Deus Ex Machina

"This is the generation of the great LEVIATHAN, or rather, to speak more reverently of that mortal god, to which we own under the immortal God, our peace and defense." -Thomas Hobbes: Leviathan

On Common Law and the Establishment of Christian Facts

For we did not follow cleverly devised myths when we made known to you the power and coming of our Lord Jesus Christ, but we had been eyewitnesses of his majesty.

-2 Peter 1:16

Talking of those who denied the truth of Christianity, he said, “It is always easy to be on the negative side. If a man were now to deny that there is salt on the table, you could not reduce him to an absurdity. Come, let us try this a little further. I deny that Canada is taken, and I can support my denial by pretty good arguments. The French are a much more numerous people than we; and it is not likely that they would allow us to take it. ‘But the ministry have assured us, in all the formality of the Gazette, that it is taken.’ — Very true. But the ministry have put us to an enormous expence by the war in America, and it is their interest to persuade us that we have got something for our money — ‘But the fact is confirmed by thousands of men who were at the taking of it.’ — Ay, but these men have still more interest in deceiving us. They don’t want that you should think the French have beat them, but that they have beat the French. Now suppose you should go over and find that it really is taken, that would only satisfy yourself; for when you come home we will not believe you. We will say, you have been bribed. — Yet, Sir, notwithstanding all those plausible objections, we have no doubt that Canada is really ours. Such is the weight of common testimony. How much stronger are the evidences of the Christian religion?”

-Boswell, “Life of Samuel Johnson”

The Theological Background to the Evolution of the Law of Evidence

The development of the law of evidence in common law systems was profoundly influenced by the Reformation disputes concerning the “rule of faith”. Most historians and philosophers who specialise in early modern 16th-17th century epistemology identifies the theological dispute as the roots or background for the entrenchment of the concept of “proof beyond a reasonable doubt” in common law systems. (See for example Origins of the Legal Doctrine of Reasonable Doubt by Theodore Waldman for a discussion from a legal point of view and The Problem of Certainty in English Thought 1630-1690 by Henry G. Van Leeuwen for a discussion from an epistemological point of view.) Given the theological background to the development of our modern law of evidence, it is natural to infer that the evidential credibility of the Christian is very much tied to such legal standards of evidence.

A summary to the theological dispute behind the establishment of the doctrine of reasonable doubt can be found in the preface to Leeuwen’s book. Richard Popkin in the preface argues that not only the doctrine of reasonable doubt but also the emergence of the “experimental philosophy” of Francis Bacon and the founding members of the Royal Society (including the famous Sir Robert Boyle and Sir Isaac Newton) can be traced to the Reformation theological dispute:

The “experimental philosophy” that was to flower in the work of the Royal Society in the last decades of the 17th century, goes back not only to the visions of Francis Bacon, but also to a form of common sense constructive scepticism that issues from the destructive sceptical tendencies of some of the religious debates ofthe late 16th and early 17th century. In the course of the struggles of the Reformation and Counter-Reformation, each side employed a “machine of war”, fashioned from the arsenal of classical scepticism to show that the other side had no basis for the claims to religious knowledge and truth that they were making. The brilliant controversialists trained at the Jesuit College de Clermont were able to confound their Protestant opponents, showing that they had no way of telling with certainty which book is the Bible, what the Bible says, and what one ought to do about it. The Protestant polemicists in turn showed how dubious the Catholic appeals to tradition and authority were, and that poor fallible man had no way of telling with certainty what the tradition had declared, who the authority was, whether the man who calls himself the Pope was the Pope and was infallible, (until one Protestant arguer contended that the Catholic Church could have at most one member who was sure of his ground, namely the Pope).

While each side was busily undermining the other, raising the total possibility that nothing could be certain in this area, a form of commonsensical constructive scepticism arose as a way of dealing with the issues. Starting with the quiet scholarly Protestant liberal, Sebastian Castellio (15 I 5-63), in his De Arte dubitandi, a view was offered that admitted that fundamentally, or theoretically, it might not be possible to eliminate the doubts posed about the bases of religious knowledge, but that there was a way to arrive at a type of assurance that was sufficient for man’s purposes, and which was the amount of certainty that the case admitted of. Castellio appealed to the means employed in ordinary affairs to arrive at satisfactory and sufficient answers to problems. Hugo Grotius, in his De Veritate religionis christianae, developed this theme further, in showing the fruitlessness and hopelessness of trying to gain absolute certainty in this area, and the need to be “reasonable” in dealing with religious questions.

In England, starting with the now almost forgotten figure, William Chillingworth, in his once famous, The Religion of Protestants, a view is set forth that, due to certain basic sceptical difficulties, man is unable to find absolutely certain religious knowledge. However, by employing the standards of common-sense and ordinary life, he can obtain a limited certitude that is true beyond any “reasonable” doubt, and that any “reasonable man” will accept. The postman can deliver the mail without solving the sceptical problems about whether he, the letters, and the recipients exist. So, also, the “reasonable” man can find answers to problems about religion without having to resolve the sceptical crisis.

There are two other epistemological concepts which arose out of this dispute worth mentioning. The Jesuit apologists argued that we cannot attain infallible certainty of theological truths based on mere biblical interpretation, for that we required the Church’s interpretation. While the orthodox Protestants initially responded by arguing that we cannot be infallibly certain of our reading of church documents either, the later Protestants, especially the English thinkers, argued that we need only moral certainty, and not infallible certainty, to establish theological facts. They argued that if based on probable “beyond a reasonable doubt”, but less than infallible, certainty we can make a fiancial investment or condemn and acquit a person of breaking the law, we can certainly give ourselves to the divine will based on moral certainty, certainty sufficient for faith and practice.

It is clear that in these cases the legal analogies loom large in trying to determine theological facts. While the initial disputes were concerned with deciding the rule of faith between Protestantism and Roman Catholicism (that is, between Bible or ecclesiastical documents), eventually the epistemic standards, and legal analogies, used for deciding this controversy were used as a more general base to answer atheists and skeptics against the Christian religion

Grounding Christianity on Evidence

R.M. Burns in his work The Great Debate on Miracles argues that the deistic controversy may have its origins as a reaction by the deists against the Christians. He argues that it isn’t that the deists first advanced skeptical arguments which the Christians answered. It was the Christians who first attempted to buttress Christian claims with the new philosophies of the English Enlightenment, and the new standards of evidence, which provoked a response from the deists who tried to point out the flaws in their case.

The dispute is a very long and complex one which we need not get into. However we can note that the legal background to evaluating the evidence of the Christian faith remains to this very day in Anglophone Christian apologetics. The idea of “proof beyond a reasonable doubt”, as opposed to incontrovertible proof, remains a cornerstone in evaluating the credibility of the Gospel witness accounts concerning the resurrection.

I would like to draw two other related features of the common law system in relation to how Christian truth is established. I will finally end with some philosophical comments on the sort of audiences presupposed by Christian, or Protestant, apologetics.

The Jury System

The jury system is by no means universal. However what is interesting is that historically English law held that juries determined facts while judges determined law. The idea is that juries who were familiar with the persons involved can give testimony concerning their characters, among other things, while the judges who were experts of the law can determine the legality of the suit after the facts were established. This “division of labour” held well right into our time. Of course while in actual cases juries had to both determine facts and law, the basic idea remains that juries are primarily supposed to adjudicate facts according to the law as articulated and explained by the judge.

The idea of juries or “reasonable man” who are able to determine the empirical facts of the case leads back to Christian apologetics in an obvious way. If the average, not expert, reasonable man can weight the credibility of testimonies and other evidences to determine whether or not the accused stabbed another person, he can jolly well use his same reason to weigh the testimony of the Gospel accounts concerning the resurrection. The sort of arguments employed by Samuel Johnson cited at the start were standard in the 18th century English Enlightenment and the “Age of Sensibility”.

The increasing professionalisation of the various academic fields, as well as the spread of common skepticism, would diminish the idea that the average “reasonable man” can weigh and evaluate Christian evidences. However I believe that even granted the necessity of such a “division of epistemic labour”, that not everyone can know everything, the jury system still testifies to the idea that the average man is capable of evaluating testimonies and judging the credibility of witnesses, etc, to determine the facts of the matter. If the average man can use his reason to deprive another man of his freedom for life, can not the average man use his reason to also give up his freedom to the will of God revealed in Jesus Christ?


Erastianism refers to the idea of state control of religion. As much as it might horrify us today, it was not an unusual thing in the past. The unbaptised Constantine had a free hand in directing the affairs of the Church, Zoroastrian rulers, and later Islamic Caliphs, had a hand in the selection of the Patriarch of the Assyrian Church of the East. Christian kings before the Investiture Controversy and after the Reformation appointed the bishops of the church. Even today in Singapore the President of Singapore appoints the judge of the Syriah courts, established by the civil laws of Singapore under the Administration of Muslim Laws Act.

Why is Erastianism important here? If indeed the truth of Christianity can be established by legal standards of evidence, then it follows irresistibly that Christian facts can be recognised as legal facts, with legal effects and consequences. It is necessary to note that simply because Christian facts can be recognised by the law doesn’t necessarily entail that we have blasphemy laws or that we burn heretics or use force to compel religious faith in non believers. After all the Anglican Church remains the legally established Church of England, and there are no persecutions of non Christians for heresy. What it does mean however is that we should not be a priori opposed to state or legal authorities citing or using Christian facts as a basis for actions or judgements.

(It is interesting to note that even today English law does recognise Hindu deities as possessing legal personality. In a 1925 case an English judge argued that:

A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a “juristic entity.” It has a juridical status with the power of suing and being sued. Its interests are attended to by the person who has the deity in his charge and who is in law its manager with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infant heir, It is unnecessary to quote the authorities; for this doctrine, thus simply stated, is firmly established.

This case was cited as a precedent to “free” another Hindu statue in a 1991 case in the UK.)

However the a priori rejection of all religious facts in the use of legal or political reasoning does damage the idea that Christian facts can so be credibly established by the legal standards of evidence. It would lead to other deeply problematic implications for theology as well.

Conclusion: Banishing God from the Public

What are we to conclude from this brief survey of the common law system and the law of evidence in relation to the establishment of the Christian truth? I believe that at the heart of the issue lies the question as to whether or not the Christian facts exists in the objective realm or empirical plane, an object of public discernment, scrutiny and judgement, as embodied in the Anglosphere legal system, or is it an esoteric gnostic truth, accessible only by Kierkegaardian leaps of faith or tribalistic subscription, but otherwise opaque to the rest of the world? I think the very historical nature of the Christian faith demands that we affirm the former against the latter and we must resist the secularist impulse which would have us banish all Christian truth from legal discernment as well as the scrutiny of the average “reasonable man”.

To affirm and assent as much is not to be blind to the preconditions of our position. In particular we cannot fail to note that the “reasonable man” is a sort of idealisation which fails to take into account the noetic effects of sin upon our epistemic faculties; we are not always as reasonable as we would like to imagine ourselves to be.

Notwithstanding these considerations however, and the need for Christian grace to sustain our reason, we cannot, at the expense of adopting a secularist position, banish all Christian facts from the scrutiny of reason. That would be simply conceding that the divine is inherently inaccessible to man qua man in their nature, eviscerate all natural theology, and utterly deny that we already live and have our being in God. It would relegate the divine to rare moments of esoteric grasping instead of something intrinsically part of us as humans qua humans.

In short, the recovery of the Christian position in the legal and public realm is tied ultimately to whether we believe that the resurrection is a mere myth or fable we tell ourselves, or is it an objective empirical event, of which the apostles are eyewitnesses, willing to testify in a court of law.


3 comments on “On Common Law and the Establishment of Christian Facts

  1. Pingback: Basics of Protestant Civic Theology; Outlines of a Two Kingdoms Theology | Deus Ex Machina

  2. Pingback: The Presbyterian Epistemology of Contemporary English Law of Evidence | Deus Ex Machina

  3. Pingback: The Structure of Divine Revelation: The Primacy of the Apostolic and Scriptural Witness and the Scriptures | Deus Ex Machina

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This entry was posted on April 18, 2016 by in Uncategorized.
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