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August 28, 2003
The origins of Common Law
Given the debate about the Ten Commandments monument and the attempts at justifying it by claiming that the Ten Commandments are the foundation of American law (in spite of the fact that it is clear that American law was based upon English common law), I found this quote from Thomas Jefferson in a letter to Major John Cartwright entitled "Saxons, Constitutions and a Case of Pious Fraud" to be most illuminating:
I was glad to find in your book a formal contradition, at length, of the judiciary usurpation of legislative powers; for such the judges have usurped in their repeated decisions, that Christianity is a part of the common law. The proof of the contrary, which you have adduced, is incontrovertible; to wit, that the common law existed while the Anglo-Saxons were yet Pagans, at a time when they had never yet heard the name of Christ pronounced, or knew that such a character had ever existed.In other words, the proof that neither American laws nor English common law (from which our laws are derived) were founded on the basis of Christian beliefs, principles or tenets is found in the fact that English common law was developed by the Anglo-Saxons during a time when they were not only still Pagans, but were totally unaware of the existance of Christanity or of Christ, for that matter. They simply could not have based laws on something they were totally unaware of.
Posted by thorswitch at August 28, 2003 07:28 PM
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Excellent! I have heard this argument a couple of times before, and have been trying to do some research on it. Thanks so much for the link (and commenting in my blog). ;-)
Posted by: Disandra at August 28, 2003 11:05 PM
Great information. But, just because it predates CHRIST doesn't mean it predates the Ten Commandments - the Ten Commandments are in the OLD Testament, right?
Posted by: Catnmus at August 28, 2003 11:36 PM
10 minutes with google will produce a variety of informed opinions. Seemstome you can pick and choose the source you want. There is no doubt that the Common Law of England dates after the introduction of Christianity to the island. Here is another view http://www.newadvent.org/cathen/09068a.htm
The proscriptions for killing and stealing and adultery are multi-cultural and may be co-opted by Judeo-Christian culture but they cannot lay claim to origination of the ideas. How ever English Law had definite punishments for Heresey and Christianity was the religion of the state by the time there actually was a kingdom known as England.
Jefferson was of one opinion and enthusiastically embraced the documentation that supports it. His was position was debated by various American jurists at the time of his writings.
Google produces a lot of grist for the mill.
Posted by: Philip at August 29, 2003 12:32 AM
But the original foundations of English common law were the Anglo-Saxon laws that were in existance before the Anglos became known as the English. Heresy and the use of Christianity were later additions, and were part of what the Founding Fathers tossed overboard when setting up our Constitution.
But I suppose there is still debate over what all went into making the English common law. One thing the quote does make clear, though, is that there was no intention for our laws to be considered as being founded on the laws of Christanity, which is the heart of one of Moore's oft-stated arguments as to why his monument is "ok"
Posted by: kriselda jarnsaxa at August 29, 2003 01:01 PM
Except that it's not. Only 2.5 of the Ten Commandments show up in our laws - no killing, no stealing, and no lying when under oath (the rest of the time it's ok - legally speaking - which is why I only credit it with being "halfway" in our laws). The rest - no other gods, no worshiping graven images, no taking god's name in vain, keeping the sabbath holy, honouring parents, no adultery and no coveting - don't show up at all.
Beyond that, four of them - no other gods, no graven images, no using god's name in vain and keeping the sabbath day holy - would all be a violation of the First Amendment if anyone tried to make them into laws.
As for saying that "Because English Common Law does not include the Ten Commandments does not mean that our laws are not based upon them", that really doesn't make any sense if you think about it. If the Ten Commandments are NOT a part of our laws and were not a part of English Common Law, how could either be BASED on them. If the Ten Commandments truly were a foundation for our civil laws, those commandments would be found within the laws themselves - or there would at the least be obvious correlations. But those correlations don't exist and the Commandments aren't just aren't there, either.
To top it off, several of the Founding Fathers - including Jefferson and Madison - left many statements and letters clearly stating that they did not intend for American law to be based on Christianity in any way. To try and claim they intended otherwise is to contradict their own words.
Posted by: Kriselda Jarnsaxa at August 29, 2003 07:18 PM
It may not be that English Common Law or American law is based specifically on the Ten Commandments, yet the spirit of them, i.e., to have a reverence for an order that is beyond human comprehension, provides a workable basis for individuals who must travel between and engage with various cultures. St. Paul reflect a similar thought in his admonition to "walk in the Spirit.... for against such things there is no law." These principles have withstood the test of time and enabled international understanding to develop, albeit slowly, as diverse nations share cultural values. And these values are found in other non-Western societies, too. I recommend C.S. Lewis' The Abolition of Man as a good read on that subject and in it he deplores the fragmentation of contemporary society in to "cerebral men" and "visceral men'' hence the demise of the wholistic man, i.e., the man with a heart.
Posted by: Ron Swaren at November 6, 2003 03:45 PM
what the hell?
Posted by: xfghs at December 9, 2003 05:22 PM
what the hell?
Posted by: xfghs at December 9, 2003 05:22 PM