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Posted by ceo_esq on 07-04-2003 08:29 PM:

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:

quote:
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).)

Canon law – the formal internal law of the Catholic Church – in addition to representing probably the first truly modern legal system, is arguably the greatest direct historical influence on Western legal systems generally. See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard UP, 1983). It’s difficult to overstate the effect that the canon law revolution of the 11th and 12th centuries had on shaping the diverse nascent juridical systems of Europe. Because the Romano-canonical tradition itself was to a considerable extent inspired by Christian absorption of biblical and Mosaic legal concepts, including notably the Ten Commandments, canon law was one of the primary vehicles whereby such concepts were transmitted to what would become the body of 18th-century British Common Law inherited by the United States.

Hugo Grotius, called the “father of international law” for his great De Jure Belli ac Pacis (1625) was of course Dutch, not British, but his work was hugely influential on the development of international law within all European legal systems. He treats Mosaic Law as a primary authority; in fact, fully half of the textual authorities cited in De Jure Belli ac Pacis are biblical. See Mark W. Janis, “Religion and the Literature of International Law: Some Standard Texts”, in The Influence of Religion on the Development of International Law (Mark W. Janis ed., 1991).

I note that all three of the great trio of British commentators on the common law – Blackstone, Bracton and Coke – explicitly acknowledge the vital link between biblical (especially Mosaic) authority and the common law. Blackstone’s work in particular, occurring as it did in the mid-to-late 18th century, evidences the transmission of the concept into the American system. (Until early this century, his Commentaries were required reading at American law schools.)

Of course, early American colonial laws and legal institutions tended to incorporate biblicism and Mosaic law to an even greater extent than the British Common Law of the same era, due to the particular customs and philosophy of the Puritans. For more information on the influence of the Ten Commandments and Mosaic law generally on (and indeed their explicit incorporation into) colonial legal systems from Plymouth onward, see Donald Pennington & Keith Thomas, Puritans and Revolutionaries: Essays in Seventeenth-Century History (1978); Julius Goebel, Jr., King's Law and Local Custom in Seventeenth Century New England, 31 Colum. L.Rev. 416 (1931).

I think we have a prima facie basis for at least seriously considering the notion that the Ten Commandments (and, in a broader sense, the tradition they represent) are in some sense foundational (or at least believed by scholars to be so) to the historical development of American law. How persuasive is this notion to modern American jurists? It’s worth looking at a somewhat lengthy excerpt from an opinion rendered just over a week ago by the federal Third Circuit. The case is Freethought Society v. Chester County, 2003 U.S. App. LEXIS 13011 (3d Cir. June 26, 2003). The appeals court vacated a lower court order to remove a Ten Commandments plaque outside a Pennsylvania courthouse.

quote:
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.").

While I mean to concentrate here on the Ten Commandments specifically, it’s also worth noting that the U.S. Supreme Court and other American courts have frequently recognized the influence of other parts of Mosaic law on modern legal concepts: see Cramer v. United States, 325 U.S. 1 (1945) (the Constitution’s two-witness requirement for treason convictions lifted directly from Mosaic law); Goldsmith-Grant Co. v. United States, 254 U.S. 505 (1921) (notion of civil in rem forfeiture proceedings derived from Mosaic law); Ex parte Kurth, 28 F. Supp. 258 (S.D. Cal. 1939) (principle of equal treatment for all lawful residents of a territory, regardless of alien status, inherited from Mosaic law); Wendt v. Wendt, 1998 Conn. Super. LEXIS 1023 (Conn. Super. Ct. 1998) (common-law inheritance rules derived from Mosaic law); Iowa v. Lamb, 227 N.W. 830 (Iowa 1929) (common-law incest prohibition and degrees of consanguinity derived from Mosaic law); Smith v. Smith, 203 S.W. 884 (Ky. 1918) (common-law defense of recrimination in divorce cases based on Mosaic law).

I’m going to cut this post short and await any initial comments. In the meantime, if you’re a glutton for punishment, here’s a link to a site on "The 10 Commandments in American Law". I’ve been aware of this site for a while, but haven’t ever managed to muster the interest to read it. I can’t vouch for the content, scholarship, or interpretations presented there, although I suspect it does contain some relevant primary sources for the interested reader.

Cheers.

ceo_esq

[Edited because you can't write a post this long without a few mistakes creeping in.]

Posted by AmateurScientist on 07-04-2003 08:47 PM:

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

AS

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Posted by Ladewig on 07-04-2003 11:12 PM:

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

quote:
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.

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. Do not kill and do not steal were around long before Moses was placed in the bulrushes. We have laws against murder not because the God that talked to Moses on the mountain commanded it, we have laws against murder because any rational system of morality and justice will outlaw murder.

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.

Lastly, the links between the TC and American law are not all worthy of respect. Exodus 20:17 indicates that wives are property of their husbands. The absence of women's rights in the founding documents may indicate that this concept was carried over, but if it was, it is not something to be proud of.

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Posted by Joshua Korosi on 07-05-2003 04:21 AM:

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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Posted by UnrepentantSinner on 07-05-2003 11:04 AM:

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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Posted by ceo_esq on 07-06-2003 08:21 PM:

quote:
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.
...

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.

Good points. I have a few initial observations:

First, although what expertise I have in legal history doesn't extend further back than the late Roman Empire, it seems entirely possible to me that Mosaic law may have borrowed from earlier sources. However, it also seems fruitless to speculate on the extent and significance of such borrowing, however, without first being presented with some data to that effect.

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.

Third, I am inclined not to view the premise that early American laws may have included provisions closer to aspects of the Babylonian law than to Hebrew law as a basis for elevating the former above the latter as a historical influence. My reason for this is simply that I am not aware, in the evolution of Western law, of any point at (or means by) which the content of the CoH was significantly absorbed by Western traditions except to the hypothetical extent such a transmission may have occurred via Mosaic law.

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

I'm glad you mentioned this, because I think it points to a red herring responsible for the waste of a certain amount of time and verbiage by all sides in the "10 Commandments Judge" thread (as well as prior threads in which similar issues have been discussed).

Most of us are aware that in the United States, the Constitution is the supreme law of the land. The Constitution establishes the political framework within which the American legal system thrives, creates certain primary individual rights and liberties, and imposes essential limitations on state power. However, despite its importance to the U.S. legal framework, the Constitution codifies only a minuscule fraction of substantive American legal principles, most of which reside in common or statutory law. This fact is reflected in the small percentage of judicial cases reviewed each year that actually involve Constitutional issues. 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.

The truth of this becomes particularly apparent when one considers the type of laws that are embodied in the Ten Commandments, and to some extent Mosaic law generally. Some of those laws are strictly spiritual, but the majority concern obligations and duties applicable to relations between individuals. This is precisely the type of legal relationship with which the Constitution does not much concern itself. The chief preoccupations of the Constitution (the political operation of the state, and the relationship between the state and the individual) are not those of the Ten Commandments, because the two texts were not intended by their respective makers to fulfill the same legal role.

Accordingly, I would caution against fixating on the Constitution for purposes of our discussions of this topic.

Posted by corplinx on 07-06-2003 08:56 PM:

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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Posted by Ladewig on 07-06-2003 10:51 PM:

quote:
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.

Yes, I agree. It is easier to spot the influence on early American laws when one examines things such as the oaths of office of some of the first states. Allowing elected candidates to take office only after publically professing a belief in a monotheistic god is strong evidence for showing how the TC shaped early laws. However, those oaths of office have been eliminated, and rightly so. Not all TC influence on the early system of justice is to be admired. I consider the removal of much of this type of influence praiseworthy. I do not consider this early infuence to be something to be proud of and I do not consider this early influence to be reason enough to post the Decalogue in front of a courthouse (or a public school).

Posted by CWL on 07-07-2003 12:43 PM:

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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Posted by Ed on 07-07-2003 02:01 PM:

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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Posted by CWL on 07-07-2003 02:13 PM:

quote:
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?

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

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Posted by Ed on 07-07-2003 02:18 PM:

quote:
Originally posted by CWL

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

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?

Posted by CWL on 07-07-2003 03:18 PM:

quote:
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?

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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Posted by c0rbin on 07-07-2003 03:39 PM:

quote:
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.

I think the real test would be to place a tribute to the Code of Hammurabi on public court-house property.

How long would that last in rural Missouri?

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Posted by Ed on 07-07-2003 04:06 PM:

quote:
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?

Thou shalt not steal.

Posted by ceo_esq on 07-07-2003 04:36 PM:

quote:
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.

Examining recent historical precedents for particular modern ideas will naturally yield closer correspondences than examining more primitive precedents, just as it is easier to recognize correspondences with modern human physiology in a Homo habilis skeleton than in an Australopithecus skeleton. This should surprise no one, and I don’t think it detracts from the significance or directness of the ancestry.

The significance of the Ten Commandments or Mosaic law generally to the historical analysis of modern American law is not, as you put it, a truly practical significance. I agree with you that it is impossible to locate many one-to-one correspondences for modern legal doctrines in ancient legal precepts; but then again one hardly expects to. That said, however, I think that when you ask whether any principles of modern contractual law can be necessarily deduced from Mosaic law, you're not approaching the question in the manner of historians of ideas. What later legal traditions inherited from Mosaic law were certain very basic norms, reflecting cultural intuitions about the value of individuals and the community and the ties that bind them. Taking your example of contract law, I think it’s not all that difficult (particularly a posteriori) to make a few extrapolations.

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).

Mather is not alone among modern legal scholars to acknowledge the fundamental debt owed to Mosaic law by modern contract law. For example, E. Allan Farnsworth (probably the best-known living American contract law scholar), infers the conceptual basis for the duty to perform promises from the Old Testament covenants. See E. Allan Farnsworth, Parables About Promises: Religious Ethics and Contract Enforceability, 71 Fordham L. Rev. 695 (2002). Raymond Wallenstein suggests that the modern notion of the duty of good faith and fair dealing in commercial agreements is descended from Leviticus 19:11 (“Ye shall not steal, neither deal falsely, neither lie one to another.”). Raymond Wallenstein, Breach of the Implied Covenant of Good Faith and Fair Dealing in Commercial Contracts: A Wrong in Search of a Remedy, 20 U. West L.A. L. Rev. 113 (1988). K. M. Sharma argues that modern concepts of contractual freedom are rooted “in the Biblical injunction of motzeh sfassecha tishmor or ‘thou shall keep thy word,’ and in the age-old Roman adage of pacta sunt servanda ex fide bona”. K. M. Sharma, From "Sanctity" to "Fairness": An Uneasy Transition in the Law of Contracts?, 18 N.Y.L. Sch. J. Int'l & Comp. L. 95 (1999).

In a similar, broadly extrapolative way as we observed with contract law, it has been extremely common for Western jurists in ages past to base the various other branches of the secular law on the Ten Commandments:

quote:
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).)

Hopefully this brief examination sheds some light on what legal historians mean when they say – and most do say it, whether we agree or not – that the Ten Commandments are paradigmatic for the evolution of nearly all subsequent Western legal traditions. And, of course, of arguably greater relevance to this premise than whether modern people view the Ten Commandments in this way is the fact that their forebears (from Justinian to Alfred to Blackstone and beyond) indisputably did.

Understood in the proper sense, a statement such as “the Decalogue is at the foundation of the Anglo-American legal tradition” is, if not exhaustively and unambiguously accurate, then at least (from a historian’s perspective) more true than not. The objections you’ve raised about the contrasts between modern law and ancient law (which, say, Blackstone obviously could have recognized as readily as you or I) are points well taken, and they obviously indicate your familiarity with your field, but I don't think they invalidate this analysis.

Posted by CJW on 07-07-2003 05:02 PM:

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

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

Posted by CWL on 07-08-2003 10:57 AM:

quote:
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).

ceo_esq,

Again, thank you for an insightful and interesting post. The subject is fascinating, as are your posts on it. I just wish I had more time to debate (and do some more research on the subject on my own) right now.

Please forgive me for limiting my response to the above part of your post. 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.

In my world, such general and universally principles alone cannot constitute evidence of the influence of the Old Testament (and much less of the Ten Commandments) on any modern legal system. I would be looking for a more concrete example.

__________________
"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

Posted by CWL on 07-08-2003 12:03 PM:

quote:
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).

ceo_esq,

Again, thank you for an insightful and interesting post. The subject is fascinating, as are your posts on it. I just wish I had more time to debate (and do some more research on the subject on my own) right now.

Please forgive me for limiting my response to the above part of your post. 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.

In my world, the occurence of such general and universally applicable principles alone cannot constitute evidence of the influence of the Old Testament (and much less of the Ten Commandments) on any modern legal system. I would be looking for a more concrete example.

__________________
"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

Posted by ceo_esq on 07-08-2003 04:01 PM:

quote:
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.

Are these ideas present in modern Western legal systems because of the Old Testament? Yes and no, depending on the type of causality we’re considering. It’s possible that the ideas would have entered and endured within the Western tradition in the absence of the Old Testament; if so, then the Old Testament is not their cause sine qua non. It’s clear that modern American legal notions can be far more precisely traced to less ancient, more immediate sources such as 18th-century British common law, so the Old Testament is clearly not their proximate cause. On the other hand, although many alternative scenarios could have occurred, in actual fact these ideas did enter the tradition primarily via the Old Testament, so the Old Testament is their remote cause and probably their efficient cause. These considerations are relevant to the historian.

I think that in considering the extent to which an idea has influenced a cultural tradition, and the rightful status of the idea within the tradition, the first questions to be asked are the following:

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?

The answers to these questions are ultimately more relevant to historical inquiry than whether the content of the idea would have arisen in other circumstances or whether it was unique. I hope I’ve shown persuasively that those answers militate strongly in favor of the probably unparalleled status of the Ten Commandments in the historical evolution of our legal traditions.

For the majority of its existence, the Ten Commandments have been viewed by Western culture (and its various legal cultures specifically) in the way I’ve explained. The foregoing observation would ordinarily be irrelevant if the inquiry were simply into the accuracy of the viewpoint itself. However, where (as here) the inquiry is just as much (if not more) into the nature of the culture’s self-perceptions over time, the foregoing actually constitutes data, and probably insuperable data at that.

I think you and others have raised some excellent points. I don’t want this discussion to reach an impasse, though, so it might be useful to depart temporarily from the scholarly approach and engage in a little thought experiment, which may cast the matter in a different light:

Imagine that as a young man you are exposed to a teacher who imparts some wisdom to you – perhaps just some succinct, fundamental insights that inspire you to think differently about the world and conduct yourself differently in it. Henceforward, you carry his advice inside you from day to day. As time goes by and you become more sophisticated in your learning and experience, you encounter other professors and read books in which you recognize the substance of your old teacher’s words, albeit often expressed in different ways. You discover that other people who never met your teacher have achieved the same insights via their own paths, and expanded on them. No matter how often this occurs, you are each time instinctively reminded of your old teacher, and his voice and words spring unbidden to your mind. You lose count of how many times you refer back to his simple words as a touchstone or a “reality check” when confronting complex new situations. Subjectively, you find yourself frequently relating later ideas back to the teachings of your youth for many years afterwards, even when it is pointed out to you that, objectively, this is occasionally a fanciful and unwarranted exercise. You eventually recognize that there is a certain universality to parts of your old teacher’s wisdom – the truth in his words seems so obvious in hindsight that you begin to suspect that, in the right circumstances, you would ultimately have deduced the same conclusions unaided (just as, perhaps, certain others have). You even wonder if your old teacher himself did not have his own teacher from whom he gained certain elements of wisdom.

Many years later, you’ve reached the fullness of maturity and the height of your powers. You have long ago surpassed the level of erudition and knowledge of your old teacher, and in truth, these days you don’t find yourself specifically thinking of him quite as often as you used to.

You’re famous now, and a journalist is interviewing you. He asks you to identify, insofar as possible, the single most fundamental overall influence on your life and work. You protest that it’s a difficult – perhaps an oversimplified – question, as you have been exposed to many influential thinkers and books; you’ve traveled widely; and your intellectual development has taken many twists, turns and even reversals at various times. Still, upon reflection, you say that the answer is probably your old teacher.

The astonished journalist replies: “Are you kidding me? I would never have guessed that based on your latest book – you didn’t even cite that fellow in the bibliography. Now that you mention him, I suppose that there are certain overall consistencies, taken at a basic level, although I’d have assumed they were coincidental or attributed them to more immediate influences. But surely you can’t deny that if he were alive today, he’d have difficulty even understanding your recent work, and parts of what he could understand he might disagree with.”

Was your answer defensible? If so, how would you justify it to the journalist?

Posted by ceo_esq on 07-09-2003 01:21 PM:

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

Posted by CWL on 07-10-2003 12:00 PM:

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

Hi ceo!

Sorry for not replying sooner - the only reason is that I right now do not have the time to compose the considered replies that I feel your posts deserve.

Suffices to say that I find your arguments compelling and that I recognize and commend you on your academic and moderate approach.

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.

Boy, this really is fascinating stuff. Time, time - I wish I had more time.

On another note ceo - you have obviously spent considerable time pondering these issues. What is your academic background?

__________________
"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

Posted by ceo_esq on 07-10-2003 02:32 PM:

quote:
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.

In my example with the former student and his old mentor, it's certainly possible to challenge the protagonist's answer. I tried to make my analogy less imperfect by taking some potential challenges into account in the character of the journalist. However, the point of the "thought experiment" was to temporarily switch sides – I put arguments in the journalist's mouth, and I wanted to see how you might justify the student's answer.

I agree that cultural traditions are susceptible to amnesia. We sometimes absorb ideas, forget where they came from, and then forget that we forgot, making it difficult to step back and examine the nature and origins of our received notions. No doubt this has occurred to some extent with ideas inherited from Hebrew tradition as well as Roman tradition.

Nevertheless, I think it is relevant that Western culture has almost always attributed more importance to its self-perceived role as the heir to Judeo-Christian legal traditions than to its role as heir to Roman or other influential legal traditions. The reason why certain ideas common to multiple heritages have persisted and flourished in Western law has partly to do with the psychological authority the culture has accorded to Moses as a lawgiver (relative to other sources). Thus, legal scholars, legislators and judges throughout Western history have paid more attention overall to real or presumed links between their contemporary laws and Mosaic law than to other seminal legal traditions. Even in cases where those links appear tenuous, the great jurists of the West have gone to considerable effort to try to situate their subject matter in some kind of biblical context (recall, for example, King Alfred again). That this has in fact occurred is, I think, beyond reasonable dispute.

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?

Posted by CWL on 07-10-2003 03:09 PM:

quote:
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?

I have an LL.M. in Swedish law from the University of Stockholm. Before that I studied Comparative Literature, History of Ideas and English, also at the University of Stockholm. I am a member of the Swedish Bar and have been practicing law for about seven years now - mainly corporate and commercial (with a focus on M&A).

It great to meet a practicing lawyer with an interest in academic jurisprudence (all to rare within my fields). Within which areas do you practice yourself?

__________________
"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

Posted by ceo_esq on 07-10-2003 06:07 PM:

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

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

Posted by CWL on 07-11-2003 02:30 PM:

quote:
Originally posted by ceo_esq

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

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

__________________
"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

Posted by Cleopatra on 07-11-2003 03:49 PM:

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 :

quote:
. 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?

__________________

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

Posted by ceo_esq on 07-14-2003 03:50 AM:

quote:
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 :

Although I'm familiar with Braudel's reputation, I'm embarrassed to admit that the only book of his that I've read in its entirety is The Identity of France, which I enjoyed years ago. Perhaps you could elaborate as to what Braudel has to say on this matter?

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

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

Posted by DialecticMaterialist on 07-14-2003 07:38 AM:

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.

quote:
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.

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.

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. 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. 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?

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. 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.

The Ten Commandments themselves were established by reasoning, observation and judaism.

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.

__________________
"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

Posted by CWL on 07-14-2003 10:32 AM:

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

I see. Very much the same work as I am involved with then (with the exception that the transactions I work with are generally governed by Swedish law, whilst in your case I assume it's US law).

__________________
"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

Posted by ceo_esq on 07-14-2003 11:07 AM:

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

quote:
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.

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.

quote:
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.

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?

quote:
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.

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.)

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.

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).

quote:
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.

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. 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.

quote:
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.

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.

Why? Because a great deal of the Decalogue’s historical significance is bound up in the fact that it represents the specific coalescence of certain legal notions, presented in a certain form (let’s call it the Decalogue-meme). 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. 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.

quote:
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?

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.

(See also my earlier remark regarding the Constitution.)

quote:
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.

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.

Your statement serves to remind us that there are various valid ways in which one thing can be understood to be “based on” another thing. I could devote more discussion to the distinction you’ve highlighted, but as this difference is not fatal to my thesis I’m not sure it’s warranted.

Posted by DialecticMaterialist on 07-15-2003 09:37 PM:

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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.

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 establish any comparison of the ten commandments with major laws. We cannot compare the means of justification. We cannot trace a direct path from any single one of our laws to the ten commandments and 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.

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. 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.

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 supremism).

For otherwise it would then seem you wish to credit the ten commandments with all the good and none of the bad: and that to me sounds more like an ad hoc belief then a testable hypothesis.

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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?

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?

If so you have not shown this. You have merely shown how the Mosaic Law may have evolved within legal culture, by mere passive transfering of structure or basic theme.

However if you are merely claiming the theme was passed down throughout our culture modified, then yes even if that's true it is inconsequential. As it has no bearing on any prximate explanatory causes, is so far back as to become very diluted and perhaps even mixed with other laws, as well as have its primacy questioned (why start at mosaic law instead of its precedence?) and lastly it is irrelevant to the justification underlying our laws.

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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.)

Yes but which ones are? None really in respect to what we are discussing. Perhaps the Bill of Rights only and the Constitution: but you have implied that this may not be derived from the Ten Commandments.

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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.

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.

That's rather post hoc.

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.

Again I know what you are trying to do(somewhat as it is a bit ambiguous) but I must state that my problem is with how you are going about this. To me it seems like you have made the statement completely untestable and based it on far too much conjecture.

I suppose if you dig far enough and allow for enough discrepency, you can link US laws to just about any past legal document. Whether or not that document plays an extremely significant role on establishing modern law demands something far more testable though.

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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).

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.

Also I have counter-artickes:

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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.

http://www.au.org/churchstate/cs4021.htm

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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.

http://www.au.org/churchstate/03-06-people.htm

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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.

But now that is begging the question. How do you know they were preserving Mosaic Law instead of being independtly derived or derived from another source?

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

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

And lastly your case still isn't necessarily valid unless they accepted the law almost wholly.

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) 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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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.

If they are so well documented why are many of your scholars from first millenium? Why is there only one modern?

And why are almost 40 legal scholars challenging the statement?

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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.

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.

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.

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? How is it then that if one was to do so it would prove that Ten Commandments trumped foundational antecedents? If one failed to do so though, then you can claim the laws were not "historically alive" and hence failed to pass the first test.

If I apply that reasoning to US law and the Ten Commandments, I can say that if we show the Ten Commandments assimilated enough, they are trumped by US law or Constitution, but then I can likewise say if they are not present, they are "historically dead."

In any event it appears we need other means of testing, but you have dismissed those as "simplistic" (though you have failed to show how they are).

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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.

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

I can say the Ten Commandments precedent, given it even exists, is matured by Cannon law, common law or US law. And for all intents and purposes these laws have trumped their foudnational antecedents.

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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.

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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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.

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? This sounds more like a value judgement now then a meaningful approximation. And it is based on proof surrogate, show me a group of historians that say the Ten Commandments is a meaningful source but more ultimate sources are meaningless?

I believe what makes the source significant is whether or not it is part pf the underlying rationale or can be shown to have some actual, not coincidental, similarity (like Enlightenment philosophy and separation of powers) not something as vague as :it is just more meaningful."

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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.

The constitution opens with:

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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.

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.

__________________
"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

Posted by ceo_esq on 07-19-2003 05:24 PM:

quote:
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.

I've already proposed an initial method of inquiring into my conjecture, which seems to me relatively suited to ascertaining the presence and nature of the Ten Commandments as an influence, and in particular for determining whether such influence is accidental or not. I'll repeat it here (and if Cleopatra is still reading this thread, I’d love to know what, if anything, Ferdinand Braudel has said in relation to this basic method of inquiry).

quote:
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?

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.

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?

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

I'm not sure what you’d consider to be a major law, but you know this isn't true. We can establish such a comparison, but we can't agree on what it means. You seem to think that any similarity between the Ten Commandments and any other law, living or dead, is purely coincidental.

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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

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

Please clarify.

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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.

I have tried to take this into account. However, I’ve pointed out that this does not detract from the fact that such laws did not arise spontaneously, and were likely transmitted from other sources only secondarily. 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
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.

I might have some trouble agreeing with your conclusion even if the cultural awareness of the source link had faded early on in the tradition. However, it didn't, and it was reiterated at nearly every intervening stage of the development of our common law system. To me, that makes it not 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.

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.

quote:
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).

Without specifically commenting on the validity of your examples, of course I would. I'm not engaged here in judging the substantive justice of Mosaic law or its progeny, as should be clear from my earlier posts.

quote:
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?

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.

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

I believe I've addressed this question already, but keep reading, as I'll return to it later.

quote:
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.

I've cited more than one or two scholars, and their views on the subject are not ambivalent. I've also pointed you to numerous court decisions, primary historical sources and the like. I can continue to do this, as there's no shortage of material, but since you have yet specifically to address a single one of my sources, I'm not sure if piling on more will persuade you.

quote:
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.

Yes. Perhaps I was being needlessly difficult there, and I apologize. I should simply have said that your inference is unjustified in the light of contrary indications in the historical record.

quote:
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.

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.

By the way, the very old sources I've quoted are important not because they represent current scholarship, but because they themselves constitute some of the most important primary, first-hand sources for our inquiry. I will further address this point later in the post.

quote:
Originally posted by DialecticMaterialist
Also I have counter-artickes:

First of all, those are press write-ups, both from the same organization with an ideological reason for disagreeing with my thesis. They are not scholarly articles. 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. Accordingly, it's very difficult to evaluate their significance without seeing the actual work. 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. 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.

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. 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).

quote:
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?

Among other reasons, because, generally, written references were made to this effect when those laws were codified, analyzed or interpreted by contemporaries. I've already quoted or alluded to several such references.

quote:
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.

America inherited early modern common law, which in turn was derived largely from medieval common law and canon law. I've already cited some authority to this effect, but frankly it's beyond the scope of this thread to reargue the most basic historical assumptions in my field - that would only serve to bog down the discussion. I'm trying to make a reasonably informed argument here, not teach an introductory class or reinvent the wheel. Please do some homework before deciding which of my premises are worth challenging.

quote:
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) …

The authority of canon law clearly derives in part from the pope, but to state this is to say little or nothing about the content of canon law and the origins of the doctrines expressed therein. As for situating canon law in an intellectual tradition that draws heavily on both the New Testament and Christianized Roman law, 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.

The canonical system is said to embrace three bodies of law: ecclesiastical, civil and - most importantly - divine. Divine law can be either positive (i.e. based on revelation and expressed in scripture or tradition) or natural (i.e. based on the order of creation and susceptible to deduction through human reason). The content of the Ten Commandments is, in Christian thought and canonical tradition, one of the most important elements of divine law (both positive and, to a lesser extent, natural). See New Commentary on the Code of Canon Law (2000) (Beal et al., eds.).

Canon law, it should be noted, is not intended to codify independently the substantive moral law of the Church, which is summarized primarily in the Catechism., which is in some sense incorporated by reference into the canonical tradition. That said, however, the influence of the Decalogue is abundantly clear in the canons relating to, inter alia, Sabbath observance; adultery; blasphemy; oaths and vows; witness testimony and so forth.

quote:
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.

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?

quote:
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?

The links are well-documented in the historical record, and those older sources are key parts of the historical record. They are precisely the sort of thing that modern historians examine to draw their conclusions.

quote:
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.

I didn’t say "haven't lost their history", whatever that means. 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. Even if we accept that the Ten Commandments could, in theory, be traced back even further than Moses, if for all practical purposes the knowable ancestry ends with Moses then that just bolsters the historical status of Mosaic law.

quote:
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.

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.

quote:
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?

Yes, it would obviously indicate that possibility. My point here was simply that if you intend to propose a candidate for such an early code, it should be one in which some overlap in style and content with the Ten Commandments is discernible.

Are you making any progress in your research, incidentally?

quote:
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"?

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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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.

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 .

quote:
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?

All right. Almost any aspect of civilization could be said to depend on human evolution and nature, which is why I said your statement was, strictly speaking, true. However, I noted that these matters (unless you’re defining them in a way that is not apparent from your post) don’t really fall within the core discipline of intellectual history, i.e. the study of the genesis, development and transmission over time of particular ideas and their associations, and the impact they have on cultures. 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.

In contrast, the elaboration of jurisprudential doctrines and their precedents in specific legal contexts, which are chief objects of my argument, are the bailiwick of the legal historian. So, I wasn’t suggesting that your factors were meaningless in any absolute sense, simply that I am approaching the matter from the (limited) perspective of a legal historian because that's my field.

quote:
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.

I'm not sure I understand your first sentence there. 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. 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?

EDITED TO ADD:

As an afterthought, DM, in rereading my posts quickly I note that in support of my argument I've now ci