The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale Law Library Series in Legal History and Reference)

By in Legal History on August 9, 2013

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To be convicted of a crime in the United States, a person must be proven guilty “beyond a reasonable doubt.” But what is reasonable doubt? Even sophisticated legal experts find this fundamental doctrine difficult to explain. In this accessible book, James Q. Whitman digs deep into the history of the law and discovers that we have lost sight of the original purpose of “reasonable doubt.” It was not originally a legal rule at all, he shows, but a theological one.


The rule as we understand it today is intended to protect the accused. But Whitman traces its history back through centuries of Christian theology and common-law history to reveal that the original concern was to protect the souls of jurors. In Christian tradition, a person who experienced doubt yet convicted an innocent defendant was guilty of a mortal sin. Jurors fearful for their own souls were reassured that they were safe, as long as their doubts were not “reasonable.” Today, the old rule of reasonable doubt survives, but it has been turned to different purposes. The result is confusion for jurors, and a serious moral challenge for our system of justice.


2 thoughts on “The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale Law Library Series in Legal History and Reference)

  1. 1
    11 of 12 people found the following review helpful
    5.0 out of 5 stars
    In-Depth Legal History, April 17, 2009
    T. Taylor (Newark, NJ United States) –

    This review is from: The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale Law Library Series in Legal History and Reference) (Hardcover)

    James Q. Whitman examines the history of reasonable doubt in order to explain the contemporary understanding of this legal doctrine. Whitman’s thesis is that the doctrine of reasonable doubt was not originally intended to aid in fact finding, but instead it developed as a means to provide moral comfort to jurors. Whitman believes that it is impossible to understand the doctrine of reasonable doubt apart from its theological and ecclesiastical origins.

    Early on, Whitman analyzes the beliefs of early Christians concerning judging and persuasively argues that they were preoccupied with the fear of blood taint and eternal judgment. Early theologians wrestled with the issues of whether Christians should be judges and how they should act in order to preserve their salvation. Whitman argues that judicial ordeals were developed as a means of allowing God to render a verdict on a case thus excusing witnesses, accusers, and judges from moral responsibility. Whitman argues against the traditional understanding of judicial ordeals, which sees them as being used for fact finding. Whitman points out that most members of the community usually knew the facts of the case. The problem was getting them to come forward and give testimony under oath. Most people were scared that testifying could cause them to face eternal punishment. Judicial ordeals were developed to allow God to make the final decision and remove the culpability from the people.

    English and Continental scholars took different approaches during the Medieval Ages. The Continental approach placed a stronger emphasis on specific procedures. Judges received assurance that by following the procedures they would be blameless before God. The English approach placed moral responsibility on jurors. Whitman notes that though the methods of determining the verdict changed, the underlying tension was still how to mete out justice while avoiding blood taint and eternal judgment.

    As Whitman brings the discussion up though the sixteenth and seventeenth centuries, he discusses the earliest known uses of reasonable doubt. Jurists still feared moral culpability for wrong judgments and were concerned about their souls. Whitman effectively argues that reasonable doubt was not intended to establish facts in cases. It was intended to allow jurors to comfortably make verdicts without fearing eternal consequences. Whitman concludes by suggesting that the common law system return to a more sober view of the law and the moral effects of verdicts. Jurors should feel the moral weight of their decisions.

    Whitman effectively argues his case and traces his thesis through hundreds of years of legal history. Whitman engages with many current and past historians and demonstrates the strengths and weaknesses of their interpretations. He engages in revisionist history as he seeks to “correct” the prevailing interpretation of the origin and purpose of reasonable doubt. His inclusion of theological sources gives a fuller picture of the intellectual and spiritual environment that reasonable doubt originated in. This use of religious sources is particularly enlightening in his discussion of the sixteenth and seventeenth centuries. It would be difficult to properly understand the initial uses of reasonable doubt apart from the moral theology of the day. Whitman demonstrates how other scholars have made this error by mistakenly concluding that theological works had little significance on the jurisprudence of this time.

    The style of writing is readable and Whitman keeps close to his thesis throughout the book and presents the material fairly. He is fair when he disputes the interpretations of other scholars, but he is unflinching in his own opinions. His personal opinions enter into the work and he seems favorable toward a post-Christian America. It also seems that Whitman advocates systemic changes to the American common law system and his book subtly serves as a polemic in this broader debate. Still, Whitman’s work is insightful and provides a good background and context to the doctrine of reasonable doubt that will aid lawyers and legal scholars.

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  2. Alan E. Barber
    8 of 9 people found the following review helpful
    5.0 out of 5 stars
    No doubt about it! A fascinating, well-told tale., October 21, 2008
    Alan E. Barber (Idaho Falls, ID USA) –

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    This review is from: The Origins of Reasonable Doubt: Theological Roots of the Criminal Trial (Yale Law Library Series in Legal History and Reference) (Hardcover)

    Maybe you’ve had the experience of finding out the unexpected reason for something you’ve always considered commonplace or commonsensical. The experience can be totally disorienting.
    I experienced just that on reading Prof. Whitman’s fascinating story of the roots of “reasonable doubt” in our criminal jurisprudence. Anyone who’s followed a criminal trial should know the standard of proof necessary to convict a person charged with a crime: the prosecutor must prove defendant’s guilt “beyond a reasonable doubt.” (Let’s leave aside for a moment the vexing question of just what is a “reasonable doubt.”)
    Most of us, I’m sure, would assume this standard of proof exists to protect the defendant against frivolous or unfounded prosecutions. We would further assume this rule to be another demonstration of the fundamental humaneness and fairness built into the American Constitution. Indeed, as Prof. Whitman points out, the rule seems to be so fundamental that the U.S. Supreme Court has read it into the Constitution, although the phrase nowhere appears therein.
    But if Prof. Whitman is correct, all of these assumptions are wrong. The rule of “reasonable doubt” didn’t arise to protect a defendant; it didn’t arise to make his conviction more difficult. No, this rule arose to soothe the consciences and protect the souls of jurors and judges who were asked to condemn a person to horrible mutilation or painful death; it arose to make convicting the defendant easier!
    As criminal jurisprudence took shape in our collective Christian past, much more was at stake than the fate of the accused. The judge or juror also risked damning his own soul should he judge wrongly. (Almost all judges and jurors were males, although many women found themselves on the wrong side of the bar of justice, particularly during the Inquisition.) Christian society, and especially the courts Christian, took very seriously Jesus’ injunction in Matt. 7: 1-2: “Judge not, that you be not judged. For with what judgment you judge, you will be judged; and with what measure you use, it be measured back to you.” The juror or judge who judged wrongfully risked the eternal judgment of the Eternal Judge.
    The rule of “reasonable doubt” first arose in the courts of the Roman Catholic Church, as a rule of canon law. It comforted the judge or juror who found himself squirming uncomfortably in discharging his duty of condemning another human to torture and death. It existed as a gloss on the absolute prohibition against judgment found in Matthew: if the guilt of the accused was established in the judge’s mind beyond a reasonable doubt, then the judge could rest easy because he had not violated the prohibition against judging. It was in this way that “reasonable doubt” facilitated convictions. One could condemn another without tainting his own soul.
    Even though Henry VIII ultimately broke from the Roman Catholic Church and established the Church of England (Anglican Church) with himself as the head, the Anglican Church Courts inherited much of the substance, and almost all the procedure, of the pre-existing church courts. Through the English ecclesiastical courts, the Anglo-American judicial system inherited this rule of reasonable doubt, even though society long ago abandoned the rule’s theological trappings. Now the bare rule exists as a procedural one in the criminal justice system.
    As Whitman points out, modern courts and juries struggle mightily with what constitutes “reasonable doubt” in a criminal case. Many trial judges are forbidden from defining or explaining the term “reasonable doubt” in their instructions to the juries. Instead the judge may only tell the jurors to rely on their own experience and judgment in determining if any particular doubt is a “reasonable” one. This confusion largely exists because the rule of “reasonable doubt” persists as a secular rule, long after society plucked the rule from its original theological context.
    Prof. Whitman tells this convoluted story with great facility. His prose is lively and erudite; rarely does he get bogged down in legal terminology or arcana. His footnotes do what footnotes should do: without intruding on the main text, they are scholarly and should provide great assistance to other legal historians and theoreticians who wish to pursue further this line of inquiry.
    This fascinating book should be required reading of all criminal trial court judges, prosecutors, criminal defense attorneys, and legislators concerned with the American criminal justice system. Anybody who likes history with a twist will find Prof. Whitman’s book thoroughly engaging. Highly recommended!

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