The Bible And The Rules Of Legal Evidence

As we have seen, many critics of the authenticity of documents included within the Old and New Testaments base their contentions upon principles of literary criticism. The use of modern higher Biblical criticism, employing the methods of literary criticism in establishing date and authorship of canonical and extra-canonical documents, is highly questionable. Literary criticism as a discipline is highly speculative and is not acceptable as evidence in a court of law. In 1930, for example,¹ a Canadian citizen, Miss Florence Deeks, submitted a book for publication, entitled The Web, to Macmillan Co. in Canada. Although Miss Deeks' book, which was an outline of history, was never published, shortly thereafter H. G. Wells published his Outline of History through Macmillan Co. in England. Miss Deeks filed a lawsuit against H. G. Wells for plagiarism, asking $500,000 damages. The plaintiff's defense was made by the literary critic Professor Erwin, who found by the principles of literary criticism that the Outline of History that H. G. Wells had published could not possibly have been written independently, and that either it borrowed heavily from Miss Deeks' work, or both works were derived from a common third source. This conclusion was based upon the existence of numerous passages in both works which, although not identical, were similar to a certain extent in literary structure. According to the Ontario Law Reports of 1931, the Honorable Mr. Justice Raney ruled that evidence based upon literary criticism alone was unacceptable.² Miss Deeks appealed her case, and the Honorable Justice Riddle of the Appellate Division of the Supreme Court of Ontario upheld Raney's decision. Still dissatisfied, Miss Florence Deeks appealed to the Lords of the Privy council, highest tribunal of justice and the court of last resorts in the British Empire. The hearing lasted from October 1, 1932 until November 3, 1932, at which time, Lord Atkin,³ presiding justice, upheld the decisions of the other two courts, stating that evidence presented on the basis of literary criticism is inadmissible in a court of law. This case is mentioned in Irwin H. Linton's book, A Lawyer Examine the Bible (Grand Rapids, Mich.: Baker Book House, 1943), pp. 109-110.⁴

In The Testimony of the Evangelists, Dr. Simon Greenleaf of Harvard Law School applies the laws of legal evidence to the New Testament accounts. The first rule of municipal law to which he alludes is a follows:

Every document, apparently ancient, coming from the proper repository or custody, and bearing on its face no evident marks of forgery, the law presumes to be genuine, and devolves on the opposing party the burden of proving it to be otherwise.⁵

He demonstrates the applicability of this rule to the New Testament documents, and notes that there is no pretense that they were engraved on plates of gold and discovered in a cave, nor that they were brought from heaven by angels, but that they are the plain narratives and writings of the men whose names they respectively bear, made public at the time they were written.

The second rule that he cites is as follows:

In matters of public and general interest, all persons must be presumed to be conversant, on the principle that individuals are presumed to be conversant with their own affairs.⁶

According to this rule, we must allow that in copying manuscripts, the Christians did not corrupt the text, since they must be presumed to be conversant with their own affairs. Now that we have fragments of manuscripts from as early as A.D. 130, we have excellent evidence that such a presumption is indeed justified.

The other rules of legal evidence are as follows:

In trials of fact, by oral testimony, the proper inquiry is not whether it is possible that the testimony may be false, but whether there is sufficient probability that it is true.⁷

A proposition of fact is proved, when its truth is established by competent and satisfactory evidence.⁸

In the absence of circumstances which generate suspicion, every witness is to be presumed credible, until the contrary is shown; the burden of impeaching his credibility lying upon the objector.⁹

The credit due to the testimony of witnesses depends upon, firstly, their honesty; secondly, their ability; thirdly, their number and the consistency of their testimony; fourthly, the conformity of their testimony with experience; and fifthly, the coincidence of their testimony with collateral circumstances.¹⁰

Greenleaf discusses each of these rules in depth in relation to the New Testament. Concerning the fifth point in the last of these rules, he writes:

After a witness is dead, and his moral character is forgotten, we can ascertain it only by a close inspection of his narrative, comparing its details with each other, and with contemporary accounts and collateral facts. This test is much more accurate than may at first be supposed. Every event which actually transpires, has its appropriate relation and place in the vast complication of circumstances, of which the affairs of men consist; it owes its origin to the events which have preceded it, is intimately connected with all others which occur at the same time and place, and often with those of remote regions, and in its turn gives birth to numberless others which succeed. In all this almost inconceivable contexture, and seeming discord, there is perfect harmony; and while the fact, which really happened, tallies exactly with every other contemporaneous incident related to it in the remotest degree, it is not possible for the wit of man to invent a story, which, if closely compared with the actual occurrences of the same time and place, may not be shown to be false.¹¹

¹ Details of this case are reported in a tape by Francis A. Schaeffer entitled, "Five problems with those who deny the Bible's evaluation concerning itself." This L'Abri Tape (no. 16) is available from: L'Abri Fellowship Foundation, Chalet Les Melezes, 1861 Huemoz, Switzerland.

² Although evidence based upon literary criticism alone is inadmissible in a court of law, it is presumed that a document is genuine in its entirety until (admissible) evidence can be provided to the contrary. Just as it is the case (in order to insure that no innocent suspect is convicted of a crime) that the accused is considered innocent until it can be proven on the basis of noncircumstantial evidence that he is guilty, so it is reasonable to require (in order to inure that no unjustifiable claims be made about the text) that the text be considered genuine in its entirety until historical or archaeological evidence is found to the contrary. Literary-critical methods, however, are highly speculative and lack uniformity in their results.

Therefore, in a court of law, the burden of proof would rest upon the one who has challenged the authenticity of the document. However, there are many who would find it very difficult to accept the authenticity of the New Testament, and who would desire that the burden of proof be left to the one who believes the New Testament to be genuine. For this reason, it is helpful to examine the indications of the authenticity of the New Testament from a literary point of view.

³ Lord Atkin was one of the seven Lords of Appeal in Ordinary of the Judicial Committee of the Privy Council, which was the supreme judicial authority of the British Empire. He was appointed in 1928. The office is held for life, so he remained until his death in 1944 at the age of 76 (Whitaker's Almanac, 1932, p. 246; 1944, p. 405; 1945, p. 405).

⁴The New York Times carried articles on this case on September 28, 1930 (section II, p. 1, col. 3), August 27, 1931 (p. 18, col. 3), November 1, 1932 (p. 19, col. 5), November 2, 1932 (p. 17, col. 2), and November 4, 1932 (p. 22, col. 3).

⁵ Simon Greenleaf, An Examination of the Testimony of the Four Evangelists (London: A. Maxwell & Son, 1847), p. 7.

⁶ Ibid., p. 8.

⁷ Ibid., p. 21.

⁸ Ibid.

⁹ Ibid., p. 22.

¹⁰ Ibid., p. 25.

¹¹ Ibid.