The First Lawsuit1

God as the Author of Due Process

(from the Book of Genesis)

Douay-Rheims Vulgate
And now they heard the voice of the Lord God as he walked in the garden in the cool of the evening. Whereupon Adam and his wife hid themselves in the garden among the trees. And the Lord God called to Adam, “Where are you?” "I heard your voice Adam said in the garden and I was afraid because of my nakedness so I hid myself." And the answer came, why, who told you of your nakedness? Or have you eaten of the tree whose fruit I forbade you to eat? The woman, said Adam, whom You gave to me to be my companion, she offered me fruit from the tree and so I ate it. Then the Lord God said to the woman, what made you do this? The serpent, she said, beguiled me and I ate it.

Et cum audissent vocem Domini Dei deambulantis in paradiso ad auram post meridiem, abscondit se Adam et uxor eius a facie Domini Dei in medio ligni paradisi. Vocatique Dominus Deus Adam et dixit ei: Ubi es? Qui ait: Vocem tuam audivi in paradiso et timui eo quod nudus essem et abscondi me. Cui dixit: Quis enim indicavit tibi quod nudus esses nisi quod ex ligno de quo praeceperam tibi ne comederes comedisti? Dixitque Adam: Mulier quam dedisti mihi sociam dedit mihi de ligno et comedi. Et dixit Dominus Deus ad mulierem: Quare hoc fecisti? Quae respondit: Serpens decepit me et comedi.

Commentary

According to Calum Carmichael (citing R. H. Helmholz), in fashioning Canon Law, the canonists used the narrative of Genesis to establish rules on the proper process for human justice if it was to properly convict a person for a violation of a law. Professor Kenneth Pennington claims that the first canonist to link the narrative in Genesis to legal procedure or ordo iudiciarius was a jurist named Paucapalea (also known as Pocopaglia) (ca. 1150 A.D.), a canon lawyer who also produced the first commentary on the Decretum of Gratian, his teacher. 2 According to Paucapalea’s Prologue to his Summa Decreti:

The form of pleading was first encountered in paradise when the prototype man was questioned by the Lord about his crime of disobedience. When questioned about the report or use of the crime, he transferred the guilt to his wife by alleging: “The woman whom you gave to me, gave it to me, and I ate it.” (Gen. 3:12) For that reason in the Old Testament it is told to us that Moses in his law stated that: “In the testimony of two or three witnesses, one may find the truth.” (Deut. 19:15) 3

This reference to Genesis was amplified by the canonist Stephen of Tournai (ca. 1165 A.D.). According to Pennington:

Stephen of Tournai further dissected the ‘trial’ of Adam and Eve finding even more evidence that this event marked the beginning of the ordo iudiciarius. He pointed out that Adam raised a formal objection (exceptio), to the Lord God’s complaint (actio) and shifted the blame on his wife or the serpent. “Exceptio” and “actio” were technical terms that were fundamental parts of the ordo iudiciarius. Stephen was the first jurist to define the ordo iudiciarius:
The defendant shall be summoned before his own judge and be legitimately called by three edicts or one peremptory edict. He must be permitted to have legitimate delays. The accusation must be formally presented in writing. Legitimate witnesses must be produced. A decision may be rendered only after someone has been convicted or confessed. The decision must be in writing. 4

Calum Carmichael elaborates that from God’s commandment to Adam, “Of the tree of the knowledge of good and evil, thou shalt not eat” (Gen. 2:17), the canonists derived a rule that no one may be punished for an action that the criminal law has not previously defined and prohibited. The passage in Genesis 3:9 in which “the Lord God called unto Adam, and said unto him, ‘Where art thou’” pointed to a requirement that in criminal procedure a defendant must be summoned before he can be lawfully punished. A citation is required. When God said to Adam: “Hast thou eaten of the tree whereof I commanded thee that thou shouldest not eat?” (Gen 3:11), the question indicated that a defendant must be told the precise nature of the crime he has been charged with. And when Adam replied to God (“And the man said”), some of the canonists saw this development as pointing to the origin of pleading. A defendant must be permitted to reply to any charge lad against him, even if he is certainly guilt of the offense. After all, he may be able to proffer, as up to a point Adam did, mitigating circumstances that would reduce the penalty appropriate to the offense. There was too the matter of sentencing of the criminal. God pronounced his sentences on each of the culprits in the story. Moreover, God gave reasons for his judgments. A human judge must likewise speak his sentence aloud to the defendant and the court; and he must also give reason for it. 5

Endnotes

 

1 Genesis 2:17, 3:9, 3:11). ⇑

2 Constant Van de Wiel, History of Canon Law (Louvain: Peeters Press, 1991), 116. ⇑

3 Paucapalea, Prologue to Summa, ed. Johann F. von Schulte (Giessen: 1890, repr. Aalen: 1965) 1: “Placitandi forma in paradiso primum videtur inventa, dum prothoplastus de inobedientiae crimine ibidem a domino interrogatus criminis relatione sive remotione usus culpam in coniugem removisse autumat dicens, 'mulier, quam dedisti, dedit mihi et comedi’ (Genesis 3.12). Deinde in veteri lege nobis tradita, dum Moyses in lege sua ait: ‘In ore duorum vel trium testium stabit omne verbum’ (Deut. 19.15).” Digestum novum, Bologna, Biblioteca del Collegio di Spagna 283, fol. 82v in http://faculty.cua.edu/Pennington/Due%20Process%20Rome%202004/Paucapalea.htm. ⇑

4 http://faculty.cua.edu/pennington/Law508/procedure.htm#N_26_. ⇑

5 Calum Carmichael, The Spirit of Biblical Law (Athens: University of Georgia, 1996), 84-85 (citing R. H. Helmholz, “The Bible in the Service of Canon Law,” 70 CHICAGO-KENT L. REV. 1557-81 (1995). ⇑

Article Index | Profiles in the Law | Law's Great Documents | The Art of Law | Fabulous Law | Quotes | Blog