Archive for August, 2018

Christianity and English Common Law

August 23, 2018

One of the greatest lies perpetuated upon my generation is that there is no secular reason to post the Ten Commandments in a courthouse in the United States. This is such an outrageous lie that it’s hard even to refute it.

The origin of our law, here in the United States, is English Common Law. This is an indisputable fact. Anyone who has ever studied American law knows this, because the people who started this country adopted English Common Law as the foundation for everything we do. Even today, much of your behavior is governed by English Common Law, and judges and lawyers will refer back to it. Unless the matter is relevant to one of the many laws in the books or the constitutions of the state or the nation, then it is a matter of English Common Law. And even then, the laws and constitutions are interpreted according to an understanding of English Common Law.

Where did English Common Law come from? Unfortunately, English Common Law was not invented by one person at a moment in time. It wasn’t intentionally created like our constitution or our laws were. It evolved as judges and lawyers and people and juries figured things out on their own.

If an atheist can claim that Christianity had no, or just a little, influence on English Common Law, then they can claim that Christianity has little or nothing to do with our nation’s laws. That is, they can claim that we can have a secular legal environment without Christianity at all.

On the surface, such an argument is absurd. The people who were living in England at the time English Common Law was being developed were devoutly Christian. Christianity was to those people what water is to fish. It was not only the very essence of existence, but the reason for it. Not to mention the enormous influence the church had at the time upon secular affairs! Surely a judge, jury, or even lawyers were influenced by their religious beliefs, at this time more than any other in our history.

But you don’t have to look very far for how concordant English Common Law is with the Bible. Indeed, if you want to understand English Common Law, you can begin with understanding the Ten Commandments. In the Mosaic Law, we see a system of justice where individuals are held accountable for their own crimes, where property rights are respected, where sexual relations are to be kept only within marriage, and where murder is strictly forbidden, the punishment for which is death, but people are allowed to defend their lives and property. Indeed, when I read the pentateuch, I see what is clearly the earliest proto-English Common Law, in very basic form. It’s almost obvious how you can go from there to here.

I found this interesting address given in 1910 called “The Influence of Biblical Texts Upon English Law” (https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=7211&context=penn_law_review) I’ve uploaded a copy here: The Influence of Biblical Texts upon English Law

Here are some key passages:

Sir Francis Bacon long ago said, “The law of England is not taken out of Amadis de Gaul, nor the Book of Palmerin, but out of the Scripture, out of the laws of the Romans and Grecians.” And again he said, “Our laws are as mixed as our language.”

In other words, to try and claim that something is or is not part of the ancestry of the English Common Law is not a simple thing. However, we know what those parts are:

  • The Bible
  • The Romans
  • The Greeks

It’s clear why the Bible is part of the origin. That was the prevailing religion at the time.

The Roman and Greek influence might not be so clear unless you know the history of England. Romans built a civilization there, which the Anglo-Saxons and other conquering tribes adopted as their own. London is the ancient city of Londinium in the Roman Empire. Greek was the first written language there, and nobles and scholars were expected to read and write Greek. The Romans looked up to the Greeks, and indeed, Greek was the language of the Roman elite. Indeed, Roman and Greek law influenced all of Europe during the Middle Ages. The Renaissance marks, for the first time, when Europeans were ready to explore beyond what the Romans and Greeks had already done.

What I am to say, therefore, about a certain connection between the law and the Bible is theoretically supposed to be entirely familiar to you, and indeed to say that the Bible in many ways has exerted a mighty influence on our law is a platitude so profound that I can scarcely hope to be excused for having uttered it.

Some of these words may be unfamiliar to you. A “platitude” is a remark that is completely obvious. You should feel stupid for having it said, or having it said to you. “Water is wet” is a platitude. “Profound” means that it is important and has a deep philosophical meaning.

The speaker here is saying, “Of course the Bible and English Common Law are related. Having to say it makes me feel dumb, because I’m calling you dumb. But it’s still important regardless.”

First, of course, there is the general influence of the Bible through the medium of the Christian religion upon the law. It has been often said, indeed, that Christianity is part of the common law of England, and this is due in great measure to the authority of Sir Matthew Hale (King v. Taylor, i Vent. 293, 3 Keble 507), Blackstone and other writers, while Lord Mansfield held (Chamberlain of London v. Evans, 1767) that the essential principles of revealed religion are part of the common law. The former proposition has some support also in the decisions of our own State, but in its broad and general sense is without adequate foundation, as has been frequently demonstrated. There can be, however, no doubt that the principles of the Christian religion have profoundly affected the law. Christianity supplied, as it were, the atmosphere of public opinion which surrounded the English people, the legislature and the courts, but its precise effect would be an almost impossible task to determine.

In addition to citing some references (I have not looked them up, please do and let me know), he says here that Christianity is to the Common Law what water is to fish. It is the very atmosphere within which the Common Law breathed into life.

Of course, the Ten Commandments will occur to every one as examples of Biblical laws which were adopted into our own. Disbelief in God, as well as disbelief in Christ, Blasphemy, Sabbath Desecration, Theft, Adultery, Homicide, Perjury, to mention the chief offences, were either punished by the spiritual or the civil courts, or by both. The history of heresy alone in England, with all that it involved, the hatreds, the persecutions, the judicial murders which it narrates, forms one of the saddest chapters in human history. With none of this are we concerned at present.

As evidence, they used to burn witches in England. That was part of the common law. Did Rome or Greece burn witches? No.

Then he connects the Church to the government at that time in England. We who live today find it unthinkable, but there was a time when the Church WAS the state. That is, you had no king unless the pope said so. What you may not know, and won’t know, until you read the Church law is that the Church law governed basically everything that anyone ever did. Also, if you were excommunicated by the church you basically were excommunicated by the state too. The Church advertised its laws to be the supreme law that governed all other law. That is, just like we treat the constitution today, that’s how they saw the Church law.

And where did the Church law come from? Why, from the Bible, obviously!

Note that at this time, all of the Bible was held as absolutely supreme. There was no interpretations or explanations or criticisms, only the text of the Bible and the will of the Pope.

Note that the ideas of the Greeks did enter into Church thinking, but that came by way of St. Thomas Aquinas. Read his writings to see how he reconciles Greek thought with Christianity (not the other way around.) So when you do see Greek influence in the Common Law, you have to realize that it was through the lens of Christianity that it entered.

As far as the Romans, Virgil was well respected because it was thought that Paul respected him. Cicero was respected as well, but simply because of his enormous influence and ability to explain the concepts of universal law clearly.

Moving on to looking at the law itself, the author establishes a few obvious instances, some that even survive today:

  • The husband and wife are one flesh in the Bible, and in English Common Law, they are one person.
  • Christ forbids divorce, except it seems for infidelity, and so does the Common Law.
  • The Church is called a single “body”, and in English Common Law people can form corporations that act as a single “body”.
  • Slavery was recognized by the Bible, with particular attributes that make it different than practiced everywhere else. Indeed, contained in the teachings on slavery is the idea that slaves are people too, and so in English Common Law we find concordance. This is a deeper and sensitive topic that needs further expansion. In short, even today “slavery” is tolerated — as long as it is punishment for a crime.
  • Usury is forbidden in the Bible, and so it is in the Common Law.
  • Witches are forbidden in the Bible, as well as in Common Law.
  • The obscure legal doctrine of deodand is that when a person is killed by an animal or an inanimate thing, it is to be given to the judge or king for punishment, is in the Bible as well. According to Exodus 21:28, if a person is killed by an ox, the ox must be killed and should not be eaten. Also, in Genesis 9:5 God demands that animals which kill humans be killed.
  • “Benefit of the Clergy” basically excludes the clergy from any form of prosecution by lower courts, which morphed into any educated person being able to escape one felony. In the Bible, the Lord teaches the people to leave his anointed and his prophets alone, to be tried by Him. (Benefit of the Clergy was abolished in 1827.)
  • In the Bible, if you were accused of killing a man, then it was up to the victim’s family to extract vengeance by killing you. If you claimed innocence, you had to flee to a sanctuary city. In the Mosaic Law, the elders would hold a trial, consider the evidence, and either allow the accused to stay or send him out to be killed. According to English Common Law, you could flee to a church for sanctuary which is called “privilege of sanctuary.” Later, a king established 8 sanctuary cities. Instead of holding a trial, people were allowed to flee the country provided they left all their material goods behind.
  • The Bible requires two or three witnesses. English Common Law demands two witnesses.
  • The Mosaic Law requires an “eye for an eye”. However, in the Sermon on the Mount, Jesus preaches a higher law of forgiveness. English Common Law never adopted “eye for an eye” when it comes to physical harm (though it does for property). However, it did implement death for the murderer.
  • You’ll see references to the “old law” and “new law” by legal experts who try and balance justice with mercy, and pick and choose which version to implement. They are obviously referring to the strictness of the Mosaic Law found in the Old Testament with the leniency of the New Testament.
  • Many more examples from Lord Coke and Blackstone are further given. For instance, you can’t accept a pension from a foreign king because the Bible says “No man can serve two masters.”
  • Interesting for the Libertarians: The right of property is found in Genesis 1:28.

Granted, these are not always pretty examples. Indeed, the history of English Common Law is that it did not spring into existence in its perfect and acceptable form, but adapted to the times. “In law, as in religion, the letter killeth, but the spirit giveth life.” That is to say, just like we treat the Bible, we treat the law. It is not a computer program, but a contradictory text full of inspiration to guide our lives.

A word more. The Bible as a law book has not received the careful study to which it is entitled. Its theological importance, and, in later times especially, its literary inter- est have absorbed the attention of its readers, but there are other aspects from which it should be studied.

Let us rid ourselves of this terrible heresy, that the Bible has nothing to do with our Law. Let us instead study the Law and the Bible together, and take what we can from it and make a better law.

 

 

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