The Three Uses of the Law: A Protestant Source of Purposes of Criminal Punishment?

Luis Lugo, ed., Religion in American Public Life (Knoxville, TN: University of Tennessee Press, 1994), 176-200.

26 Pages Posted: 7 Feb 2020

Date Written: 1994

Abstract

The Protestant theological doctrine of the uses of the moral law had a striking analogue in the classic Anglo-American doctrine of the purposes of criminal law and punishment. Protestant theologians have long argued that God’s moral law was not a pathway to salvation, but it still had “uses” in this life: (1) a civil use that restrains person from sinful conduct by threat of divine punishment; (2) a theological use that condemns sinful persons in their consciences and drives them to repentance; and (3) an educational use that teaches those who have already been saved the good works that please God and induce others to come to God, too. Protestant jurists, in turn, developed an analogous theory of three purposes of why a state needs criminal law and punishment: (1) deterrence of individuals and groups through the threat of criminal punishment; (2) retribution, the necessary punishment needed to restore a convicted criminal within the community; and (3) rehabilitation, teaching a person the good works that become proper citizenship. This Article analyzes the close conceptual connections between these theological and legal doctrines and the historical evidence that each influenced the development of the other. The Article also calls for a proper balancing of the three uses of moral law and the three purposes of criminal law.

Keywords: Law, Religion, Protestantism, Moral Law, Criminal Law, Criminal Punishment, Anglo-American Common Law, American Legal History, Retribution, Deterrence, Rehabilitation, Martin Luther, John Calvin, Samuel Willard, Thomas Becon, Oliver Wendell Holmes, Jr.

Suggested Citation

Witte, John, The Three Uses of the Law: A Protestant Source of Purposes of Criminal Punishment? (1994). Luis Lugo, ed., Religion in American Public Life (Knoxville, TN: University of Tennessee Press, 1994), 176-200., Available at SSRN: https://ssrn.com/abstract=3519502

John Witte (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
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