(Second part to “The Historian’s Wish List” – “clearly” jumping the gun)
Courtroom, lawyer and detective analogies seem to be especially favoured by evangelicals and even mainstream biblical scholars. No doubt the comparison with judges and criminal investigators lends a certain aura of credibility and authority to the methods or arguments that are being buttressed by the analogies, but as we have seen here a number of times before the analogy is very misleading.
Bart Ehrman is currently repeating the courtroom analogy he set out in Jesus: Apocalyptic Prophet of the New Millennium (1999) that seeks to explain how historians of Christian origins work. On pages 89-90 he writes (again my own bolding):
Here I’d like to sketch several of the methodological principles that have emerged from these debates. As you will see, there is a real logic behind each of them, and the logic needs to be understood for the criterion itself not to seem hopelessly arbitrary. In particular, it might help to use an analogy: in many respects, the historian is like a prosecuting attorney. He or she is trying to make a case and is expected to bear the burden of proof. As in a court of law, certain kinds of evidence are acknowledged as admissible, and witnesses must be carefully scrutinized. How, then, can we go about it?
. . . .
In any court trial, it is better to have a number of witnesses who can provide consistent testimony than to have only one, especially if the witnesses can be shown not to have conferred with one another in order to get their story straight. A strong case will be supported by several witnesses who independently agree on a point at issue. So, too, with history. An event mentioned in several independent documents is more likely to be historical than an event mentioned in only one.
But that is not how biblical scholars work and the analogy is seriously misleading.
Were the courtroom witnesses to have any semblance to the work of the historian working with the gospels then the historian would be able to establish with very strong certainty the identity of the witnesses. A courtroom witness does not appear without an identifying name and address and other clear evidence that demonstrates the relevance to the case. The witnesses that Ehrman include, by contrast, gospel narratives. Yet we have no clear idea about the identities of the authors of those documents. We can only surmise about their location, when they wrote, the circumstances that prompted them to write, and their sources. In other words, the courtroom has, say, a magazine or paperback story with the author details and other publication data missing. How could that be used as any sort of evidence in a courtroom?
Yes, in a courtroom witnesses must be carefully scrutinized. The first step to that, of course, is identifying them. We cannot draw a genuine analogy between carefully scrutinizing a personal witness and carefully scrutinizing an anonymous and unprovenanced narrative. There is no valid comparison to be made.
But after addressing this analogy notice the conclusion that follows:
An event mentioned in several independent documents is more likely to be historical than an event mentioned in only one.
The introductory courtroom analogy has prepared the reader quietly accept this statement as logically true. But it is only true IF the courtroom analogy has any validity or relevance. One can find many events that are wholly fictitious mentioned in several independent documents. The mere mention of events or persons in documents, even independent of one another, can never of itself make the event or person “more likely to be historical”. We only have to think of Zeus, Achilles, Heracles, Theseus, Santa Claus.
Again, an event mentioned by several independent documents of known and demonstrably trustworthy authorship is indeed more likely to be historical . . . . though I believe it would be “no more likely to be historical” than if we did have “only one” such testimony by a known and demonstrably trustworthy author.
The idea that likelihood of historicity is increased as we have more anonymous and unprovenanced sources is a dubious claim.
Ehrman lists the “several independent documents” he relies upon as follows:
- The Gospel of Mark
- M — Material unique to the Gospel of Matthew — assumed to be from an earlier “source”
- L — Material unique to the Gospel of Luke — assumed to be from an earlier “source”
- Q — a source believed to be common to both Matthew and Luke but not found in Mark (except where overlaps are found in Mark)
- The Gospel of John
The claim that all of these “documents” are independent of one another is misleading, unfortunately. Yes, some scholars do argue that they are, but not all scholars agree. It is misleading to put forth for a general lay readership a scholarly opinion as if it were a fact. (One sees that practice all too frequently among biblical scholars: one scholar presenting his or her viewpoint as if it were an uncontestable fact to lay readers.) But even if the above items were all independent we would still be left with the unanswered and unanswerable questions of identifying the “witnesses” who made those statements in the first place, and why and for whom and under what circumstances and with what motives.
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14 thoughts on “Once more on that false courtroom analogy”
Let’s take it a step further. In certain types of hearings, there is no hearsay rule. E.g., in a criminal trial, you can’t use documents at all unless they are authenticated by a qualified witness and fall under one of the rule-based hearsay exceptions. But in most motion hearings, there’s no hearsay rule, so you can introduce a “competent” document. But no courtroom judge would be at all likely to admit any of the gospels as evidence for any matter of fact. They would be “incompetent” evidence, because they are obviously myths on their face.
If a Biblical scholar is trying to analogize historical methodology to the courtroom, I would be remiss if I did not bring up Probability–The Logic of the Law Bernard Robertson and G. A. Vignaux Oxford Journal of Legal Studies Vol. 13, No. 4 (Winter, 1993), pp. 457-478.
If the analogy is to be valid, it has to follow the laws of probability!
Yes! Well said. I would add that the historian, unlike a prosecuter, does not set out to make a case and present only evidence that supports it. The historian combines the roles of prosecuter and defense attorney, seeking to get at the truth by considering evidence on both sides.
Ehrman (28 October 2016). “Gospel Evidence that Jesus Existed”. The Bart Ehrman Blog:
Non liquet (it is not clear), a term that was applied during the Roman Republic to a legal verdict of “not proven”.
There is absolutely no reason to assume that Q or whatever has anything to do with Jesus prior to the time of being abused for fabricating the synoptic gosples, that any of these sources (if dependent on messianic dogmata) are prior to the Kitos wars, that Mk is an early synoptic gospel, or that none of the strata of redaction of Jhn depend on synoptic tradition.
Erhman once wrote a blog stating that in Galatians 1:18-19 James is called Jesus’ brother. A prosecutor that tries to influence a witness like that would soon find himself out of a job.
I think biblical hermeneutics is more like trying to see the hidden picture in a gestalt image. And, there is always the possibility of finding more than one hidden picture.
Both lawyers and the religious like to spout that they are bound by the laws of their respective callings, but we know both are dodgy when they can get away with it. Like prosecutors (or even defence lawyers), Xian historians only select evidence that backs up their arguments and ignore contrary evidence.
Ehrman would take the same gospel/epistle with a variant spelling of a single word to be another “independent witness” to the historicity of Jesus.
As belief in Jesus is the key fact (not whether Jesus existed or not) and this belief preceded the gospels (and motivated their production) we need to look at the reasons why a person in the first century might want to believe in Jesus.
Noll, Kurt (2012). “Investigating Earliest Christianity without Jesus”. In Thompson, Thomas L.; Verenna, Thomas S. ″Is this Not the Carpenter?″: The Question of the Historicity of the Figure of Jesus. Copenhagen International Seminar series.
“A courtroom witness does not appear without an identifying name and address and other clear evidence that demonstrates the relevance to the case. ”
Once upon a time there were courtroom witnesses who had identifying names and addresses and other ‘clear’ evidence that demonstrated their relevance to the case. That’s how all those folks executed for being witches at Salem were found guilty. Witnesses are only as good as their audience believes them to be.