Kara Sears
Theistic science, or theistic realism, proposes that the scientific method should allow for supernatural explanations that are inherently untestable. In the context of law, the question arises as to whether common law is inherently theistic. Common law, particularly in the Anglo-American legal tradition, has historically recognized Christianity as its foundation. Theistic influences can be traced back to early English jurists like Bracton, who laid down a Christian philosophy of law, and Coke, who asserted that God was the ultimate source of law above the king. Blackstone, another influential legal scholar, defined civil law as a rule of civil conduct prescribed by the supreme power in a state, reflecting a belief in divine authority. However, the treatment of religious freedom in common law has evolved, with courts recognizing the freedom to practice religions beyond Christianity and voiding religious conditions in wills as a form of undue influence. While common law has been influenced by theistic principles, its application and interpretation have adapted to changing societal beliefs and values.
| Characteristics | Values |
|---|---|
| Common law's theistic foundations | God as the ultimate source of law |
| Christianity as the foundation of common law | |
| God's revelation as the basis for law | |
| Recognition of religious freedom | Indirect recognition of freedom of religion in common law |
| Avoidance of religious influence in wills and legacies | |
| Theistic science | Theistic realism |
| Supernatural explanations in science | |
| Intelligent design |
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What You'll Learn
John C.H. Wu's claim that common law is inherently Christian
John C.H. Wu, a 20th-century scholar of both Chinese and Western law, philosophy, literature, and spirituality, argued that common law is inherently Christian. In his 1955 encomium to the Anglo-American legal system, Wu wrote, "while the Roman law was a deathbed convert to Christianity, the common law was a cradle Christian."
Wu supported this claim by tracing the history of English common law from Bracton, through Coke, to Blackstone. He identified Bracton, a 13th-century Churchman learned in canon and Roman law, as the "Father of the Common Law." Bracton's treatise, 'De Legibus et Consuetudinibus Angliae', laid down a Christian philosophy of law, asserting that the king, as a vicar of God, ought to be under the law. Wu praised Coke as "the incarnate common law" or the "Savior of the Common Law" for his defence of common law against King James I, who claimed to personify the law. Coke, like Bracton, understood that God was the ultimate source of law.
Blackstone, building on this foundation, defined civil law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." He recognised Christianity as the foundation of common law, and his ideas influenced the American War for Independence and the subsequent development of American law. Blackstone's ideas also contributed to the modern debate around freedom of religion in common law, particularly in Australia and England.
Wu's argument reflects a broader resurgence of Christian scholarship in law, re-examining the Blackstonian legacy of common law and its roots in the Genesis account of creation. This scholarship challenges the notion of Western law as thoroughly secular, arguing for the recognition of Christianity's historical influence on legal culture.
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Blackstone's definition of municipal or civil law
According to Blackstone, municipal or civil law is "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong". This definition aligns with the general understanding of law as "that rule of action, which is prescribed by some superior, and which the inferior is bound to obey".
Blackstone's definition of municipal law, also known as common law, distinguishes it from natural or revealed law (moral conduct/god). Natural law, according to Blackstone, is moral conduct, while revelation is both moral conduct and faith. He believed that if humans lived unconnected in a state of nature, they would only need divine law and natural law. However, in society, human laws are necessary, and these should not contradict superior laws.
Blackstone's Commentaries on the Laws of England are considered the best-known description of the doctrines of English common law. Blackstone, an English jurist, justice, and Tory politician, played a significant role in shaping the Anglo-American legal system. His work provided evidence to support the view that Christianity lies at the foundation of the common law.
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Coke's defence of common law against King James I
The English jurist and lawyer Sir Edward Coke is known for his defence of the common law against King James I. In 1606, Coke was made chief justice of the Court of Common Pleas, where he asserted the supremacy of the common law over the king's power. He argued that the common law was the supreme law and that "the king in his own person cannot adjudge any case". This earned him the fury of King James I, who believed that he personified the law as King.
Coke, like Bracton, understood that God, not man, was the ultimate source of law, even in the civil realm. He demonstrated courage by citing Bracton in his encounter with King James I, who claimed to embody the law. In 1610, Coke again defied James by stating that the king could not change any part of the common law or create new offences by proclamation.
Coke's belief in the antiquity of the common law placed its origins in the native British past, specifically in the Anglo-Saxon period. He argued that the Anglo-Saxons had established an English empire with unique customs that a united Britain under James I would have invalidated. Coke turned to Anglo-Saxon evidence to defend his ancient constitutionalism, which was influenced by contemporary scholarship on the Anglo-Saxons as the first English people.
Coke's defence of the common law extended beyond his words; he also took action to protect it. In the case of Edmond Peacham, a clergyman charged with treason for justifying rebellion, Coke protested against consulting judges individually, a practice that James I was driven to follow. Additionally, Coke initiated a dispute with the Court of Chancery over its right to interfere with and nullify common-law decisions.
Coke's unwavering defence of the common law against King James I's assertions had a profound influence on the development of English law and the English constitution. His belief in the supremacy of the common law, rooted in his understanding of God's role as the ultimate source of law, left a lasting impact on the legal landscape of early modern England.
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God's revelation as the basic foundation of Anglo-American common law
The Anglo-American common law system has long been associated with Christianity and the belief that God's revelation forms its basic foundation. John C.H. Wu, a noted international jurist, and law professor traced the history of English common law, citing Bracton, a 13th-century Churchman, as the "Father of the Common Law." Bracton's treatise "De Legibus et Consuetudinibus Angliae" laid down a Christian philosophy of law, stating that the king himself, as a vicar of God, ought to be under the law, as demonstrated by Jesus Christ.
This Christian foundation of common law was further developed by Coke, whom Wu praised as "the incarnate common law." Coke, like Bracton, understood that God was the ultimate source of law, even in the civil realm. This belief in God's revelation as the basis of law was also reflected in Blackstone's definition of municipal or civil law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong." Blackstone's ideas played a significant role in the American War for Independence, with Thomas Jefferson basing his argument on "the laws of nature and of nature's God."
The founders of the United States firmly believed in a God who actively judged and superintended the affairs of mankind and nations. This faith aligned with Blackstone's philosophy of common law, which they sought to preserve and purify during the country's formative years. However, by the late 19th century, this Godly heritage of American law began to be neglected, and it is no longer widely acknowledged by lawyers and judges.
The shift away from theistic foundations in law can be attributed to influential figures like Oliver Wendell Holmes, Jr., and his Harvard colleague, John Chipman Gray, as well as the "case method" of teaching law introduced by Dean Christopher Columbus Langdell. Langdell recast the science of law in evolutionary terms, discarding the idea of divine revelation as the source of universal laws. Despite these changes, the Anglo-American common law system's historical roots in Christian philosophy and the belief in God's revelation as its foundation cannot be overlooked.
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The neglect of America's Godly heritage of law
The Anglo-American common law system has long been associated with Christianity and God. The English jurist and law professor John C.H. Wu, in his 1955 encomium, traced the history of English common law from Bracton, through Coke, to Blackstone, highlighting its Christian foundations. Bracton, whom Wu deemed the "Father of the Common Law," laid down a Christian philosophy of law in his 13th-century treatise, "De Legibus et Consuetudinibus Angliae."
Coke, whom Wu praised as "the incarnate common law," demonstrated courage by citing Bracton in a dispute with King James I, who claimed to personify the law. Coke, like Bracton, understood that God was the ultimate source of law, even in the civil realm. Blackstone built upon this tradition, defining civil law as "a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong."
Despite this Godly heritage, America's legal system has neglected its religious roots over the past century. Lawyers and judges no longer generally acknowledge the role of Christianity in shaping the common law. This shift has led to a disconnect between the historical foundations of the law and its modern interpretation and application.
The recognition of religious freedom in common law is a notable example of the changing legal landscape. In the 19th century, English law began to address religious influence in the context of wills, voiding conditions that restrained an individual's religious choices. This development reflected a growing awareness of the importance of religious freedom, which has continued to evolve and expand over time.
While the common law has evolved to recognize and protect religious freedom, the original theistic foundations of the Anglo-American legal system have been largely overlooked. This neglect has potentially far-reaching implications for the interpretation and understanding of the law, highlighting the complex interplay between religion and legal systems.
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Frequently asked questions
Theistic science proposes that the central scientific method of requiring testability, or methodological naturalism, should be replaced by a philosophy of science that allows supernatural explanations. Common law has been described as inherently theistic, with God as the ultimate source of law.
The recognition of freedom of religion in common law, as seen in cases like Allcard v Skinner, where religious influence was considered undue influence. Additionally, the treatment of religious freedom in the common law of Australia, which has never had a religion established by law, is another example.
Proponents of theistic realism argue that true knowledge begins with acknowledging God as the creator of the universe. They suggest that God is objectively real and that his existence is tangibly recorded in scientific evidence, particularly in biology. They also propose supernatural explanations for topics like evolution.
