B. From Sinner to Criminal
This section shows how the modern system of American criminal law builds on religious thought and practice. Broadly speaking, it traces political changes that led to the rise of the modern nation-state and legal punishment. Although most American law is rooted in the British common law system, in medieval Europe there was no such thing as criminal justice, nor a distinct law governing particular punishments for particular acts, as Western legality would not obtain structure until the eleventh and twelfth centuries. This period of legal systematization followed the reform led by Pope Gregory, which, according to Professor Harold Berman, “gave birth to the modern Western state,” whose first example was, paradoxically enough, “the church itself.” The church, as a centralized sovereign with independent lawmaking power, had the right to legislate. Led by the pope and a judicial hierarchy, it “exercised the legislative, administrative, and judicial powers of a modern state.” In another sense, the papal revolution laid the foundation of the modern state by withdrawing from monarchs “the spiritual competence which they previously exercised.”
The birth of the modern state took place during the rise of church canon law. Much of the secular legal tradition was built from this corpus. This included adoption of legal metaphors, analogies, and concepts that were chiefly religious in nature, including “metaphors of the Last Judgment and of purgatory,” which showed that “basic institutions, concepts, and values of Western legal systems” are rooted in medieval “religious rituals, liturgies, and doctrines of the eleventh and twelfth centuries.” Punishment followed the sequence, being established first through the moral law revealed by God in scripture, and further defined by the laws of the church--positive law derived from divine law.
When church power began to decline in Europe, other forms of government and ideology began to compete with the old system of kings, priests, and churches. Of systems, the nation-state gained the greatest prominence, with cultural ideas and identities informing the understanding of “nation,” while “state” referred to sovereignty in law and the capacity to rule a particular territory. The “state” stood as something distinct from the ““government,” as an “abstract” being that “can be neither seen, nor heard.” Governments were associated with real individuals, bureaucrats, and leaders alike, while the state was more transcendent, and could not be traced to any being.
This tidal wave of change was accompanied by codification of laws and punishments within a secular system governed by legal professionals. Accordingly, leading up to the eighteenth and nineteenth centuries, the policing, prosecution, and punishment of criminals came under increasing monopolization by the state.
The secular state and its institutions developed along the idea that government was divorced from religion, and that religion was a “residue of intellectual backwardness”; however, religion was still central in many ways. Hence, despite the fact that secular humanist Sigmund Freud believed the human race would eventually outgrow the need for this “childhood neurosis,” and that by the 1880s, Friedrich Nietzsche's work had announced the death of God, closer inspection reveals that the Protestant Reformation may have directly contributed to our punitive ways, because Luther saw the state as God's agent in distributing punishment. Calvinism similarly tended to emphasize images of God as a punitive judge, and John Calvin's vision aimed to “transform the world into the Kingdom of God.” Both Calvin and Luther “maintain [ed] that the state exists because of [original] sin,” and that its tasks were to “restrain ... wickedness and preserve ... order.” Hence, rather than dead, God is very much alive and present, and, most notably, in the punishment of criminals.
