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

34 Pages Posted: 26 May 2011 Last revised: 4 Oct 2014

John Witte Jr.

Emory University School of Law

Thomas C. Arthur

Emory University School of Law

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: 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 and Arthur, Thomas C., The Three Uses of the Law: A Protestant Source of the Purposes of Criminal Punishment? (1994). Journal of Law and Religion, Vol. 10, No. 2, p. 433, 1994. Available at SSRN: https://ssrn.com/abstract=1851124

John Witte Jr. (Contact Author)

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-6980 (Phone)
404-712-8605 (Fax)

Thomas C. Arthur

Emory University School of Law ( email )

1301 Clifton Road
Atlanta, GA 30322
United States
404-727-5792 (Phone)
404-727-6820 (Fax)

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