Paul Finkelman
Newsom Michael wrote:
Message But how do you explain the fact that law and morality flourish in some societies that are neither Christian nor Jewish?
-----Original Message-----
From: Mike Schutt [mailto:[EMAIL PROTECTED]]
Sent: Thursday, December 16, 2004 12:22 PM
To: 'Law & Religion issues for Law Academics'
Subject: Ten Commandments "Basis of Our Laws" Position
In response to Ed's and Prof Lipkin's post, just a quick thought or two.
I think what is traditionally meant by the "basis of our laws" position is the following:
1. The Ten Commandments is a stark (if not the first surviving) demonstration that law comes from "outside" humankind-- that is, that law is not merely a human artifact. This has a long tradition in the common law, from Magna Carta, to Coke, to Bracton and Blackstone. The ten commandments "are the basis of our laws," then, in the sense that the common law has taken the view that the King us under law, because law comes from God. Russell Kirk in his Roots of American Order, for example, cites the giving of the ten commandments as the foundation of Western order. So, first, the position is that the fact that the Ten Commandments were from God, not man (being written with the finger of God) are the basis for many of the fundamental common law propositions, beginning with "no man is above the law."
2. Theologians, including Augustine and Calvin and many other Protestant and Catholic theologians in the history of the West have made direct connection between the Ten Commandments and *all* civil, moral, and ceremonial law. Therefore, "all law" in a sense is based on or-- maybe this is better put-- summarized by the Ten. This is a pretty supportable proposition from the Old and New Testaments. So even laws that should not be civil laws, such as the ones that Ed points out, are still "law" in the sense of moral law, as Ed also points out. Furthermore, civil laws should be based on, modeled after, and in conformance with the moral law; so in that sense, our civil laws are "based on the Ten Commandments."
I can't speak for everyone who might use the phrase, but this is my understanding of what it means to say that "our laws" are based on the "Ten Commandments."
-----Original Message-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of [EMAIL PROTECTED]
Sent: Thursday, December 16, 2004 10:01 AM
To: [EMAIL PROTECTED]
Subject: Re: Steven Williams case and the Ten Commandments casesI want to second Ed Braton's thoughtful post, and inquire of anyone who knows whether the laws, rules, customs of the Jews prior to the acquisition of the Ten Commandments included prohibitions against murder and theft, for example. If the answer is yes then all those who agree with Robert Bork's remark, and I'm paraphrasing perhaps unfaithfully, that liberal society lives off the moral capital of the Judeo-Christian religious tradition are historically inaccurate. Indeed, it opens up the anthropological question whether the Judeo-Christian religious tradition lives off the moral capital of prior secular societies if any existed, or prior pagan societies.
Bobby
Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware
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-- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
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