Criminal Law – What Is the Standard of Proof?
April 11, 2012 | 
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In the common law system which is used in the legal systems such as Britain, the United States, Canada and Australia there is a very important principle of the criminal law which has existed in the legal systems of these countries from the time that is was first developed in the original England common law system. This principle is that a defendant in a criminal law case has the protection of the presumption of innocence. A defendant in the legal systems of these countries is innocent until proven guilty. This contrasts with the systems of civil law which have been adopted in continental Europe in countries such as France, Italy and Germany which have an inquisitorial system of justice where the judge can gather evidence independently of the parties appoint their own investigators in order to gather evidence.
So what does the presumption of evidence mean in terms of the trial? This means that the prosecution must prove that the defendant committed the crime in question in the trial beyond a reasonable doubt. It is notoriously indistinct as to how this is likely to be defined and in terms of instructing juries, a judge must confine their directions to the jury to the application of the law to the facts rather than directions about the facts and evidence. Naturally, in a jury trial, a voir dire (a trail within a trial) can also be used in order to identify if a particular pieces of evidence which are able to be admitted in the trail. Once a piece of evidence is deemed admissible, the jury allowed to consider it in its deliberations about the evidence. In practice, judges often refer to a 90% certainty that the defendant committed a crime in order to enter a verdict of guilty and there have been phrases such as ‘the absence of any material uncertainty’ or ‘A rational belief which is supported by the vast majority of available evidence’ in order to describe the level of proof which is required. The more general justification for the principle is that it is better to set 9 guilty people free rather than let 1 innocent person to jail.
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The Pentateuch, Law of Moses or Torah
Introduction
It is believed that the name Pentateuch “the first five books of the Old Testament, the book of the Law” (The Columbia Viking Desk Encyclopaedia, 1964, p.1402) was first found in the letter of Elora of a second century Gnostic, Ptolemy and passed into Christian use. These books are called The Law (Torah) or the Law of Moses by the Jews. (Everyman’s Encyclopedia, 1978). It would be difficult to overestimate the role that the Pentateuch has played in the course of biblical scholarship. In all likelihood, these first five books in the Bible – Genesis, Exodus, Leviticus, Numbers and Deuteronomy- have been subjected to scrutiny more than any single block, with the sole possible exception of the Gospels (Knight and Tucker, 1985).
Origin
The word Pentateuch derives from the Greek pentateuchos “five-volumed (book)”, following the Jewish designation “the five-fifths of the law”. Jews call it the Torah, that is instruction, often rendered in English Law as it is called in the New Testament (Greek nomon; example, Matt. 5:17; Luke 16:17; Acts 7:53; 1 Cor. 9:8). According to Lasor, Hubbard and Bush (1982), the Pentateuch was “the most important division of the Jewish canon, with an authority and sanctity far exceeding that attributed to the prophets and writing” (p.54). They observe that the books of the Pentateuch are not ‘books’ in the modern sense of independent self-contained entries, but were purposefully structured and intended as part of a larger unity; therefore the term Pentateuch is not only convenient but necessary. However, granted this fact of the unity of the larger corpus, the conventional five-fold division is important not simply as a convenient means of reference to the material, but because there is clear editorial evidence establishing just these five books as genuine subdivisions of the material. Despite marks of real disparity and complexity in structure and origins, far more primary and important is the overarching unity which the Pentateuch evidences. A careful reading of the Pentateuch will reveal, beside a definite unity of purpose, plan and arrangement, a diversity – a complexity – that is equally striking.
Authorship
The traditional view according to Halley (1962) is that “Moses wrote the Pentateuch substantially…with the exception of the few verses at the close which give an account of his death, and occasional interpolations made by copyists for explanatory purposes” (p.56). This is in consonance with the view of Childs (1979). A modern critical view is that of a composite work of various scholars of priests made about the eighth century B.C., for partisan purposes, based on oral traditions, the principal redactors of which are called J (for Jahweh/Yahweh, the personal name of God), E (for Elohim, a generic name for God), D (for Deuteronomic) and P (for priestly). Each is claimed to be unique. However, “this view is not supported by conclusive research or evidence, and intensive archaeological and literary research has tended to undercut many of the arguments used to challenge Mosaic authorship” (The NIV Study Bible, 1984, p.2). Jews and Christians alike have held Moses to be the author/compiler of the Pentateuch.
Contents
The Pentateuch consists of the first five afore-mentioned books of the Bible. It must be observed that the first phrase in the Hebrew text of Genesis 1:1 is bereshith [in (the) beginning] which is also the Hebrew title of the book. The English title, Genesis, is Greek in origin and is derived from geneseos ‘birth’, ‘genealogy’ or ‘history of origin’. Genesis therefore appropriately describes its contents since it is primarily a book of beginnings. ‘Exodus’ is a Latin word from Greek exodos, meaning ‘exit’, ‘departure’. Leviticus receives its name from the Greek translation of the Old Testament (Septuagint) meaning ‘relating to the Levites’. It mainly concerns the service of worship at the tabernacle which was conducted by the priests who were the sons of Aaron, assisted by many from the rest of the tribe of Levi. Exodus gave the directions for building the tabernacle and Leviticus the laws and regulations for worship there including instructions on ceremonial cleanness, moral laws, holy days, the Sabbath year and the Year of the Jubilee. The English name of the book Numbers comes from the Septuagint and is based on the census lists found in it. The Hebrew title of the book (bedmidbar, ‘in the desert’), is more descriptive of its contents. It presents an account of the thirty-eight year period of Israel’s wandering in the desert following the establishment of the covenant of Sinai. The word ‘Deuteronomy’ (meaning the repetition of the law’), the name of the last book of the Pentateuch, arose from a mistranslation in the Greek Septuagint and the Latin Vulgate of a phrase in Deuteronomy 17:18, which in Hebrew means ‘copy of the law’. The error is not serious however since Deuteronomy is, in a certain sense, a repetition of the law.
Generally, the unity of the Pentateuch must be stressed when discussing the content. This is created by an interest in the historical narrative forming the Pentateuch’s backbone and framework and into which the blocks of legal texts have been placed. A clue to this narrative’s central role and importance is the fact that the Old Testament events most frequently cited in the New Testament as the background and preparation for God’s work in Christ are precisely that sequence of divine acts from Abraham’s call through the kingship of David. Summaries or ‘confession’ of this sequence of divine acts plays a central role in Scripture. The basic details confessing God’s saving acts on behalf of His people could be illustrated thus:
i. God chose Abraham his descendants (Acts 13:17; Josh.24:3) and promised them the land of Canaan (Deut. 6:23)
ii. Israel went down into Egypt (Acts 13:17; Josh. 24:5-7; Deut. 6:21ff; 28:8)
iii. God brought Israel into Canaan as promised (Acts 13:19; Josh.24:11-13; Deut. 6:23; 26:9).
This is but the narrative backbone of the Pentateuch in miniature. The plan that unifies the different elements forming the building blocks of the Pentateuch includes: promise, election, deliverance, covenant, law and land. It is realistically observed that “the one element universally present and central to these credos…is the Exodus, representing Yahweh’s deliverance and the historical realization of His election of Israel as His people” (Lasor, Hubbard, Bush, 1982, p.55).
The Pentateuch has two major divisions: Genesis 1-11 and Genesis 12- Deuteronomy 34. The relation between them is one question and answer, problem and solution; the clue is Genesis 12:3. This structure not only elucidates the binding unity of the Pentateuch but also reveals that the structure began stretches far beyond the Pentateuch itself. The end and fulfillment lie beyond Deuteronomy 34 – indeed beyond the Old Testament. It could be safely asserted that probably no where does the Old Testament set forth an ultimate solution to the universal problem which Genesis 1-11 so poignantly portrays. The Old Testament indeed does not arrive at full redemption. When the Old Testament ends, Israel is still looking for the final consummation when hope shall be fulfilled and promise become fact. The juncture of Genesis 10-11 and chapters 12ff., is not only one of the most important places in the whole Old Testament but one of the most important in the entire Bible. Here begins the redemptive history that awaits the proclamation of the good news of God’s new redemptive act in Jesus Christ; only then will be found the way in which the blessing of Abraham will bless all the families of the earth. The Pentateuch is truly open-ended, for the salvation history which commenced awaits the consummation in the Son of Abraham (Matt. 1:1) who draws all people to Him (John 12:32) punctuating the alienation of humanity from God and from one another.
Purpose
The purpose of the Pentateuch was a leading into the realization by God that He was the Creator and Sustainer of the universe as well as the Ruler of History. It testifies to God’s saving acts, the central act being the exodus from Egypt. God invaded the consciousness of the Israelites and revealed Himself as the redeeming God. Knowledge of God as Redeemer subsequently led to a knowledge of Him as Creator; understanding the Lord as the God of grace consequently prompted an understanding as the God of nature after He displayed control over nature as evidenced in the plagues, the crossing of the Red Sea and sustenance in the wilderness. It must be stressed that God’s grace was evident not only in deliverance and guidance, but in the giving of the law and the initiation of the covenant. Israel’s supposed pledge of obedience, oath of loyalty to God and His will is her response. One must hasten to note that this response is a gift of God’s grace. The Pentateuch stands or better still possesses a rich inner unity recording God’s revelation in history and His Lordship over history and testifying to Israel’s response and disobedience. It generally witnesses to God’s holiness which “separates Him from men, and His gracious love, which binds Him to them on His terms” (New Bible Dictionary, 1962, p.909).
Themes
Although several themes could be identified between Genesis and Deuteronomy, unique but inter-related, intertwined and invaluable ones could be identified. These include election, creation, fall/sin, covenant, law and exodus. Israel was God’s elect. According to Stott (1988), the Bible is “sacred history – the story of God’s dealing with a particular people for a particular purpose” (p.45). They were convinced that God had done this for no other nation (Ps. 147:20). Great thinkers of Greece (including Plato, Socrates and Aristotle) are not the focus but scriptural record concentrates on men like Abraham, Moses, David, Isaiah and the prophets to whom the word of the Lord came, and on Jesus Christ, God’s Word made flesh. Abraham’s call has a present day significance to us and should not be slightly regarded as an event of the past. Election – God’s special choice of individuals- basically contains two subsidiary features; promise and responsibility. Abraham is promised descendants, given the land of Canaan as his children’s inheritance and promised a great name in the future. God’s special favour was to rest not only on Abraham and his family but to all men through him (Gal. 3:29).
God’s promises to Abraham therefore were not for the selfish enjoyment of a selected few but could benefit others if used responsibly. It is incontrovertible that God’s choice of Israel has a missionary purpose. A covenant, in the Hebrew context, covered all human relationships and not a limited definition of a matter of legal documents and sealing-wax in the modern mind. This bond united people in mutual obligations. Naturally, people’s relationship to God should be expressed in covenant terms. Covenant terms could be used to describe three unique occasions in the Pentateuch:
i. God’s promises never again to destroy the world with a flood (Gen. 9:9)
ii. God’s promises to Abram (Gen. 15:18; 17:4)
iii. The Sinai Covenant established with Moses and summarized in the ‘book of the covenant’ (Ex.24:4).
It must be borne in mind that although covenants were generally between equals, religiously it denotes a relationship between Creator and a lesser partner. However, the theological significance of the covenant must be highlighted. Based on initiative of God and implying a new revelation of the Creator, it made moral and ritual demands upon the people.
Taylor (1973) realistically observes that “the idea of law is central to the Pentateuch and…it gives its name to the book as a whole” (p.124). It basically covers the Ten Commandments (Decalogue – Ex. 20; Deut.5) and associates with these various collections of laws classified as:
i. The book of the Covenant (Ex. 21-23)
ii. The Holiness Code (Lev. 17:26)
iii. The Law of Deuteronomy (Deut. 12:26)
Since Israel was part of the Eastern Mediterranean culture and shared in the ideas and experience of her neighbours, several similarities could be noted especially with the Code of Hammurabi. The differences however made Israel’s laws distinctive. They could be summarized thus:
i. Uncompromising monotheism (that is relating everything to the one true God)
ii. Remarkable concern for slaves, strangers, women and orphans (the underprivileged)
iii. Community spirit based on the covenant relationship shared by all Israel with the Lord
In a brilliant summary, Cornfeld (1961) observed that “Hebrew law appears from its earliest times to stand on a higher ethical level and postulates moral human relationship which do not seem to be equalled in other Near Eastern Legislations” (p.213). Israel must approach God with a due sense of His moral and spiritual distinctiveness. The elaborate sacrificial system generally found its fulfilment in the solitary sacrifice of Christ – the perfect Lamb of God- through whom sins are not only forgiven but atonement made for all men eternally (Heb. 10:1-18).
The exodus must be put in proper perspective. Described in Exodus 1-12, the Jews view it as the great intervention or saving act of God which later generations reminisced. This miraculous intervention was God’s act of victory of the gods displaying total supremacy. Recalled annually in the Feast of the Passover, subsequent generations were reminded that they were initially members of a slave community mercifully redeemed from bondage. They were encouraged to use this as a deterrent, especially when curses reward disobedience. The historical significance was definitive. God could repeat His initial act. In Isaiah 51:9-11, Israel looked for a second exodus while in exile in Babylon.
The afore-mentioned themes are never submerged in the Pentateuch. Probably, the only other theme (which recurs in depressing regularity) is Israel’s obstinate and persistent sinfulness. Among other things, they were slow to accept Moses as their deliverer, grumbled about hardship and desired to ‘go back to Egypt’. Not even Moses was immune and was punished by not being allowed to lead God’s people in the promised land.
Conclusion
Together, the five books trace Israel’s origin from the earliest times, through the patriarchs; then the Exodus and Sinai periods prior to the entry to Canaan; they also contain much legal instruction. God’s response to sin is consistently a blend of judgement and mercy. Beyond the immediate discipline of Adam and Eve, and confusion of tongues at Babel, God tempers justice with salvation. It is understandable therefore that in spite of man’s path, God called Abraham to be the channel of grace and revelation to all mankind.
BIBLIOGRAPHY
Childs, B. (1979). Introduction to the Old Testament as Scripture. Philadelphia: Fortress Press.
The Columbia-Viking Desk Encyclopedia (1964). New York: Dell Publishing Co.
Cornfeld, G. (1961). Adam to Daniel. New York: The Macmillan Company.
Everyman’s Encyclopedia, Vol. 1. (1979). London : Dent and Sons.
Halley, H.H. (1962). Halley’s Pocket Bible Handbook: An Abbreviated Bible Commentary. Minnesota:
Zondervan Publishing.
Knight, D.A. and G.M. Tucker (1985). The Hebrew Bible and its Modern Interpreters. Minnesota:
Fortress Press.
Lasor, W.S., D.A. Hubbard and F.W. Bush (1982). Old Testament Survey: The Message, Form and
Background to the Old Testament. Michigan: Williams B. Eerdmans Publishing Co.
The New Bible Dictionary (1962). London: The Inter-Varsity Fellowship.
NIV Study Bible (1984). Michigan: Zondervan Publishing House.
Stott, J. (1988). Understanding the Bible. London: Scripture Union.
Taylor, J. (1973). The Five Books. In The Lion Handbook to the Bible. Herts: Lion Publishing.
The Dream Act – Immigration Law Reform in 2010?
One of the many changes President Obama has promised America is immigration law reform. Many ideas have been discussed. One of them is the DREAM Act, sponsored by Senator Lugar from Indiana and Senator Durbin from Illinois, among others. The basic idea is to allow certain illegal immigrants who were brought here by their parents at a young age and who have been educated in American schools to become permanent residents.
Under the DREAM Act, certain undocumented individuals could become legal residents. The first step in this process is for the individual to enroll in some type of higher education, such as a university, vocational school, or apprenticeship program. Another option is to enroll in the U.S. military. If certain requirements are met, this person may apply for conditional residency in the U.S. Upon receipt of an associates degree or a 2-year equivalent within six years of the initial petition, the conditional status can be changed and the individual can become a legal permanent resident of the United States.
To be eligible for permanent residency under the DREAM Act, the individual must have entered the United States before turning 16 years of age and must have been in the United States for at least five years without interruption. The individual must also demonstrate the ability to speak English.
Conditional residents under the DREAM Act will be eligible for private loans to fund their education, but will not be eligible for Pell grants. Under the DREAM Act, 65,000 students could become conditional residents each year, and eventually become permanent residents and citizens if they comply with current immigration rules and regulations.
One of the ideas behind the DREAM Act is to better utilize the taxpayer dollars that are being used to educate illegal immigrant youth in public schools across the country. If these youth are willing to continue their education through additional schooling or through the military, they would be allowed to become a legal part of our society without the fear of losing their families through deportation. In addition, the DREAM Act initially only benefits those who most likely were taken across the border by their parents through no decision of their own. Many of these individuals have spent more years illegally in the United States than in their home countries.
The DREAM Act could be merged with other legislation as part of comprehensive immigration law reform in 2010. If other ideas do not receive the necessary support from members of Congress, the DREAM Act could be enacted without additional reform measures. Either way, even the proposal of such legislation gives hope to many people now living in the United States who currently have no way of becoming a legal resident.