Are the Ten Commandments the foundation of the Anglo-American legal system?

[Scarberry, Mark]

Yet it is also undoubtedly true -- is it not? -- that most of our American
law was carried over or adopted from British law. We did not have a "clean
slate" revolution; if I understand the matter correctly, most state law had
continuity from the pre-revolutionary time to the post-revolutionary time. I
think members of this list, who of course focus on federal constitutional
law -- all of which was new -- may need to think a second time about the
general continuity both of common law and (I believe) statutory law.

Mark S. Scarberry
Pepperdine University School of Law
 

-----Original Message-----
From: A.E. Brownstein [mailto:aebrownstein at ucdavis.edu] 
Sent: Friday, December 17, 2004 3:14 PM
To: Law & Religion issues for Law Academics
Subject: Re: Are the Ten Commandments the foundation of the Anglo-American
legal system?

This is really a critical part of the issue. Are we talking about 
distinctly American law or more generic "Anglo-American" law. I have no 
doubt that the American Tories, the British soldiers who shot down the 
Minutemen at Lexington, the Hessian mercenaries, and King George III 
himself all believed in the Ten Commandments as much Washington and the 
drafters of the Declaration of Independence and the Constitution. If the 
question is whether belief in the Ten Commandments predisposes you to 
accept the American experiment in self-government, obviously it did not 
have that effect on a lot of believers.

Alan Brownstein
UC Davis


At 04:51 PM 12/17/2004 -0500, you wrote:
>Speaking for myself, none of this discussion has been about Anglo-American 
>law, it's been about American law. The Constitution was obviously a 
>radical break from English law on many levels. It established an entirely 
>different basis upon which legitimate lawmaking was based, and upon which 
>a legitimate lawmaker might rule. The notion of a government instituted 
>solely to protect the rights that each individual is endowed with from 
>birth was monumentally different than the notion of a nation ruled by the 
>divine right of the king, to whom one must plead for whatever recognition 
>he chooses to give our claims of liberty. The distinction is as basic as 
>the one Madison draws so vividly, with the European governments that 
>preceeded ours being charters of freedom granted by power, while ours was 
>a charter of power granted by a free people. Hence, the notion of 
>combining Anglo- and American together for the purposes of this discussion 
>seems entirely unwarranted to me. Under the English law prior to our 
>constitution, the King could have declared any of the Ten Commandments to 
>be legally in force and prescribe whatever punishment he chose upon it; in 
>our system after the Constitution, most of the commandments could not be 
>legitimately made into laws without violating it. I can't think of a more 
>obvious reason not to combine the two as one.
>
>Ed Brayton
>
>Ross S. Heckmann wrote:
>>This list has recently discussed the issue of whether the Ten 
>>Commandments are, or ever have been, the foundation of the Anglo-American 
>>legal system.
>>
>>A book was published earlier this year that sheds light on this 
>>issue.  It is entitled "The Ten Commandments in History."  It was based 
>>on a manuscript left behind by the late Professor Emeritus Paul Grimley 
>>Kuntz, "a distinguished member of the Emory philosophy faculty and an 
>>ardent supporter of the Law and Religion Program."  (From the book's 
>>"Acknowledgments," p. xiv, by Professor John Witte, Jr., writing in his 
>>capacity as general editor of Emory University Studies in Law and 
>>Religion.)  The Supreme Court's decision in Stone v. Graham was for the 
>>late Prof. Kuntz "the catalyst for almost ten years of research and 
>>thought about the Decalogue and its role in American life."  (From the 
>>book's Foreword, p. viii, by the late Prof. Kuntz's spouse, Prof. Marion 
>>Leathers Kuntz.)
>>
>>The book itself is primarily a history of ideas, how various thinkers 
>>throughout history have been reacted to the Ten Commandments, but the 
>>book does touch upon the issue of whether the Ten Commandments are the 
>>foundation of the Anglo-American legal system.
>>
>>Chapter 5 is entitled, "King Alfred:  The Decalogue and Anglo-American 
>>Law."  Alfred the Great lived from 849 to 899.  (Book, p. 46.)    Prof. 
>>Kuntz writes:
>>
>>     ". . . . The hostility between the Roman Empire and Christians ended 
>> with tolerance from Constantine, and then he gave to the church the 
>> support of the state.  The pattern of Roman conversion was followed in 
>> all the nations of Europe--among Latin nations, Germanic, Scandinavian, 
>> Slavic, etc.  Does this mean that the Mosaic Decalogue became part of 
>> the law of these peoples when they were converted to Christianity?  And 
>> how did changes introduced by the gospel affect the legal code?
>>
>>     "Political historians and historians of law do not offer us a 
>> general and comparative study [too bad--maybe somebody on this list can 
>> remedy this deficiency--R.S.H.], but one notable case is the code of 
>> King Alfred the Great.  This is particularly of interest since it shows 
>> the Decalogue as basic to the civil religion of England, and of the many 
>> colonial offspring, which build upon the traditions of common 
>> law.  Thanks to Alfred the law is also the king's law."  (Book, pp.
46-47.)
>>
>>     In the book's later chapter on Jeremy Bentham, the book states that 
>> in response to Jeremy Bentham,     ". . . . a historian might object 
>> that Alfred the Great prefaced his collection of Saxon laws with the Ten 
>> Commandments from Exodus 20, that the monarch of Great Britain takes a 
>> sacred oath at coronation to enforce God's law."
>>
>>     Thus, the Ten Commandments are, or at least used to be, the 
>> foundation of the Anglo-American legal system.
>>
>>     I will stipulate that it would be no small challenge to reconcile 
>> this proposition with the Supreme Court's post-World War II 
>> jurisprudence.  But even assuming that American law is no longer founded 
>> upon the Ten Commandments, but on some other basis of some sort or 
>> other, for well over a thousand years, the Ten Commandments were the 
>> foundation of Anglo-American law.  Moreover, it is by no means clear 
>> that the Supreme Court's post-World War II jurisprudence will endure, 
>> either as it currently exists, or in modified form.
>>
>>Very truly yours,
>>
>>Ross S. Heckmann
>>Attorney at Law
>>Arcadia, California
>>
>>
>>
>>
>>
>>
>>
>>
>>
>>
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