Critique of

John Warwick Montgomery's

Arguments for the Legal Evidence for Christianity

by Richard Packham


Because I am a retired attorney and an atheist, and because I became involved in an online discussion group involving the evidence for Christianity, I was referred by several Christians to the works of John Warwick Montgomery. Dr. Montgomery's credentials are very impressive, and he has written extensively on Christianity. This is a summary, from one of his books:

John Warwick Montgomery is Professor of Law and Humanities at the University of Luton, England, and Director of its Human Rights Centre. He annually conducts the University's International Seminar in Jurisprudence and Human Rights in Strasbourg, France. Professor Montgomery holds eight earned degrees besides the LL.B.: the A.B. with distinction in Philosophy (Cornell University; Phi Beta Kappa), B.L.S. and M.A. (University of California at Berkeley), B.D. and S.T.M. (Wittenberg University, Springfield, Ohio), M. Phil. in Law (University of Essex, England), Ph.D. (University of Chicago), and the Doctorat d'Université from Strasbourg, France. Before moving to the United Kingdom, he served on the faculty of the University of Chicago and was Chairman of the Department of History at Wilfrid Laurier University, Canada. He is a barrister-at-law of the Middle Temple and Lincoln's Inn, England; member of the California, Virginia, Washington State, and District of Columbia Bars and the Bar of the Supreme Court of the United States. Dr. Montgomery is the author of over one hundred scholarly journal articles and more than forty books in English, French, Spanish and German.

From another book I just recently came across (The Quest of Noah's Ark by Montgomery, describing his expedition to Ararat) I have learned that he was also a professor of Theology in Washington, D.C. and professor and chairman of Church History and Christian Thought at Trinity Evangelical Divinity School in Deerfield, Illinois. He is an ordained Lutheran minister.

I certainly do not claim to have the extensive credentials of Dr. Montgomery. For what they are worth, however, I present mine: B.A. with high honors in German, Spanish, English and Education, M.A. in German, Northwesterm University, three years postgraduate studies in Germanic and Comparative and Historical Linguistics (Ph.D. qualifying exams passed), Johns Hopkins University, Fulbright Scholar in Germanic Linguistics at University of Munich, Doctor of Law with Honors from University of San Francisco, member of the State Bar of California, State Bar of Oregon, admitted to practice before the Federal District Courts of Northern California and Oregon. I speak German and Spanish fluently and have a working knowledge of French, Italian, Dutch, Latin, Greek, Sanskrit, Russian, Gothic, Anglo-Saxon, and Hebrew. I taught foreign languages, law and computer science for 33 years. I practiced law for fifteen years, the last five primarily in trial work and the preparation of appellate briefs, where I was required almost daily to deal with the rules of evidence.

My Christian friend (a former student of Montgomery's) did not refer me to any particular book, and I found no books by Montgomery in my small local public library - even though it has a large collection of Christian apologetic literature - so I selected a title at random from those available at an online bookseller, and borrowed it through interlibrary loan.

The book I got was Evidence For Faith: Deciding the God Question, Probe Books, 1991. Of the many Montgomery titles available, I chose this one to get on interlibrary loan because it appeared to be among the most recent. It turns out that it is not all by Montgomery: it is a collection of essays of which he is the editor, and he contributed only one essay, which appears, however, to be a concise summary of Montgomery's evidentiary argument for Christianity, titled "The Jury Returns: A Juridical Defense of Christianity."

This is a summary of the arguments presented by Montgomery in that book, pages 319-337 (my paraphrasing, except where indicated by quotation marks):

The Christian claims can be tested as to their truth by "the very reasoning employed in the law to determine questions of fact." These facts are "historical facts, open to ordinary investigation," about the man Jesus, his claims, and his resurrection.

Montgomery has presented historical analysis elsewhere, but here he presents arguments based on "legal reasoning and the law of evidence." This has the advantage that "legal rules of evidence are reflections of 'natural reason'."

Four questions must be answered, using legal reasoning:

  1. Are the historical records of Jesus solid enough to be relied on?
  2. Are these records reliable enough to know what he claimed about himself?
  3. Do the resurrection accounts establish Jesus' claims of divinity?
  4. If so, did Jesus (as God) affirm the Bible's truth?

The canonical New Testament writings are the primary foundation for Christian claims. These writings claim to have been written by eyewitnesses or by close associates of eyewitnesses. Their inclusion in the canon demonstrates their apostolic origin, since that was the main criterion for inclusion.

These New Testament writings can be relied upon because:

  1. their texts have been transmitted accurately from the time they were written;
  2. they claim to be primary source documents, and "ring true as such";
  3. their claimed authorship and dates are "backed up by such solid extrinsic testimony as that of the second-century writer Papias, a student of John the Evangelist, who was told by him that the first three Gospels were indeed written by their traditional authors") The "ancient documents" rule can be applied to them, which makes their "competence" such as "would be established in any court of law," according to Simon Greenleaf, "the greatest nineteenth century authority on the law of evidence."

The suggestion that the Gospels were "faked" is disproved because fakes bear tell-tale signs of fakery to later generations.

The "skepticism of the so-called higher critics... stems from an outmoded methodology (almost universally discarded today...), and from ... anti- supernaturalistic bias and bias in favor of religious evolution." Montgomery quotes an authority on Roman law to the effect that historians are willing to write a history of Tiberius Caesar, even though the contemporary documents disagree and are contradictory "in the wildest possible fashion." Thus, one should accept the New Testament.

And the New Testament records (seen now to be sound historical documents) say that Jesus claimed to be God, and testify that he rose from the dead.

"In a court of law, admissible testimony is considered truthful unless impeached or otherwise rendered doubtful."

Montgomery cites a legal work on methods of exposing perjury, based on defects in the witness or the testimony. Montgomery then applies the test to the New Testament records:

  1. Were the "apostolic witnesses" untrustworthy? e.g. pathological liars? No: they were simple, literal and direct.
  2. Were they people unable to distinguish fact from fantasy? No: they said themselves that they were not (citing 2 Peter).
  3. Did they have a motive to falsify (every perjurer has a motive)? Money or social acceptance are ruled out. To please Jesus? No: Jesus taught them not to lie.
  4. Is the testimony inconsistent or self- contradictory? Although not verbatim the same, if they were the same it would point to collusion. The gospels are written from four different perspectives. No gospel was intended to be complete in itself. And duplications probably reflect actual duplicate events (e.g. cleansing of temple). Also, the "unflattering manner [in which] the apostolic company picture themselves in these records" indicates that they are genuine. They have "the ring of truth."
  5. Extra-biblical historical records and archaeology confirm the reliability of New Testament geography, chronology, and general history.

Misrepresentation is rarely successful "when a cross-examiner is at work." A false witness will surely be exposed in his fabrications, the more complicated story he must tell and the more elements involved. The New Testament witnesses "admittedly ... were never put on a literal witness stand," but they preached to many hostile audiences who undoubtedly cross-examined them, and were unable to expose their testimony as false. Their Jewish audiences certainly would have exposed the claims that Jesus "fulfilled dozens of highly specific Old Testament prophecies" had the claims not been true.

Montgomery will not "waste time" on the possibility that the disciples were "suffering from insane delusions" because: 1) the law presumes a man sane; 2) their enemies would have "used this against them."

That the accounts we have are hearsay - and thus would be rejected as evidence by a modern court - can be largely answered by the fact that the enemies of the disciples provided the "functional equivalence... of formal cross-examination." Thus the problem is reduced "to the vanishing point."

Also, the rule against hearsay evidence is a "technical device" now even abandoned in English civil trials where there is now no jury. There are so many exceptions to this rule that the rule has practically disappeared. Besides, the "ancient documents" rule would apply to the New Testament documents to allow them to be "received as competent evidence."

The "underlying principle of the hearsay rule remains vital: that a witness ought to testify 'of his own knowledge or observation,' not on the basis of what has come to him indirectly from others." But the New Testament writers "continually tell us" that they are telling what they themselves have seen (citing 1 John 1:1).

Montgomery cites Simon Greenleaf's plea, to treat the Christian evidence like any other evidence, compare the witnesses, subject them to rigorous cross-examination, and the claims will be demonstrated true.

The claim of the resurrection is "at the heart" of the apostolic claims. "These accounts are all contained in the very New Testament documents whose historical reliability we have already confirmed and are testified to by the same apostolic witnesses whose veracity we have just established."

To disbelieve that testimony then would be only to apply a "dubious metaphysic (resurrections from the dead are cosmically impossible)" which cannot be established. David Hume's assertion that a resurrection has never been observed is a result of circular reasoning.

The "missing body" argument is forceful (citing Frank Morison): 1) if Jesus didn't rise, someone must have stolen the body; 2) the only people involved were the Roman authorities, the Jewish leaders and Jesus disciples; 3) The Romans and Jews would not have taken it, since it would have been against their interests; 4) The disciples would not have taken it and then died for what they knew to be untrue; 5) Ergo, Jesus must have risen from the dead as the New Testament claims.

There is no evidence that the disciples were "psychologically aberrant" (willing to die for a falsehood), but the testimonial evidence that Jesus rose from the dead is "powerful."

Schonfield's Passover Plot is not a satisfactory explanation: 1) it is based on a deception, which would have been contrary to Jesus' own moral teaching; 2) there would still be the problem of what happened to Jesus' body when he really did die.

Although such an explanation may be possible, legal reasoning operates on probabilities. E.g., "A guilty verdict in a criminal matter should be rendered only if the jury cannot find any reasonable explanation of the crime (... in accord with the evidence) other than that the accused did it." Montgomery suggests applying such rigorous thinking to the resurrection evidence.

Are even probabilities sufficient? We have no other choice - nothing is absolute.

How much evidence should one require to establish the claim of a resurrection? Eyewitnesses saw him crucified, which proves he was dead. Eyewitnesses saw him later alive. Resurrection has occurred: res ipsa loquitur.

Although eyewitnesses are sometimes unreliable, "an unimpeached eyewitness's identification of a prior acquaintance" such as the apostle Thomas's, could not be challenged; it is of the highest reliability.

Montgomery then discusses reasons for accepting the resurrection as proof of Jesus' divinity and Jesus' statements stamping the Bible as divine message [not summarized here].


Critique

I have taken considerable space to summarize Montgomery's arguments, and I have tried to state them in an objective manner. I will now proceed to point out what I see as objections. I apologize that this is so long, but almost every statement in Montgomery's article must be objected to, on logical, factual or legal grounds.

I agree wholeheartedly with Montgomery that "The Christian claims can be tested as to their truth by 'the very reasoning employed in the law to determine questions of fact.' These facts are 'historical facts, open to ordinary investigation,' about the man Jesus, his claims, and his resurrection" and that "legal rules of evidence are reflections of 'natural reason.'"

I also agree wholeheartedly that the first question to be answered is "Are the historical records of Jesus [the canonical New Testament writings] solid enough to be relied on [to establish the claims of Christianity]?" If the answer to this question is negative, the other three questions become moot.

Montgomery has considerable problems with documents and what they can prove and what they cannot prove. First of all, he does not distinguish sufficiently between the meaning in the law of a document being "authentic" and the question of whether the content of the document is admissible or probative as evidence. Those two questions are quite different. An "authentic" document is not necessarily believable. The Mormons have a document which is "authentic," written by Joseph Smith with his own hand, accurately dated to about 1832, in which he says he was visited by Jesus, and in which he quotes Jesus' words to him. Now, does this "authentic" document establish (or even tend to establish) in your mind that Jesus actually did visit Smith?

The New Testament writings, however, do not even have that good a claim to authenticity, and Montgomery's claims are by no means established:

"1) their texts have been transmitted accurately..." On the contrary, there are no original texts of any New Testament document, but only copies, which differ among themselves. How can one assert anything with certainty about what the text said when it was written, if later copies differ? Granted, Bible scholars (usually those same "critics" which evangelical Christians love to impugn) have been able to make fairly intelligent guesses about what the original texts probably said, but any doubts about their accuracy make Montgomery's assumption untenable. However, for the sake of getting on with the discussion, let us assume that the New Testament texts have been established to the extent that scholars agree as to what the original words of the texts were.

"2) [New Testament writings] claim to be primary source documents, and 'ring true as such'"

On the contrary, only the epistles can lay any claim to being primary source documents. However, even the epistles are not primary source documents for the miraculous events that Christian claims are based on. Montgomery seems not to understand what a "primary source document" is, either in a historical or a legal sense. A "primary source document" is a contemporary record made by someone with direct knowledge of the fact written. It may be a letter, a diary, a business or government record. For example, if we had Peter's original diary, containing the entry "This evening we were all seated at supper, and Jesus walked in! We all thought he was dead! We were stunned! ..." then that would be a primary source document tending to support a post-crucifixion appearance. But we do not have such documents. Note that later recollections, or reports of the recollections of others, are not "primary source documents," and that is the most that can be claimed for the gospels or the Book of Acts.

Letters are "primary source documents" only as to those matters which they report that are contemporary events and within the direct knowledge of the writer. Paul's accounts of arriving in a certain town, of meeting so-and-so that day, of losing his coat (2 Timothy 4:13) are all primary sources, but any statement in a letter which is not contemporary or not the writer's own direct knowledge (such as Paul's mentioning of the appearance to the five hundred) cannot be considered primary source material.

The "ring true" test, being extremely subjective, is not evidentiary because it is not objective. Nor is it even a valid subjective test: I have hundreds of historical novels in my library, fictionalized accounts of historical events, and all of them "ring true." However, they are to a large extent fiction, the product of the author's imagination. The people, the conversations, the details of the events - all are fiction. And yet, they certainly "ring true."

"3) their claimed authorship and dates are 'backed up by such solid extrinsic testimony as that of the second-century writer Papias, a student of John the Evangelist, who was told by him that the first three Gospels were indeed written by their traditional authors'..."

Montgomery overstates his case extremely here. If he were being completely honest, he would say that the claimed authorship of the the gospels and of quite a few of the epistles are still the subject of debate among Bible scholars. Why doesn't he admit this? In fact, the authorship of 2 Peter is generally acknowledged to be an anonymous writer of the second century, and not Simon Peter the Apostle. To put it bluntly, it is a forgery. The author of the Epistle to the Hebrews has long been acknowledged not to be Paul, as many pious Christians assume, but someone whose identity is completely unknown.

The testimony of Papias is the earliest authority for the authorship of the Apostles, but it is scarcely "solid." We do not even have Papias' direct testimony, since his writings are lost. Our information about Papias' testimony comes only by way of Eusebius, who wrote in the fourth century, and who portrays Papias as being somewhat gullible. The "John" of whom Papias was a student was more likely John Presbyter than John the Evangelist (or John the Apostle, if they can be proven identical). In short, the "solid" evidence is not as solid as Montgomery would like us to believe.

Montgomery continues: "...The 'ancient documents' rule can be applied to them, which makes their 'competence' such as 'would be established in any court of law,'" according to Simon Greenleaf, "the greatest nineteenth century authority on the law of evidence."

Here is one of the grossest misrepresentations in the entire article, and Montgomery repeats it later. The "ancient documents" rule in English (and American) Common Law developed in order to allow a document, under certain circumstances, to be introduced into evidence without requiring that a witness testify to its authenticity. Ordinarily, documents which a party wishes to introduce into evidence must be proven to be "authentic" before they can be placed before the court. This requires (usually very brief) testimony from some witness who is knowledgeable about the document. The bookkeeper is asked, for example: "Is this document a page from your company ledger?" "Yes." "Is that ledger maintained in the ordinary course of business?" "Yes." "Were these entries made at the time of the transactions they purport to record?" "Yes." The document has thus been "authenticated" and can be used as evidence.

All authorities on the rules of evidence emphasize that authenticating a document does not guarantee the truthfulness or accuracy of its contents. Authentication merely shows where the document came from and when it was created.

The "ancient documents rule" developed to deal with the problem arising when documents contained useful information, but there was no longer any witness around to authenticate them, because the documents were old. The rule under common law is discussed at length in 29 American Jurisprudence 2d, "Evidence," section 1201, where the requirements are listed in order for a party to present an otherwise unauthenticated document under the "ancient documents" rule: the document must 1) be over 30 years old; 2) be produced from proper custody (i.e., the chain of custody must be shown); 3) its authenticity must be corroborated by the circumstances; 4) copies of the document may be admissible if properly authenticated, but then the proof that the writer signed the original must be made.

The great modern encyclopedic authority on the law of evidence, Wigmore on Evidence, (cited hereafter as "Wigmore," and available in any county law library) gives the same requirements, section 2137ff. The New Testament writings satisfy only the first requirement: they are over 30 years old. On all other requirements they fail completely.

I question even whether the gospels even qualify as "documents" as the term is used in this rule. A document is a physical thing, a writing usually on paper, usually in someone's handwriting, but perhaps produced by printing. It is the document itself, not its content, which must pass the ancient documents test. What "documents" would the Christians present to the court as evidence? The documents to which this rule would apply would have to be the actual original manuscripts of the evangelists, which, of course, no longer exist. Shall we accept copies? Then we must insist, as stated above, that evidence prove that the writer signed the original, which cannot be proven. But, in fact, we do not have copies. We have only copies of copies of copies that have gone through no one knows how many hands. And we do not know whose hands. Thus, one of the primary requirements of the ancient documents rule is not fulfilled: we cannot establish the gospels' "provenance."

The fact that they are copies of copies makes them inadmissible, as discussed at Wigmore, section 2143, where the general conclusion is reached that "..[copies] must fail [both] the custody and appearance test," citing as only one example the case of Carter vs. Wood 103 Va 68, 48 SE 553 (1904), where a copy of a deed was not admitted to evidence where it was not shown that the person making the copy had adequately tested the genuineness of the original.

The "appearance" test requires that the document must show no suspicious signs of tampering or alteration (Wigmore, section 2140). Mere "age will not sanctify earmarks of fraud," citing Hill vs. Nisbet 58 Ga 586, 589. The copies we have definitely do not appear to be free of tampering. On the contrary, they show multiple evidences of tampering, altering, deleting, inserting. It does not matter, in applying the "free of tampering" test that the tampering does not affect the fundamental import. If it appears that the document has been tampered with, the document does not pass the test.

Furthermore, as 29 Am Jur 2d says (section 1202), the "ancient documents" rule is a rule of authentication only, not a rule for admissibility. Its purpose is only to dispense with authentication by a witness. Wigmore in section 2145a says that the "ancient documents rule"..

"... deals only with the authentication of the document. Whether the contents are material, or whether any statements of assertion contained in them are admissible for any purpose, should depend on different principles." [emphasis added]

Wigmore emphasizes (section 12) that "Admissibility falls short of proof or demonstration."

You will note that Montgomery does not make this distinction, but leaves the impression with the lay reader that if the document is "authenticated" and "admissible," it is to be believed. That, in my opinion, is a dishonest distortion.

Montgomery's next statement, about how fakery may not be obvious to the contemporaries of the faker, but will become obvious to later generations, is entirely true, and amply shown by modern scholars' discoveries about the tampering, forgery, and pious embellishment of the New Testament documents. (See, for example, John Shelby Spong (Episcopal Bishop of Newark), Rescuing the Bible from Fundamentalism: A Bishop Rethinks the Meaning of Scripture, Harper, San Francisco, 1991, and Randel Helms, Gospel Fictions, Prometheus Books, Amherst, 1988, for just two of many such discussions.

When Montgomery implies that the "outmoded methodology" of the higher critics is "almost universally discarded today," one must wonder what publications in textual criticism and Bible studies Montgomery has been reading. He would have us believe, it appears, that the world of Bible scholarship has now almost uniformly rejected the results of the last 150 years of research by the "so-called higher critics." That is scarcely the case, as proven by the general acceptance of the general conclusions of higher criticism in reference works and scholarly journals. If anything, the higher critics have pretty much conquered the field except for the most conservative evangelical seminaries.

Montgomery now proceeds as though he had demonstrated that the New Testament records are "sound historical documents." This "historical authenticity" argument is based on a great fallacy. It is a favorite argument of Christian apologists. The logic goes like this:

- The gospels make many statements of fact that are confirmed as historically and geographically accurate by other sources (dates of reigns of rulers, locations of towns, details of cultural events, etc.)

- Therefore other statements of alleged fact are likely to be accurate (Jesus was resurrected, Mary was a virgin, Jesus ascended into heaven, etc.)

First, there is no rule of evidence which says that we must accept uncorroborated evidence because it comes from the same source as other evidence which has been corroborated.

There is a well-known rule of evidence which states the reverse principle, which is the maxim "falsus in uno, falsus in omnibus", meaning "false in one thing, false in all." That is, if a witness is shown to be false (wrong, mistaken, incorrect, lying) in one matter, then that witness' entire testimony may be considered suspect. And that is precisely what we have in the New Testament writings.

(The harshness of this rule as formerly interpreted - namely, that such a witness' entire testimony must be disregarded - has been softened in most jurisdictions, and leaves it to the jury as to the extent the remainder of the testimony should be suspect. But the jury is free to disregard it entirely.)

Regardless of such suspicions, are we required to accept a witness' testimony at face value? We may accept it, but only if there is no reason to reject it. In the case of the uncorroborated events such as the resurrection, the virgin birth, and the ascension, there are excellent reasons to reject it. I will quote from Summary of American Law, "Evidence: 11:5. Weight and Sufficiency of Evidence" p 289:

"The testimony of a disinterested witness which is in no way discredited, or contradicted by other evidence, to a fact within his knowldege, which is not in itself improbable or in conflict with other evidence, must usually be accepted by the jury and may not be arbitrarily disregarded or rejected. It does not necessarily follow, however, that a verdict or finding must be made in favor of the party introducing such evidence, where the issue remains in dispute or doubt. Although the testimony of a disinterested witness is not directly contradicted by other witnesses, if there are circumstances which controvert it or explain it away, or if the testimony is clouded with uncertainty or improbability, or if it otherwise appears to be unworthy of belief, the trier of fact is not bound to accept it. Where testimony is on its face incredible, contrary to physical facts, settled scientific principles, or the laws of nature, or if it is opposed to common knowledge or to judicial notice, it may properly be disregarded..." [emphasis added]

In the article "Witnesses," section 1037, of 81 American Jurisprudence 2d (a standard encyclopedia of American law, often cited by the courts, hereafter cited as Am Jur 2d) the rule is summarized as follows:
"Where an unimpeached witness testified distinctly and positively to a fact, and is uncontradicted, his testimony should be credited... But there may be such a degree of improbability in the statements themselves as to deprive them of credit, however positively made..." [emphasis added], citing Keene vs. Behan 40 Wash 505, 82 P 884 (1905), and referring to many other cases in the Century Digests "Evidence" section 2438.

The Keene case further commented (82 P at 887):

"[The witness] may be contradicted by circumstances as well as by statements of others contrary to his own. In such cases courts and juries are not bound to refrain from exercising their judgment, and to blindly adopt the statements of the witness, for the simple reason that no other witness has denied them, and that the character of the witness is not impeached."

Another standard work on the rules of evidence in the law is Jones On Evidence, where, at section 26.1, the rule is stated:

"It is permissible to contradict the witness by ... show[ing].. that he was not in a condition to know and remember the facts, that he had not an opportunity to acquire knowledge, or that his statement is improbable or impossible"

Among possible reasons for not believing the testimony of a witness are listed "manifestations of mental derangement, such as hysteria, delusions, hallucinations,... not readily observable to non-experts" [emphasis added].

Those statements of the rule pretty well remove the miraculous New Testament claims from consideration by any court. Actually, Montgomery gave an abbreviated statement of the above rule when he said:

"In a court of law, admissible testimony is considered truthful unless impeached or otherwise rendered doubtful."

He neglected to give us an explanation of "doubtful," because it includes being improbable, unworthy of belief, incredible, contrary to physical facts or the laws of nature, all of which apply to the New Testament statements on which Christianity is based.

Montgomery then discusses perjury and how to expose it. This discussion contains a number of logical fallacies.

He asks first: "1) Were the apostolic witnesses untrustworthy?..." That is precisely the question, but Montgomery gives us only one possible version of "untrustworthy": "...e.g. pathological liars?" There are a great many ways of being untrustworthy besides being a pathological liar. This is the fallacy of the "false dilemma." But even Montgomery's answer here is meaningless: "No, they were simple, literal, and direct." Can Montgomery really be stating here a belief that a liar cannot be "simple, literal, and direct"? Joseph Smith comes to mind - Smith was certainly also "simple, literal, and direct"! Would Montgomery accept Smith's testimony about his miraculous experiences? I doubt it.

Montgomery then asks: "2) Were they people unable to distinguish fact from fantasy?" That is also an excellent question, but Montgomery's answer is really laughable: he calls upon those who are suspected of being subject to fantasy to tell us whether they are subject to fantasy! What an excellent example of begging the question! Shall we ask Joseph Smith (or any other non-Christian visionary) if he merely imagined his visions? What would he answer, of course? Folks, we do not have here an example of clear thinking.

But then, to make it even more astonishing, Montgomery cites only one New Testament author, whom he wishes us to take, I suppose, as a spokesman for all the New Testament writers, the author of 2 Peter, the very work which is most likely a forgery. So, we have the word of a probable forger that he is not imagining things.

Montgomery then rules out a motive for perjury: the writers did not want money or social status, or to please Jesus. Montgomery might profit from a study of modern psychiatry and pathological psychology, where he would perhaps learn that the motives for telling an untruth can be much more complicated that those three possibilities that he rules out. That is, we have here another example of the fallacious "false dilemma" (actually, here a "trilemma," equally fallacious).

The fourth test by which perjury can be detected is inconsistency or self-contradiction in the testimony. Montgomery adds nothing new to the traditional apologetic defence of the gospel contradictions: 1) agreement would point to collusion; 2) each writer had a different perspective; 3) no gospel was intended to be complete; 4) duplicate narratives probably represent actual duplicate events.

None of these arguments are based on any rule of evidence, but are rather intended to avoid the very valid rule of evidence that testimony which is inconsistent with other evidence, or contradictory, or self-contradictory, may be disregarded as unreliable. In fact, this very rule of evidence is affirmed in the New Testament: "For many bare false witness against him, but their witness agreed not together." (Mark 14:56, 59) It is unfortunate for the Christian apologist that his best testimonies are contradictory, and that these are the best explanations he can come up with. Let us lay them to rest:

First, "verbatim agreement would point to collusion": There are two objections to accepting this as a valid excuse for the contradictions. First, at many places, the gospels do agree, word-for-word. This is taken (justifiably) by most scholars to indicate that the later writer simply copied or adapted from the earlier writer. Thus, both Matthew and Luke used Mark as a source. They apparently had another source (the so-called "Q") which they both copied.

Second, no trial attorney would argue ipso facto that witnesses who tell a consistent story are in collusion. Collusion in witnesses can be uncovered by excluding each from hearing the testimony of the others, and then asking each for more and more detail. Montgomery says something similar when he discussed the difficulties of being a successful liar. If the colluding witnesses had not anticipated and agreed on the details now being asked about, each witness will invent something. His invention will make sense, sound plausible, so long as it stands alone. But when another witness is called upon to provide detail on the same topic, his invention will differ from the other witnesses, even though, by itself, it is plausible. And this is precisely what we see in the gospel narratives!

The "different points of view" argument sounds nice in the abstract, but collapses in absurdity when applied to specific details. Was Mark's "point of view" so different that it does not matter to him that Jesus was born of a virgin, or that Jesus' career fulfilled so many prophecies, as Matthew takes such pains to point out? Is Mark's point of view (supposedly Roman, supposedly Petrine) such that if we asked him why he does not mention the "upon this rock (Peter)" speech, he would say that he didn't think it would make sense to include it? How does John's "point of view" require Mary NOT to look into the tomb, but Luke's "point of view" makes sense only when she is reported as the first to enter it? If we could ask John, Luke and Mark why they did not report the emptying of the graves in Matthew 27:52-53, would those authors (whoever they actually were) reply, "Oh, we were writing from a different point of view, and we didn't think that event was to the point"? Hundreds of other examples could be given to show the absurdity of the "different point of view" excuse. Furthermore, the "different points of view" argument cannot possibly account for the outright contradictions.

To contend, as Montgomery does, that "no gospel was intended to be complete in itself" is objectionable on several counts: 1) how does Montgomery claim to know this? On the contrary, if we did not have the other gospels, any one gospel would appear to tell a complete story. 2) It would be absurd to think that, if we had been able to ask Mark immediately after he published his gospel, "Mark, is this the whole story?" he would have answered, "Oh, no! You're going to have to wait until the other three finish theirs... mine is just a part of a work in progress. It'll be another forty years or so until the complete story can be known."

In fact, the omissions of important material from each of the gospels which one or more of the other evangelists felt important to include points to another reason from the rules of evidence to discredit their stories. Wigmore says, section 1042:

"A failure to assert a fact, when it would have been natural to assert it, amounts in effect to an assertion of the non-existence of the fact. This is conceded as a general principle of evidence...[it is] 'prima facie' an inconsistency"

Do we really have to remind the Evangelists that, as witnesses, they are obligated to tell "the truth, the whole truth..."? This, too, is a biblical principle: "If a person sins because he does not speak up when he hears a public charge to testify regarding something he had seen or learned about, he will be held responsible." (Lev 5:1, NIV translation)

Thus, John's omission of any mention of the ascension is, legally, the equivalent of his statement that, so far as he is concerned, no ascension took place. Mark's statement that one young man was inside the tomb is the legal equivalent of saying that it was not two (as Luke and John say) and that no angel was involved (as Matthew and John say). And so on. Material omissions are just as fatal to the conflicting "testimony" of the gospels as are the outright contradictions.

In every instance where the Gospels contradict each other (and there are many; for a partial listing click here), at least one of the accounts must be wrong, mistaken, false. Or, equally possible, all of them.

What, then, is the explanation? It is really quite simple, and very ordinary. Each gospel author had assumed the task of telling about the events of Jesus' life, many years after the actual events. His sources were tales circulating among the faithful, snippets of teachings, aphorisms, parables, and the fundamental belief that Jesus was the Messiah as promised, that he had forecast the coming of the Kingdom of God, but that he had been executed by the authorities. Some of those who remained faithful were convinced that he had risen from the dead and would shortly return in glory. Now, the task is to fill in the details, to tell a convincing story. Is it any surprise that four imaginative and faithful writers would be able to come up with an impressive life story? Except that their details contradict each other, which shows that the gospels are fictionalized legends, and not based on personal knowledge.

Montgomery rightly says that a false witness is rarely successful "when a cross-examiner is at work." He then suggests that even though we cannot personally cross-examine the New Testament writers, they were undoubtedly cross-examined by Jewish audiences, who would have "exposed" them if they had been able; and we should accept this "functional equivalence" of cross-examination. We have now left the realm of legal evidence and are in the never-never land of apologetics, folks. I challenge Dr. Montgomery to cite a single reported case where a judge allowed the testimony of an absent witness to be admitted as evidence, where the testimony was "inherently incredible, contrary to natural law," on the basis of an assertion, without any written record, that other lay persons, outside of the courtroom, had provided the "functional equivalent" of cross-examination.

First, we have no record of any such cross-examination, of who the cross-examiners were, of the challenges made, of the questions asked, of what the disciples' answers were. The record is absolutely empty. It is the purest speculation that anything like a juridical cross-examination of these disciples or witnesses ever took place. In effect, Montgomery is telling the court: "My witnesses have already been cross-examined outside of court, your Honor, and here is a statement from my witnesses' friends, assuring you that their testimony could not be shaken." That is an absurd legal position.

Second, even if we were to grant the possibility that such cross-examination took place, and to accept it as the "functional equivalent" of a real juridical cross-examination, then Montgomery must accept the obvious result: the disciples were not believed by the Jews who conducted the alleged cross-examination. The Jews rejected their claims almost en masse. This admission is almost a bulwark of later Christian theology: the Jews rejected Jesus. Why? The Christians explain the rejection by saying that the Jews were hard-necked or proud or wicked. I suggest that it's because they had the opportunity to examine the evidence almost first-hand and to cross-examine the witnesses, and saw through the whole thing. Christianity never conquered Judaism in Jerusalem where these miraculous events allegedly occurred, but only in more distant lands, where Gentiles had no such opportunity to cross-examine those alleged eye-witnesses.

Either way, Christianity's claims do not pass the test of cross-examination.

The suggestion that the disciples were suffering from some delusions - which is a fairly reasonable explanation - is not worth Dr. Montgomery's time to discuss, he says, because 1) the law presumes a man sane; and 2) their enemies would have used this against them.

The law indeed presumes a man sane. But if your neighbor insists that he sees visions, that he has seen a dead man come to life, then that presumption quickly disappears, and the man can be committed. If any of the apostles were alive today, I have no doubt that any court in the country would commit them to an institution.

As to the second point, Dr. Montgomery is presuming something that he has no basis in fact for presuming: how does he know that their enemies did not use this against them? He is making a wild supposition. Or, if he insists, this would be another reason why the Jews rejected their wild stories: they were obviously insane. Either way, it is not evidence for the truth of Christianity.

In fact, the argument which Montgomery wishes to brush aside so quickly is the one which would give him a good deal of trouble. The world through all ages has had simple-minded people who suffer from religious delusions. How are Jesus' followers any different?

Hearsay evidence is matter which is reported as someone else's knowledge, not the direct knowledge of the person we are listening to. If Bill says in court, "I saw XYZ happen," that is direct eyewitness testimony. If Hank says, "Bill saw XYZ happen," that is hearsay, and not admissible in court as evidence.

And all of the New Testament reports of Jesus' resurrection (except for Paul's own account of his vision) are legally objectionable as hearsay. The gospels are entirely hearsay. Acts is all hearsay. It does not matter who Mark's source was (Peter?), we are not getting it from the source. At best, it is second-hand hearsay. Montgomery is again overstating his case when he says that the New Testament writers "continually tell us" that they are telling what they themselves have seen. He cites only 1 John 1:1, but that is hardly "continually." There is not a single passage in the gospels or in Acts where the writer testifies that he is reporting what he himself has seen. And even if they had been so bold, we are not obligated to believe even an eyewitness whose testimony is improbable or contrary to natural law (see above).

Because this objection (inadmissible hearsay) would effectively rule out much of the crucial New Testament material on which Christianity depends, Montgomery is forced to downplay the importance of the hearsay rule. We have already discussed the lack of cross-examination opportunity, which is the primary reason for rejecting hearsay testimony in a courtroom. Montgomery downplays its importance by saying that it is a "technical device," now abandoned in English civil trials, and subject to many exceptions. All that is certainly true, but it leaves the wrong impression on the lay reader. Yes, it is extremely technical, but it is applied hundreds of times a day in courts. No lawyer would attempt to introduce hearsay evidence in a trial. Even in English civil trials, it is expected that the judge (who is specially trained to recognize hearsay) will not give it more than minimal weight. Certainly no case in any court will be based entirely on hearsay testimony, as the Christian case is.

It is often said among students of evidence, as Montgomery suggests, that there are so many exceptions to the hearsay rule that there is not much of the rule left. This is also misleading. The fundamental rule is still there to catch the unwary lawyer who thinks it has disappeared. The "ancient documents" exception was discussed above; it is not applicable to New Testament documents, and Montgomery should know that.

Montgomery suggests that to disbelieve the testimonies of the resurrection would be to apply a "dubious metaphysic (resurrections from the dead are cosmically impossible)." On the contrary, Montgomery is here unfairly putting skeptics into a more extreme position than most skeptics (such as I, for one) take. I would have no difficulty accepting as fact any number of very improbable events, if the weight of the evidence were consonant with the inherent improbability of the event claimed. See my article on this subject, "The Man With No Heart". I venture to suggest that Montgomery himself displays a similar skepticism concerning myths and miraculous reports of religions other than his own brand of Christianity, such as the heavenly manifestations witnessed by many at the dedication of the Mormon temple in Kirtland in 1836, or the manifestations at Fatima in 1917, or any number of other such miraculous events recorded in the religious literatures of the non-Christian world. It is not prejudice at all, but simple, healthy skepticism.

The "missing body" argument which Montgomery cites is another fallacy-riddled argument:

"1) if Jesus didn't rise, someone must have stolen the body." This assumes that he was dead, to start with, which is not proven. There is not much doubt that he was crucified, but not everyone who was crucified died from it (Josephus relates such an incident), and the very short time on the cross, and the whisking away of the body with special permission from Pilate must arouse some suspicion.

The argument also assumes that the statements in the gospels that there was an empty tomb are completely reliable. Why are we forced to accept their accuracy on this point, when they are so unreliable on so many others? Why can we not assume that the story of the empty tomb (which we do not hear of until forty years later, in Mark) was made up to justify the otherwise inexplicable belief that Jesus was not really dead? That is, instead of this order of facts:

1. Jesus dies and is buried
2. Empty tomb is discovered
3. Disciples realize that Jesus is not dead
the more likely order was:
1. Jesus dies and is buried
2. Disciples refuse to accept that fact (he had promised to establish the Kingdom of God)
3. Therefore, disciples believe Jesus must be alive
4. Therefore, the tomb must have been empty

Remember that for Paul the empty tomb was not important enough even to mention, probably because that story had not yet begun to circulate.

Morison's fourth point is also fallacious: "4) the disciples would not have taken [the body] and then died for what they knew to be untrue." This argument neglects several other possible alternatives. All of the disciples would not have had to be in on the plot to steal the body: only a few (or not even the inner circle, but only Joseph of Arimethea, Nicodemus). Nor are we certain how most of the disciples ended. Tradition has them, of course, all as martyrs for the faith, but tradition is very unreliable, and legends are easily invented to serve a propaganda program. It is also not out of the question that some disciples spirited the body away in the firm belief that Jesus would later come back to life, and then assumed that, of course, he did, or lost the faith. One must not forget the power of belief to dull and deaden one's common sense.

Montgomery's dismissal of Schonfield's theory in The Passover Plot as contrary to Jesus' moral teaching is extremely weak, based on a Sunday-school image of the gentle savior. Jesus had no hesitation in urging his followers to abandon ordinary morality (love of family, devotion to parents, obedience to Mosaic Law) when it furthered his cause. Would Montgomery allow the Mormons to make the same defence of Joseph Smith, who also preached fervently in favor of "truth"?

And Montgomery's argument that such a theory would still have the problem of what happened to the body is laughable: what happened to Mary's body? to Lazarus' body? Why couldn't Jesus, as a condemned, escaped felon, simply have gone underground or left the country, to die later and be buried in an unmarked grave like millions of others? There is no problem about the body!

One of the few legal statements by Montgomery with which I agree is that legal reasoning demands probabilities, not possibilities. He uses the example of a criminal charge, where a guilty verdict should be rendered only if the jury cannot find any reasonable explanation of the crime other than that the accused did it. Let us follow Greenleaf's plea (as endorsed by Montgomery) and apply the same reasoning to the claim that we should accept the alleged facts of Christianity as a basis for our world-view and a guide for our daily lives: we should accept them only if we "cannot find any reasonable explanation of the [New Testament documents] than that [Jesus rose from the dead and ascended into heaven]."

The evidence for the supposed events on which Christianity bases its truth is not, then, direct evidence, but only indirect (circumstantial) evidence. There is nothing wrong with circumstantial evidence. However, since such evidence is based on drawing valid inferences from other, direct facts which have been proven, the inferences drawn must be examined carefully. Jones On Evidence, section 29:6 states the rule as follows:

"Circumstantial evidence is sufficient... if the finding is reasonably probable (not merely possible) and more probable than any other alternative... the inference sought from circumstantial evidence must outweigh all contrary inferences so as to amount to a proponderance of all inferences that might be drawn from the same circumstances." [emphasis added]

The direct evidence (existence and content of the New Testament writings and whatever undisputed facts which can be drawn from them, e.g. general facts about Jesus' ministry, beliefs of his followers) can be used to infer other facts, which are circumstantial evidence only (Jesus rose from the dead, Jesus' body was stolen by someone unknown, Jesus' followers saw his pierced side on his resurrected body, Jesus' followers gullibly believed reports of his resurrection, the evangelists slanted their reports to make them more effective propaganda at the expense of historical accuracy, etc...). It is these inferences which must satisfy the test of comparable probability. For instance, is it more probable to believe that an executed criminal came back to life, or that his followers convinced themselves that such an event took place? Which is the more probable explanation?

That is the fundamental problem with the Christian "evidence": it is not legally acceptable evidence, and there are ample reasonable explanations to explain the documents of the New Testament other than the incarnation of the Creator and his resurrection.

"Legal Reasoning and Christian Apologetics"

After I had shared the above critique of Montgomery's "The Jury Returns" article, my Christian friend responded to my critique by saying that I was unfairly criticizing Montgomery on the basis of one short article, and to be fair I should look at some of his other works, and he suggested specifically the book The Law Above The Law, Dimension Books, Minneapolis, 1975. I got the impression from him that this was a fuller explanation of Montgomery's arguments as to how legal principles of evidence would support the Christian claims. So I again used the interlibrary loan service, and obtained a copy.

It is a relatively small book, consisting of three essays by Montgomery and a reprinting of Simon Greenleaf's "Testimony of the Evangelists." Montgomery's essays are "The Case For Higher Law" (41 pages), "Witch Trial Theory and Practice" (26 pages), and "Legal Reasoning and Christian Apologetics" (7 pages). The reprint of the Greenleaf article is 50 pages long.

The only one of Montgomery's essays that is pertinent to the legal evidence for Christianity is the 7-page article, and is thus even more abbreviated than "The Jury Returns." My criticism of this article is the same as my criticism of the "Jury" article: Montgomery grossly misstates or misapplies the fundamental principles of legal evidence.

In this article he correctly praises "legal science, as an outgrowth of meticulous criteria for distinguishing factual truth from error." He then lists and briefly summarizes four primary principles of the law of evidence: 1) the ancient documents rule; 2) the parol evidence rule; 3) the hearsay rule; and 4) the cross-examination principle.

He states the ancient documents rule as: "ancient documents will be received as competent evidence if they are 'fair on their face' (i.e., offer no internal evidence of tampering) and have been maintained in 'reasonable custody' (i.e. their preservation has been consistent with their content)." He then says, in one sentence, without explanation, that "this rule would establish their [the Gospel records] competency in any court of law."

What Montgomery does not tell you is what "competency" means, and what the purpose of the ancient documents rule is. A layman might assume that "competency" means "truth" or "accuracy" or "trustworthiness" or "credibility." It means none of these things.

As I pointed out in the previous critique, the original purpose of the ancient documents rule was to avoid a problem which frequently arose when introducing documents as evidence in a trial. A document cannot simply be introduced as evidence. Since I already discussed above Montgomery's distortion of this rule, and since he uses the same distortion in this article, I will not repeat those arguments here.

The parol evidence rule says (as stated by Montgomery) that "external evidence, oral testimony, or tradition will not be received in evidence to add to, subtract from, vary, or contradict an executed written instrument such as a will." As far as it goes, that is a correct (but incomplete) statement of the rule. Montgomery then applies it to the biblical documents, which he claims are "executed," and thus cannot be "twisted," that the Bible must be allowed to "interpret itself."

Here's what Montgomery does not tell you. The parol evidence rule applies only to contracts, wills, and certain negotiable instruments. None of the biblical documents are of the type to which this rule would apply.

Wigmore emphasizes at the beginning of the discussion of the parol evidence rule (section 2401) that it "concerns the formation and constitution of jural acts." [emphasis added] A "jural act" is an act, almost always a written document, which is intended to have some legal effect, such as a contract, a will, a promissory note, and thus to be enforceable by the courts if necessary. Historical documents, diaries, ordinary letters, biographies, essays (that is, the kinds of writings in the New Testament) are not "jural acts," and thus not subject to the parol evidence rule.

Nor are any of the biblical documents "executed" (that is, signed by the author). Montgomery cites as evidence that the they "expressly claim to be 'executed' and complete" Revelation 22:18-19. Really, one must object: that passage at best applies only to Revelation, not to the entire Bible (which did not exist as a unit when those words were written); and it does not contain anything that could qualify as a signature (since we do not even have the original document).

Even if it were appropriate to apply the parol evidence rule to the biblical documents, the rule also contains many exceptions which would allow us to bring in precisely the kind of damning evidence which Montgomery would not like to have introduced. For instance, external evidence is allowed if the document is ambiguous or unclear. It is also allowed for the purpose of showing mistake, fraud, customary usage, or to supply essential information that was omitted. Another important exception is that external evidence is admissible to show that the document is not what it purports to be. All of these would be applicable to the biblical documents, thus allowing the negative external evidence.

Montgomery then cites the hearsay rule: "a witness must testify 'of his own knowledge,' not on the basis of what has come to him indirectly from others." That is, indeed, a correct statement of this important rule. But in applying it to the New Testament, Montgomery relies only on the "constant asseverations" that the authors are telling only what they themselves have heard and seen, citing 1 John 1:1.

Yes, the author of 1 John says that. But what he testifies to in that document is quite vague and general, and he does not state in detail the kind of information we would need from an eyewitness. The author of 1 Peter says that he has seen the "sufferings" of Jesus, but does not mention any resurrection that he has seen, or any details. The author of 2 Peter claims to have seen the transfiguration. Paul testifies to his own vision (which is similar to Joseph Smith's), but it is obviously some surreal event that only he could experience, since those with him did not see or hear the same thing. Those are the sum total of the "constant asseverations." There are no others. When we then consider that the actual identity of the authors of some of these documents is not certain, we are justified in regarding their testimony as of practically no weight in establishing the specific facts of the resurrection.

The authors of the Gospels conspicuously do not state that they are testifying of their own knowledge. They write long after the events, and not as direct observers. In other words, hearsay.

The problem which the hearsay rule has for Christianity has been discussed at length above.

But ultimately, if Christians insist that these rules be relaxed - on some justification or other - when evaluating Christianity's claims, then we must relax them when evaluating similar claims of every other miracle-based religion: Islam, Mormonism, Baha'i, Sikhism, Hinduism. Are Christians willing to do that? Mormonism, for example, has eye-witnesses galore, self-authenticating documents, miraculous events, and well-recorded cross-examination. Would Montgomery be willing to allow Mormons the same legal latitude in proving their religion?

This discussion of the legal rules of evidence may seem rather technical to lay readers. That is unfortunate, because the rules are not the fanciful products of lawyers' imaginations, invented to confuse the non-lawyer. They are used and applied thousands of times every day in every court in the English-speaking world, in the attempt in every trial to determine the truth of conflicting claims. The statements of the rules of evidence that I have quoted are part and parcel of every attorney's everyday knowledge. We carry these rules around in our heads, just as the practitioner in any trade knows its basic facts without having to look them up. Any experienced attorney reading this will know what I mean. The astonishing thing to me is how anyone trained in the law, like Montgomery, can so greatly distort their meaning and their application.

Since a major part of Montgomery's book is a reprinting of the Simon Greenleaf article, which is still in print after over a hundred years, and still cited by Christians as one of the outstanding legal arguments for Christianity's evidence, by an acknowledged authority on the law of evidence, I also want to deal with that, but in a later article.

To give you a preview, Mr. Greenleaf begins by stating: "The proof that God has revealed himself to man... and that Christianity constitutes that revelation... has already been shown in the most satisfactory manner by others... [therefore] the fact will be assumed here as true."

That indeed does make one's job easier.

I do not challenge people like Montgomery and Greenleaf lightly. They (especially Greenleaf) have wide reputations. I was frankly expecting to read profound legal reasoning in their works, not such gross misstatements of the law. If I am wrong, I beg to be corrected. Any Christian attorneys out there?


A "refutation" of this article, by a non-lawyer and lay apologist, writing under a pseudonym, is at this website. After reading it, use your browser's "back" button to read my response to it here.

Another response has been published in an on-line journal edited by Montgomery, in its January 2003 edition. To read my response, click here.


Comments?   Questions?  (Please, no preaching, testimonies, or hate mail!)   To send a comment or ask a question, click here.

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