attempt to reform those who have committed crimes which evidence a total destitution of those moral principles that are the basis of reformation.”

80. On these earlier theories, see particularly, McKenzie, M., Plato on Punishment (University of California Press, 1981)Google Scholar; Durham, W. Cole, Religion and the Criminal Law: Types and Contexts of Interaction,” in Witte, and Alexander, , Weightier Matters, (cited in note 3), at 193Google Scholar.

81. Earlier in this century, retribution had fallen into disfavor—as “a disguised form of vengeance” and a “vestige of man's instinctual past.” Hall, Jerome, Justice in the 20th Century, 59 Cal L Rev 752, 753–754 (1971)CrossRefGoogle Scholar; Hall, Jerome, Studies in Jurisprudence and Criminal Theory 242ff (Oceana Publications, 1958)Google Scholar. George Fletcher writes that retribution has returned as a legitimate purpose of criminal punishment, in part because of “disillusionment about deterrence and rehabilitation purposes standing alone. One way to make an argument for retributive punishment,” he writes, “is to focus on the criminal act as the source of the offender's obligation to suffer punishment.… for his offense creates an imbalance of the benefits and burdens in the society as a whole. Those who obey the law incur burdens that offenders refuse to take upon themselves. To rectify this imbalance the offender must suffer an appropriate punishment. His refusal to conform generates the proverbial ‘debt’ that must be paid.” Fletcher, George, Rethinking Criminal Law 416–418 (Little, Brown, 1978)Google Scholar. See also Packer, Herbert, The Limits of the Criminal Sanction 38ff (Packer, 1968)Google Scholar.

82. 18 U S C A § 3553(a) (2) (1988).

83. See Andenaes, Johannes, Punishment and Deterrence 110ff (Univ of Michigan Press, 1974)Google Scholar; Fuller, (cited in note 66); Feinberg, Joel, The Expressive Function of Punishment, 49 The Monist 397 (1965)CrossRefGoogle Scholar. See also Moberly, , The Ethics of Punishment, 78ff (Archon, 1968)Google Scholar; Moberly, Walter, Legal Responsibility and Moral Responsibility (Fortress Press, 1951)Google Scholar.

84. See the collection of statements in Kadish, Sanford H. and Schulhofer, Stephen J., Criminal Law and Its Processes 113ff (5th ed., Little, Brown, 1988)Google Scholar.

85. For samples of the large body of literature on this point, see, for example, Cohen, Morris R., Moral Aspects of the Criminal Law, 49 Yale L J 1011 (1944)Google Scholar; Devlin, Patrick, The Enforcement of Morals (Oxford Univ Press, 1965)Google Scholar; Feinberg, Joel, The Moral Limits of the Criminal Law (Oxford Univ Press, 1984)Google Scholar; Grey, Thomas C., The Legal Enforcement of Morality (Knopf, 1983)Google Scholar; Mitchell, B., Law, Morality and Religion in a Secular Society (Oxford Univ Press, 1971)Google Scholar; Weinreb, Lloyd L., Natural Law and Justice 101ff (Harvard Press, 1987)Google Scholar.

86. For bibliographies of this vast literature, see, for example, Pecarovich, K., Bibliography of Responsibility, 49 Law and Contemporary Problems 277 (1986)Google Scholar; Gerber, Rudolph J. & McAnany, Patrick D., Punishment: Current Survey of Philosophy and Law, 11 SLU L Rev 491 (1967)Google Scholar. For samples of recent writings, see, for example, Ezorsky, Philosophical Perspectives, (cited in note 54); Kadish, and Schulhofer, , Criminal Law, (cited in note 84), at 136ffGoogle Scholar.

87. Rawls, John, A Theory of Justice (Belknap Press, 1971)Google Scholar.

88. Nozick, Robert, Anarchy, State, and Utopia (Basic Books, 1974)Google Scholar.

89. For a good popular exposition and critique of liberalism's attempted moral neutrality, see Will, George F., Statecraft as Soulcraft: What Government Does (Simon and Schuster, 1983)Google Scholar. For a more formal critique, see Brecht, Arnold, Political Theory: The Foundations of Twentieth-Century Political Thought 117–70, 231–60, 302–66 (Princeton Univ Press, 1959)CrossRefGoogle Scholar.

90. West Virginia State Bd. of Educ. v Barnette, 319 US 624, 655 (1943) (Frankfurter, J., dissenting)Google Scholar.

91. Mill, John Stuart, On Liberty (1859) 11 (1975)Google Scholar.

92. Levy, Leonard W., Blasphemy: Verbal Offenses Against the Sacred From Moses to Salman Rushdie 568–79 (Knopf, 1993)Google Scholar.

93. Feinberg, Punishment, (cited in note 83); Hart, Henry M., The Aims of the Criminal Law, 23 Law and Contemporary Problems 404–05 (1958)CrossRefGoogle Scholar. For a good early American expression of this point, see James Wilson:

Concerning the standard, by which crimes should be measured in municipal law, there has been much diversity of sentiment among writers, even the wisest and most enlightened. The law of nature, it is admitted on all hands, measures crimes by the intentions, and not by the event. Should a standard, different from that which has been established by unerring wisdom, be adopted by uninformed man? Should not that rule, which is observed by the law divine, by laws which are human? … Is it not shocking to reason … and destructive of virtue, to contend, that the ill consequence of an act is more to be considered than its immorality? To disregard a crime, however heinous, because it may be supposed not to have a bad effect on society; and to punish slight offences severely, because they tend more immediately to disturb the public peace, is to sacrifice moral equity to political expediency. But, in fact, there is no real necessity for making such a sacrifice. If we would effectually provide for the lasting peace of society, we should first regard prviate offences, which are the sources of public crimes. The subtle distinctions, which casuists make between moral and political delinquencies, are offensive to common sense.”

Wilson, , Lectures on Law, (cited in note 54), at 341, 343–44Google Scholar. See also id, at 347 (“[W]e may truly say, that on the excellence of the criminal law, the liberty and the happiness of the people chiefly depend.”).

94. See, for example, Posner, Richard A., Economic Analysis of Law 217–47 (4th ed Little, Brown, 1992)Google Scholar; Cooter, Robert & Ulen, Thomas, Law and Economics 507–84 (1988)Google Scholar.

95. Holmes, Oliver Wendell Jr., The Path of the Law (1890), in Collected Legal Papers 170 (Laski, Harold J., ed Harcourt, Brace & Co, 1920)Google Scholar

96. Id.

97. See generally Feinberg, Punishment, (cited in note 83).

98. Conversely, harsh punishments for minor offenses undermine public confidence in society's moral judgments. Criminal prohibitions, then, should be limited to conduct that is truly immoral and not imposed through ignorance or prejudice on conduct that is merely different — a great lesson of liberalism that we should never forsake.