Foundations of Law I


The secular worldview on fault says that man is not responsible for his actions, man is a product of his environment, if you change the environment you will change the man, and man is perfectible.

Adam and Eve blamed others in Genesis 3. However, God's command to not eat the fruit in Genesis 2 presumes that man has the ability to choose whether to obey or not.

Man should not be determined by his environment, as God commanded man to subdue his environment as part of the dominion mandate in Genesis 1. Also in Genesis 1, God tells man that he was made in His image.

God punished Adam and Eve for violating his command not to eat the fruit of the tree. Genesis 3:24.

Israel had a tort system. Goring oxen and uncovered pits were covered in Exodus 21, grazing cattle and spreading fire in Exodus 22, and battlements in Deuteronomy 22.

  • Spreading fire and goring oxen seem to be strict liability, but with a remedy diminished by fault.

Romans 13 presupposes that the civil magistrate can punish man for his wicked acts. Otherwise, it would be unjust to impose punishment.

Main is a moral agent who is responsible for his actions.

  • Romans 2:6
    [God] will render to every man according to his deeds:
  • Galatians 6:7
    Be not deceived; God is not mocked: for whatsoever a man soweth, that shall he also reap.

All are presumed to know the law. Therefore, ignorance of the law is not a defense to a violation of criminal or civil law.

Ignorance of LONANG is not an excuse b/c the law is written on our hearts.

However, ignorance may be an excuse from a violation of “municipal law” b/c such a law is not written on man’s heart.

Defenses to Fault

There are three tests for liability for insanity.

  1. Durham test
    • The rule . . . is simply that an accused is not criminally responsible if his unlawful act was the product of mental disease or defect.
  2. M'Naghten test
    • At the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.
    • The M'Naghten test most closely comports with LONANG. It assumes that man controls his own faculties and can overcome even difficult mental conditions to make right choices.
  3. Model Penal Code test
    • A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect, he lacks a substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

In Mark 5, the Gadarene demoniac seemed to loose control of himself but still recognized Jesus for who he was.


Most jurisdictions do not recognize necessity as a defense to a crime.

  • John 15:13
    Greater love hath no man than this, that a man lay down his life for his friends.
  • Proverbs 6:30–31
    Men do not despise a thief, if he steal to satisfy his soul when he is hungry;
    31 But if he be found, he shall restore sevenfold; he shall give all the substance of his house.