Precedent for Imputation in the Law – A Defense of Penal Substitution Part 3

In Part 2 of our series defending penal substitution, we defined penal substitution as the view of the Christian atonement holding that Christ willingly gave himself up to suffer on the cross, bearing the punishment due to humanity in their place, thereby removing the guilt of those united to him by faith and causing them to be reconciled with God. We further clarified that on this view Christ is our legal representative, such that the guilt for our sins is imputed (or legally transferred or credited) to him at the time of his crucifixion.

Precedent for Imputation in the Law

We saw as well that this avoids the charge that penal substitution implies that it is morally justifiable to punish the innocent in order to let the guilty go free. For on this view while Christ is intrinsically innocent (having done no wrongdoing himself), he is guilty in virtue of our guilt being imputed to him. In penal substitution the guilty is punished and the innocent do go free, in light of Christ’s sacrificial choice to bear the guilt for our sins.

The Objection from Human Legal Theory

But this immediately raises a new objection: namely, that imputation of guilt is itself legally and morally absurd (Kyle; Ward (cited in Porter)). Recall our analogue of penal substitution in a human court, where a person guilty of extreme wrongdoing is sentenced to receive an extreme punishment, but where the judge agrees to punish his son (who volunteers to take on the punishment) while letting the wrongdoer go free. One may object that it would be just as legally and morally absurd to regard the judge’s son as guilty of the wrongdoer’s crime, and thereby punish him for it, as it would be to punish him while regarding him as innocent. Surely, they say, we would not allow such a case of imputation in the law of our own courts.

Only the person who commits a crime can justifiably be considered guilty of it, as is especially clear in cases of extreme crimes requiring extreme punishments. Thus, the objection continues, since this fact as well is plausible in light of our strongest moral intuitions and theories, and yet penal substitution denies it, then so much the worst for penal substitution.

What a Legal and Moral Defense of Penal Substitution Requires

The above objection from human legal theory can be concisely stated as follows:

Even if it is justifiable in some circumstances to impute guilt from one party to another, it is not justifiable in cases of extreme wrongdoing requiring extreme punishment as in penal substitution; but in fact, imputation of guilt is not the kind of act that is ever justified in a legal setting.

Defense of Penal SubstitutionTwo claims are being defended here: first, that imputation of guilt is legally unprecedented (implying that it is unjustified in all legal circumstances), and second, that even if it was precedented, it would still be morally unjustified in the extreme circumstances of Christian penal substitution.

Since each of these claims are damaging to penal substitution if true, each of them warrant a response in the remainder of this series. The remainder of this article argues that imputation of guilt is in fact legally precedented, or justified in some circumstances.

Three Legal Precedents for Penal Substitution

At least three elements of contemporary human law allow for imputation of guilt, and thereby serve to show that this kind of act operative in penal substitution is legally precedented. These are (1) the omnibus clause in insurance law, (2) the law of agency, and (3) certain support laws concerning marriage. Each of these refer to strong representative legal unions and specify circumstances in which responsibility for the actions of one member may be transferred to another.

1. The Car Insurance Omnibus Clause

Many car insurance policies (among other insurance policies) include omnibus clauses, which are clauses that extend liability coverage beyond just the owner of the car to include those to whom the owner gives permission to drive the car. It does this by defining the “insured” party so as to include more than just the person who’s name is on the policy:

With respect to the insurance for bodily injury liability and for property damage liability the unqualified word Insured includes the Named Insured and also includes any person while using the automobile and any person or organization legally responsible for the use thereof, provided the actual use of the automobile is by the Named Insured or with his permission. (Cohen, p. 521; cf. Anderson Jr.; Sanders)

Thus, when I give someone permission to drive my car, that person and I form a strong representative legal union – the “Insured” on my liability insurance policy – such that coverage from my policy extends to them if they cause an accident and are at fault. Seen the other way, under this clause when someone to whom I give permission to drive my car is negligent and causes an accident that results in bodily injury to someone else, the liability for that accident is imputed from the driver to me, obligating not them but me, and by extension my insurance company, to pay for the damages.

While there are debates in court cases concerning how far liability coverage can extend (e.g., whether it covers a driver the permitted driver herself permitted to drive) and whether there are circumstances that nullify extension (e.g., when the permitted driver’s use deviates from conditions of permitted use specified by the owner), that there are clear instances in which liability transfers is undisputed. Since liability is a form of guilt, the omnibus clause therefore is an instance of imputation of guilt. Moreover, since this clause is commonly included in car insurance policies, it serves to make imputation of guilt well-precedented.

2. The Law of Agency

Agency laws cover various issues that concern principal-agent unions. Agency law may be defined as follows:

Agency deals with situations in which one person — the principal — uses another person — the agent — to act on his behalf. Sometimes the acts of the agent are attributed legally to the principal, sometimes not. Delineating the conditions under which each is true are what make up the law of agency. (Rasmusen, p. 1; cf. Rottenstein Law Group LLP; Mayer, Warner, Siedel, Lieberman, and Martina)

Perhaps the most common principal-agent union is the employer-employee union, but various other relationships may constitute a principal-agent union provided that they are formed in the legally proper way, which may be (1) by contract, (2) by ratification of the agent’s actions by the principle, (3) by reasonable belief that there is a union by a third party, or (4) by necessity.

Regardless of how this union is formed, agency laws state that the agent must represent the principal well before third parties, and more importantly for our purposes, that in many circumstances the principal assumes liability for torts that the agent commits, such as causing physical, emotional, or financial injury to a third party. (The principal is also often bound by contracts the agent forms with a third party on behalf of the principal.)

Law of AgencyAmong these circumstances are situations where the principal directed the agent to commit the tort or to perform actions that the principal knew would cause harm, or where the principal was negligent in hiring or directing the agent (i.e., where they should have known that the agent was incompetent or dangerous). In these cases the principal is said to have direct liability for the agent’s tort. Notably, this notion of direct liability applies to certain kinds of criminal activity as well, such as when a mob boss directs a hit-man to murder someone, in which case the mob boss, as principal, may be charged for the crime of murder that his agent, the hit-man, committed.

There are also broader circumstances in which the principal may be held liable for the agent’s tort. These include any sort of situation where the agent can be said to be operating within the scope of employment given to them by their principal. An agent is said to be acting within their scope of employment when they are generally acting within the conditions (e.g., time and place) of their employment or acting so as to further their principal’s well-being. In these cases the principal is said to have indirect or vicarious liability, since the principal may be held responsible even if they had no knowledge of the agent’s action, or the agent’s action went against an expressed prohibition given to them by the principal.

Notable principal-agent relationships besides employer-employee relationships that carry vicarious tort liability for the principal (in most states) are parent-child relationships where the child is unemancipated and lives with the parent.

Agency laws too have details that are debated, such as what kinds of actions should be construed as being under the agent’s scope of employment, but the existence of principal-agent relationships in which liability for a legal offense transfers from agent to principal is nevertheless common. The principal-agent union, therefore, is a well-precedented instance of a strong representative legal union allowing for imputation of guilt.

3. Support Laws in Marriage

Historically marriage has been understood as an institution of interdependence involving the sharing of responsibilities between two spouses. Below are two support laws that enforce this sharing of responsibility (Gregory, Swisher, and Wilson).

Support Laws in MarriageThe doctrine of necessaries allows for one spouse to purchase necessary goods or services for their family, such as food, clothing, shelter, or medical and legal services, on the credit of the other spouse (provided that they themselves cannot pay), making the other spouse liable for payment regardless of their knowledge of or consent to the purchases. Such a law has led to cases, for instance, where a hospital can obtain a legal mandate of payment from one spouse for the medical expenses of the other.

The law was originally formed in terms of traditional gender roles, such that the wife or children could purchase necessary goods or services on the husband’s credit but not vice-versa. Because of this, some states have done away with the law altogether, but many other states still uphold reciprocal or gender-neutral versions of it.

In addition to the doctrine of necessaries, there are also spousal and child support statutes that obligate spouses to provide for the necessary family expenses of their spouse or children, including criminal sanctions for refusal. Notably, these statutes typically allow for creditors to seize one spouse’s property to pay the debt from necessary family expenses created by another member of the family. While some courts have questioned the applicability of these laws in cases concerning families of divorce, that they apply to intact families is generally accepted.

Both of these sets of support laws, therefore, specify cases in which liability may be transferred within the strong representative legal union of a marriage relationship, demonstrating further precedent for imputation of guilt in contemporary human law.

Conclusion: Penal Substitution is Well-Precedented


Anderson Jr., Eugene M. (1953). “Insurance-Scope Of Liability Of Insurer Under Omnibus Clause Covering Automobile Driven By Other Than Named Assured.[Federal]” Washington and Lee Law Review 10 (2): 241-248.

Cohen, Richard S. (1962). “Insurance – Omnibus Clause – Unauthorized Driver Covered Where Car Used for Permitted Purpose.” William and Mary Law Review 3 (2): 520-522.

Gregory, John De Witt, Peter N. Swisher, and Robin Fretwell Wilson (2013). Understanding Family Law (4th ed.). Danvers: LexisNexis.

Mayer, Don, Daniel M. Warner, George J. Siedel, Jethro K. Lieberman, and Alyssa Rose Martina (2012). The Law, Corporate Finance, and Management (v. 1.0).

Rasmusen, Eric (2001). Agency Law and Contract Formation. Cambridge: Harvard Law School.

Rottenstein Law Group LLP (2014). “What is the law of ‘agency’?” Website: Rottenstein Law Group LLP.

Sanders, Maureen (1989). “Insurance Law.” New Mexico Law Review 19: 717-741.

The defense of penal substitution continues in Part 4.

What do you think of these legal precedents for penal substitution? Can you think of others? Please let me know what you think in the comments below!

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2 Commentsto Precedent for Imputation in the Law – A Defense of Penal Substitution Part 3

  1. Heather Grace says:

    This is an extremely interesting article. It really got my brain thinking as I have not dug into much the legal point of view on Christ’s sacrifice. The point you made about how the guilty did, in fact, die while the innocent went free, was thought provoking. I have not thought of it that way but in a sense you are correct. I really enjoy reading your work.

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