Transgressions were punished long before the state assumed that task as part of its monopoly on violence.

Gods were arguably the first police, though they were often indifferent and distracted enforcers. Besides smiting sinners directly, divinities also worked in tandem with the customary regulation that kin groups enforced on their members.

Before states began to issue statute as the rulebook for their sub­jects, customary law and social norms formulated guidelines to live by. But above them were the edicts of the gods, binding on all believ­ers. The earliest clan societies, uniting several kin groups, lived in fear of violating the precepts of supernatural entities, which were made known through the intermediation of shamans, witches, sorcerers, and other go-betweens. As societies enlarged, growing more complex, they united multifarious groups among whom less could be taken for granted. Accompanying this growing complexity—whether as cause or effect is hotly debated—religions emerged to enforce codes of conduct, from which morality eventually evolved. This mold­ing of human behavior occurred either at the behest of moralizing high gods, such as the Abrahamic divinity or Allah, or by creeds that dispensed broad supernatural punishment through means such as karma in Buddhism. Policed by omniscient, omnipotent big gods, these complex societies developed cooperative habits that gave them advantages over less-sociable ones.¹

God's role in law enforcement raised issues. Technically speak­ing, divinities had only limited sanctions at their disposal. If the consequences of transgression were overly specified, gods risked being unmasked as shooting blanks. Bad weather, illness, death, and other—in any case—likely events were the most plausible indica­tors of divine wrath, but their import was often hard to fathom.

When the gods intervened directly, they also undermined human justice, and temporal authorities risked being cut out of the loop. A sincere confession, which in the early medieval Latin Church could be given to anyone, not just to priests, might set things right with God, eliminating mortal sanction. Twelfth-century Europeans pon­dered whether if sinners contritely confessed to gain absolution, a subsequent ordeal would exonerate them. A fornicating fisherman from Utrecht, for example, fearing he would be accused at the next synod, confessed to his priest. Having resolved to sin no more, he carried the hot iron without being burned. Repentant offenders, who had settled their affairs with God, were often miraculously saved from the gallows.⁴

The nature of their divinity influenced gods' relation to the law. Though the earliest gods demanded and appreciated tribute, they were often uninterested in making humans toe some moral line.⁵ Polytheistic religions' confused command structure muddled who issued laws on what. Chinese gods could work against human purpose.

Greek gods countermanded each other, making unclear or contra­dictory demands. Gods often paid humankind no mind. Sometimes human prayer could compel them to react.⁶ Other times secondary divinities (such as Prometheus) sided with humans and were pun­ished for it. Pantheists worshipped gods whose influence was local and circumscribed. How did humans then know what divinities expected of them? The hierarchy of gods meant a ranking of edicts, too—some more pressing than others.

Hoping to assert their exclusive connection to the supernatural, religions branded their rivals as mere sorcery. Secular authorities, too, mercilessly persecuted witches and sorcerers, competing claim­ants to power who had failed to assume the aura and trappings of true divinity. In Hammurabi's code (Babylonia, ca. 1750 BCE), the worst crimes were witchcraft and offenses against the administra­tion of justice and religion. The Chinese penal codes hounded sor­cerers.¹⁰ Monotheism accentuated this tendency. Though enlisting miracles to persuade converts, Judaism and Christianity distanced themselves from the welter of competing doctrines that used what they dismissed as mere magic. Two forces reigned supreme, God and Satan, with only secondary room for demons, saints, wonder rabbis, and holy objects. The medieval church persecuted witch­craft and sorcery as pagan delusions, even as it considered that its own miracles proved God's existence.¹¹ Eventually it handed off punishing witchcraft to secular courts—in England, Scotland, and

Germany as of the sixteenth century. Heretics, too, were turned over to the secular powers for execution.¹²

The Jews' covenant with God promised them prosperity so long as they followed it or disaster if they did not.¹³ In Leviticus, God detailed what he would inflict on disobedient Israelites: plague, famine, savage beasts, cannibalism.¹⁴ The Old Testament forbade immorality, blasphemy, murder, usury, witchcraft, theft, seduction, bestiality, assassination, manslaughter, assault, kidnap, slander, bribery, perjury, treason, and riot.

The gods punished directly but also at human behest, as when magistrates at Teos and Sparta invoked curses at offenders.¹⁸ Oedi­pus pronounced a curse against the unknown killer of Laius, but, as it turned out, Oedipus himself was that killer. Roman law distin­guished between ius (profane criminal law) and fas (sacral crimi­nal law), the latter dealt with by the pontifex, the chief high priest. Early Germanic law codes may have distinguished between sacral offenses (violating the peace of gods and people alike by arson, homicide, fornication, and so forth) and profane, less-serious breaches of the peace of the people.¹⁹ In the first century CE, Taci­tus wrote that German priests, standing in for the gods, punished warriors.²0 Sacrifices—including of humans, as among the Egyp­tians, Nordics, Germans, and Incas—revealed how eagerly believers aimed to please their gods.²¹ For Aztec gods, human blood was their nourishment.²² Hopes of propitiating angry gods long remained a motivating force. The country-wide fast ordered in England in 1832 to atone for whatever sins had caused that year's cholera epidemic was only one such national self-flagellation that the British Parlia­ment hoped would catch the Almighty's eye.²³

Besides intervening in this world, gods could threaten punish­ment in the next. Only some religions imagined the afterlife as atone­ment.

Secular lawgivers piggybacked on transcendent sanctions, trad­ing off between this- and other-worldly punishment. The church's power over the next life added muscle to its punishments in the here and now. Wihtred, the eighth-century king of Kent, threatened foreigners who refused Christian marriage with banishment, the

English with excommunication.²⁹ Physical punishment was costly, so invoking supernatural policing relieved hard-pressed secular authorities.

At first, most offenses were sins, contraventions of divine will. Gods were therefore the ones to mete out sanctions. Vengeance is mine, the Lord warns in the Old Testament. Secular crimes scarcely existed independent of divine offense, oversight, and intervention. Sin and crime were separated from each other only gradually, and even today the distinction between law and morality throws up similar problems. Offenses could therefore have both legal and rit­ual consequences. Among the ancient Greeks, accidental killings required purification but no penalties. Involuntary manslaughter meant exile as a means of purification. Deliberate killings, in con­trast, brought down both law and religion on the offender's head.

With the state's emergence as caretaker of secular order, crime was distinguished from sin. Churches pursued sin, states prosecuted crimes. Much sin became defined as crime. The Greeks punished arrogance and extravagance as criminal offenses. In 1650, England changed adultery from a church court offense to a felony without benefit of clergy.³¹ In our own day, adultery has reverted to—at most—mere sinfulness, though technically it remains illegal in many US states. Usury went from sin to crime to big business, with only a faint echo of its disreputable past still audible in laws that set puta­tive upper limits to allowable interest charges.³² In medieval England, infanticide was treated as a sin, and church courts imposed penance.³³ The state later took even the youngest under its wing, though the dire straits faced by mothers who resorted to killing their offspring was often taken into account. A third of women indicted for infan­ticide in seventeenth-century Scotland were banished instead and never brought to full trial.³⁴ But in seventeenth-century Denmark and Norway, giving birth in secret (thus facilitating infanticide) was a capital offense. In Germany, sixteenth-century law reform increased the likelihood that infanticides would die, too. And in France at the same time, infanticides made up a fifth of all those executed by the Parlement of Paris.³⁵ Sin and crime still blended. The concern was not just with the killing as such but also with how it endangered the child's soul by depriving it of baptism.³⁶

As crimes and sins separated out, so too did the respective modes of proof it took to be convicted in the West. Religious and secu­lar parted ways during debates over trial by ordeal in the twelfth and thirteenth centuries. Ordeals called on God to indicate guilt or innocence and thus to intervene directly in human affairs. Com­pared to feuds and other private dispute resolutions, trials by ordeal had two great advantages: they were public decisions taken once and for all, and, in theory, they tapped into a supernatural source of certainty, allowing a definitive outcome.³⁷

Though foreign to Roman law, ordeals existed globally, from Europe to Japan. Archaic Greece knew them, as did Palestine of the Bible.³⁸ The accused swore oaths invoking gods and their own repu­tations as reason to believe their claims to innocence, and they were backed up by compurgators—allies who staked their own reputa­tions on the defendants' behalf.³⁹ Whereas oaths involved God indi­rectly as the ultimate character witness, ordeals (by battle, water, or fire) roped him in directly. Humans obliged God to testify through the ordeal's outcome as to the guilt or innocence of his wretched creations. Ordeals promised certainty, but practical problems still remained. If God determined the outcome of judicial combats, why seek out the best fighter? Why were women more often subject to trial by fire rather than by immersion, where the buoyancy of their adipose tissues compounded the likelihood of a guilty verdict?⁴⁰ How to explain miscarriages of justice, when ordeals gave patently false verdicts?⁴¹

Ordeals were eventually abandoned as people were persuaded to reason on the evidence of their senses to determine guilt, but first they were attacked for religious reasons. Medieval theologians wor­ried over the tension between worldly proof and divine gravitas. Of course, an omnipotent divinity could intervene in human affairs. But why would he want to upend the laws of nature and perform miracles to settle petty disputes—and at human demand?⁴² Ordeals were God intervening into nature, thus miracles, but they were not his free choice. His act had to correspond to an outcome dictated by human will—guilt or innocence. God should not be tempted or tested—that was the theological objection to ordeals.⁴³

Ordeals eventually gave way to physical evidence and the jury. But even as the secular state's concern for religious transgressions ended and the supernatural's role in the judicial process was mar­ginalized, God's calling card remained on the tray in the hall. The intertwining of divine and secular continues even today in the oath.⁴⁴ By swearing, we invoke a higher power while promising cer­tain actions or attesting to the truth of our assertions. That humans thought they could oblige God to help keep them honest is what made oaths suspect to the apostles.⁴⁵ But the judicial system in the Latin West took a more robust Old Testament view of God's willing­ness to backstop mortal truthfulness. In taking an oath, we curse ourselves, calling down supernatural wrath if we lie. In seventeenth­century England, anyone violating the oath taken in a binding-over action risked God's anger.⁴⁶ Today a jail sentence for perjury is at stake, not our immortal souls. But the logic of trembling before a higher power remains.