A Clergyman Looks at the Law

I belong to a rather unusual fellowship that meets at a member’s home once a month. It is a support group connected with the Caveat organization, for a number of people who have lost children, siblings or spouses to violent crime.

If there is one theme that is common to the discussions we have, it is a sharing of the anger we have at the workings of the criminal justice system. Why does it always seem to be on the side of the criminal? Why does an obviously guilty person get bail? Why do we have to go through the harrowing procedures of the criminal trial? Why, at the end of it all, are the victims no better off than at the start? Why, years after it all ends, do we have to go back and relive the horrors we have been through, when the offender applies for early parole? Although, as a lawyer, I can often understand and explain what a judge is doing, the fact remains that the criminal justice system as we have it today is for the most part a re-infliction of the pain of the crime on the family of the innocent victim, rather than anything to bring them comfort.

Why do we have the justice system we have? A lot of it comes from history. Two basic legal systems exist in the world. One is the ‘top down’ system of Roman Law, prevalent in the countries of Southern Europe that once were part of the Roman Empire, reaching Canada through France in the Quebec Civil Code. The other is the democratic, ‘bottom up’ Common Law, received in the English speaking nations from the Saxon tribes that spread across Northern Europe from the Caucasus area during the period of the Roman Empire. If we believe the book of Esdras, they originated when the people of Israel, taken captive by the Assyrians in 722 B.C., moved across the Caucasus mountains, bringing their customs with them, based on the laws of Moses, that ‘government should be of laws, not men’.

Saxon criminal law was far less punitive than our criminal law of today. When a crime had been committed, the families of the criminal and victim would meet together and decide on an amount of ‘bote’—compensation to be paid by one to the other to make up for the damage done—without the Crown necessarily being involved.

With the conquest of England by the Normans in 1066, came the importation from the Roman system of two elements that didn’t square with Saxon tradition. First was the seizure of all land by the Crown under the feudal system—under which Barons held their estates in exchange for services to the Crown, and commoners held land from the Barons, in exchange for forty days of annual compulsory service by them. Hence the origin of the ‘fee simple’ of our modern Land Titles system.

Second was the treatment of criminal law as a matter of an offence against the Crown—‘against the King’s Peace’—as an act of rebellion against the conqueror, rather than an act requiring compensation to the victim. And there our criminal law has stayed ever since, even though, as in the O.J. Simpson case, in theory civil remedies are available for victim compensation, after punishment has first taken place. Not many criminals are worth that amount of trouble!

A third importation from Roman law came later: the mercantile law of the bankers and the traders of the Continent. In each of these cases, the elaborate mechanisms of the law of Moses, to provide all with a stake in the land, to give compensation to victims of crime, and to avoid the accumulation of debts, have been sidestepped—with the results we see in our Western world of homelessness, accumulating debts, and dissatisfied victims of crime.

It is interesting and encouraging to see that there is now a move on in the administration of the criminal law, to minimize the role of the State, and give more emphasis to compensation of the victim, rehabilitation of the offender, and victim/offender reconciliation. This involves programs of diversion of offenders out of the criminal justice system, community mediation, introduction of victim impact statements, victim/offender reconciliations programs, and so on.

Crime destroys the unity of the community. There is a definite course to be followed in restoring that unity—from retribution by Society, to restitution to the victim, to rehabilitation of the offender, to reconciliation between offender and victim: from punishment, to compensation, to reform, to forgiveness. Not all criminals travel the whole way back. Not all victims will be willing to restore relationships with the offender. It is encouraging, however, to see these beginnings being made. The need is there.

– Law Now, April 1997