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Ten Commandments and legal tradition

This thread is in response to requests made in the "10 Commandments Judge Refuses To Remove Stone From Courthouse" thread for support of my statements there suggesting that the Ten Commandments had played an immensely important historical role in the development of American law and jurisprudence, and that such law and jurisprudence could frequently be traced to earlier traditions founded substantially on Judeo-Christian juridical principles. (In passing, I’ll mention that I generally agree with the appellate court’s decision in the Alabama case, which is not the topic of this thread.)

Let me begin by noting that certain people, notably the proponents of public Ten Commandments displays, have a habit of overstating the general principle: (for example, “All American laws are based on the Ten Commandments”). One also finds such rhetorical excesses, however, in arguments from the opposing camp (for example, “It may safely be concluded that Mosaic law had virtually nothing to do with the development of the US legal system,” as CWL asserted in the other thread).

In one sense, it could hardly be said (strictly speaking) of any sophisticated and complex modern legal system, that all of its laws are “based on” an ancient text of a few hundred words. But the rhetorical excesses of both sides in this argument have tended to obscure a valid point, which this post is intended to expound: the so-called “Judeo-Christian ethic” has, broadly speaking, undoubtedly been the primary intellectual/philosophical/social influence in the development of the convergence of Western juridical traditions which underpin (in a historical, evolutive sense) the American legal system. To the extent that one can validly identify a single discrete and representative juridical archetype within the Judeo-Christian ethic, it is the Ten Commandments.

Before reviewing (as concisely as feasible) the historical record for evidence of this claim, let me address a few potential strawmen. My argument does not, and need not, presuppose either (1) that modern American law coincides on all points with the Ten Commandments or (2) that substantially all of the content of Mosaic positive law finds a correlate in modern American law. The influence of the Judeo-Christian legal ethic on the American legal system is not always readily apparent viewed solely from the end result; and the significance of its role emerges most clearly in the processes by which contemporary notions of law have developed. However, I would submit that its hand in our jurisprudence is not the less weighty for being occasionally subtle.

While we’re on the subject, allow me to dispense with one of the fallacies to which Marc Berard’s article in Skeptic Report succumbed. The fact that certain of the Ten Commandments are not unique to Mosaic law is irrelevant to the question of whether their substantive content has been imparted to American law at least indirectly via the transmission of Mosaic law through Western legal precedents.

By way of conclusion to this preface, let me also say that my interest in this argument is that of a jurist rather than a religious proponent or an ideologue. My professional studies and career as a legal practitioner, and my training under two legal systems (American and French), have led me to develop a sustained interest in the history and development of Western legal institutions and traditions.

OK – on to the substance! I’ll be as brief as I can.

This post, which already risks being overlong, is not the place for a thorough overview of the development of British Common Law (in its legal and equitable dimensions) as it existed at the time of the founding of the United States, so I will rely on some of the discussion from the other thread. (If this turns out to be insufficient, we can elaborate later). There, CWL argued that Roman law and the various customary legal traditions of Europe were the primary influences on British Common Law. I more or less agree with this statement in a general way, but it fails to take into account the vast extent to which those sources were themselves influenced by Judeo-Christian legal thought.

First of all, consider the form of Roman Law that survived to be transmitted to successive traditions. By the mid-fourth century, the Roman Empire had become Christian. The sixth-century Codex Justinianeus that supplanted prior sources of Roman law reflected significant influence by and absorption of biblical legal precepts. The glosses to the Codex contain specific references to Mosaic law. Thus, the Roman vestiges you find in later Western legal traditions (including – importantly - canon law, which I’ll discuss a little further on) derive from this heavily Christianized form of law.

The first major codification of Anglo-Saxon legal customs was the influential Liber Judicialis of Alfred the Great (849-99); Blackstone in his Commentaries goes so far as to identify Alfred as the father of English common law. Alfred’s code incorporates considerable use of biblical (especially Old Testament) citations, and the code actually begins with the Ten Commandments in their entirety:

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In the introduction to his Laws, Alfred first anchored his own Code into quotations from Mosaic law and later reflected by way of the Acts of the Apostles on how Judaic law was modified by Christian practice. He developed the notion of this historical progression yet further by viewing English laws of his own time as the product of tribal customary law modified by the cumulative weight of Judaic-Christian practice as interpreted by successive synods of the English church. (Source: Alfred P. Smyth, King Alfred the Great (Oxford UP, 1995).)

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This conclusion is supported by some well documented history, presented by Chester County and its amici, to the effect that the Ten Commandments have an independent secular meaning in our society because they are regarded as a significant basis of American law and the American polity, including the prohibitions against murder and blasphemy. See, e.g., Bertera's Hopewell Foodland, Inc. v. Masters, 428 Pa. 20, 236 A.2d 197, 200-01 (Pa. 1967) (noting that the Sunday closing laws "trace[ ] an ancestry back to the Ten Commandments fulminated from the smoking top of Mt. Sinai. . . . This divine pronouncement became part of the Common Law inherited by the thirteen American colonies and by the sovereign States of the American union."); Anderson v. Maddox, 65 So. 2d 299, 301-302 (Fla. 1953) (" 'Thou shalt not steal' and 'thou shalt not bear false witness' are just as new as they were when Moses brought them down from the Mountain.") (Terrell, J., concurring specially); State v. Gamble Skogmo, Inc., 144 N.W.2d 749, 768 (N.D. 1966) ("Thus, for temporal purposes, murder is illegal. And the fact that this agrees with the dictates of the Judaeo-Christian religions while it may disagree with others does not invalidate the regulation. So too with the questions of adultery and polygamy. The same could be said of theft, fraud, etc. because those offenses were also proscribed in the Decalogue.") (internal citations omitted).

It would also appear that the commandment against taking the Lord's name in vain is reflected in the practice of swearing to uphold the law with the phrase, "so help me God." See also Daniel J. Boorstin, The Mysterious Science of the Law, at preface to Beacon Press Edition (1958) (noting of Blackstone's Commentaries on the Laws of England that "in the history of American institutions, no other book -- except the Bible -- has played so great a role. . ."); Blackstone identifies King Alfred as the founder of English common law and the Laws of King Alfred start with the Ten Commandments. Harold J. Berman, Individualistic And Communitarian Theories of Justice: An Historical Approach, 21 U. Cal. Davis L.Rev. 549-575 (1988).

Chester County also notes that members of the United States Supreme Court have recognized the influence of the Ten Commandments on the foundations of the American legal system. See Stone, 449 U.S. at 45 (Rehnquist, J., dissenting) ("It is . . . undeniable . . . that the Ten Commandments have had a significant impact on the development of secular legal codes of the Western World."); McGowan v. Maryland, 366 U.S. 420, 462, 6 L. Ed. 2d 393, 81 S. Ct. 1101 (1961) (Frankfurter, J., concurring) ("Innumerable civil regulations enforce conduct which harmonizes with religious canons. State prohibition of murder, theft and adultery reinforce commands of the decalogue."). Numerous American Presidents have also made reference to the Ten Commandments as a foundational legal document. See, e.g., John Adams, 6 The Works of John Adams, Second President of the United States 9 (Charles Francis Adams, ed. 1851) ("If 'Thou shalt not covet' and 'Thou shalt not steal' were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free."); Harry S. Truman, Public Messages, Speeches and Statements by the President, Jan. 1. to Dec. 31, 1950 (Washington, D.C. U.S. Government Printing Office, 1965) Item 37, p. 157 ("The fundamental basis of this Nation's laws was given to Moses on the Mount.").

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Thanks for an excellent and insightful and informative post, ceo_esq.

AS

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"And what if we picked the wrong religion? Then each week we're just making God madder and madder."

--Homer Simpson

After reading the link, I have decided to rewrite this post.

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The fact that certain of the Ten Commandments are not unique to Mosaic law is irrelevant to the question of whether their substantive content has been imparted to American law at least indirectly via the transmission of Mosaic law through Western legal precedents.

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"At last, a cryptozoology book written for young adults from a creationist perspective!" - Kent Hovind describing Claws, Jaws, and Dinosaurs which claims that small dinosaurs are alive today.

The website ceo links to is interesting. Perhaps in a couple of nights I'll try to do an article-by-article.

I will say, however, that I've gotten to the argument about the Second Commandment - the one that says you shouldn't make "any graven image". The website author's argument (that U.S. Law has been inspired by "x" commandment), in the case of the Second Commandment, is that what God really meant when He said "don't fashion a graven image" is that you shouldn't worship idols, because people who worship idols do things like sacrifice children. Such things are definitely against the law in many states; the author seems to be suggesting that the reason child and animal sacrifice is illegal most places is because of the Second Commandment. It was funny, and I laughed.

Interestingly, so far there hasn't been any arguments relating to the Constitution.

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"It's not what you know, it's what you can prove." - Denzel Washington, Training Day

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JKOnline

Exellent post ceo_esq. Thank you for taking the time.

I do have to admit, that I misunderstood your point in the other thread when I read "laws were founded..." as "Constitution was founded on..." hence my mention of Amendment 1 and Article 6, while not mentioning the fact that I cannot buy beer on Sundays before noon.

Even before reading your essay I long agreed with the notion that our body of law (local and state) were derived from Biblical principles. It's clear that everything from murder to sodomy laws to "Blue Laws" were dervied thusly. I did reject the notion that the Constitution came from such devine inspiration however (excepting the "two witnesses" example you mentioned above.) so imagine my chagrin when I read that concepts like equal treatment were derived as well.

So again, great post, and I hope to see more comments from others.

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Is it just me or does Mark Tidwell smell like Jim Beam today?

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Originally posted by Ladewig
I won't argue against that statement. What is relevant is that the commandments not unique to Mosaic law are also not original to Mosaic law.
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Yes, there are a multitude of documents by the Founding Fathers, 18th and 19th century Supreme Court Justices and legal historians which relate specific laws to specific passages in the Bible, but it is possible that the Decalogue was derived from other ancient law such as the Code of Hammurabi. After all, the Jews borrowed other ideas from the Babylonians. How do we know that they didn't take some of the better parts of Babylonian law? If we want to acknowledge the source of our nation's laws, why not post the CoH rather than the TC. The argument is made stronger in that the punishments for laws passed by the early Americans were closer to the CoH than the TC. The former required a son's hand to be cut off if a parent was struck, the latter required the death penalty fro the same crime.

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Originally posted by Joshua Korosi
Interestingly, so far there hasn't been any arguments relating to the Constitution.

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No matter what the relation of the ten commandments and the fundamentals of western law, a posting of the ten commandments in a courthouse that is not part of an exhibit of other ancient law documents should not be tolerated.

Any judge should realize and be sensitve to the first amendment which says that congress should make no law establishing state religion. A judge who is sworn to defend the constitution should be sensitive to even the _appearance_ of the establishment of religion.

A large monolith prominently displayed in a courthouse with the 10 commandments that is not part of a display of ancient law documents is right out. A judge should know better.

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this space for rent

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Because the Constitution is so "content-neutral", it is problematic to attempt either (1) to trace the content of the majority of American law back to the Constitution or (2) to rely much on the Constitution when assessing the influence of prior legal traditions (including the Ten Commandments) on our overall system of laws.

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"At last, a cryptozoology book written for young adults from a creationist perspective!" - Kent Hovind describing Claws, Jaws, and Dinosaurs which claims that small dinosaurs are alive today.

ceo_esq,

Thank you for a very interesting and insightful post indeed. In the light of the same I will graciously bite the bullet and admit that my statement that "Mosaic law had virtually nothing to do with the development of US law" is a clear case of hyperbole on my behalf. My apologies.

Working as a practical lawyer within corporate and commercial law, I would however still venture to state that the influence of Roman and European common and civil law traditions is of a far greater practical significance (at least those aforementioned fields). The Ten Commandments are after all only basic rules - fragments if you will - and cannot be compared with the complex legal system which developed in Rome. For my own jurisdiction, Sweden, the medieval provincial laws (which leaned significantly on pre Christian Norse tradition) have also been of significant importance for the development of the modern Swedish legal system. Mosaic law has of course been an influence since Sweden has been under Christian influence for almost a millenium, but as for any Western legal traditions the statment that the fundament of the law can be found in the Ten Commandments is simply not correct.

Can for instance any principles of modern contractual law be derived from Mosaic law? It appears to me that the Bible says nothing or very little about such a simple and central thing as pacta sunt servanda.

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

Might I turn this question around a bit? Yes? Thank you.

Suppose I, as God, Prime Mover and all that sued the US for copyright infringement. My argument would be that the law of the land is derivitive from the prior art established by me in the TC. Would then the issue not be whether the TC are unique or derivitave themselves?

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Ed does not play dice. Ed plays simple, vicious games, like Do Not Pass Transcendence, Go Straight To Oblivion (maniacal laughter): Evilbiker

Harry Lime: In Italy for 30 years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love - they had 500 years of democracy and peace, and what did that produce? The cuckoo clock.

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Originally posted by Ed
Might I turn this question around a bit? Yes? Thank you.

Suppose I, as God, Prime Mover and all that sued the US for copyright infringement. My argument would be that the law of the land is derivitive from the prior art established by me in the TC. Would then the issue not be whether the TC are unique or derivitave themselves?

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

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Originally posted by CWL


First question - on which law (jurisdiction) would base your claim?

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Ed does not play dice. Ed plays simple, vicious games, like Do Not Pass Transcendence, Go Straight To Oblivion (maniacal laughter): Evilbiker

Harry Lime: In Italy for 30 years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love - they had 500 years of democracy and peace, and what did that produce? The cuckoo clock.

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Originally posted by Ed


For argument, the one most friendly to me. Let us say that my work crosses state lines as does that of the US. Is there a federal venue or do you have to go state by state?

Edit to add: I thought Copyright was federal. No?

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

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Second, assuming arguendo that Mosaic law is derived from, say, antecedent Babylonian law, is that necessarily relevant to the proposition that the Ten Commandments are foundational (in the sense I've been discussing) to Western law? For example, it's no secret that King Alfred's Code was derived from earlier customary legal traditions in England, but that hardly undermines the status of Alfred's Code as a foundational document of English common law. Even if the content of the Ten Commandments were not wholly original, the significance of the Ten Commandments to our legal traditions arises from the fact that such traditions have evolved with a more or less consistent consciousness of their link to Mosaic law as codified and expressed in the Hebrew tradition inherited by Christianity.

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__________________
THE TRAP OF THE LYING MARGARINE COMPANIES

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Originally posted by CWL


Well, your Almightiness... it just seems to me that if you base your claim on US law, you have yourself admitted the legitimacy of the same...

It seems to me you need to base your claim on some other law. Perhaps your own? Does Mosaic law (or the Laws of Nature) contain any provisions on copyright?

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Ed does not play dice. Ed plays simple, vicious games, like Do Not Pass Transcendence, Go Straight To Oblivion (maniacal laughter): Evilbiker

Harry Lime: In Italy for 30 years under the Borgias they had warfare, terror, murder, and bloodshed, but they produced Michelangelo, Leonardo da Vinci, and the Renaissance. In Switzerland they had brotherly love - they had 500 years of democracy and peace, and what did that produce? The cuckoo clock.

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Originally posted by CWL
Working as a practical lawyer within corporate and commercial law, I would however still venture to state that the influence of Roman and European common and civil law traditions is of a far greater practical significance (at least those aforementioned fields). The Ten Commandments are after all only basic rules - fragments if you will - and cannot be compared with the complex legal system which developed in Rome. For my own jurisdiction, Sweden, the medieval provincial laws (which leaned significantly on pre Christian Norse tradition) have also been of significant importance for the development of the modern Swedish legal system. Mosaic law has of course been an influence since Sweden has been under Christian influence for almost a millenium, but as for any Western legal traditions the statment that the fundament of the law can be found in the Ten Commandments is simply not correct.

Can for instance any principles of modern contractual law be derived from Mosaic law? It appears to me that the Bible says nothing or very little about such a simple and central thing as pacta sunt servanda.

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Thus [the German jurist and legal philosopher] Johann Oldendorp [(1480 – 1567)], whose principal treatise three centuries later was in the library of our Supreme Court Justice Joseph Story, founded criminal law on the commandment "Thou shalt not kill," property law on the commandment "Thou shalt not steal," family law on the commandment "Thou shalt not commit adultery," the law of contract and delict on the commandments "Thou shalt not bear false witness" and "Thou shalt not covet." He founded the law of taxation, by the way, on Jesus' summary of the law, "Thou shalt love thy neighbor as thyself." These were "topics" not only in the sense of categories or headings but also in the sense of general principles – theologically based moral principles in light of which subordinate species of legal rules were to be interpreted. (Source: Harold J. Berman, The Western Legal Tradition in a Millennial Perspective: Past and Future, 60 La. L. Rev. 739 (2000).)

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Many of the comments here have focused on the more secular of the 10 c's...However there are three rather religious commandments right at the top of the list. The first amendment, it could be argued is in fact the secular opposite of the first commandment, "Have no other gods before me". The first amendment seems intended to create a country where a diverse variety of religious ideas could flourish, whereas the Judeo-christian tradiotion of the 10 c's clearly does not support this ideal.

Chris

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No matter where you go...
there you are.

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Originally posted by ceo_esq
For example, law professor and legal historian Henry Mather purports to deduce from the Western religious tradition (and most notably the Old Testament) a number of broad principles that form the basic framework in accordance with which modern notions of contractual justice have evolved. These principles include such things as:

1. keep your promises;
2. don’t deceive people;
3. don’t coerce people;
4. have concern for the other party's interests;
5. don’t cheat; follow social conventions.

I agree with Professor Mather that not only can the foregoing principles be persuasively traced back through Western legal history to Mosaic law, but if one takes a step back from our dense modern contractual laws (to focus on the forest rather than the trees, as it were), one can indeed still recognize the same basic insights animating our contractual system. See, inter alia, Henry Mather, Contract Law and Morality (1999).

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

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Originally posted by ceo_esq
For example, law professor and legal historian Henry Mather purports to deduce from the Western religious tradition (and most notably the Old Testament) a number of broad principles that form the basic framework in accordance with which modern notions of contractual justice have evolved. These principles include such things as:

1. keep your promises;
2. don’t deceive people;
3. don’t coerce people;
4. have concern for the other party's interests;
5. don’t cheat; follow social conventions.

I agree with Professor Mather that not only can the foregoing principles be persuasively traced back through Western legal history to Mosaic law, but if one takes a step back from our dense modern contractual laws (to focus on the forest rather than the trees, as it were), one can indeed still recognize the same basic insights animating our contractual system. See, inter alia, Henry Mather, Contract Law and Morality (1999).

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__________________
"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

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Originally posted by CWL
It seems to me that it is important to avoid a logical fallacy in stating that the above five princinples can be deduced from the Old Testament, namely the conclusion that the very reason that those principles exist in modern Western legal tradition is due to or solely due to the Old Testament.

It does seem to me that those five principles are very basic and can be found within many other cultures, religions and traditions besides Judeo-Christian tradition. Indeed, I would argue that these principles were immanent in Roman law the principles of which - although for the most part codified during a time when Christianity was an influence on Roman society - clearly developed independetly of Judeo-Christian traditions. This is just one example.

I would like to venture the hypothesis that the principles suggested by Professor Mather are fundamental in order for any human society to function properly and that therefore those principles - although perhaps present in the Old Testament - may be and have been practically deduced by many different societies and are therefore not present in modern legal traditions because of the Old Testament.

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*bump* ... the new PCE&H threads are coming fast and furious...

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Originally posted by ceo_esq
*bump* ... the new PCE&H threads are coming fast and furious...

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__________________
"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

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Originally posted by CWL
As to your sympathetic example with the student and his old mentor, it seems to me that our problem is that our student suffers from amnesia to a certain extent. He seems to recall several mentors - perhaps of equal importance - and it is therefore difficult to ascertain who was the first. This question is perhaps not even important to answer (a bit of a false dilemma - a chicken-and-the egg paradox, if you will).

What is clear is that there were indeed several mentors, one of which was called Mosaic law, and one of which was called Roman law. It is, as you indicate, also obvious that there were several others. In the case of Scandinavian legal tradition, another mentor would for instance be the pre-Christian legal traditions of the region.

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Originally posted by ceo_esq
In answer to your last question, my undergraduate degree was in literature, with a healthy(?) dose of philosophy. Later, in my juris doctor studies, I was very preoccupied with analyzing legal history and legal philosophy of all stripes, from natural law theory to the critical legal studies movement. Now that I'm a practicing lawyer (rather than an academic), philosophy and history are disciplines I pursue essentially as hobbies, although as I've spent a good bit of my career outside the United States, I do view comparative law as a field that is relevant to my professional work.

How about you?

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

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Originally posted by CWL
Within which areas do you practice yourself?

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Originally posted by ceo_esq

Most of my work these days is in international corporate law. Earlier in my career I was a litigator.

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

Kudos ceo_esq for your thread and your excellent posts!

Although I have subscribed to this thread from its very beginning, it was only today that I had the time to print it out and enjoy it with my pace. Your posts gave me the inspiration to consult a couple of books and I am grateful for that.

Since you are so familiar with the european intellectual tradition, I am sure you already know that Fernand Braudel has attempted to give an answer to these questions of yours, from an historical perspective :

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. Where did the idea enter the tradition?
2. In what form and in what spirit was it retained, transmitted and successively received within the tradition?
3. At intervening stages of the tradition, what were the conscious perceptions and associations in respect of it?

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Had by nose been shorter... the whole face of the world would have been different...

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Originally posted by Cleopatra
Since you are so familiar with the european intellectual tradition, I am sure you already know that Fernand Braudel has attempted to give an answer to these questions of yours, from an historical perspective :

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Originally posted by CWL
About the same as my fields it would appear. "International" in what sense?

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First off ceo_esq makes his theory nearly untestable from the onset, claiming that there is not a one to one ration between US laws and the ten commandments but subtle ones. He also then does not aknowledge the fact that any laws which the US does have in common with the ten commandments, the US also has in common with the rest of the world and civilization since nearly the beggining of time.

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The fact that certain of the Ten Commandments are not unique to Mosaic law is irrelevant to the question of whether their substantive content has been imparted to American law at least indirectly via the transmission of Mosaic law through Western legal precedents.

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"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

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Originally posted by ceo_esq
International in the sense that it usually involves cross-border transactions of one sort or another.

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"Det är icke allt sant som är sanning likt" - Domarreglerna
"All that which resembles truth is not true" - Swedish Code for Judges, probably composed around 1540

Thanks for your post, DM. In responding, I've taken the liberty of grouping your various observations together by theme (as I understand them).

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Originally posted by DialecticMaterialist
First off ceo_esq makes his theory nearly untestable from the onset, claiming that there is not a one to one ration between US laws and the ten commandments but subtle ones.

[snip]

When asked "is the US constitution based on the Ten Commandmens" one is asking for a more proximate answer, whether the Founding Father's constantly based law on the ten commandments or whether there was direct transfer. Not whether or not the form, transformed over thousands of years of culture evenually evolved to a state where they transferred a small bit of themsevles into a modern law.

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Originally posted by DialecticMaterialist
Simply because at this point, they have become so far removed from rationale and justification as to become irrelevant with any similarity likewise becoming nonconsequential.

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Originally posted by DialecticMaterialist
He also then does not aknowledge the fact that any laws which the US does have in common with the ten commandments, the US also has in common with the rest of the world and civilization since nearly the beggining of time.

[snip]

How is the fact that they are nearly universal irrelevant? If they are nearly universal it can be very easily stated any rationale underlying them was not the ten commandments but something else entirely.

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Originally posted by DialecticMaterialist
Secondly there are a great many superfluous statements present. That the ten commandments might have been linked to cannon law, the common law etc. First off every chain in that link is more or less conjecture.

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Originally posted by DialecticMaterialist
Secondly it ignores the issue of how we when examining the issue are looking at more proximate causes and reasoning anyways.

For example if we do research we can likely find laws underlying the ten commandments, likely a bit of Hammurabi's code, and Egyption religion. That does not then mean it is accurate to say the US constitution was based on such things.

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Originally posted by DialecticMaterialist
Likewise underlying the Ten Commandments was evolutionary practices and human nature, is it then meaningful to say the US Bill of Rights are based on bio-cultural evolution and human nature?

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Originally posted by DialecticMaterialist
Thirdly, the article ignores a big difference between US Laws and Religious: namely that the US laws are based on the authority of the people, and self-evident truths of reason (properties of God or Nature) not divine or priestly authority.

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I think we first had better restate the basic claim here. The Ten Commandments (and more generally the Mosaic legal tradition at the apex of which they stand) are absolutely seminal ? and I choose the word carefully ? to the historical development of what has become modern American law. No other single source of positive law casts such a long shadow across nearly every stage in the evolution of our jurisprudence. Their place in the history of Western legal thought is unique and unparalleled. It is in this sense (no more, no less) that they may validly be said to be at the foundation or basis of our system of laws.

This state of affairs obviously exists somewhere in between, as you put it, (1) the Founding Fathers directly and constantly basing laws on the Ten Commandments and (2) a small bit of the essence of the Ten Commandments being transferred indirectly ? almost accidentally ? into our legal system. The truth is at least as far removed from the latter as from the former. What the historian of ideas means when he poses the question ?Can the Decalogue rightly be said to be foundational to modern American law?? is apparently not what you mean when you pose the same question. Perhaps more than this cannot be said on that score.

By the way ? just as an aside ? I?ve already explained in some detail that, despite the supremacy of the U.S. Constitution in American law, only a very small portion of substantive American law and jurisprudence is constitutionally based. Therefore, the utility of examining the Constitution in the context of our larger inquiry is limited at best.

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I?ve endeavored to demonstrate why this is not the case with Mosaic law, because for more than a millennium from the Codex Justinianeus to Blackstone?s Commentaries , the culture?s most important legal scholarship and codification not only remained expressly conscious of the historical and conceptual links to Mosaic tradition, but expended a lot of ink explaining rationale and justification in precisely those terms. If substantially all of the key intermediary legal thinkers, lawmakers and judges considered the transmission of the Mosaic legacy to be of supreme relevance to what they were doing, what sense does it make to declare in retrospect that it was inconsequential?

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First, I did acknowledge that at least some of the content of the Decalogue was not unique thereto. (As to whether the codification of such content as positive law has been a universal feature of the world?s civilizations since the beginning of time? well, I?ll leave up to you the extensive research that would be needed to support that hefty claim.)

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Second, you are correct that it can be easily stated that the rationale underlying those principles was something entirely apart from Mosaic legal tradition. However, anything can be easily stated. What I?ve done is point out how the Mosaic lineage of those principles accounts for the particular form and manner in which they have been transmitted and retained at each successive stage of the development of our legal system. This is quite well documented in primary sources and in the literature, although you seem not to attribute any significance to this.

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I suppose one might argue that the evidence supporting what you call ?my theory? (leaving aside, for the moment, that it?s not a novel hypothesis but the general judgment of most everyone specializing in this field) can?t absolutely establish that something resembling your theory might not have occurred. On the other hand, it?s possible to accumulate such a large volume of evidence for one scenario as to leave very little room for alternatives. That?s pretty much where this debate now stands (and by ?debate? I refer to this thread, because frankly this question is not a matter of much debate among legal historians).

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Moreover, Aderholt's assertion that the Commandments served as the basis for American law has been rejected and debunked by historians, constitutional scholars and legal experts.

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Forty-one law professors and legal historians weighed in on a lawsuit challenging Alabama Supreme Court Chief Justice Roy Moore?s display of the Ten Commandments in the state Judicial Building in Montgomery. The scholars were brought together by Steven K. Green, former legal director at Americans United and now law professor at Willamette University College of Law in Salem, Oregon.

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I submit that that my consideration of canon law and common law is not superfluous, as they were important cultural vehicles whereby Mosaic jurisprudence was preserved, studied, expanded upon and transmitted.

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The links in that chain are not conjectural, either. They are extremely well documented, and I?m surprised that after my admittedly short lesson in Western legal history you drew the opposite conclusion.

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I?ve explicitly left that possibility open. By all means, do the research. However, unless you turn up antecedent codifications (1) that haven?t been lost to history (for then they would be of little practical significance to the historian), (2) that are reasonably likely to have been consciously assimilated by the Hebrews, and (3) in which we can significantly recognize the basic form and content of the Decalogue, then I would submit that the Decalogue trump the foundational status of those antecedents.

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Whatever ancestor memes it arose from, the Decalogue-meme fundamentally achieved maturity of expression with the writing of the Ten Commandments, and that meme was transmitted more or less intact throughout Western legal history.

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Accordingly, the Ten Commandments would have a more justifiable claim to be at the true root of our jurisprudence than a scattering of earlier sources.

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It depends on the context. Although strictly true, that is not an especially meaningful statement for the historian of ideas, given the concerns of his particular discipline. On the other hand, the notions I've been discussing are meaningful in the same context.

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Well, this is a relatively recent understanding in our culture, and does not actually go very far toward illuminating the historical origins of the most of the legal principles we have inherited.

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We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

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Originally posted by DialecticMaterialist
Yes but then my problem is not primarily with the actual claim itself but how you argue for it. Basically it constists to me of making the issue so vague and open to ad hoc or even post hoc evidence as to aeasily prove almost everything.

I mean how do we test your conjecture given your evidence? we cannot even take into account the fact that such laws are more or less universal and may have easily be derived from common sense or other sources.

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1. Where did the idea enter the tradition?
2. In what form and in what spirit was it retained, transmitted and successively received within the tradition?
3. At intervening stages of the tradition, what were the conscious perceptions and associations in respect of it?

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Originally posted by DialecticMaterialist
We cannot establish any comparison of the ten commandments with major laws …

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Originally posted by DialecticMaterialist
We cannot trace a direct path from any single one of our laws to the ten commandments

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Originally posted by DialecticMaterialist
We cannot compare the means of justification.

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Originally posted by DialecticMaterialist
we cannot even take into account the fact that such laws are more or less universal and may have easily be derived from common sense or other sources.

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Originally posted by DialecticMaterialist
Likewise even if your claim was true it fails to establish any significance. And the issue does very much pertain to significance when asked in the political arena. The Ten Commandments according to your conjecture are not relevant to the underlying rationale behind our laws or even any proximate source, but merely to a source around a long time ago that over thousands of years created a precedence for other sources. This makes the Ten Commandments merely incidental.

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Originally posted by DialecticMaterialist
And in that sense crediting the Ten Commandments with US American Law is like crediting Newton or Galileo for the discovery of electricity, as Newton and Galileo established the scientific precedence which made such a discovery possible.

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Originally posted by DialecticMaterialist
Lastly then I must know that if you are willing to credit, in part the Ten Commandments with current common sense laws, if you will be willing to credit its precedence with some of our more emberassing laws as well. Including the laws the US had on the issue of slavery, the opression of women, and racial superiority (which the Jews did have a sense of in the Old Testament) or at least the belief that God's people are superior then others (religious aupremism).

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Originally posted by DialecticMaterialist
Well then I must state your claim is a bit ambiguous, are you saying law makers, including our founding fathers consciously and explicitly utilized Mosaic Law as a standard or justification?

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Originally posted by DialecticMaterialist
(why start at mosaic law instead of its precedence?)

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Originally posted by DialecticMaterialist
How is this well documented? Simply because one or two scholars say there *may* be a link? To me that seems a bit hasty and proof surrogate.

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Originally posted by DialecticMaterialist
Second your statement concerning my comment on how it could be "easily stated" that Mosaic law is more or less irrelevant to underlying rationale is somewhat disingenuine, I obviously meant more then I could simply state it, just like I could state any sort of nonsense. I meant it could be easily infered from the evidence.

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Originally posted by DialecticMaterialist
You state all legal historians agree with you but you have shown no such thing. You have merely quoted about 4 of them, some from other Millenium. A claim as strong as yours, namely that every legal historian agrees with you needs a bit more to become stablished.

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Originally posted by DialecticMaterialist
Also I have counter-artickes:

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Originally posted by DialecticMaterialist
But now that is begging the question. How do you know that [other legal traditions] were preserving Mosaic Law instead of being independtly derived or derived from another source?

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Originally posted by DialecticMaterialist
First off you have to prove common law is in fact based on cannon law, you have failed to do this.

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Originally posted by DialecticMaterialist
Secondly you must prove cannon law is based on Mosaic law, you have not proven this.

…

This also has to displace other conjectures, namely that Cannon law is based on Pope authority and Catholic dogma, derived more from the New Testament and Christian-Roman traditions (which takes into account that fact that Xians differend radically in their beliefs from Jews) …

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Originally posted by DialecticMaterialist
and common law is based more on common sense and custom (for which the existence of certain Ten Commandment laws can be seen as coincidence). Or perhaps even from remnants of Englands more Pagan culture.

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Originally posted by DialecticMaterialist
If [the links in this chain] are so well documented why are many of your scholars from first millenium? Why is there only one modern?

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Originally posted by DialecticMaterialist
Ah but such standards are ad hoc. I can then easily say that the ten commandments, in all areas but the most universal have lost their history then. Also we can easily point to the more universal codes of all those antecedents as "historically alive". Unless you mean that the documents themselves were lost, in which case that is ad hoc. In that just because the documents were not there verbatim does not mean their influence failed to transfer.

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Originally posted by DialecticMaterialist
Your second objection is meaningless. So what if the Hebrews assimilated the laws? That's like saying then the Ten Commandments are meaningless as they were assimilated by Xians or Europeans. Which shows a fundamental flaw with your methods, in that assimilations in respect to your case seems to strengthen it, but at the same time assimilation in respect to another's case weakens it....heads I win, tails you lose.

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Originally posted by DialecticMaterialist
Number three sounds like a damned if you do, damned if you don't statement. First off if you find parts of an early code in the Decalogue, then doesn't that show perhaps the Decalogue was inlfuenced by it?

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Originally posted by DialecticMaterialist
That is purely a value judgement. On what basis does a historian decide whether or not a code of laws has finally "matured"?

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Originally posted by DialecticMaterialist
This is true if and only if you can show the ten commandments to be the sole source of modern law, are you willing to make this claim? If not the Ten Commandments in respect to modern law can be seen as one of many "scattered: historical sources.

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Originally posted by DialecticMaterialist
Well that sounds like an ad hoc argument if I ever heard one. Perhaps you can tell me why the factors you present are meaningful and mine are not?

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Originally posted by DialecticMaterialist
Now tell me how the idea of government powers, including legal powers being derived from the people in light of what the constitution actually says?

To me it seems like you are again begging the question by insisting that the interpretation is "recent" without again showing any evidence for such a claim.

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1. Where did the idea enter the tradition?
2. In what form and in what spirit was it retained, transmitted and successively received within the tradition?
3. At intervening stages of the tradition, what were the conscious perceptions and associations in respect of it?

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Looking at the historical record, it is fairly evident that the answers to these questions - even for the legal ideas that arguably constitute (in some sense) universal, natural law - do nothing if not emphasize the role of the Ten Commandments.

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Let me step back from the Decalogue issue for a moment and ask you something that may help me understand where you?re coming from, and possibly to respond to your point above in a manner that will satisfy you. Consider the two following, frequently encountered historical conjectures:

1. Shakespeare?s work is the most important and influential in English literature.
2. Plato is the father of Western philosophy.

Never mind if we agree with these statements, or if we know much about literature or philosophy. But if you were asked to test these conjectures, how (briefly summarized) would you set about the task?

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We disagree here again, but perhaps I'm just not sure what you have in mind when you use the term "direct". For example, you are a direct descendant of your great-grandfather. What does this mean to you? What, for you, qualifies as a "direct path" in the context of long-term historical analyses?

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Me:We cannot compare the means of justification

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.Please clarify.

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While we?re on the subject, rather than saying "may have", can you adduce historical evidence (for example, code glosses, annotations, judicial opinions and the like) suggesting that any such law was derived primarily from sources that were independent of the Ten Commandments?

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Not being a scientist, it's hard for me to evaluate the particulars of your analogy without more research. However, broadly speaking, I would tentatively say that, yes, the credit due Newton and Galileo in the development of modern physics is not unlike the credit due the Ten Commandments in the development of modern law.

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That is precisely what I?m saying occurred - especially between the 6th and 18th centuries, and to a lesser but still noteworthy extent thereafter. If you don?t think I?ve shown this, please refer back to my earlier posts. That is what Justinian did. That is what Alfred the Great did. That is what the medieval canonists did. That is what the assemblies of the Thirteen Colonies did. Countless courts and judges have, as well (and recall that, in a common law system, courts have a considerable role in making law). To a lesser extent, so did many of the Founding Fathers, albeit that the Founding Fathers were not responsible overall for inventing much of the historical content of our laws. If there are particular aspects of any of this that you'd like me to elaborate further, I can.

Since you mention the Founding Fathers, let's pause for a moment to consider where their jurisprudential understanding came from. Their generation learned its law pretty much entirely from William Blackstone's Commentaries on the Laws of England. See Albert Atschuler, "Rediscovering Blackstone", 145 Univ. of Pa. Law Review 1 (1996). The influence of the Commentaries was enormous: "In the history of American [legal] institutions, no other book - except the Bible - has played so great a role." See Daniel J. Boorstin, The Mysterious Science of the Law (1958). By way of illustration, from 1760-1805 (the era of the Founding Fathers), Blackstone was the third most-cited legal thinker in America (the Bible - especially Deuteronomy - was, by the way, the authority most often cited in colonial American legal texts). See John Eidsmoe, Christianity and the Constitution: The Faith of Our Founding Fathers (1987).

It seems, therefore, unreasonable to assert that the Founding Fathers failed to absorb Blackstone?s views on historical jurisprudence - and Blackstone, as I already indicated, agrees with my basic thesis.

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Christianity neither is, nor ever was a part of the common law

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As the government of the United States of America is not in any sense founded on the Christian Religion...

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It was the Universal opinion of the Century preceding the last, that Civil Government could not stand without the prop of a religious establishment; and that the Christian religion itself, would perish if not supported by the legal provision for its clergy. The experience of Virginia conspiciously corroboates the disproof of both opinions. The Civil Government, tho' bereft of everything like an associated hierarchy, possesses the requisite stability and performs its functions with complete success; whilst the number, the industry, and the morality of the priesthood, and the devotion of the people have been manifestly increased by the TOTAL SEPARATION OF THE CHURCH FROM THE STATE.

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As to the book called the bible, it is blasphemy to call it the Word of God. It is a book of lies and contradictions and a history of bad times and bad men.

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My parents had early given me religious impressions, and brought me through my childhood piously in the dissenting [puritan] way. But I was scarce fifteen, when, after doubting by turns of several points, as I found them disputed in the different books I read, I began to doubt of Revelation itself. Some books against Deism fell into my hands; they were said to be the substance of sermons preached at Boyle's lectures. It happened that they wrought an effect on me quite contrary to what was intended by them; for the arguments of the deists, which were quoted to be refuted, appeared to me much stronger than the refutations; in short, I soon became a thorough deist

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These two defining moments in American history, 1639 and 1787, frame the central question of this book: How did the Puritan Fathers erecting their "City upon a Hill" transform into the Founding Fathers drawing a distinct line between church and state? The answer lies in the changing meaning of freedom in the concept of freedom of religion. To the Puritans who fled persecution, Massachusetts Bay represented the freedom to practice without interference the one true faith, which they based solely on the Bible, correctly interpreted. Thus religious freedom in the "City upon a Hill" meant freedom from error, with church and state, though separate, working together to support and protect the one true faith. Those who believed differently were free to go elsewhere and sometimes compelled to do so. The Founding Fathers had a radically different conception of religious freedom. Influenced by the Enlightenment, they had great confidence in the individual's ability to understand the world and its most fundamental laws through the exercise of his or her reason. To them, true religion was not something handed down by a church or contained in the Bible but rather was to be found through free rational inquiry. Drawing on radical Whig ideology, a body of thought whose principal concern was expanded liberties, the framers sought to secure their idea of religious freedom by barring any alliance between church and state

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The radical change in the meaning of religious freedom greatly concerned many in 1787. William Williams of Connecticut was appalled when he first read a draft of the proposed United States Constitution. The merchant and delegate to the Connecticut Ratifying Convention expected to see in the document's preface language similar to that found in the Fundamental Orders, some acknowledgment that the new republic rested on a Christian foundation and depended upon divine providence. Instead he saw no hint of the nation's religious heritage: no mention of God, no appeal to divine guidance, no pledge to build a godly society. Williams thought that the Preamble ought at least to express "a firm belief of the being and perfections of the one living and true God, the creator and supreme Governour of the world ." To Williams, the period between 1639 and 1787 represented decline, at least in the important matters of personal piety and public morality. He wanted the United States Constitution to include a religious test for officeholders that would "require an explicit acknowledgment of the being of a God, his perfections and his providence."6 After all, the Connecticut Constitution, as well as those of most of the states, called for such a test.

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Also cited as evidence for theism are the Commentaries of William Blackstone. They allegedly shaped the early nation?s understanding of law by teaching that the fear of the Lord is the beginning of wisdom and God is the source of all laws, rights and freedom. As Whitehead puts it, "Unlike the French revolutionaries a few years later, the American colonists knew very well that if the unalienable rights they were urging for were not seen in the context of Judeo-Christian theism, they were without content" (Second American Revolution, pp. 31-32).

The instances of writers stretching the facts of the past to make them fit into some preconceived Christian model are legion. For example, Whitehead declares that neither Thomas Jefferson nor Benjamin Franklin were deists and that "they at least believed in the personal God of the Scriptures even if they denied the deity of Christ." The proof of Franklin?s piety is his oft-cited plea for prayer at the Constitutional Convention. Historians realize that this was a tactic to cool tempers at a time when the deliberations were deadlocked, but the evangelical barrister states that Franklin?s resolution calling for prayers each morning before proceeding with the day?s business in Congress passed, and that the practice of having prayer before the daily sessions of the U.S. Congress continues to this day. Actually there is no record of a resolution providing for prayer. Franklin himself wrote afterwards that "the Convention, except three or four persons, thought prayers unnecessary," yet Whitehead claims that Franklin?s "remarks are clearly derived from the Scriptures" and reveal that "very likely he was operating from Christian presuppositions himself." Further, he "made an appeal for prayer based on the Scriptures," because he was speaking to a group of men "who were predominantly Christians." As for Jefferson, Whitehead says he shared a high view of Christianity, which his statement evidences: "I tremble for my country, when I reflect that God is just," The writer concludes that to call them "true deists is as erroneous as to call Karl Barth an evangelical Christian" (The Separation Illusion [Mott Media, 1977], pp. 20-21).

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On the other hand, evangelicals who promote a warped view of American history in an effort to undo the court rulings on church-state affairs ignore a fundamental point made by Roger Williams more than 300 years ago: "No civil state or country can be truly called Christian, although the Christians be in it." The vague theism of the founding fathers and framers of the Constitution was in effect a civil religion, and this they did establish. The civil faith did draw from the ideals of theism, but it is wrong to assume that therefore the country was founded on Christian beliefs and thus is a Christian nation.

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I said "most every", by which I meant a very substantial majority of the scholars and judges who have considered these questions, and which is in fact the case.

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First of all, those are press write-ups, both from the same organization with an ideological reason for disagreeing with my thesis.

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Second, although your articles refer to arguments made by legal scholars, they don?t really present any of the argumentation or even, with one exception, identify the expert sources.

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So far as I can tell, both articles are referring to the same amicus curiae brief filed in the Roy Moore case, and although I haven't read it, I and a number of others in the profession have reacted to the basic claim with some incredulity.

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This point of view is clearly not reflected, or minimally so, in the literature - why have these legal scholars put forth their arguments in a court brief (i.e. an advocacy text) rather than in a scholarly forum? It?s impossible even to tell from your articles whether the proposition those scholars purport to refute is the same one I've defined.

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At any rate, however the Moore case ultimately plays out on the constitutional issues, I think there is very little chance that the historical arguments (whatever they are) advanced in that amicus brief to which your article refers are going to persuade anyone. No American court has ever given credence to such an odd view.

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Indeed, even the courts that have ruled against the proponents of public Ten Commandments displays have all acknowledged the important influence of the Ten Commandments on the American legal tradition. See, e.g., Books v. City of Elkhart , 235 F.3d 292 (7th Cir. 2000) ("[t]he text of the Ten Commandments no doubt has played a role in the secular development of our society and can no doubt be presented by the Government as playing such a role in our civic order"); ACLU v. Mercer County, 219 F. Supp. 2d 777 (E.D. Ky. 2002) ("[t]he plaintiffs may wish as a normative matter that our common law was not influenced by the Ten Commandments, but neither their wishes nor any court of law may change history"); Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002) (noting that "[e]xperts on both sides testified that the Ten Commandments were a foundation of American law, that America?s founders looked to and relied to on the Ten Commandments as a source of absolute moral standards") (emphasis added).

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A Kentucky statute requiring the posting of a copy of the Ten Commandments, purchased with private contributions, on the wall of each public school classroom in the State has no secular legislative purpose, and therefore is unconstitutional as violating the Establishment Clause of the First Amendment. While the state legislature required the notation in small print at the bottom of each display that "[t]he secular application of the Ten Commandments is clearly seen in its adoption as the fundamental legal code of Western Civilization and the Common Law of the United States," such an "avowed" secular purpose is not sufficient to avoid conflict with the First Amendment. The pre-eminent purpose of posting the Ten Commandments, which do not confine themselves to arguably secular matters, is plainly religious in nature, and the posting serves no constitutional educational function. Cf. Abington School District v. Schempp, 374 U.S. 203. That the posted copies are financed by voluntary private contributions is immaterial, for the mere posting under the auspices of the legislature provides the official support of the state government that the Establishment Clause prohibits. Nor is it significant that the Ten Commandments are merely posted rather than read aloud, for it is no defense to urge that the religious practices may be relatively minor encroachments on the First Amendment.

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America inherited early modern common law, which in turn was derived largely from medieval common law and canon law.

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I agree with you. However, it is important to bear in mind that the Ten Commandments figure reasonably prominently both in the New Testament and in Romano-Christian legal texts. I hope, incidentally, that you don't mean to suggest that the Christian and Jewish traditions differ radically on the matter of the Ten Commandments.

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When King Alfred the Great - the so-called "father of the common law" - promulgated the Liber Jucialis , he chose which laws were to be included from the pre-existing Saxon tradition (and hence transmitted to successive eras), and he modified still others. Some of those were specifically Judeo-Christian. Others, including pagan customs, were retained or discarded by Alfred based on how well they comported with his notion of justice. But the Ten Commandments dictated Alfred?s concept of normative justice, which in turn, dictated the selection and transformation process - Alfred says so himself, in great detail, right in the code. The Ten Commandments are the first part of the code, in fact. If Alfred?s laws became the basis for medieval and later common law, what alternative conclusions do you hope to draw about the historical relationship between the common law and the Ten Commandments?

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I said "haven't been lost to history", i.e. that the source text hasn?t vanished or can?t reliably be tracked down. I hope you?ll agree that it's of very little use to historical inquiry to speculate that the Ten Commandments existed in some prior form, in some other culture from which the Hebrews borrowed it, if all evidence of the prior form has been lost forever. And again, I'm not claiming that this is the case, I?m just saying that your research hypothetical would have to meet this very basic criterion.

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You have entirely misunderstood this point. What I meant was that that it would be important (in your hypothetical) for you to show that any pre-Mosaic sources substantially codifying the content of the Ten Commandments in some earlier form had probably been assimilated by the Hebrews ? i.e. it would have to be a source that the writers of the Ten Commandments were familiar with and consciously influenced by, rather than a code they independently and unintentionally replicated.

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Let me clarify my statement. I said that whatever antecedents (in Babylonian law, or other sources) contributed to their content, the Ten Commandments achieved "maturity of expression" of those ideas. I mean this simply in the sense that once the Ten Commandments were codified, it was those ideas qua the Ten Commandments that were propagated through the tradition, which explains why when judges in the 10th century, the 15th century or the 20th century refer to the Ten Commandments, the meme has instant cultural recognition and currency. The antecedents of that meme do not.

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Allow me to clarify. The "scattering of earlier sources" was a reference to any pre-Mosaic sources that may have coalesced to result in the Ten Commandments. My point was that the Ten Commandments combined those ideas in a single, identifiable, recognizable codified expression .

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Legal historians (who are largely, though not exclusively, historians of ideas) are not overly concerned with inquiries into human nature and bio-cultural evolution, so those factors will not have much meaning within the framework of a legal-historical analysis.

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But at any rate, I meant that it is "recent" in the sense that the idea that the authority behind civil laws derives foremost from an expression of the will of the citizenry hasn?t predominated for most of the nearly two-thousand year history of Western legal tradition.

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More importantly, however, it is not a substantive law itself, but rather a way of thinking about laws in general; it does not aid much in explaining the origin of the ideas behind specific legal doctrines. This being the case, what was your point in bringing it up?

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As an afterthought, DM, in rereading my posts quickly I note that in support of my argument I've now cited roughly a dozen works of modern scholarship, about the same number of judicial opinions and perhaps half that many historical sources. This is not including the additional authority cited second-hand within certain of my quotations. You've managed to submit next to nothing - literally - in the way of external corroboration for any of your historical counter-arguments, yet you seem to suggest that I'm the one engaging in pure conjecture and sketchy scholarship.

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

Your latest post, DM, introduces so many questionable assertions, and betrays such a near-complete unfamiliarity with legal history and analysis, that it will require substantial time and effort for me to reply. For the moment, due to time constraints, I'm going to adopt a piecemeal approach and address primarily your statements regarding my reliance on Blackstone as a historical source. If you want to respond on just this limited issue, feel free; otherwise we can resume the discussion later when I've had the opportunity to comment on your other points.

But as a preliminary matter:

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Originally posted by DialecticMaterialist
I notice this a lot with you, you "quote" sources but fail to provide any links. Why is that?

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Originally posted by DialecticMaterialist
That is very, very dubious. First off you provide no direct proof, just mention of this man blackstone who seems very biased and who's analyses seems at odds with mainstream historians on the matter.
…
Another historian from Indiana State University has declared Blackstone's account to be rivisionist and at odds with mainstream historians
…
At least my sources consist of an overview, with accompanying links and are often times from leading universities. What have you brought to the table? One source: Blackstone, is a well known revisionist at odds with his peers according to Indiana professor of history Richard V. Pierard. Blackstone is also a British professor of law, why you have to go all the way to Britain to find experts on the US constitution is beyond me.

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"Those knowledgeable in the history of American law, the federal Constitution, or the general history of the American revolutionary and early national periods know well the influence that certain seminal legal treatises had upon our government institutions and legal doctrine. Blackstone's Commentaries, of course, springs to mind at once. In a day in which West's Federal Reporter System alone runs to thousands of books, those new to the study of early American law may react with surprise to the momentous impact that Blackstone's four volumes had upon the era. The relative brevity of the work (compared to the mass of contemporary English statutes and reported cases, or America's own late-twentieth century legal materials), however, bears little relationship to its importance. What matters is that Blackstone shaped the thinking of individuals who played a key role in the revolution, who designed the early state constitutions as well as the federal Constitution, who molded the state and national governments during their early years, and who studied, practiced, and made (or, in the language of the Enlightenment, 'discovered') law for generations. Indeed, Blackstone continued to be the staple of law study in some states even into the early years of our own century." (Source: Buckner F. Melton, Jr., "The Supreme Court and The Federalist: A Citation List and Analysis, 1789-1996", 85 Kentucky Law Journal 243 (1996) (footnotes omitted).)

"John Adams and the other prominent Americans who wrote our Constitution and Bill of Rights were lawyers trained in the English common law tradition. That legal tradition had a profound effect on early American legal history. The preeminent author concerning English common law was William Blackstone. Blackstone's name and the name of his famous Commentaries on the Laws of England recur in source materials throughout this time period. In fact, one scholar has determined that Blackstone was the English writer most frequently mentioned in the writings of prominent Americans between 1760 and 1805. … In fact, so great was Blackstone's influence in the Colonies, pro-Revolutionary elements present in the Colonies before the war actually referred to him by name in anonymous newspaper articles and editorials." (Source: Anthony J. Dennis, "Clearing the Smoke from the Right to Bear Arms and the Second Amendment", 29 Akron Law Review 57 (1995) (footnotes omitted).)

"With Locke and Montesquieu, Blackstone was one of the three most influential secular thinkers among the Framers. Blackstone in particular had great appeal to the Framers as the authoritative treatise on many areas of law." (Source: John C. Yoo, "War and the Constitutional Text", 69 University of Chicago Law Review 1639 (2002) (footnotes omitted).)

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One of the benefits/requirements of my job is that I have ready access to a good law library and to professional databases. Many of the academic journals in my field are not publicly available on the World Wide Web, and while a lot of U.S. court decisions are, they are not well organized in any central fashion, so like most lawyers I tend not to rely on the Web for legal research. I always give the bibliographic information for my citations, however, so if you want to presume to carry on an academic discussion, get yourself down to your local law school's library (many of them are open to the public) and hit the books like I do. That said, in the future, at least when I cite judicial opinions, I'll try to remember to double-check to see if I can find an online source.

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I've warned several times about the limited relevance of the U.S. Constitution to an analysis of the origins of substantive American common law, but judging from your fixation on it, you haven?t paid attention. So be it.

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" John Adams and the other prominent Americans who wrote our Constitution and Bill of Rights were lawyers trained in the English common law tradition. That legal tradition had a profound effect on early American legal history."

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"With Locke and Montesquieu, Blackstone was one of the three most influential secular thinkers among the Framers."

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Now let's consider your source and the use you've made of it. You claim that Richard Pierard characterizes Blackstone as a "well-known revisionist at odds with his peers," but if you look at the article, the only thing Pierard says on the subject is: "Also cited as evidence for theism are the Commentaries of William Blackstone. They allegedly shaped the early nation?s understanding of law by teaching that the fear of the Lord is the beginning of wisdom and God is the source of all laws, rights and freedom." Pierard doesn?t mention Blackstone again, and he certainly never attacks Blackstone per se. I gather that Pierard is objecting to the misuse of Blackstone in arguments that the United States is, in its civic establishment, a Christian nation. But that?s not how I'm using Blackstone! I agree with Pierard that the United States is not a Christian polity. I'm arguing that the Ten Commandments are seminal to common-law legal systems, not that common-law legal systems are necessarily religious or that they're incompatible with the separation of Church and State - obviously this is not the case.

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Incidentally, an exhaustive survey (conducted by me on LEXIS) of the contemporary legal literature turns up eight substantive citations to Pierard?s work, but none of them is remotely consistent with the words you're trying to put in Pierard's mouth.

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But it violates our historic tradition as well as the tenets of Christianity to say that we were or are now a Christian nation. That is standing the founding fathers on their heads with a vengeance, and this I categorically reject.

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

Also you wish to get technical, lets get technical:

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Let me begin by noting that certain people, notably the proponents of public Ten Commandments displays, have a habit of overstating the general principle: (for example, ?All American laws are based on the Ten Commandments?). One also finds such rhetorical excesses, however, in arguments from the opposing camp (for example, ?It may safely be concluded that Mosaic law had virtually nothing to do with the development of the US legal system,? as CWL asserted in the other thread).

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

I'm still trying to cover your earlier post; I think it will take me three sessions (this is the second). Give me a chance to catch up. Excuse me for taking some of your points in a different order than you made them, as well.

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Originally posted by DialecticMaterialist
No, you have only shown some scholars and very old court decisions on the matter, hardly proof of historical consensus.

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Originally posted by DialecticMaterialist
As if there are no ideological biases underlying your own thesis. Second are you saying [my sources] are lying? That the said historians do not exist?

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Originally posted by DialecticMaterialist
Ok so they just are lying. We are to take your evidence at face value, even when you make unwarranted claims like "the majority agrees with me" based on one or two people who believe America is a christian nation, but anyone who disagrees is to be suspected of lying.

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Originally posted by DialecticMaterialist
Really? The issues concerning prayer in school and creationism says otherwise.

The Constitution is a matter of interpretation as much as literal reading; thus proper interpretation requires a proper understanding of history.

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"If all Chief Justice Moore had done were to emphasize the Ten Commandments' historical and educational importance (for the evidence shows that they have been one of the sources of our secular laws) or their importance as a model code for good citizenship (for we all want our children to honor their parents, not to kill, not to steal, and so forth), this court would have a much different case before it. But the Chief Justice did not limit himself to this; he went far, far beyond. He installed a two-and-a-half ton monument in the most prominent place in a government building, managed with dollars from all state taxpayers, with the specific purpose and effect of establishing a permanent recognition of the 'sovereignty of God,' the Judeo-Christian God, over all citizens in this country, regardless of each taxpaying citizen's individual personal beliefs or lack thereof. To this, the Establishment Clause says no."
Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002).

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Originally posted by DialecticMaterialist
Again could you give me a source for this [about Alfred the Great]?

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Originally posted by DialecticMaterialist
Well then they have found lots of legal documents pre-dating the Ten Commandments that the Hebrew people would have come into contact with, most notable of which is Hammurabi's code.

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Originally posted by DialecticMaterialist
This is true, [legal historians] do not regularly bring in evolution or human nature as their rationale: nor do they bring in ancient documentation from other times and cultures though. This is because they are supposed to work within the paremeters of modern rationale and the constitution, not the laws of another land.

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Originally posted by DialecticMaterialist
Tell me...do you believe the Ten Commandments should be displayed on public structures? In public courts and public schools?

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Originally posted by DialecticMaterialist
What about prayer in school, should we bring that in as serving the "historical role" of being in schools of the past?

Or perhaps creationism, not for religious reasons of course, but because it used to be taught as a legitimate science? Creationism and school prayer thus have historical significance, yes?

I'm sure all of those things, if you dig enough have some sort of historical transference into cultures of our past, but that does not make them relevant today in science or schooling.

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I would venture to deny the influence of the 10C's on American law because few of our legal codices are worded in a quaint little 10-part format. They just blurt the law out on their subject, and let it be formed in however many parts it takes. The 10-part deal was apparently contrived, as it is a number oft-repeated in the Hebrew legal tradition.

If you look at the 10C's the first 5 are clearly religious in nature, ostensibly indicating religious goals upon their obedience. It would of course be a ridiculous argument to claim that half of American law--Constitutional, common, procedural, or otherwise--is similarly religious in nature, ostensibly indicating religious goals upon its obedience.

For those who might be inclined to argue that America was largely inspired by Christian religious doctrines, perhaps attempting to buoy some support for their claims from the 10C debate, I would remind them of the New Testament doctrine that Christians are no longer bound by the Torah, being saved by faith rather than by works. The Christian scriptures proclaim the old law to be inapplicable and obsolete. Therefore, if the USA laws were in any way based on Christianity (which I am not claiming myself), then those laws clearly were not based on the 10C's.

__________________
TexasBEAST
-"Clearly we need clarification."

-"Cars kill way more people accidentally than guns do on purpose."

-"The Founders wanted the people to be heavily armed, as a way of keeping the politicians honest, and their powers and ambitions in check. Only tyrants, clueless utopians, or criminals want the people disarmed."

To continue:

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Originally posted by DialecticMaterialist
All of which can be very questionable.

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Originally posted by DialecticMaterialist
It would be more or less a matter of aproximation. Plato would be perhaps the father only insofar as he has the first written account. Shalespear would be an untestable value judgement with which I would disagree.

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Originally posted by DialecticMaterialist
Well how did the Founding Fathers justify the laws of the Constitution? They saw it as self-evident matters of reason, Nature and/or God, that this gave men certain freedoms (like freedom of conscience) and that these rights should be honored by government.

The Ten Commandments justifies laws differently, more as order. God says, you do. It's a matter of faith and divine revelation: not reason. These are not freedoms to be protected either but orders given by God.

The Constitution is thus based on Reason, the Ten Commandments: God and Power.

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While we're on the subject, rather than saying "may have", can you adduce historical evidence (for example, code glosses, annotations, judicial opinions and the like) suggesting that any such law was derived primarily from sources that were independent of the Ten Commandments?

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Originally posted by DialecticMaterialist
If they are universal, they likely just reflect certain aspects of human nature and common sense. Hence the Ten Commandments was never needed to carry them.

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Originally posted by DialecticMaterialist
Likewise many quotes from the founding fathers as well as many scholars on the subject say otherwise:

Jefferson:
Christianity neither is, nor ever was a part of the common law

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Jefferson argued that the widely held belief among English and American lawyers that Christianity was a part of the common law was a "judiciary forgery" promulgated by a mistranslation in Sir Henry Finch's opus on the common law. Finch (1558-1625) had cited an earlier opinion written in Norman French by Sir John Prisot (d. 1460), Chief Justice of the Common Pleas. Prisot said it was proper to give credence to such laws as the people of the Holy Church have in "ancient scripture," for this is common law on which all manner of laws are founded. Jefferson alleged that Finch, citing Prisot, erroneously construed "ancient scripture" as "holy scripture," or the Holy Bible, whereas the term should have been translated as the ancient "written laws of the church." According to Jefferson, this led Finch to falsely conclude that church law, having warrant in Christian scriptures, was accredited by the common law of England. According to the conventional view, the common law incorporated the Christian scriptures or Bible, and nothing in the common law was valid that was not consistent with divine revelation. As Jefferson saw it, though, the issue addressed by Prisot was not whether Christianity was a part of the common law of England, but rather to what extent ecclesiastical law was to be recognized and enforced (given faith and credit) by common law courts. Jefferson proceeded to trace Finch's "error" through Sir Matthew Hale, Sir William Blackstone, Lord Mansfield, and other English jurists, who gave this new doctrine respectability, and finally to its transmission to America.

…

Jefferson's radical denunciation of the virtually undisputed connection between Christianity and the common law arguably undermined acknowledgment of Christian precepts in law and public policy and accelerated the secularization of public life. It also, by implication, denied the alleged Christian foundation of the federal Constitution. In short, his argument challenged the notion that America was in any legal sense a Christian nation. Jefferson's views confirmed to his detractors that he was an infidel, contemptuous of established judicial, legal, and religious authorities that uniformly recognized the Christian basis of the common law. Jefferson defiantly concluded … with a provocative invitation to any lawyer "to produce another scrip of authority for this judiciary forgery." Conservative jurists and commentators, mindful of Jefferson's influence and the radical implications of his theory for American church-state relations, were eager to expose his sophistry. Justice Story took up the challenge, demolishing Jefferson's thesis in a published opinion in the American Jurist and Law Magazine. After consulting English authorities, Story concluded that Jefferson's commentary was "so manifestly erroneous" that it could only be regarded as a willful "mistake." Story argued that Prisot, the authority cited by Finch, had referred to a superior law, having a foundation in nature or Divine appointment, and not merely to an ancient written code of the Church, as Jefferson contended. Clearly, it would be absurd to say that Prisot meant that the positive code of the Church was the foundation of all human laws. It was the common law, which recognized revealed religion, upon which all manner of laws are founded. Thus, the more plausible translation was Finch’s, which held that the common law credited the Holy Scriptures and professed to be built upon them.

(Source: Daniel L. Dreisbach, "An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution", 48 Baylor Law Review 927 (1996) (footnotes omitted))

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Justice Brewer was relating what he viewed to be a historical fact and a cultural phenomenon, not a legal mandate. Where the maxim had continuing relevance was in its notions of benevolence, charity, and respect for religious diversity, not the enforcement of religious prerogatives through the law. … Significantly, Brewer did not view the maxim as authorizing the enactment or enforcement of laws designed to advance Christian principles. Rather, he merely believed that America was founded on liberal Christian values that, in turn, permeated its culture rendering it a superior civilization. But these values were transcendent, and were to be written on men's hearts, not into statute books or enforced through judicial decisions. (Source: Steven K. Green, "Justice David Josiah Brewer and the 'Christian Nation' Maxim", 63 Albany Law Review 427 (1999))

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Originally posted by DialecticMaterialist
And could you give a link to where yoy got this information from?

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Originally posted by DialecticMaterialist
also the Supreme Court has ruled otherwise:

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Originally posted by DialecticMaterialist
To make an anology, american government developed from feudal or aristocratic, but does it then follow that american government is based on feudalism and aristocracy?

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Originally posted by DialecticMaterialist
Well its strange then that you do not give us information we can readily check. Also what is your job?

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Originally posted by DialecticMaterialist
What are you talking about?
quote:

But it violates our historic tradition as well as the tenets of Christianity to say that we were or are now a Christian nation. That is standing the founding fathers on their heads with a vengeance, and this I categorically reject.

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Originally posted by DialecticMaterialist
Lastly, I wish to know the point of these claims you are making. Are you stating for example that there is now a secular reason to include the Ten Commandments in government buildings? To "show our history" which may or may not exist, based on some very questionable standards?

According to what you stated then Cannon law had a great impact on our common law, so then maybe we should hang up cannon law.

Lastly perhaps you would then be willing to place up the Founding Father's statements concerning Separation of Church and State, and how America is not founded on the Christian religion: including excerpts from the Age of Reason just so that students do not get confused and believe that the government is endorsing religion? That way we can avoid some "excesses".

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Originally posted by DialecticMaterialist
Ok first off CWL said "virtually nothing" which you have not yet refuted. Instead you showed *maybe* a minor degree of influence on common law.

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Originally posted by TexasBEAST
I would venture to deny the influence of the 10C's on American law because few of our legal codices are worded in a quaint little 10-part format. They just blurt the law out on their subject, and let it be formed in however many parts it takes. The 10-part deal was apparently contrived, as it is a number oft-repeated in the Hebrew legal tradition.

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Originally posted by TexasBEAST
For those who might be inclined to argue that America was largely inspired by Christian religious doctrines, perhaps attempting to buoy some support for their claims from the 10C debate, I would remind them of the New Testament doctrine that Christians are no longer bound by the Torah, being saved by faith rather than by works. The Christian scriptures proclaim the old law to be inapplicable and obsolete.

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Originally posted by ceo_esq
That seems rather a lightweight argument in view of everything that's been discussed in this thread. Certainly, it focuses on form rather than substance.

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But since you raise the point, where does the Bill of Rights - that is, the "Ten Amendments" - fit into your theory (again, as regards purely their format and presentation rather than their substance)?

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Originally posted by ceo_esq
Yet Christ purports to base his "great commandments" on the law revealed by Moses (Mt 22:36-40), implying that the New Testament law is simply a summary and distillation of Old Testament law. In addition, Christ indicates that the Ten Commandments are still very much in effect (Mt 19:16-19). I don't know what Christians ordinarily make of this, but it does seem to contradict your general premise.

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__________________
TexasBEAST
-"Clearly we need clarification."

-"Cars kill way more people accidentally than guns do on purpose."

-"The Founders wanted the people to be heavily armed, as a way of keeping the politicians honest, and their powers and ambitions in check. Only tyrants, clueless utopians, or criminals want the people disarmed."

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Originally posted by TexasBEAST
Historically speaking, the Bill of Rights originally featured 12 different recommendations--not 10. 10 were ultimately ratified as amendments at the time, but one more of the original 12 was ratified at a later date.

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Originally posted by TexasBEAST
Notice also that these amendments guarantee civil immunities against government action, rather than directing either governmental or individual action.

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Originally posted by TexasBEAST
On the other hand, the 10Cs supposedly were delivered all at one time, not as 12 at a time, and they definitely were not offered up as recommendations and approved through a republican ratification process.

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Originally posted by TexasBEAST
Thus, very different both in form and content.

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Originally posted by TexasBEAST
*BUZZ!* Wrong answer. Thank you for playing. Please try again.

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Originally posted by TexasBEAST
The Iesous character of the first two Gospels went to great pains to prove his Jew-ness to the Jews of the time, including his claim to follow and fulfill the Law. The watered-down references to the Law are in keeping with that early model of Iesous. But when Christianity largely failed in Jewish circles, and the evangelists opened their arms to the Gentiles, the Law was summarily dismissed. The Iesous character favored by these latter evangelists cast the Torah aside, and saw no reason to base instructions upon any old codex of law.

Therefore, if America was indeed based on Christianity, it was not based on the Torah, including the 10Cs. Even if it were based on the Two Commandments of Matthew, even then it would still not be based on the 10Cs, but the 2Cs.

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The Third Circuit Court of Appeals case I quoted at length in my initial post was decided less than a month ago. I'm beginning to think you haven?t read the whole thread. But more importantly, I'm beginning to think that nothing in the way of cited authorities (recent or historical) would satisfy you. I told you I could cite scores of additional articles and hundreds more court cases supporting the various parts of my argument, but is it really going to be necessary to produce all of them? If you have a rough number in mind, let me know.

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No, I'm simply pointing out that your "counter-articles" are one type of article (that is, short write-ups from the PR department of Americans United for Separation of Church and State) and the articles they are supposedly "countering" are another type of article (that is, peer-reviewed academic law journal articles). This may or may not be significant, but pardon me for noticing it.

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Have I cited even one source for the proposition that America is a Christian nation? Where did that come from?

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It might help your argument somewhat if you could rely on the document the law professors in question actually wrote, rather than what is essentially a press release written about it.

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In addition, I stand by my comment that their point of view (insofar as I can deduce third-hand precisely what it is) does not seem to find much expression in the scholarly literature (to say the least).

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I don't understand what you're getting at here. The writers of that amicus brief apparently argued that the Ten Commandments have played no significant role in the development of our legal tradition. Good luck finding a decision of an American court, of any era, agreeing with that. No, really. Go look for one and get back to me.

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http://www.ca11.uscourts.gov/opinions/ops/200216708.pdf

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The district court's decision ruling against Moore:

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"If all Chief Justice Moore had done were to emphasize the Ten Commandments' historical and educational importance (for the evidence shows that they have been one of the sources of our secular laws) or their importance as a model code for good citizenship (for we all want our children to honor their parents, not to kill, not to steal, and so forth), this court would have a much different case before it. But the Chief Justice did not limit himself to this; he went far, far beyond. He installed a two-and-a-half ton monument in the most prominent place in a government building, managed with dollars from all state taxpayers, with the specific purpose and effect of establishing a permanent recognition of the 'sovereignty of God,' the Judeo-Christian God, over all citizens in this country, regardless of each taxpaying citizen's individual personal beliefs or lack thereof. To this, the Establishment Clause says no."
Glassroth v. Moore, 229 F. Supp. 2d 1290 (M.D. Ala. 2002).

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the Supreme Court has instructed us that "[t]he Ten Commandments are deiniably sacred text in Jewish and Christian faiths and no legilslative recitation of supposed secular purpose can blind us to that fact.

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I believe there are some excerpts from this book online at Amazon.com, though probably not the relevant ones. Any good research library will likely have this book available, however.

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Historians should not concern themselves with documentation from other times and cultures? I don?t know where you get these supposed limitations.

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This is, strictly speaking, off-topic. I am not using my conclusion about the historical significance of the Ten Commandments as a premise in some additional policy argument.

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

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I think there are adequate references in the historical record to support the inference that, if nothing else, most of the relevant people (lawgivers, law commentators, judges and so forth) subjectively thought that they were dealing with the transmission and preservation of an intellectual and moral heritage that, to their minds, traced back to the Ten Commandments, and which, although consistent with common sense and right reason, they nonetheless did not perceive as either arising spontaneously in the tradition or deriving primarily from sources unrelated to the Ten Commandments.

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I wasn't asking you to draw conclusions. I asked about the process you would use to test the hypotheses.

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That said, if I understand your response correctly, you think that whether a particular literary source is the most important influence in our literary history is an untestable value judgment. If you're correct about that, then whether a particular legal source is the most important influence in our legal history is also an untestable value judgment.

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Why do historians in any field bother to formulate such hypotheses? And why does anyone bother listening to them?

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There really isn't that much law in it ? the Framers assumed that the common law tradition would provide the actual legal content. Have you noticed that the Constitution has nothing, or next to nothing, to say about crimes, contracts, torts, property transfers, family relations and other areas of law? That it doesn?t prescribe or proscribe individual conduct the way laws generally do?

Perhaps I?m overgeneralizing slightly, but the Constitution consists of laws intended to bind the state. The Ten Commandments are, like most laws, intended to bind individuals. How close of a comparison do you expect there to be? Once again, this is part of the reason why the Constitution is necessarily going to be of secondary relevance to this discussion.

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I never claimed that the Ten Commandments were theoretically needed to propagate these notions through our culture, I claimed that that?s what actually turned out to happen.

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But, bottom line, I take it that your answer to my question above was "No."

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I?m going to let the majority of your quotations of the Founders stand, because you're simply using them to erect strawmen. My thesis does not equate to a denial of, nor is it incompatible with, America being a secular nation committed to the separation of church and state. So please get over it. The fact that the Ten Commandments have exerted such an important influence on the development of our legal system does not mean (as I've already stated) that the end result is necessarily a religious one.

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I will, however, take up the point of Jefferson's claim, because it relates directly to the common law and there's an interesting tale surrounding it:

?

Jefferson's radical denunciation of the virtually undisputed connection between Christianity and the common law arguably undermined acknowledgment of Christian precepts in law and public policy and accelerated the secularization of public life. It also, by implication, denied the alleged Christian foundation of the federal Constitution. In short, his argument challenged the notion that America was in any legal sense a Christian nation. Jefferson's views confirmed to his detractors that he was an infidel, contemptuous of established judicial, legal, and religious authorities that uniformly recognized the Christian basis of the common law. Jefferson defiantly concluded ? with a provocative invitation to any lawyer "to produce another scrip of authority for this judiciary forgery." Conservative jurists and commentators, mindful of Jefferson's influence and the radical implications of his theory for American church-state relations, were eager to expose his sophistry. Justice Story took up the challenge, demolishing Jefferson's thesis in a published opinion in the American Jurist and Law Magazine . After consulting English authorities, Story concluded that Jefferson's commentary was "so manifestly erroneous" that it could only be regarded as a willful "mistake." Story argued that Prisot, the authority cited by Finch, had referred to a superior law, having a foundation in nature or Divine appointment, and not merely to an ancient written code of the Church, as Jefferson contended. Clearly, it would be absurd to say that Prisot meant that the positive code of the Church was the foundation of all human laws. It was the common law, which recognized revealed religion, upon which all manner of laws are founded. Thus, the more plausible translation was Finch?s, which held that the common law credited the Holy Scriptures and professed to be built upon them.

(Source: Daniel L. Dreisbach, "An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution", 48 Baylor Law Review 927 (1996) (footnotes omitted)) One conclusion to be drawn from all of this, I think, is that Jefferson was wrong at the time about the common law, particularly in its historical dimensions. But in a larger sense he arguably turned out to be right about the way the common law would continue to develop in the United States, because thanks to our Establishment Clause jurisprudence the specifically religious dimensions of the common law have become obsolete (leaving, of course, the extensive secular influence of those same religious origins).

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Legal systems don't (or at least they haven't generally tended to in the West) change in the quite same manner as systems of government.

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It's not remarkable that we can hardly see any similarities between, for example, the 1787 Constitution and medieval feudalism. What is fairly remarkable is that we can recognize a number of similarities between the common law as it existed in each of those two eras.

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I just explained why my research sources are often not available online.
I encouraged you to go to the library and hit the books the old-fashioned way, as I often have to do in legal research; it's not my fault if you don't want to. That doesn't make my facts uncheckable, just unchecked.

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As for my job, I discussed it with CWL earlier in the thread (short answer: I'm an attorney). You must have missed it.

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Ah, but the words you were putting in his mouth, though, were that Blackstone was some kind of discredited fringe element. Not what he says at all.

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I've already said that my point is simply to draw some academic conclusions about the Western legal tradition. You're the one who keeps bringing up public Ten Commandments displays. I intentionally started this discussion in a new thread to separate it from the political discussions about the Ten Commandments in civic life, which don't interest me as much.

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most of the relevant people (lawgivers, law commentators, judges and so forth) subjectively thought that they were dealing with the transmission and preservation of an intellectual and moral heritage that, to their minds, traced back to the Ten Commandments,

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Legal systems don't (or at least they haven't generally tended to in the West) change in the quite same manner as systems of government.

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It's not remarkable that we can hardly see any similarities between, for example, the 1787 Constitution and medieval feudalism. What is fairly remarkable is that we can recognize a number of similarities between the common law as it existed in each of those two eras.

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

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Originally posted by DialecticMaterialist
Ok, that was an interesting story I would like to hear more about in the future. Particulalry both sides of the debate, Jefferson's side. I would also like to note that your source, Baylor University, is a Baptist college that is known for having a right-wing religious bias. In fact a few years ago it many of the authorities there seriously considered introducing creationist theories into biology classes. They also have creationist conferences:

http://www.e-skeptic.de/200400.HTM

On the plot to introduce creationism into Baylor: http://www.baptiststandard.com/2000...s/creation.html

Also though your viewpoint is merely assuming Jefferson was wrong and his critic was correct, an assumption I cannot just share.

Lastly, who had more power to set policy in the US at the time? And who more likely reflected US values, the Founding Fathers like Jefferson or his critics? I believe Jefferson does.

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Dreisbach's historical analysis provides a powerful critique of the [Supreme] Court's current interpretation of, and reliance upon, Jefferson's views as expressed in his letter to the Danbury Baptist Association.
…
In bringing together a body of evidence regarding Jefferson's views, Dreisbach provides a valuable service in attempting to reconcile Jefferson's pronouncements with the prevailing views of the time. Commentators such as Philip Hamburger have recently suggested that Jefferson's statements regarding "separation" were out of step with contemporaneous understandings. Professor Dreisbach, however, takes the argument one step further, maintaining that the historical evidence suggests that Jefferson did not actually believe that the Establishment Clause set up any sort of rigid separation between religion and government. Rather, according to Dreisbach, Jefferson understood the separation principle to be based in federalism[.]
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[T]he relevance of Jefferson's views in interpreting the Establishment Clause must be called into question for a number of reasons. First, as several commentators have noted, Jefferson's views are clearly a post hoc gloss on the constitutional text by an individual who did not actively participate in the drafting or ratification of the relevant provision. As Judge Wallace has observed, Jefferson's "'wall of separation' comment was made in a letter fourteen years after the First Congress passed the First Amendment - hardly contemporary with the adoption of the First Amendment."
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Thomas Jefferson and the Wall of Separation Between Church and State makes a valuable contribution to our understanding concerning Jefferson's views regarding government and religion. … Yet, [Dreisbach’s] discussion of the history surrounding Jefferson's now-famous statements raises several questions concerning whether [Jefferson's] views are relevant at all in interpreting the Establishment Clause.

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It seems that anti-secularism is evolving into a more sophisticated form.

In any event I will trust the Supreme Court and Enlightenment scholars over this Dreisbach fellow, who seems to be accusing the said court of incompetence.

I also find the claim rather bizzarre given what I know of other Founding Fathers such as Benjamin Franklin who actually made Jefferson's Declaration of Independence more secular by crossing out "we hold these truths to be sacred and undeniable" and putting in "self-evident". Franklin was also friends with Voltair and we should not forget Thomas Paine. I find it strange that any man would try to downplay Jefferson's important in America's founding.

I believe Jefferson probably did not intend for the Bill of Rights to be as widely used as it is now, on state levels, nor did he expect freedom of speech to apply to african americans or the right to vote to women any time soon. But history made the Constitution apply to all, thus it carried what spirit Jefferson had intended for the federal government to every state and aspect of US government.

__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

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Jefferson's views are clearly a post hoc gloss on the constitutional text by an individual who did not actively participate in the drafting or ratification of the relevant provision. As Judge Wallace has observed, Jefferson's "'wall of separation' comment was made in a letter fourteen years after the First Congress passed the First Amendment - hardly contemporary with the adoption of the First Amendment."

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__________________
"Humanity has the stars in its future, and that future is too important to be lost under the burden of juvenile folly and ignorant superstition."
-- Isaac Asimov

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Originally posted by DialecticMaterialist
In any event I will trust the Supreme Court and Enlightenment scholars over this Dreisbach fellow, who seems to be accusing the said court of incompetence.

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Originally posted by DialecticMaterialist
Ok so he explained what he meant a few years after he wrote the amendment...how that translates to "he may have changed his mind later." Is lost on me. In his letter Jefferson was clarifying the purpose of the Establishment Clause, I don't think the mere fact of its "lateness" makes it "post hoc" (being late does not make a statement post hoc) nor does it make his testimony concerning material he partly wrote and composed himself any less credible.

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Originally posted by DialecticMaterialist
I'm sure the issue is controverisal for some, and there are hardliners. I'm sure you can find lawyers to defend just about anything. In fact, there would be one for every court case ever brought up. The question is: do they represent the vast majoriti?

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Originally posted by DialecticMaterialist
They are friend of the Court briefings, to me that is just as good as a peer reviewed lawyer journal. Likewise so what if the actual medium is different? That is a red herring. If I find a museum home page, or a friend of the court hearing to counter a creationists "peer reviewed" article, is that not accepted because they are "different types"?

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Originally posted by DialecticMaterialist
All youa re doing now is making sure no one on this board can *possibly* contradict your statements, well unless they somehow have access to a vast array of legal "journals".

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Originally posted by DialecticMaterialist
Well if that was true then what about the friend of the court by 72 Nobel Prize winners concerning creationism...that just "not count" too?

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Originally posted by DialecticMaterialist
That is a rdiculous argument. Perhaps if you could link me to one of your sources some time this year, I could take it seriously. Basically until then your arguments are hearsay, through and through.

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Originally posted by DialecticMaterialist
The 11th Circuit it should be noted did not say that the Ten Commandments played any developmental role in US Laws either because it quite simply did not engage in historical factfinding.

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Originally posted by DialecticMaterialist
That is the district court, not federal. And one must wonder whether historians were called on the matter at all.

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Originally posted by DialecticMaterialist
Also on page 33 the Court stated that the secular purpose of promoting the Ten Commandments as a foundation for Western law was "avowed."

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Originally posted by DialecticMaterialist
In any event the historical argument was not brought up because the case never got to trial, but was dismissed via a summary judgement.

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Originally posted by DialecticMaterialist
So we ar eleft to go find your verification for you on Amazon.com?

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Originally posted by DialecticMaterialist
Historians do, I never said historians don't. I said legal scholars and judges don't.

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Legal historians (who are largely, though not exclusively, historians of ideas) are not overly concerned with inquiries into human nature and bio-cultural evolution, so those factors will not have much meaning within the framework of a legal-historical analysis.

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Originally posted by DialecticMaterialist
Then why argue about it on the issue concerning the ruling of Judge Moore?

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Originally posted by DialecticMaterialist
Also you state that JK's arguments a "little hyperbolic" (though if that is a little I'd hate to see what a lot is in your opinion), meaning you think many of his arguments not necessarily untrue?

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Originally posted by DialecticMaterialist
As for my statement and your reply concerning "Tea in China" a saying neither clever or very humorous. ( I doubt a 60 year old man would even laugh at that one), why don't you simply answer my question?

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Originally posted by DialecticMaterialist
Also I'd like to know what your position is concerning religion. Are you a Christian? Are you a creationist? Do you believe the Constitution overrides mere common law when they come into conflict?

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Originally posted by DialecticMaterialist
Your *thinking* there is enough support in the historical record, is not proof of anything either way. Also your scenerio is simplistic, many people have multiple subjective reasons for doing what they do and reasoning why, this includes preserving the law. And mere judges and lawyers are not the only relevant persons on this matter anyways, there are common people, priests and kings. As well as past customs and local morals.

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Originally posted by DialecticMaterialist
And I gave you two different answers, concerning what process I would utilize or examine for two very different questions.

For exmple "what book is the longest?" vs "what is the best book ever created?"

The former would be answered by approximation, the latter is clouded by value judgement in which there is much variation (and insufficient means of measuring).
...

Just because I think determining the greatest literary source is untestable does not mean I think the same about legal sources.

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Originally posted by DialecticMaterialist
And what question would that be? The one can I find another source of history for laws besides the Ten Commandments? Do you really think that is impossible?

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Originally posted by DialecticMaterialist
I think that is a far too sweeping generalization to believe on the basis of evidence presented. Perhaps certain laws have not changed, like certain basic rules concerning government have not changed: but that does not mean the law as a whole has not changed greatly or as great as government.

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Originally posted by DialecticMaterialist
Ok I understand that. But you must keep in mind until there is a ready means to check up on what you say your argument is proof surrogate and hearsay.

I understand I can go to the library and dig through vast amounts of material trying to prove or disprove your theory or what you present, buy you know as well as I that is a wild goose chase. You simply do not ask your audience to find or verify your evidence for you, especially not on a forum.

Anyone could then say "Well gee I got all this evidence from a book, and if you just went to the library you would see its true." Knowing that is unlikely and so spread misinformation.

I myself then see it more apropriate to use online sources on an online discussion. At least on a matter as controversial as this. Mainly because your request is too unreasonable and time consuming for so informal a format.

That is why for example,when you request information concerning other sources of law or pre-Mosaic law I appeal to your reasoning, your background knowledge i.e. common knowledge or give a source.

I do not just go "well just head to a library and check it out." Because that is unreasonable and overly time consuming. Even if you did that and said "I found nothing" not that you couldn't simply make that up, I could say "well look harder" or maybe "gee well maybe that praticular library lacked it."

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Originally posted by DialecticMaterialist
Ok you are a lawyer. Now you should bias against lawyers, especially religious laywers in religious issues, like Phillip Johnson. However that doesn't make you wrong, it just means I won't take your word for very much here. Especially if you are a religious man.

Also this does not make you an authority on history. If you speak on finer aspects of modern law, or a specific law, ok then. You are considered an expert there.

But just like a physicists testimony on evolution, a lawyers testimony concerning history and legal history (especially legal history so far back) is no better then a layman's.

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Originally posted by DialecticMaterialist
There was also: Feudal law, kings/queen law, political/social necessity at the time, popular sentiment, personal preferences of the judges, local(Pagan?) customs, Greco-Roman laws that carried over AND cannon law (of which only a part is the Ten Commandments).

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*bump*