Legal Evidence for the Truth of the Faith

John Warwick Montgomery
Thursday, March 2nd 2006
Mar/Apr 2006

The apostle exhorts Christians to "be ready always to give an answer to everyone who asks you a reason for the hope that is in you" (1 Pet. 3:15). The word translated "answer" here is the Greek apologia, "defense," and from it comes the name of the theological discipline concerned with defending Christian truth-claims: apologetics.

Through church history, apologists for the faith have often relied on philosophical styles of reasoning to bolster their efforts; thus Augustine depended heavily on Plato, and Aquinas borrowed extensively from Aristotle. With the decline of these classical philosophies and particularly since the rise of modern rationalism in the eighteenth century (Kant, Lessing, Hume), non-Christians have generally presumed that no meaningful defense of Christian faith is possible-that religion is, in the final analysis, only a question of personal feeling-and Christians themselves (the so-called presuppositionalists, existentialists, and pietists) have often unwittingly aided and abetted such a presumption by declaring that Christianity starts from its own presuppositional faith experience and cannot either be proved or disproved by factual evidence.

Worth emphasizing is the legal flavor of the Greek word apologia: the apostle consciously employed a technical term of ancient Greek law, having reference to the answer given by a defendant before a tribunal. One should not therefore be surprised to discover that the Law of Evidence offers innumerable valuable insights for the defense of historic Christian faith. Our expectations in this regard are particularly heightened when we consider that the evidential machinery of the law has been developed, as the 1975 Federal Rules of Evidence state, "to the end that the truth may be ascertained." All societies, whether civilized or primitive, require legal techniques for getting at the truth when disputes arise, and these techniques are refined through experience until they reach a level of sophistication satisfying to litigants who otherwise would breach the peace to settle their conflicts. Small wonder that philosopher Stephen Toulmin argues that philosophical inquiry itself could be considerably improved if it would look to legal reasoning as a model.

Early Christianity based its case for divine truth on the deity of Jesus Christ, and its claim to his deity on his resurrection from the dead (1 Cor. 15). The Law of Evidence well sustains this argumentation as will be seen from the application of several specific evidential rules.

1.Decisions on questions of fact must be made by the trier of fact on the basis of the weight of relevant evidence, defined by the Federal Rules as "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Christians are therefore precisely on the right track when they defend their position in terms of the weight of factual evidence for Christ's deity. A disputed question of religious truth must not be prejudged in a presuppositional manner: no one can expect that judicial notice will be taken for or against Christian truth, since "a judicially noticed fact must be one not subject to reasonable dispute." The outcome of the case will depend, rather, on evidential probability. And probability has to do with the weight of evidence for the particular claim at issue, without reference to general or collateral considerations. Thus just as "evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion," so the non-Christian will be prevented from arguing against Christ's resurrection on the ground that regular events in general make a particular miracle too "improbable" to consider. The law refuses to obscure concrete evidence of the particular by the introduction of collateral generalities, for it recognizes that "there are too many differences to insure that what holds true in one case will apply in the other."

2."The common law system of proof," writes McCormick in his standard treatise on evidence, "is exacting in its insistence upon the most reliable sources of information. This policy is apparent in the Opinion rule, the Hearsay rule, and the Documentary Originals rule. One of the earliest and most pervasive manifestations of this attitude is the rule requiring that "a witness who testifies to a fact which can be perceived by the senses must have had an opportunity to observe, and must have actually observed the fact." In strict conformity to these requirements, the Christian properly focuses attention on the New Testament documents relating to the life of Christ as the best evidence concerning him, since these can be shown to be primary sources-either written by those, such as Matthew and John who had immediate, firsthand, eyewitness contact with Jesus, or by others (Mark, Luke, Paul) who were intimately acquainted with the original apostolic circle. Moreover, as Simon Greenleaf of Harvard, author of the nineteenth-century classic on evidence stressed, any common-law court would favor the New Testament writings with a presumption of authenticity as ancient documents regular on their face and preserved through the centuries in a place of natural custody. The burden of proof thus rests upon the unbeliever to disprove the testimonial value of these apostolic books, not upon the Christian to build up support for documents already having prima facie legal authenticity.

3.Where direct evidence is not available, the law allows circumstantial evidence, and also proof by res ipsa loquitur. The latter is often resorted to in negligence cases where no one directly observed the act in question but where, by process of elimination, only the defendant was in a position to have done it. Likewise, no one was present at the moment of Christ's resurrection, but the events surrounding it were testified to by careful eyewitnesses (Jesus was in fact put to death by crucifixion; Jesus afterwards made numerous, physical post-resurrection appearances over a forty-day period).

Res ipsa loquiturin a typical negligence case:

1. Accident does not normally occur in the absence of negligence.
2. Instrumentality causing injury was under the defendant's exclusive control.
3. Plaintiff did not himself contribute to the injury.
Therefore, defendant negligent: "the event speaks for itself."

Res ipsa loquitur as applied to Christ's resurrection:

1. Dead bodies do not leave tombs in the absence of some agency effecting the removal.
2.The tomb was under God's exclusive control, for it had been sealed, and Jesus, the sole occupant of it, was dead.
3.The Romans and the Jewish religious leaders did not contribute to the removal of the body (they had been responsible for sealing and guarding the tomb to prevent anyone from stealing the body), and the disciples would not have stolen it, then prevaricated, and finally died for what they knew to be untrue.

Therefore, only God was in a position to empty the tomb, which he did, as Jesus himself had predicted, by raising him from the dead: "the event speaks for itself."

This reasoning process has close affinities with the method of reductio ad absurdum, which Professor Daube has shown to have been common in Greek and Roman law: supporting a case "by showing the alternative to be in striking contrast to the declared specific objective of the enterprise." If the object of examining the primary-source documentary evidence for Christian claims is to determine what in fact happened, one cannot arrive at an "explanation" of the resurrection which contradicts what these documents have to say about the historical circumstances and about the personalities and motivations of the people involved in them.

And here, in contrast with Greco-Roman jurisprudence, we see that the Law of Evidence is not a self-serving technique developed by common-law jurists in subtle support of Christian theology! The fundamental canons of evidence which we have employed in defense of biblical faith are found with remarkable consistency in all legal systems-from primitive to civilized, from ancient to modern. Max Gluckman wrote of the Lozi people of northern Rhodesia: "The Lozi distinguish between different kinds of evidence as hearsay, circumstantial, and direct, and attach different degrees of cogency to these and different degrees of credibility to various witnesses." The ancient Persian Digest of a Thousand Points of Law begins with a detailed chapter on the Law of Evidence, insisting, as does the common law, on "independent and convincing proof" to support allegations, and setting forth detailed criteria for distinguishing reliable from unreliable testimony (declarations against interest as opposed to self-serving declarations, etc.). In Roman law,

When the witnesses for the parties gave conflicting testimony on any point, it was the duty of the judge, not to count the number on each side, but to consider which of them were entitled to the greatest credit, according to the well-known rule, "Testimonia ponderanda sunt, non numeranda." It rarely happens that the evidence is so nicely balanced as not to preponderate on one side or the other. But questions of fact may be supported and opposed by every degree of evidence, and sometimes by that degree of evidence of which the proper effect is to leave the mind in a state of doubt, or in an equipoise between two conclusions. Where such a case occurred, the Roman law provided that the benefit of the doubt should be given to the defendant rather than to the plantiff.

Where unsatisfactory or bizarre evidential standards have been developed in a society, these have generally been due to religious influences of an unfortunate kind. Thus among the Muslims one finds not only severe deficiencies in substantive law (e.g., the inferior legal position of women) but also sad procedural standards:

One of the most serious limitations upon the practical efficiency of the Shari'a courts lay in the rigid system of procedure and evidence, applicable both in civil and criminal cases, by which they were bound. The burden of proof was strict, and the party who bore it, usually the plaintiff, was obliged to produce two male, adult, Muslim witnesses, whose moral integrity and religious probity were unimpeachable, to testify orally to their direct knowledge of the truth of his claim. If the plaintiff or prosecution failed to discharge this burden of proof the defendant or accused was offered the oath of denial. Properly sworn on the Qur'an, such an oath secured judgment in his favour; if he failed to take it, judgment would be given for the plaintiff or prosecution, provided, in some circumstances, this side in turn took the oath. Such a system of procedure and evidence may have reflected the religious idealism of the scholars: but it was largely because of the often impractical burden of proof that was imposed upon a plaintiff, and the corresponding ease with which unscrupulous defendants might avoid a civil or criminal liability which reason declared to exist, that the Shari'a courts proved an unsatisfactory organ for the administration of certain spheres of the law.

It is almost universally agreed that to solve disputes over truth questions in society, factual evidence-not mere sincerity-must carry the day. In the words of the pre-Christian Roman dramatist Plautus,

Pluris est oculatus testis unus, quam auriti decerm: Qui audiunt, audita dicunt, qui vident, plane sciunt.

One eyewitness is worth more than ten purveyors of hearsay;
Those who only hear about things say what they've heard, but those who see, know the score.

Christian faith, alone among the religious claims of history, is able to stand in the dock and be vindicated evidentially. For only Christianity rests its case on the divine life, sacrificial death, and miraculous resurrection of the Incarnate God-events witnessed to by those who had direct contact with them and who in consequence "knew the score" (Acts 1:1-3; 2 Pet. 1:16-18). May serious Christian believers-those concerned to bring the secularists of our day to the Cross of Christ-therefore employ the solid canons of evidence by which this truth can be effectively shown. May we never lose an opportunity to serve as advocate for the One who has himself promised to plead our cause before his heavenly Father.

1 [ Back ] In the preceding article, Dr. Montgomery cites the following sources or cases: J. W. Montgomery, Christianity for the Toughminded (1973); J. W. Montgomery, Faith Founded on Fact (1978); Fed. R Evid. 102; on the new Rules in general, see ALI-ABA Federal Rules of Evidence Resource Materials, with October 1975 Supplement (1975); S. E. Toulmin, The Uses of Argument (1958); J. W. Montgomery, The Law Above the Law 84-90 (1975); Fed. R. Evid. 401; Prof. Thayer, Preliminary Treatise on Evidence (1898); Fed. R. Evid. 201; Caroline Products Co.
v. McLaughlin, 365 Ill. 62; V. C. Ball, "The Moment of Truth: Probability Theory and Standards of Proof," in Essays on Procedure and Evidence 84-107 (T. G. Roady and R. N. Covington ed., 1961); Fed R. Evid. 404; H. P. Chandler and S. D. Hirschl, "Evidence," 11 American Law and Procedure 21 (1910, rev. ed. 1955); Prof. Greenleaf, Testimony of the Evangelists, now reprinted in J. W. Montgomery, The Law Above the Law 91-140, 149-63 (1975); F. F. Bruce, The New Testament Documents: Are They Reliable? (5th ed. 1960); J. A. T. Robinson, Redating the New Testament (1977);
M. Shain, Res Ipsa Loquitur, Presumptions and Burden of Proof (1945); D. Daube, Roman Law: Linguistic, Social and Philosophical Aspects 180 (1969); J. W. Montgomery, History, Law and Christianity (2002); M. Gluckman, The Judicial Process among the Barotse of Northern Rhodesia 82 (1955); The Laws of the Ancient Persians pt. 1, 12, 26-27 (S. J. Bulsara ed., 1937); Lord Mackenzie, Studies in Roman Law, with Comparative Views of the Laws of France, England and Scotland 382 (7th ed., J. Kirkpatrick 1911);
H. F. Jolowicz, Roman Foundations of Modern Law 102 (1957); N. J. Coulson, "Islamic Law," in An Introduction to Legal Systems 67-68 (J. D. M. Derrett ed., 1968). N. J. Coulson, A History of Islamic Law 124-27 (1964); Plautus, Truculentus Act ii, sc. 6, 11, 8-9 (our translation); C. S. Lewis, God in the Dock (W. Hooper ed., 1970).

Thursday, March 2nd 2006

“Modern Reformation has championed confessional Reformation theology in an anti-confessional and anti-theological age.”

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