Parallel Trials

By Geoffrey Gibson

This book considers the two most raked over trials in history. It looks at them in tandem under the following headings: Sources; Powers; Laws; Accused; Teachings; Accusers; Courts; Charges; Prosecutions; Defences; Verdicts; Reactions; Conclusions; History; Responsibility.
No book has analysed either trial in such a way. In order to keep some kind of narrative going for both trials, some of the more controversial issues in the trial of Jesus are looked at in detail in Appendices. They set out the relevant terms of one of the gospels and give some comments on the difficulties that flow from them, and raise questions like: Was it blasphemy for Jesus to claim to be the son of God? Could the Sanhedrin have enforced a death sentence? Can we say what actually happened?
The evidence for the ‘trial’ of Jesus is very thin. It looks like there was a Jewish charge of blasphemy and a Roman charge of sedition. What is clear is that the accused offered no defence to any charge against him. What is less well recognised is that Socrates in substance offered no defence either. As a defence to either charge against Socrates, the Apology is demonstrably fallacious in logic. Socrates then invited the death penalty by his submission on penalty.
The book aims to be an independent analysis of the evidence and law and the procedure for each trial by a practising lawyer who does not profess any relevant faith. The final appendix gives extracts from books of two distinguished judges on either side – Christian and Jewish - which accounts are obviously disfigured by bias.
The work is fully annotated. It is about 71,000 words

• Language: English
• Publisher: Geoffrey Gibson
• Release date: Jun 14, 2014
• ISBN: 9781311460417

Geoffrey Gibson

Geoffrey Gibson is an Australian writer living with the Wolf - his dog - in a kind of rural peace one hour out of Melbourne, the home of his football team, the Melbourne Storm. He has practised law as either a member of the Bar or a major international law firm. He has presided over at least one statutory tribunal for nearly thirty years and he has conducted arbitrations or mediations in Australia and the U S. He has published five books before on the theory and practice of the law, A Journalist's Companion to Australian Law (Melbourne University Press); The Arbitrator's Companion (Federation Press); Law for Directors (Federation Press); The Making of a Lawyer (What They Didn't Teach You at Law School) (Hardie Grant); and The Common Law - A History (Australian Scholarly Publishing)). He is now focussing on writing in general history, philosophy, and literature, fields that he was trained in and that he has pursued over very many Summer Schools at Cambridge, Harvard, and Oxford universities. His twelve eBooks so far published include five volumes of A History of the West - The Ancient West; The Medieval West; The West Awakes; Revolutions in the West; and Twentieth Century West; Confessions of a Babyboomer; Confessions of a Barrister; Parallel Trials, Socrates and Jesus; The English Difference, The Tablets of their Laws; The German Nexus, The Germans in English History; The Humility of Knowledge, Five Geniuses and God; and Windows on Shakespeare. The photo is not great, but at least the Wolf comes out OK.

Book preview

A lot of the literature about the trials of Socrates and Jesus is not good. All of the original sources are very one-sided. Much of the commentary is not much better.

In order to be able to give a qualified legal opinion on both of these trials, you would have to be an expert in Athenian, Jewish and Roman law at the relevant times. It is a reasonable bet that no such person exists. Certainly, I am not such a person. As Professor Harry Frankfurt reminds us (On Bullshit), ‘bullshit is unavoidable whenever circumstances require someone to talk without knowing what he is talking about.’ We are all doomed to talk on at least some points where we do not have the necessary knowledge.

The object of this book is to try to understand the two trials from the point of view of a practising lawyer. But we will also look at how those trials have been misrepresented in history and the extent to which the sources permit us to say what findings may be made as a matter of fact (in addition to what those sources on their face reveal about the legal processes at work in each trial).

The trial of Jesus has been much more controversial, and poisonous in its after-effects. The trial of Socrates may be said by some at least to have been a model of its kind. No one has said that of any of the proceedings involving Jesus – at least on the account, or accounts, given in the four Gospels. The first question about the ‘trial’ of Jesus is whether there was one trial, or two trials, or none. The sources for both trials are one-sided and partial, but only in the case of the trial of Jesus have the consequences of that inadequacy proved to be so harmful.

The major defect in the sources for the two trials – the records of what may actually have taken place during the two trials – is that all of the sources were written by those on the side of the defence (the accused), and no source even attempts to describe the case for the prosecution. So, in trying to see how these two trials worked, imagine that you are following a major trial in the press, a sensational trial that grips the nation – involving say terrorism, or espionage – but for one reason or another, the press only reports one side of the case. You would, among other things, be frustrated. You would also be very suspicious even of the bits that the press let you see. But above all, you would be furious because you would not be able to make up your own mind about what should be the right judgment of the court. Unless, perhaps, the press said that the accused had made a full and voluntary confession – and you believed what you had read in the newspapers, your usual scepticism, to put it softly, having been seriously aggravated by their obvious misbehaviour in this case. You might still be better off than you will be when you are looking at the trials of Socrates and Jesus. If you bear our common disability steadily in mind when reading this book, you will, as we have been taught to say, be ‘reading from the same page’.

There are advantages to considering the two trials in parallel. The course of events in one often throws light on the course of events in the other, and we are in a position where we need to try to get access to as much light as we can. In order to preserve some narrative rhythm and balance between the two trials, some of the principal difficulties in dealing with the Gospels, and six of the perennial discussion points arising from the trial of Jesus, are reserved for the appendices. For ease of reference, and reasons of intellectual honesty, all of the parts of the Gospels dealing with what Christians call the ‘Passion of Jesus’ are also included. Readers will be able to make up their own minds about the accounts given in the Gospels. There is no need to provide the same treatment for the trial of Socrates. The reason will become apparent.

Since both cases are sensitive for at least some people, I should declare my prejudices, or at least those of which I am conscious. In law, I am a common lawyer, not a Code or Roman lawyer. In philosophy, I prefer the English or empirical approach to the European or rationalist; I prefer, therefore, Aristotle to Plato. In history, I admire Thucydides and Tacitus, but my real affection is for the big hitters of the British tradition like Gibbon, Macaulay, and Carlyle who take a position, but who can write and paint a picture. In religion, I have no faith in a personal God, and my approach to organized religion is informed by the teaching and life of Baruch Spinoza, David Hume, and Immanuel Kant. Each of those philosophers was persecuted by his Establishment in the name of religion. Spinoza was excommunicated from his Jewish community (a move in large part contributed to by the friction between Catholics and Protestants). Hume was a lapsed Presbyterian who was threatened by the Scottish General Assembly. Kant was a lapsed Pietist who was warned off teaching religion by the King of Prussia. We may smile at some of these collisions now, but the targets were not laughing at the time. Between them, these great minds but humble men represented the flower of the European Enlightenment. I believe that a lot of what Plato attributes to Socrates in the Republic constitutes one of the most dangerous political tracts ever written. I believe that Jesus of Nazareth was a man of hair-raising goodness and that the Sermon on the Mount is possibly the largest single step taken by mankind out of the primeval swamp.

The trial and execution of Jesus of Nazareth is the most sacred part of our history for those who profess faith in his life and teaching. Its reporting has been hurtful, lethally so, to the Jewish people ever since. In trying to give an objective forensic analysis of that process, I will seek to avoid offending the religious beliefs of anyone. If I fail in that purpose, I apologise unreservedly.

Geoffrey Gibson

Melbourne,

Australia,

May, 2014.

I

PRELUDE

We speak of the trials of Socrates of Athens and Jesus of Nazareth. They were the two most famous trials in our history. They were separated in time by about the number of years that passed between the Battle of Hastings and Columbus’ discovery of America, and between the recanting of Galileo and the Theory of Relativity, and in space by about the distance between London and Rome, New York and Chicago, and Melbourne and Brisbane.

They had a lot in common. Each man was subject to the rule of either Greece or Rome, the two pillars of the ancient world. Each was a teacher (although one was coy about acknowledging this). Each was a visionary – each went beyond logic and enjoyed mystical visions. Each was articulate and persuasive. Each developed a following. Neither reduced any of his teaching into writing. Each claimed a special relationship with God. Each spoke of a voice within. Each taught people to question accepted customs, traditions and modes of thought. Each therefore challenged, or was at least seen to challenge, those in power – those whose power depended upon the majority continuing to accept established traditions or customs, the group that we call ‘the Establishment’.

Each therefore crossed the Establishment. And the Establishment retaliated against each by prosecuting him. Each was accused of offences relating to religion and corrupting (or perverting) others. Neither of the accused sought actively to avoid judgement against him – both seemed to accept it as the completion of their mission and the natural result of their teaching. Each was convicted and executed. Each is seen as a kind of martyr.

There were also differences. Socrates was more than twice the age of Jesus, and downright unattractive to look at. We do not know what Jesus looked like, but the portraits are never unkind. Socrates was married with three children and subject to the customary Greek proclivity to enjoy the embrace of a younger man. Jesus was not married, and we do not know what he knew of the flesh. Socrates had actively participated in the political life of his community in a way that Jesus never did. Socrates was an intellectual snob if not a social snob. Jesus associated with everyone, including women (even whores), and those others considered to be undesirable, like tax collectors and cripples.

Although religious in his own Greek way, Socrates was a philosopher – a thinker. Jesus, the Palestinian Jew, was a religious leader – a preacher, or rabbi. Jesus was not a philosopher. Socrates thought that he would have a life after his execution. Jesus knew of something else again. Jesus believed that his connection with God was far more intense and spiritual and consequential for the world than any such belief of Socrates, or anyone else. (Jesus would probably not have heard of Socrates.) Socrates believed in many gods, of varying kinds; Jesus knew that there was only one. If Socrates was a member of a club - and he was, and a gentlemen’s club to boot – Jesus was always going to be denied entry to his local club – and he was.

Socrates was European. Jesus was Asian. The church that was built on the teaching of Jesus would be moved by his disciples from Asia to Europe, and one of the means of effecting that transition would be the adoption by that church of the teachings of Socrates as passed on by his greatest disciple, Plato.

Politics were involved in each case. At the relevant times, Athens was seeking to recover from a war with Sparta that we now see as having been the start of its undoing, and Jerusalem was suffering and seething under a Roman occupation, a condition that would lead within two generations to the second destruction of its Temple. Socrates was suspected by his enemies of having been complicit in the defeat of Athens. Jesus was suspected by his enemies of being complicit in a potential rebellion in Jerusalem against Rome. The various criminal allegations against each accused reflected their political background. These were very high stakes politics with potentially terminal consequences for those involved.

The stresses of the war or occupation will very likely mean that we are not likely to see most of the accusers at their best. We did not, for example see the French nation at its best during the Nazi Occupation. The Jugoslav resistance to its occupation was both heroic and brutal, but in less than two generations, the liberated nation disintegrated in a hideous way that we are still witnessing.

It is obvious that war, or enemy occupation, erodes our humanity. Too many commentators do not give enough weight to this obvious fact of life in looking at what was done to Socrates and Jesus by victims of one or other catastrophe. We may therefore be forgiven for quoting extensively from one of our greatest historians about the moral collapse within Greek cities that came with the political stresses brought on by the war between Athens and Sparta. These comments come from Thucydides four centuries before the execution of Jesus.

In times of peace and prosperity, cities and individuals alike follow higher standards, because they are not forced into a situation where they have to do what they do not want to do. But war is a stern teacher; in depriving them of their power of easily satisfying their daily wants, it brings most people’s minds down to the level of their actual circumstances….

To fit in with the change of events, words, too, had to change their usual meanings. What used to be described as a thoughtless act of aggression was now regarded as the courage one would expect to find in a party member; to think of the future and wait was merely another way of saying one was a coward; any idea of moderation was just an attempt to disguise one’s unmanly character; ability to understand a question from all sides meant that one was totally unfitted for action. Fanatical enthusiasm was the mark of a real man, and to plot against an enemy behind his back was perfectly legitimate self-defence. Anyone who held violent opinions could always be trusted, and anyone who objected to them became a suspect. To plot successfully was a sign of intelligence, but it was still cleverer to see that a plot was hatching….In short, it was equally good to get one’s blow in first against someone who was going to do wrong, and to denounce someone who had no intention of doing any wrong at all. Family relations were a weaker tie than party membership…. Revenge was more important than self-preservation….

Then, with the ordinary conventions of civilised life thrown into confusion, human nature, always ready to offend even where laws exist, showed itself proudly in its true colours, as something incapable of controlling passion, insubordinate to the idea of justice, the enemy to anything superior to itself; for, if it had not been for the pernicious power of envy, men would not have so exalted vengeance above innocence and profit above justice.

Every word has held good for every war and occupation since then, and should be borne steadily in mind in looking at each of these trials. When they took place, conditions in each city were anything but settled. It would be no surprise if we see the rule-book go out the window. In fact that only happens in the trial conducted in Jerusalem. The reason is clear. The Athenians had a mature justice system and they retained control of it. They could and did apply it in the case of Socrates. Jerusalem had a justice system that was at least as mature, but the local people had lost control of it when Rome took over. The Jews could not apply their own justice system, at least in its terms, in the case of Jesus. This simple fact is the reason why the two trials look so different and why the proceedings at Jerusalem were such an awful mess. Although obvious, this basic point has not been sufficiently noticed.

It is the purpose of this book to examine the two trials – that of Socrates and that of Jesus – from the point of view of a practising lawyer. Each trial has had lasting consequences that continue to affect all of us. Between them, they bring together the three foundations of the West – Greece, Rome and the Judaic law as restated in light of the teaching of Jesus, what we call Christianity.

A lawyer who has had any experience in appearing in or in hearing and determining legal actions would want answers to at least the following questions, if asked to comment on the trial of Socrates or Jesus.

What was the law that was said to have been broken?

What was the conduct that was said to have constituted a breach of that law?

What was the evidence of that conduct?

Was the accused given a fair chance to put his defence?

Did the tribunal give that defence or the hearing at large a fair hearing?

Was the verdict open to the tribunal on the evidence?

Was the sentence fair?

You might see immediately that those questions reflect our common law background. We begin by asking what was the relevant law, because it is fundamental to our understanding that no one can be dealt with adversely unless some law has been found to have been broken. If we can point to a specific law, then questions may arise about the validity of the law, or its propriety. For example, if the matter were being heard by a government body that said that it was not satisfied that the evidence warranted a finding of a breach of the law as charged, but the tribunal would by decree make a new law with retrospective effect, then a number of different issues would arise.

We will see that the main difficulties in each trial arise on the first three questions set out, but this book will for the most part consist of an attempt by a lawyer to answer each of the questions for each trial. So far as we know, that has not been done for either trial, or for both in conjunction. Before doing that, we will have to say something about the sources, and the governments involved in each case, and of course about the accused and their accusers.

We will look at the charges in some detail later, but we should mention them now so that we can follow the setting of the scene. Socrates was charged with not recognising the gods of the State, with introducing new deities, and corrupting the youth. It is hard to say just what Jesus was charged with, but he apparently faced allegations of blasphemy and of calling himself the King of the Jews, which h may have been within a Roman law of treason.

It is obviously not only Christians who have an interest in understanding the trial of Jesus. Members of the people of whom Jesus was one have been persecuted in part by reference to their part in the biblical account of the process. It is after all the case that Jesus was born a Jew and that he died a Jew; the word ‘christianity’ had not then been invented. The fate and teaching of Socrates have also had great consequences for us. Between them, the teaching of these two men who are said to be martyrs is part of the fabric that underlies everything what we do.

II

SOURCES

As we are talking of events in history - about two millennia ago and more - we must identify our sources. We immediately notice two problems. First, there is no impartial source. All of the sources for each trial are one-sided. They are all on the side of the accused. Secondly, and relatedly, our sources only give one side. They do not say what the prosecution case was. There are some contradictory asides in the Gospels, but there we have trouble even identifying what the charges were, what was the nature of the process that was before the Roman Prefect, and what was the nature of the judicial decision, if any, that was in fact made by him.

The first of these problems makes a forensic analysis of each trial difficult. The second makes it impossible. We are used to hearing the maxim ‘hear the other side’ applied to the need to hear the defence, but of course it operates both ways. Prosecutions, even in those days, were mainly brought on behalf of the community, and the community has rights too. It is as if we are asked to comment on a game between Manchester United and Liverpool where we only know what Liverpool did. A better analogy is that we are asked to analyse the tragedy of Romeo and Juliet on the basis of an account given by a Montague who for the most part cannot bring himself to say what any of the Capulets did.

In some ways our position is worse. We might be able to work out what Manchester United or the Capulets did from what their opponents did. Perhaps we can determine what the prosecution case was in each instance from the defence presented to it. If we are given a case and told that the defence is ‘Yes, I went to bed with her and although she had been drinking, I had no doubt that she was consenting’, we have a reasonable idea that this is a rape case in which the issue is the validity of the consent.

But we have a problem with this approach in each of our cases. Jesus offered no substantive defence during either of the two hearings involving him. The Gospels take Pilate as accepting the responses of Jesus to indicate that Jesus did not accept or that he denied that he had claimed the title of ‘King of the Jews’. The answer ‘You say so ’may be equivocal, but this is the closest that the accused gets to a substantive defence. Socrates is said by one source to have given a long defence that we will look at. It has been variously received. Some consider it ‘noble’ or ‘sublime’ or some other similar epithet that classical dons like to invest in some significant events in the ancient world. Others say that Socrates took what the Americans call ‘a dive’. One critic says that his speech was ‘suicidal’. The view expressed here is that it is hardly a defence at all. Among other things, it just misses the point. Therefore, we have trouble in identifying the prosecution case from the defence of either Socrates or Jesus.

To the extent that our sources do not describe the prosecution cases either properly or at all, we are not able to comment on either the prosecution case, or the conduct of the accusers. It follows also that we are not in a position to comment on the verdict. How can you say that a verdict of guilty was unwarranted, or not supported by the evidence, when you do not know what the evidence was?

We will therefore only be able to comment on the verdict to the extent that we know the evidence on which it might have been based. Since we know no evidence on the part of the prosecution, we will only be able to comment on the verdict by reference to something adduced in the proceedings or put forward as an admission. We will only therefore be able to comment in substance if we think that either accused has convicted himself out of his own mouth.

A very wise judge and jurist once made the elemental observation that ‘experience in forensic contests reveals the truth of the common saying that one story is good, until the other story is told’. We