“Keep far from a false charge, and do not kill the innocent or the righteous, for I will not acquit the guilty.” (Exodus 23:7 NASB) Too often, commentators of this Biblical passage hold to the idea that God will judge the priests if they condemn the innocent. Rather, I would submit that the passage indicates that the priests should lean towards the presumption of innocence of an accused. Failing to find sufficient evidence, the accused should be released because God will ultimately hold them accountable if they were truly guilty.
I would contend that this passage, and several others like them in the Bible, is the origin of our legal principle of innocent until proven guilty. In all of my years of study of ancient law, including the writings of Sumerians, Akkadians, Hittites, Babylonians and Islam, I have never encountered this concept. Instead, one sees the notion that a person is guilty until proven innocent. Indeed, this very idea is the basis of passages in the Code of Hammurabi that indicates if a person is accused of a heinous crime, they are to be cast into the Euphrates River. If they do not die, they were innocent.
The principle of being guilty until proven innocent is the foundation for trial by ordeal, and its close cousin trial by combat. In such a trial, a person is confronted with a deadly test. Should they survive, they are deemed innocent. This was the situation confronted by Daniel. Accused of a heinous crime of worshipping another god other than the king, he was thrown to the lions to die. Instead, he survived, a miracle that led to the demise of his accusers, who were hurled in to face the very fate they prescribed for Daniel.
Today, we are more clearly seeing in our courts the shift away from the presumption of innocence and the revival of trail by ordeal. This shift has come through the increasing imposition of civil law over criminal law. Under civil law, the presumption of innocence is often removed, and to get a “finding” against an accused requires a far lower standard than beyond reasonable doubt. A Republican (of course) lawmaker in Maine once told me thirty years ago that we need such a system to get easier guilty verdicts.
This shift has been slowly ongoing for about 100 years. Many average people have suffered because of it, but few of us ever heard their stories. But now, a prominent individual, the former president of the United States, is undergoing such a trail by ordeal. He is presumed guilty, and all of the media pundits hurl acrimony at him. This modern trial by ordeal has placed front and center in the American mind that their judicial system has been radically corrupted.
What we today call lawfare is a revival of trail by ordeal from the ancient world. Sadly, I seriously doubt that any lawyer or judge in our nation has even thought this one through, or would even understand it.
Russ Rodgers has several books published on Amazon.
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