Legal Pardon, Tensed Time, and the Expiation of Guilt | Aalborg, Denmark - 2019

In March of 2019, Dr. Craig visited Denmark for a series of lectures and presentations. Here as the honored keynote speaker at a conference sponsored by Aalborg University on The Metaphysics of Time, he shares his second lecture, entitled “Legal Pardon, Tensed Time, and the Expiation of Guilt."

The paper which I shall read this morning is entitled, “Legal Pardon, Tensed Time, and the Expiation of Guilt.” I feel that I should probably preface my remarks by saying that I'm going to be focusing on legal pardon as it plays a role in the Anglo-American systems of justice. I'm not familiar with Scandinavian justice systems, and so you'll have to make the application, if possible, as necessary. In this paper I wish to explore the relation between legal pardon, tensed time, and the expiation of guilt.

The distinction between personal forgiveness and legal pardon is well-known and widely recognized in the philosophical literature on forgiveness.^[1] The philosophical literature typically treats forgiveness as a subjective change of attitude or judgement on the part of the person wronged, a determination to put away feelings of resentment, bitterness, or anger, a relinquishing of the desire for revenge or a claim to requital. By contrast, the issuing of a pardon by an executive authority affects an objective change in the legal status of the pardonee regardless of the subjective attitudes of the governing authority toward the person accused of a crime.

Divine Forgiveness as Legal Pardon

Theologians have a stake in this matter because divine forgiveness is in some respects much more akin to legal pardon than to personal forgiveness. There are at least two reasons for thinking that divine forgiveness implies a legal pardon of sinners on God's part.

First, God stands in a governmental relationship to human beings. In his classic treatise, A Defence of the Catholic Faith concerning the Satisfaction of Christ, against Faustus Socinus (1617) the famed international jurist Hugo Grotius identified Socinus’ “fundamental error” in his critique of traditional atonement theories as his assumption that God is to be construed on the model of an offended party in a personal dispute, such as between a creditor and a debtor (II). For such a private person has no right to punish another. Certainly, God is offended by sin, but He does not act merely as the offended party in punishing it. Rather God should be considered to act as a Ruler. Grotius writes, “For to inflict punishment, or to liberate any one from punishment. . . is only the prerogative of the ruler as such, primarily and per se; as, for example, of a father in a family, of a king in a state, of God in the universe” (II). God as Supreme Ruler is responsible for the administration of justice in the universe and so has the right of punishing and the right of forgiving wrongdoing. Although God has the right to forgive sins, Grotius thinks it would be unjust of God to let certain sins go unpunished, such as sins of the unrepentant. Therefore, it would be inconsistent with the justice of God that He should remit all punishment whatsoever.

On the contemporary scene legal philosopher Jeffrie Murphy has made a similar distinction between the private and public spheres in an effort to carve out conceptual space for exercises of mercy consistent with the demands of retributive justice. Distinguishing between a creditor in a civil lawsuit and a judge in a criminal case, Murphy maintains that as a litigant in a civil lawsuit, the creditor occupies a “private role” and so does not have “an antecedent obligation, required by the rules of justice, to impose harsh treatment” by demanding repayment of the debt owed (Murphy, 1988, pp. 175-6). He is therefore free to show mercy without prejudice to justice. By contrast a judge in a criminal case “has an obligation to do justice—which means, at a minimum, an obligation to uphold the rule of law. Thus if he is moved, even by love or compassion, to act contrary to the rule of law—to the rules of justice—he acts wrongly” (Ibid., p. 175). Murphy thinks that the judge qua judge cannot, like the creditor, act mercifully without prejudice to the demands of justice. Like Grotius, Murphy thinks that the executive power can exercise mercy but only within the limits of individualized justice.

Given God’s status as Judge and Ruler of the world, it is much more accurate to think of divine forgiveness on the analogy of a legal pardon by a Ruler rather than on the analogy of the forgiveness extended by a private person.

Kathleen Moore has made the point forcefully by observing that when people ask God to forgive their sins, they are clearly hoping that God will not inflict the full measure of punishment they know they deserve. She says, “These people would discover the seriousness of their conceptual confusion if God forgave their sins and punished them nevertheless–which is always an option for God” (Moore, 1989, p. 184).

God’s forgiving sins should have the character of a legal pardon by the executive power of the state.

Second, the consequences of divine forgiveness as described in biblical revelation imply God’s pardon of sinners. The Levitical system of sacrificial offerings in the Tabernacle and Temple, offerings which New Testament writers took to prefigure Christ’s own death as the ultimate sacrificial offering (Rom 3:21-26; 8.3; Eph 5:2; Heb 9.6-14; 10.1-18), aimed, not merely at the cleansing of consecrated objects from impurity, but more fundamentally at the expiation of the sins of the people and their forgiveness. Repeatedly the promise is given, in the words of Leviticus, “the priest shall make atonement on your behalf for the sin that you have committed, and you shall be forgiven” (Lev 4.35; cf. 4.20, 26, 31, etc.). At the heart of the new covenant prophesied by Jeremiah lay the forgiveness of sins. God says, “I will forgive their iniquity, and remember their sin no more” (Jer 31.34). Christians considered Jesus, by his sacrificial death, to have inaugurated that new covenant (Mt 26.28; Mk 14:22-24). So in the Acts of the Apostles the consistent apostolic proclamation is that “everyone who believes in him receives forgiveness of sins through his name” (Acts 10.43; cf. 2.38; 5.31; 13.38; 26.18). In short, in Paul’s words, in Christ “we have redemption, the forgiveness of sins” (Col 1.14; cf. Eph 1.7).

It is noteworthy that the object of divine forgiveness is just as often said to be sins as sinners. Not only are people forgiven for their sins, but their sins are forgiven. God is said to “take away” (aphaireō) our sins (Rom 11.27). This fact makes it evident that divine forgiveness is not (merely) a change of attitude on God’s part toward sinners.^[2] Divine forgiveness has as its effect, not (merely) God’s laying aside feelings of resentment or bitterness or anger (or what have you, according to one’s favorite analysis of forgiveness), but rather the removal of the liability to punishment that attends sin. As a result of divine forgiveness, a person who formerly deserved punishment now no longer does so. Because of the forgiveness that is to be found in Christ, one is no longer held accountable for one’s sins. Paul writes, “There is therefore now no condemnation for those who are in Christ Jesus” (Rom 8.1). On the contrary, they are now reckoned by God to be righteous in His sight (Rom 4.5-8). The biblical concept of forgiveness thus entails God’s pardoning people for their sins, freeing them of liability to punishment and constituting them righteous before God.

On the basis of God’s role in the government of the world and the biblical consequences of God’s forgiveness of sins, we ought to think of divine forgiveness, at least in part, on the analogy of a legal pardon. Now, of course, there will be significant disanalogies between divine pardon and the pardoning power as it exists in human justice systems —for example, the U.S. President may issue pardons for personal political advantage—but, still, given the similarities between divine forgiveness and legal pardon, we may expect to gain a good deal of insight into divine forgiveness by exploring the pardoning power vested in heads of government.

Pardon and Its Effects

From ancient times heads of state have exercised the power to pardon crimes. So when the framers of the U.S. Constitution met in Philadelphia in 1787 they naturally included in the Constitution the pardoning power. Since this power is not defined in the Constitution, U.S. courts have interpreted the presidential power to pardon on the model of the pardoning power of English monarchs, which the framers doubtless presupposed. The power of English monarchs to pardon was, in turn, understood as a divine right, an act of grace reflecting God’s ability to pardon sins. In Kathleen Moore’s pithy conclusion, “Presidents used pardons as they chose, having been given a pardoning power patterned after that of the English Kings, which was patterned after God’s” (Moore, 1989, p. 51).

Chief Justice John Marshall, in a landmark decision, describes a pardon as follows:

A pardon is an act of grace, proceeding from the power entrusted with the execution of the laws, which exempts the individual, on whom it is bestowed, from the punishment the law inflicts for a crime he has committed (United States v. Wilson, 32 U.S. 150 (1833)).

Marshall’s description was later cited by the Supreme Court as a correct characterization in Burdick v. United States, 236 U.S. 79, 89 (1915). According to this characterization a pardon is an act of mercy, coming from the person(s) possessing the power of the executive, which removes a criminal’s liability to punishment for a specific crime he has committed.

Marshall’s description seems an apt characterization of a divine pardon as well. God is the power Who executes His divine torah, and His pardon is an act of grace by which He exempts elect sinners, who have violated His law, from the punishment they deserve. Every element of Marshall’s definition finds a theological analogue. No wonder Daniel Kobil characterizes Marshall's vision of a pardon as “something akin to divine forgiveness” (Kobil, 1991, p. 594)!

What are the effects of a pardon? Marshall says that it exempts the individual from the punishment prescribed by the law for his crime. This much is uncontroversial. But pardons do much more than merely exempt a convicted criminal from punishment for his crime. A pardon removes all the legal consequences of the criminal’s conviction. A pardon thus restores to a person any civil rights which were restricted as a result of his conviction, such as the right to vote, to serve on a jury, or to obtain a business license (Knote v. United States 95 U.S. 153 (1877)). We shall return to the effect of a pardon in restoring a person’s civil rights, a feature of pardons which is also uncontroversial, even if in some cases difficult to adjudicate.

The truly controversial question is whether a pardon serves to remove the criminal’s guilt. Following the English model, the U.S. courts were at first emphatic as to the effect of a pardon in expiating guilt. In Ex parte Garland (1866) the Supreme Court famously declared:

. . . the inquiry arises as to the effect and operation of a pardon, and on this point all the authorities concur. A pardon reaches both the punishment prescribed for the offence and the guilt of the offender; and when the pardon is full, it releases the punishment and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence. If granted before conviction, it prevents any of the penalties and disabilities consequent upon conviction from attaching; if granted after conviction, it removes the penalties and disabilities, and restores him to all his civil rights; it makes him, as it were, a new man, and gives him a new credit and capacity (Ex parte Garland, 71 U.S. 333, 380-1 (1866)).

Like Marshall’s description of a pardon, this characterization of the effects of a full pardon is an apt description of a divine pardon. God in His mercy is similarly said (to quote the psalmist) to “blot out my transgressions. . . and blot out mine iniquities” (Ps 51. 1, 9 KJV). Paul exults, “If anyone is in Christ, he is a new creation; the old has passed away, behold, the new has come” (II Cor 5.17). The pardoned sinner’s guilt is expiated, so that he is legally innocent before God.

But as a description of the effects of human pardons, Garland’s sweeping assertions have been eroded by subsequent court decisions.^[3] In the Harvard Law Review of 1915 Samuel Williston published what has been called a “seminal” and “landmark” article, “Does a Pardon Blot Out Guilt?,” in which he criticized Garland and its judicial progeny and which has been frequently cited by the courts. Williston complained, “Everybody. . . knows that the vast majority of pardoned convicts were in fact guilty; and when it is said that in the eye of the law they are as innocent as if they have never committed an offense, the natural rejoinder is, then the eyesight of the law is very bad” (Williston, 1915, p. 648). The truth, says Williston, is rather as Lord Coke wrote: Poena mori potest, culpa perennis erit (that is, “Punishment may expire, but guilt will last forever”). A moment’s reflection suggests that Williston must understand by “guilt” simply the property or fact of having committed the crime. On this understanding, to be guilty of a crime is just to have committed the crime.

That this is how Williston understands guilt is evident from the remainder of his article. He blames the verdict of the English Court in Cuddington v. Wilkins (80 Eng. Rep. 231 (K.B. 1615)) as laying the main foundation for the view that after a pardon the law could not see the criminal’s guilt. Cuddington had brought an action against Wilkins for calling him a thief. Wilkins justified this appellation because Cuddington had once been convicted of theft. But Cuddington replied that he had been pardoned by the king for the alleged felony. The Court decided for Cuddington. In the court’s words, “for the whole court were of opinion that though he was a thief once, yet when the pardon came it took away, not only poenam, but reatum” (it took away not only the punishment, but also the wrong).^[4]

Williston disagrees. According to Williston,

The true line of distinction seems to be this: The pardon removes all legal punishment for the offense. Therefore if the mere conviction involves certain disqualifications which would not follow from the commission of the crime without conviction, the pardon removes such disqualifications. On the other hand, if character is a necessary qualification and the commission of the crime would disqualify even though there had been no criminal prosecution for the crime, the fact that the criminal has been convicted and pardoned does not make him anymore eligible (Williston, 1915, p. 653).

The point is this: a pardon removes the legal disqualifications (abridgement of civil rights) resulting from the fact of conviction; but a pardon does not affect any disqualifications resulting from the commission of the crime. The fact that a crime has been committed cannot be erased. It is this fact that Williston identifies as guilt. Though pardoned, the person still stole or lied or acted recklessly and so remains guilty of the crime he committed. As such he may, despite his pardon, be disqualified from certain activities, such as giving testimony or practicing law.

Henry Weihofen in a later review, citing Williston’s criticism, complains of “the mischief that results when a court applies literally the unfounded dictum of Ex parte Garland that a pardon ‘blots out’ guilt, and makes the offender a ‘new man’, etc.” (Wiehofen, 1939, p. 181; cf. pp. 189-90). The effect of a pardon (other than on grounds of innocence) is “to absolve from further punishment and restore civil rights, but not to undo what is past or blot out of existence a fact, namely, that the person has committed a crime and been sentenced and punished for it” (Ibid., my emphasis).

An examination of various district, state, and appellate court cases walking back the assertions of Garland reveals that the courts in such cases tend to presuppose this same understanding of guilt as the property of having committed a crime.^[5] These cases have typically to do with whether a pardon serves to expunge one’s criminal record or to remove a particular disqualification (such as disbarment, banishment from the trading floor, or denial of veteran’s benefits) suffered by the pardonee as a consequence of his being convicted of the crime for which he received a pardon. In holding that Garland overstepped in asserting that a pardon blots out guilt because a pardon does not blot out the past conduct leading to the conviction, these courts equate guilt with having carried out the conduct which led to the conviction.

While such an understanding of the word “guilt” may accord with much of ordinary language, a little reflection reveals that, given standard retributive theories of justice, such a conception of guilt has bizarre consequences. For on this view a person’s guilt could never be expunged, whether by pardon or punishment. Even if a person has served his full sentence and so satisfied the demands of justice, he remains guilty, since it will be ineradicably and forever the case that once upon a time he did commit the crime. But then on standard theories of retributive justice,^[6] he still deserves punishment! For it is an axiom of retributive theories of justice that the guilty deserve punishment. Such an understanding of guilt would thus, in effect, sentence everyone to hell, even for the most minor of crimes, since guilt could never be eradicated and, hence, the demands of justice satisfied. Indeed, even a divine pardon would not serve to remove guilt and save us from punishment, since even God cannot change the past. But such a conclusion is incoherent, since it is the function of a pardon to cancel one’s liability to punishment. Therefore, this understanding of guilt is incompatible with standard theories of retributive justice.

The Garland court and its progeny should not be thought to consider a pardon to be a sort of judicial time machine, capable of erasing the past. It is logically incoherent to bring it about that an event which has occurred has not occurred, and it would be ungracious to attribute to our courts the absurd opinion that a pardon can erase from the past a person’s wrongdoing or conviction for a crime. Rather what the Garland court was doing, and what its detractors have failed to do, is what contemporary philosophers of time call “taking tense seriously.”^[7] When the Supreme Court declared that a pardon “blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offence,” it takes seriously the tenses of the verbs involved. It recognizes that the offender was guilty, but as a result of his pardon he is now innocent in the law’s eyes. Moreover, the counterfactual conditional “as if . . .” reveals that the law is not blind to his offense. The law can see his offense, but as a result of the pardon the offender is now as innocent as he would have been if he had never committed the offense.

From the beginning courts which held that a pardon expunges a person’s guilt recognized the importance of tense. In Cuddington v. Wilkins, for example, the court opined that while Cuddington was once rightly called a thief, as a result of the king’s pardon he should no longer be called a thief. In Hobart’s report on the case, we read, “It was said, that he could no more call him thief, in the present tense, than to say a man hath the pox, or is a villain after he be cured or manumised, but that he had been a thief or villain he might say.”^[8] The court’s decision turns upon taking tense seriously.

Moreover, contrary to the opinions of several lower courts,^[9] Garland is wholly consistent with the Supreme Court’s opinion in Burdick v. U.S. that the pardon of an accused person, if accepted, actually implies his guilt (otherwise there would be nothing to be pardoned), for Garland has no interest in denying that the offender was guilty, so that the pardon, in taking away his guilt, implies that he was guilty. A pardon does not have an “appellate” function, as the courts have recognized, in that it does not imply a miscarriage of justice; the correctness of the guilty verdict rendered is not undermined. But now the person is pardoned, and so the effect of that verdict is canceled: though once guilty, the pardonee no longer is.^[10]

The opinion in Garland was properly explicated in the case In re Spenser (1878) as follows:

This is probably as strong and unqualified a statement of the scope and efficacy of a pardon as can be found in the books. And yet I do not suppose the opinion is to be understood as going the length of holding that while the party is to be deemed innocent of the crime by reason of the pardon from and after the taking effect thereof, that it is also to be deemed that he never did commit the crime or was convicted of it. The effect of the pardon is prospective and not retrospective. It removes the guilt and restores the party to a state of innocence. But it does not change the past and cannot annihilate the established fact that he was guilty of the offence (In re Spenser, 22 F. Cas. 921, 922 (1878)).

The opinion in Garland is thus fully in accord with the prevailing view that a pardon has no effect upon the criminal conduct and conviction of the person pardoned. Garland is thus in accord with the prevailing opinion that a pardon serves to release a person from all the legal consequences of his conviction, including punishment, taken in abstraction from the wrongdoing itself.

It is obvious that the Garland court has a very different conception of guilt than lower courts which see themselves as departing from Garland. Rather than assume the incoherent understanding which equates guilt with the facticity of a past event, Garland assumes that guilt is a property which can be temporarily exemplified and then lost though pardon or appropriate punishment. So what is this property?

In the criminal law, guilt is typically determined by establishing that someone who has committed a wrongful act (actus reus) while possessing a blameworthy mental state (mens rea). Perhaps guilt is the property of being a culpable wrongdoer, a property which can be temporarily exemplified but lost through sufficient punishment or pardon.

But wrongdoing and culpability are merely sufficient, not necessary, conditions for guilt.

Guilty verdicts in cases involving what is called strict liability (in which there may be neither wrongdoing nor culpability) show that guilt cannot be equated merely with being a culpable wrongdoer.^[11] So what is guilt? It may be convenient to think of guilt just as liability to punishment. A verdict of “Guilty” is plausibly a declaration that the person is liable to punishment. To be guilty of a crime is to be liable to punishment for that crime. Such an understanding of guilt makes it perspicuous why punishment or pardon serves to expiate guilt. A person who has served his sentence has “paid his debt to society” and so is now no longer guilty, that is to say, no longer liable to punishment. Similarly, a person who has been pardoned is by all accounts no longer liable to punishment for the crime he committed.

In any case, however we define guilt, if at all, given a retributive theory of justice, guilt entails liability to punishment. It follows logically that if a pardon removes one’s liability to punishment then it also blots out guilt. It is impossible that a person be pardoned and yet remain guilty.

Theological Application

To return, then, to the concerns of theology, it seems to me that Garland’s statement of the effects of a pardon is a marvelous description of the effects of a divine pardon of a person’s sins. By taking tense seriously, we can understand how a person who was once guilty may, in virtue of a pardon, be no longer guilty, despite the ineradicable fact that he did commit the sin for which he was justly condemned. The decisions of certain lower U.S. courts do not compromise Garland, for they are assuming a different understanding of guilt which equates guilt with the facticity of the past offense, which Garland would not think to deny. Like punishment, pardon expiates a person’s legal guilt, so that he is no longer condemned and liable to punishment.

These debates over the effects of a pardon provide insight into the nature of divine justification. Our legal pardon by God no more transforms our character and makes us virtuous people than does a human pardon a convicted criminal. Again and again, the courts have insisted that a person may suffer various disabilities, despite his pardon, because of the flawed character that led to his conviction. The conviction alone, now pardoned, may not serve as grounds of disability, but it may serve as evidence of a corrupt character and conduct that are disabling. So, for example, in the case In re Abrams, Elliott Abrams was deemed unfit to practice law despite his pardon because a pardon did nothing to restore the moral character necessary for him to continue to practice law. Such cases nicely illustrate Williston’s point that “while pardon dispenses with punishment, it cannot change character, and where character is a qualification for an office, a pardoned offence as much as an unpardoned offence is evidence of a lack of the necessary qualification” (Williston, 1915, p. 657).

Similarly, while a divine pardon makes us legally innocent before God, free of liability to punishment, it is powerless of itself to effect moral transformation of character. To that end we need regeneration through the Holy Spirit and His sanctifying influence to make us over time into the men and women that God wants us to be. Sanctification is not a forensic transaction but a moral transformation of character and is not therefore wrought by divine pardon alone.

In conclusion, I think that we can see that matters of time and tense are important, and perhaps unexpected, applications in the philosophy of law and theology.^[12]

QUESTION: I was wondering whether there really is such a fundamental difference between forgiving and pardoning. Isn't it in both cases, on both instances, where somebody's rights have been violated, a person forgives or a person pardons, and somebody then in turn relinquishes their rights to restitution? Say you were wrong, you violated my rights, now I have a right to restitution to immediately make up for the injury of my rights. And if I forgive you that just means I relinquish all my rights to restitution. Your debts do not need to be paid, for example. Isn't the case of divine legal pardon a little bit like that? It is just that there are wrongs to society, wrongs to God, and now God in turn has a right to restitution which is the right to  punishment in his case, and in forgiving me he just relinquishes his right to restitution.

DR. CRAIG: I think what you said is correct with regard to civil law. That’s right. The  wronged person need not bring suit for damages or compensation from the defendant. But in the case of a crime, in criminal law, it is not the private person that prosecutes. It's the state which carries it out. So even if you forgive the wrongdoer yourself – as you may need to do to just make emotional distance, say, in a case like sexual assault, you forgive that wrongdoer – nevertheless, even if you do so the state will still prosecute that person to uphold the rule of law. So there's, I think, a clear distinction between these private civil cases and public criminal cases.

QUESTION: But you don't think that the underlying mechanism is the same? In committing a crime, I violated your rights and kind of violated the rights of society or, in the case of God, I might have violated my obligation to him to use the gifts that he gave me. Say, I lied to you and by doing so I not only wronged you, I wronged God. And now I have this dual violation. You could forgive me, but God would have to pardon me for that side of the story. There are two different words but the underlying mechanism is relinquishing restitution.

DR. CRAIG: I don’t want to deny that we do offend God by our sins. It's not simply the other human person that has been wronged. You're right. We have offended against God himself. But in punishing or forgiving, God doesn't just act as a private person. Otherwise, what he could do would be to simply relinquish these feelings of bitterness, anger, and resentment toward us, but nevertheless punish us as would be the demands of justice. He is in this governmental role of carrying out what justice requires. So like the judge who may forgive the wrongdoer on a personal level (maybe the judge has a family member that's brought before his bar, and he forgives him on a personal level) nevertheless, qua judge, he has to administer justice. Similarly, with regard to pardons. Pardons can be issued without forgiveness. Think of my favorite example – Pontius Pilate who pardoned Barabbas but I'm sure had absolutely no feelings personally about compassion or relinquishing of anger or resentment toward him. Pardons are issued for all sorts of reasons that have nothing to do with personal forgiveness. So I think there's a pretty clear distinction here that needs to be kept in mind.

QUESTION: I have a question about the domain of the quantifier when you said that all of the legal implications are removed. This is just a question about the law, but it might, as you said, take tense seriously. So, for example, if I'm convicted but not yet pardoned, you said I could lose my [...] for example, for being [...] or to have the right to vote or something. So there might be cases where the conviction and pardon, in between there was a period where somebody tried to. . . . I mean, voting doesn't work because you would just block the voting and could not [...] vote again, but in some cases you try to do something and then while you're pardoned this act . . . for example try to buy something and it takes time. I don't know. Are there examples of [...] pardon retrospectively . . .?

DR. CRAIG: You're right that there could certainly be this gap of time, and I think during that gap of time a person could suffer certain disqualifications that result from the character and conduct even though there hasn't been a conviction. One example I read about was a surgeon who botched a surgery (medical malpractice) because he was an alcoholic and had his medical license revoked. Now, that can be done by the licensing board on the basis of his alcoholism even before he's convicted of criminal activity. And if he were pardoned they wouldn't restore his medical license. They wouldn't allow an alcoholic to go back into surgery just because he'd been pardoned. So that would be an example of where a disqualification would result from the conduct quite apart from the conviction.

QUESTION: Another case where it's not about the character, where it is really . . . say that the conviction is before and then there's a lapse of time and there's a pardon and in this time between I wanted to use some of the rights which I would have after the pardon or if I was not convicted.

DR. CRAIG: If I understand the question, are you saying, for example, that in between the conduct and the conviction the person continues to do things like vote, serve on a jury, be active on the trading floor, it may well be the case that he's not yet disqualified from those activities because he's not a convicted criminal at that point. So those disqualifications wouldn't kick in if they result from the conviction rather than the conduct alone.

QUESTION: I want to ask about the theological application of the view of time and law. You said that it was very important that the court took very seriously that he was once a thief but now he should not be called a thief. But in the past sense that's okay. Also you quoted Paul when you said we are now a new creation when there is this restoration and this pardon was given. But very often we could say that the sinners continue sinning also after. So if he committed thieving again he could rightly be called a thief again.

DR. CRAIG: Oh, yes, of course if he continues to engage in further criminal activity. Pardons are only retrospective. One of the interesting things about pardons is you cannot pardon someone for a crime he has not yet committed. And that also has interesting theological implications because it means God can't forgive your sins until you exist and have committed them. So you're quite right about that. But this underlines the point I was making. A legal pardon is a purely forensic transaction. You are absolved of legal guilt, but that doesn't make you a virtuous person. You still need the moral sanctification of the Holy Spirit working in your life, conforming you to the kind of person you should become, and that's a long process that is probably never fully completed in this lifetime.

QUESTION: I want to hear your comments on something Prior wrote and worked on in the 1940s. Because this might be relevant. I'm not quite sure. He is considering supralapsarianism and the very hardcore Calvinistic version of predestination. He calls it divine racism. By the fact that it would appear God, having determined that there will be a Fall and having determined the consequences in heaven, determining who he will save and who he will damn, that would appear there are two kinds of races on Earth: one eternally damned and one eternally forgiven. Now you seem to be saying you would have to be born in order to be able to be forgiven later, so that might sound relevant in that context.

DR. CRAIG: It could. This is relevant, I think, to Reformed theologians who want to talk about election. But I found that it was striking that a very prominent Protestant Reformed theologian Francois Turretin, a Swiss theologian in the 1600s, affirms this very view that God cannot forgive a person’s sins until the person exists. So it is not as though your sins are actually forgiven at the cross. That is a historical process of transaction that takes place as people are born, as they sin, as they are effectually called and justified, and so forth, so that some Reformed theologians at least would recognize that even though God may in his omniscience know in advance whom he's going to call and justify, they are not actually justified and forgiven until they come to exist.

QUESTION: I wonder what a defender of the tenseless theory of time will say. Why couldn't he say that at t1 a person was guilty, and at t2 he was not guilty, and that's it. [...] What would your response be?

DR. CRAIG: I think that perhaps you're right that the tenseless time theorist could say something similar to what I've said – that guilt entails liability to punishment, and a person has it at t1 but having gotten a pardon at t2 he no longer has that property at t3. And that does seem to me to be coherent. I guess what struck me was that the courts that did defend this position were clearly tensors like the Cuddington v. Wilkins decision and others. It fits very naturally with a tensed view of time, and historically that's the context out of which it arose. But you're probably right that there's no reason you couldn't rephrase this on a tenseless theory.

QUESTION: I think your analogy of legal pardon [...] I think it was very [...] but I'm not convinced that that means that you can't equate it also to personal forgiveness. You seem to suggest that the main difference is that in personal forgiveness the offendee doesn't have any right to punishment. What if the state decided he did? The only reason you wouldn't have a right to is because the law says, and the whole question of this difference is why should the law have the right to constrain me not. Just because the law says you don't . . .  is there any reason or any grounding for that?

DR. CRAIG: There you get into political theory. What justifies the state in imposing harsh treatment upon its citizens? That is a huge question, and that's not one to which I'm qualified to give an answer. It is recognized, as I say, that in private cases the creditor has no obligation to seek damages, to try to inflict harsh treatment on the defendant. And that's very different from when the state has a prima facie obligation to punish the guilty. The whole idea of retributive theories of justice is that punishment of the guilty is justified because they deserve it. So you would need to have some sort of a theory of the state to explain why the state has this authority. In the case of God, though, I think it's easy to do because God is the surrogate for the state, and he as the moral good and the creator of everything is, I think, moral legislator, executor, and judge, and therefore has the right and responsibility to administer justice.

QUESTION: Say if the offendee did have some sort of right to administer punishment, would you say that you could then equate personal forgiveness with divine forgiveness? There could be a similarity?

DR. CRAIG: Well, that would remove one of the differences. But it wouldn't remove them all because, as I said a moment ago, it is so clear that a person can forgive while at the same time prosecute the demands of justice. Or one can fail to forgive while pardoning. So they just fall apart. They can’t be equated, I think. The feature you focused on, namely, the difference between private and public would be one aspect of the difference between personal forgiveness and legal pardon. Probably one of the main differences is that pardon effects an objective legal change in the person's status, and personal forgiveness just doesn't affect that kind of objective change in the world. It affects a change in my attitude toward the person, but it doesn't do anything to affect that person's legal status.

By the way, if you are unfamiliar with this area and interested in just reading something briefly on it, the Stanford Encyclopedia of Philosophy has a very nice article on forgiveness in it in which it distinguishes between pardon and forgiveness and then goes through some various theories. So this is a nice brief survey of some of the literature.

QUESTION: Just briefly. In Denmark we have an actual case that might be relevant. Soon we are having an election, and after the election we are going to have the Parliament decide whether those who are elected are worthy of being elected. And there might be actually a candidate for whom this might be a relevant question. I'm not going to mention his name but everyone knows him if they are from Denmark because he is on television and everything. And one issue I have been thinking about there is what role does recognition of one's past record play in this? Because it seems like he would say I [...] punishment for something that society believes I did wrong, and I recognize that that is the way it has to function, but he doesn't recognize what he did was actually a crime or wrong.

DR. CRAIG: Right. If the person engaged in actual criminal activity in the past (say, he was a Mafia member or something) then it would be easy to see how he could be disqualified despite his election. But if he were simply, say, a racist which is immoral but not illegal, then it's more difficult to see how such a person could be removed from office, it seems to me.

QUESTION: But it would seem that pardon only functions if you recognize your guilt, not if you are worthy of a crime. And if you haven't been pardoned, you would have been punished, but you also need to recognize that I was worthy of a punishment. "I should have been punished for that."

DR. CRAIG: But some criminals are incorrigible. They never recognize their wrongdoing. So we don’t want to make justice depend upon their recognition and repentance of their wrongdoing.

FOLLOWUP: The Parliament may take that into consideration when they consider whether the person is . . .

DR. CRAIG: You mean whether he admits he's wrong?

FOLLOWUP: Yes. It sounds like that's what's going to happen.

DR. CRAIG: Wow! OK, that sounds fascinating. I know nothing about it.

QUESTION: I think it was delightful to see how legal thinking can throw some light on theological thinking and how theological thinking can throw some light on legal thinking. Of course, for some of us the whole development of the logic of time has this interesting duality. For some it is not of interest, but for some it is. One thing you also pointed out of course was the tense aspect. It seems to me that we come close to a thought that is a little bit like counterfactuals in the past. You stressed at one point you said as if it had not been committed. Maybe if you think about it theologically, God's forgiveness could be a little bit like God decrees that I shall treat this as if another branch had been chosen. I don't know if that thought is . . .

DR. CRAIG: I think the counterfactual nature of the Garland decision is just crucial here. I was surprised to see that Williston and these other detractors didn't seem to catch that. They didn't seem to understand that it was counterfactual. They seem to think that the Garland court was saying that the pardon wiped out the past, and that's absurd to say that the man is now innocent because obviously he had done it. Just before this session someone shared with me the most interesting quotation from Mukashevich where he does entertain the idea that guilt can be expunged from the past by having a forked past, akin to a forked future, and this is what someone else was sharing about with his third model of double-time. So these detractors of the Garland decision seem to be interpreting Garland along the lines of Mukashevich and this double-time which I think they're clearly not.