Gavin Howe
The idea that common law is God's law is a concept that has been widely debated, with some arguing that common law is rooted in divine revelation and biblical principles, while others assert that it is a man-made construct. Proponents of the former view, such as Coke, Blackstone, and America's founding fathers, believed that God is the ultimate source of law and that common law reflects God's will and nature. This perspective influenced the American War for Independence and the founders' faith in natural rights endowed by their Creator. On the other hand, critics emphasize the secular nature of common law, arguing that it is subject to human interpretation and influenced by human reason, placing it in contrast to the perceived inflexibility of divine law. The debate extends to discussions of common law marriage, with varying interpretations of whether such unions are recognized in the eyes of God or are purely a man-made legal construct.
| Characteristics | Values |
|---|---|
| Definition | Common law is the "perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections" |
| Nature | Common law is universal, immutable, superior to all other laws, and co-existent with the nature of man |
| Sources | God, nature, and the Bible |
| Scope | Marriage, governance, and independence |
| Interpretations | Divine law is perceived as inflexible, and the introduction of interpretation is controversial. |
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What You'll Learn
Common law and the Bible
The idea that common law is God's law has been a topic of discussion and debate for centuries. While some argue that common law is rooted in religious beliefs and biblical principles, others see it as a secular legal system. So, what is the relationship between common law and the Bible?
Common law, also known as case law or precedent, is a legal system that gives binding legal force to previous decisions made by judges in similar cases. It is based on the idea that past decisions should be respected and followed to ensure consistency and fairness in the legal system. This concept of respecting precedent is not explicitly mentioned in the Bible. However, the Bible does emphasize the importance of justice, fairness, and upholding moral laws, which are also fundamental principles of common law.
When it comes to specific legal principles, there are some notable alignments between common law and biblical teachings. For example, the Bible emphasizes the sanctity of life and prohibits murder (Exodus 20:13), which is also a fundamental principle in common law jurisdictions. Similarly, the Bible's teachings on property rights, contracts, and moral conduct overlap with many principles found in common law.
One of the most significant areas of overlap between common law and the Bible is in the institution of marriage. Common law recognizes common-law marriage, which is a legal framework for recognizing marriages that have not been formally solemnized through a religious or civil ceremony. While the Bible does not explicitly mention common-law marriage, it does provide a basis for the biblical definition of marriage as a union between one man and one woman for life (Genesis 2:24, Mark 10:6-9). The Bible also emphasizes the importance of mutual commitment, exclusivity, and forsaking all others (1 Corinthians 7:39), which are consistent with the requirements of common-law marriage.
However, it is important to note that there are also differences and tensions between common law and biblical teachings. For example, common law allows for divorce under certain circumstances, while the Bible suggests that divorce goes against God's original intent for marriage (Matthew 1:19, 1 Corinthians 7:10-11). Additionally, while common law may recognize same-sex marriages in some jurisdictions, the Bible's definition of marriage as between one man and one woman would not align with this interpretation.
In conclusion, while common law and the Bible share some overlapping principles and values, it would be inaccurate to equate common law directly with God's law. Common law is a complex legal system that has evolved over centuries and incorporates a wide range of influences, including but not limited to religious and biblical traditions. The relationship between common law and the Bible is nuanced, and both legal scholars and theologians continue to explore and debate the connections between these two influential forces in society.
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Common law marriage
Common-law marriage, also known as non-ceremonial marriage, is a marriage that occurs when two people who are legally capable of being married and who intend to be married, live together as a married couple and hold themselves out to the world as a married couple. This means that the married couple never had a formal wedding ceremony and never got a marriage license or marriage certificate.
Common-law marriage is not recognized in all jurisdictions. However, those that do recognize it generally require that certain conditions be met for a common-law marriage to be valid. These conditions typically include:
- Cohabitation: The couple must live together for a period of time. There is no statutory requirement for the length of time, but generally, the longer the better.
- Intent: Both partners must intend to be married and hold themselves out as a married couple to friends, family, and the public. This can include referring to each other as "partner", "spouse", or taking the same last name.
- Legal capacity: Both partners must have the legal right to marry, which usually means they must be at least 18 years old, of sound mind, and not already married to someone else.
In the United States, common-law marriage has existed since colonial times and is currently recognized in seven states and the District of Columbia, with nine additional states recognizing it with some restrictions. In Canada, while some provinces may grant couples in marriage-like relationships many of the rights and responsibilities of a marriage, they are not legally considered married.
The Bible does not specifically mention common-law marriage. However, some passages, such as Genesis 2:24 and Mark 10:6-9, emphasize the importance of marriage as a union between one man and one woman for a lifetime. Other passages, such as 1 Corinthians 7:4-5 and Hebrews 13:4, describe God's purposes for marriage, including companionship, procreation, and mutual pleasure.
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God's will and nature
Nature is one of God's beautiful creations. Through nature, God teaches, speaks, and provides for us. Nature is also a way for God to reveal himself to man, as seen in the Bible. The Bible also serves as a written revelation of God's will and nature, providing a moral law for man to follow.
The idea of the "Law of Nature and Nature's God" in the Declaration of Independence reflects the belief that God created all mankind, endowed them with certain rights, and actively judged and superintended the affairs of man, including that of nations. This concept, also known as pantheism, suggests that God and nature are one and the same, with nature being a manifestation of God's will.
The British philosopher John Locke, who was influential to the American Founders, wrote of the "law of God and nature" in his First Treatise of Civil Government. He noted that this law is "everywhere the same, the Eternal Rule of Right, obliges Christians and all men everywhere, and is to all men the standing Law of Works." English legal theorist William Blackstone, another important thinker of the American founding era, recognized the two-fold moral law in his Commentaries on the Laws of England. He believed that this law could be partially understood through man's imperfect natural reason and completely through the Bible.
The common law, according to Blackstone, recognizes Christianity as its foundation. Jesse Root, in his preface to the first volume of systematic Reports on Connecticut cases, explained that common law is the perfection of reason, arising from the nature of God, man, and things, and their relationships. It is universal, immutable, and superior to all other laws, coexisting with the nature of man.
In conclusion, the concept of "God's will and nature" is deeply intertwined in the philosophical, religious, and legal foundations of the United States. The Founders believed in a God who revealed himself through nature and the Bible, and this belief influenced their understanding of morality, law, and the role of government in society.
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Divine law
According to Catholic doctrine, divine law is the eternal law of God, or the divine reason governing the universe. God is conceived as the Ruler of the Universe, and the plan of government that he has conceived is said to be the eternal law. This eternal law embraces both the physical and moral laws. The civil legislation of Moses, for example, had for its object to form and preserve a peculiar people for the worship of the one true God, and to prepare the way for the coming of the Messiah.
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God's revelation and common law
The Anglo-American common law system has been said to be founded on God's revelation. This is reflected in the Declaration of Independence's reliance on the laws of "nature's God" and "the laws of nature". The founders of the United States believed that God created mankind and endowed them with certain rights, and that God actively judged and superintended the affairs of man, including nations. This belief in God's will as revealed in nature and the Holy Scriptures influenced Blackstone's philosophy of the common law, which was in turn preserved and purified by America's founders during the American War for Independence.
John C.H. Wu, a noted international statesman, jurist, and law professor, documented the Christian philosophy of English common law by tracing its history from Bracton to Coke and then to Blackstone. Bracton, whom Wu named the "Father of the Common Law", was a Churchman learned in canon and Roman law. His great thirteenth-century treatise, "De Legibus et Consuetudinibus Angliae", laid down an unmistakably Christian philosophy of law. Coke, like Bracton, understood that God, not man, was the ultimate source of law, even in the civil realm. He proclaimed that the "law of nature is part of the law of England" and that this law of nature "was before any judicial or municipal law" and is "immutable".
Blackstone's statement of the meaning and significance of the law of nature served the cause of the common law and the American War for Independence. He provided evidence to support the opinion that "there never has been a period in which the Common Law did not recognise Christianity as lying at its foundations". Thomas Jefferson based America's claim to independence on "the laws of nature and of nature's God". However, this Godly heritage of American law has been neglected for over a hundred years and is no longer generally acknowledged by lawyers and judges.
Jesse Root, in his preface to the first volume of systematic Reports on Connecticut cases, explained the revelational epistemology upon which all Americans understood the common law to rest. He described common law as "the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections". He also stated that it is "universal", "immutable", "superior to all other laws and regulations", and "co-existent with the nature of man".
The Biblical philosophy that laid the foundation for the common law at the time of America's founding is also evident in the common law of private property. The common law protection of the monogamous family reflected a Biblical understanding that family free enterprise protected by the law of private property was the only economic system sanctioned by God. America's founders included "property" as one of the three major God-given rights to be "secured" by civil government. Locke, like Blackstone, relied on the Genesis creation story and the accounts of Cain and Abel, Abraham and Lot, and Esau and Jacob to support his theory of private property. Kent, on the other hand, shifted his focus to God's revelation in every man's heart, stating that "man was fitted and intended by the [A]uthor of his being ... for the acquisitions and enjoyment of property".
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Frequently asked questions
Common law is a system of law that is based on customs and rulings recognised by consensus and precedent, rather than laws that are promulgated by a centralised legislative body.
Divine law is any body of law that is perceived as deriving from a transcendent source, such as the will of God or gods, in contrast to man-made law or secular law.
The relationship between common law and divine law is a matter of debate. Some argue that common law is a reflection of God's will, while others view it as a man-made construct. Ultimately, it depends on one's religious and philosophical beliefs.
The Bible does not explicitly mention common-law marriage. However, some interpret biblical marriage as a solemn commitment between a man and a woman before God, which aligns with the concept of common-law marriage.
