Ten Commandments "Basis of Our Laws" Position
mnewsom at law.howard.edu
Thu Dec 16 14:14:09 PST 2004
But how do you explain the fact that law and morality flourish in some
societies that are neither Christian nor Jewish?
From: Mike Schutt [mailto:michsch at regent.edu]
Sent: Thursday, December 16, 2004 12:22 PM
To: 'Law & Religion issues for Law Academics'
Subject: Ten Commandments "Basis of Our Laws" Position
In response to Ed's and Prof Lipkin's post, just a quick thought or two.
I think what is traditionally meant by the "basis of our laws" position
is the following:
1. The Ten Commandments is a stark (if not the first surviving)
demonstration that law comes from "outside" humankind-- that is, that
law is not merely a human artifact. This has a long tradition in the
common law, from Magna Carta, to Coke, to Bracton and Blackstone. The
ten commandments "are the basis of our laws," then, in the sense that
the common law has taken the view that the King us under law, because
law comes from God. Russell Kirk in his Roots of American Order, for
example, cites the giving of the ten commandments as the foundation of
Western order. So, first, the position is that the fact that the Ten
Commandments were from God, not man (being written with the finger of
God) are the basis for many of the fundamental common law propositions,
beginning with "no man is above the law."
2. Theologians, including Augustine and Calvin and many other
Protestant and Catholic theologians in the history of the West have made
direct connection between the Ten Commandments and *all* civil, moral,
and ceremonial law. Therefore, "all law" in a sense is based on or--
maybe this is better put-- summarized by the Ten. This is a pretty
supportable proposition from the Old and New Testaments. So even laws
that should not be civil laws, such as the ones that Ed points out, are
still "law" in the sense of moral law, as Ed also points out.
Furthermore, civil laws should be based on, modeled after, and in
conformance with the moral law; so in that sense, our civil laws are
"based on the Ten Commandments."
I can't speak for everyone who might use the phrase, but this is my
understanding of what it means to say that "our laws" are based on the
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
RJLipkin at aol.com
Sent: Thursday, December 16, 2004 10:01 AM
To: religionlaw at lists.ucla.edu
Subject: Re: Steven Williams case and the Ten Commandments cases
I want to second Ed Braton's thoughtful post, and inquire of
anyone who knows whether the laws, rules, customs of the Jews prior to
the acquisition of the Ten Commandments included prohibitions against
murder and theft, for example. If the answer is yes then all those who
agree with Robert Bork's remark, and I'm paraphrasing perhaps
unfaithfully, that liberal society lives off the moral capital of the
Judeo-Christian religious tradition are historically inaccurate. Indeed,
it opens up the anthropological question whether the Judeo-Christian
religious tradition lives off the moral capital of prior secular
societies if any existed, or prior pagan societies.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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