For the Ten C. to be the foundation of law we would at least have to imagine that without the 10 C we might not have these rules; but of course ALL societies ban murder (not killing, which is a problem with the (incorrect) King James translation of the 10 C;), stealing, and perjury. The 10 C say NOTHING about destroying property beating people up or defamation. So, I don't see how the 10 C can be the moral foundation of law if those are central to our law. Most of the 10 C have NOTHING to do with our law (one God, no sculptured images, keep the sabbath, honor your parents, don't take God's name in vain, etc.) so how can somethign be the moral foundation of the law if most of it is completely ignored by our law. Some of our law -- or at least our economy -- cuts against the 10 C-- Our economy is based on the concept of coveting your neighbors things goods, house (maybe not wife). That is what makes capitallism run.
Paul Finkelman Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > I'm not sure this is quite right. Surely principles such as > no > killing, no stealing, no beating people up, no defaming > people, no > destroying their property, and so on -- both those mentioned > in the Ten > Commandments and those not so mentioned -- are a far more > important part > of the moral foundation of American law than the political > principles in > the Declaration of Independence. The Declaration is pretty > important, > but the basic rules of decent conduct with respect to each > other seem > much more foundational. That aspect of the English heritage > was surely > not rejected. > > Nor did all the Americans of 1776-1791 reject an established > Church or an official religion, as both the continuing > establishments > and the favorable mentions of Christianity in various state > constitutions attest. They were rejecting a nationally > established > religion, to be sure, but not state establishments (or at > least not all > were rejecting it). > > Now I'm not sure how many Americans of 1776-1791 assumed > that > God literally made laws, at least those laws under which > Englishmen and > Americans lived. I take it that the claim about the Framers' > religiosity is that they thought right and justice were > largely defined > by God's law (hence the reference to endowment by their > Creator, or for > that matter the appeal to God as a judge of the colonists' > cause), > something that's not inconsistent with the view that > governments derive > just powers from the consent of the governed. > > Eugene > > Paul Finkelman writes: > > > The foundation of American law, especially the *moral* > > foundation, begins with the Declaration of Independence, and > > > continues at least through the adoption of the Bill of > > Rights. The Americans of 1776-1791 were clearly rejecting a > > > great deal of their English heritage, including and > > established Church, an official religion, and the assumption > > > that "God" made laws. "Governments are instituted among > Men, > > deriving their just Powers from the Consent of the > Governed," > > as Jefferson noted. Chief Justice Moore put up the Ten > > Commandments monument in Alabama because he claimed there > was > > a high law which he had to obey. That may his personal > > theology, but it not the basis of our law. > > > > Paul Finkelman > > > > Quoting "A.E. Brownstein" <[EMAIL PROTECTED]>: > > > > > This is really a critical part of the issue. Are we > talking about > > > distinctly American law or more generic "Anglo-American" > law. > > > I have no > > > doubt that the American Tories, the British soldiers who > shot > > > down the > > > Minutemen at Lexington, the Hessian mercenaries, and King > > > George III > > > himself all believed in the Ten Commandments as much > > > Washington and the > > > drafters of the Declaration of Independence and the > > > Constitution. If the > > > question is whether belief in the Ten Commandments > predisposes > > > you to > > > accept the American experiment in self-government, > obviously > > > it did not > > > have that effect on a lot of believers. > > > > > > Alan Brownstein > > > UC Davis > > > > > > > > > At 04:51 PM 12/17/2004 -0500, you wrote: > > > >Speaking for myself, none of this discussion has been > about > > > Anglo-American > > > >law, it's been about American law. The Constitution was > > > obviously a > > > >radical break from English law on many levels. It > established > > > an entirely > > > >different basis upon which legitimate lawmaking was > based, > > > and upon which > > > >a legitimate lawmaker might rule. The notion of a > government > > > instituted > > > >solely to protect the rights that each individual is > endowed > > > with from > > > >birth was monumentally different than the notion of a > nation > > > ruled by the > > > >divine right of the king, to whom one must plead for > whatever > > > recognition > > > >he chooses to give our claims of liberty. The distinction > is > > > as basic as > > > >the one Madison draws so vividly, with the European > > > governments that > > > >preceeded ours being charters of freedom granted by > power, > > > while ours was > > > >a charter of power granted by a free people. Hence, the > > > notion of > > > >combining Anglo- and American together for the purposes > of > > > this discussion > > > >seems entirely unwarranted to me. Under the English law > prior > > > to our > > > >constitution, the King could have declared any of the > Ten > > > Commandments to > > > >be legally in force and prescribe whatever punishment he > > > chose upon it; in > > > >our system after the Constitution, most of the > commandments > > > could not be > > > >legitimately made into laws without violating it. I > can't > > > think of a more > > > >obvious reason not to combine the two as one. > > > > > > > >Ed Brayton > > > > > > > >Ross S. Heckmann wrote: > > > >>This list has recently discussed the issue of whether > the > > > Ten > > > >>Commandments are, or ever have been, the foundation of > the > > > Anglo-American > > > >>legal system. > > > >> > > > >>A book was published earlier this year that sheds light > on > > > this > > > >>issue. It is entitled "The Ten Commandments in > History." > > > It was based > > > >>on a manuscript left behind by the late Professor > Emeritus > > > Paul Grimley > > > >>Kuntz, "a distinguished member of the Emory philosophy > > > faculty and an > > > >>ardent supporter of the Law and Religion Program." > (From > > > the book's > > > >>"Acknowledgments," p. xiv, by Professor John Witte, > Jr., > > > writing in his > > > >>capacity as general editor of Emory University Studies > in > > > Law and > > > >>Religion.) The Supreme Court's decision in Stone v. > Graham > > > was for the > > > >>late Prof. Kuntz "the catalyst for almost ten years of > > > research and > > > >>thought about the Decalogue and its role in American > life." > > > (From the > > > >>book's Foreword, p. viii, by the late Prof. Kuntz's > spouse, > > > Prof. Marion > > > >>Leathers Kuntz.) > > > >> > > > >>The book itself is primarily a history of ideas, how > various > > > thinkers > > > >>throughout history have been reacted to the Ten > > > Commandments, but the > > > >>book does touch upon the issue of whether the Ten > > > Commandments are the > > > >>foundation of the Anglo-American legal system. > > > >> > > > >>Chapter 5 is entitled, "King Alfred: The Decalogue and > > > Anglo-American > > > >>Law." Alfred the Great lived from 849 to 899. (Book, > p. > > > 46.) Prof. > > > >>Kuntz writes: > > > >> > > > >> ". . . . The hostility between the Roman Empire > and > > > Christians ended > > > >> with tolerance from Constantine, and then he gave to > the > > > church the > > > >> support of the state. The pattern of Roman conversion > was > > > followed in > > > >> all the nations of Europe--among Latin nations, > Germanic, > > > Scandinavian, > > > >> Slavic, etc. Does this mean that the Mosaic Decalogue > > > became part of > > > >> the law of these peoples when they were converted to > > > Christianity? And > > > >> how did changes introduced by the gospel affect the > legal > > > code? > > > >> > > > >> "Political historians and historians of law do not > > > offer us a > > > >> general and comparative study [too bad--maybe somebody > on > > > this list can > > > >> remedy this deficiency--R.S.H.], but one notable case > is > > > the code of > > > >> King Alfred the Great. This is particularly of > interest > > > since it shows > > > >> the Decalogue as basic to the civil religion of > England, > > > and of the many > > > >> colonial offspring, which build upon the traditions of > > > common > > > >> law. Thanks to Alfred the law is also the king's > law." > > > (Book, pp. 46-47.) > > > >> > > > >> In the book's later chapter on Jeremy Bentham, the > book > > > states that > > > >> in response to Jeremy Bentham, ". . . . a > historian > > > might object > > > >> that Alfred the Great prefaced his collection of Saxon > laws > > > with the Ten > > > >> Commandments from Exodus 20, that the monarch of Great > > > Britain takes a > > > >> sacred oath at coronation to enforce God's law." > > > >> > > > >> Thus, the Ten Commandments are, or at least used to > be, > > > the > > > >> foundation of the Anglo-American legal system. > > > >> > > > >> I will stipulate that it would be no small > challenge to > > > reconcile > > > >> this proposition with the Supreme Court's post-World > War II > > > > > > >> jurisprudence. But even assuming that American law is > no > > > longer founded > > > >> upon the Ten Commandments, but on some other basis of > some > > > sort or > > > >> other, for well over a thousand years, the Ten > Commandments > > > were the > > > >> foundation of Anglo-American law. Moreover, it is by > no > > > means clear > > > >> that the Supreme Court's post-World War II > jurisprudence > > > will endure, > > > >> either as it currently exists, or in modified form. > > > >> > > > >>Very truly yours, > > > >> > > > >>Ross S. Heckmann > > > >>Attorney at Law > > > >>Arcadia, California > > > >> > > > >> > > > >> > > > >> > > > >> > > > >> > > > >> > > > >> > > > >> > > > >> > > > >>_______________________________________________ > > > >>To post, send message to > > > > >><mailto:[EMAIL PROTECTED]>[EMAIL PROTECTED] > > > >>To subscribe, unsubscribe, change options, or get > password, > > > see > > > > > > >><http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw>http://l > > > >>ists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > >> > > > >>Please note that messages sent to this large list cannot > be > > > viewed as > > > >>private. Anyone can subscribe to the list and read > messages > > > that are > > > >>posted; people can read the Web archives; and list > members > > > can (rightly > > > >>or wrongly) forward the messages to others. > > > >_______________________________________________ > > > >To post, send message to [EMAIL PROTECTED] > > > >To subscribe, unsubscribe, change options, or get > password, > > > see > > > > >http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > > >Please note that messages sent to this large list cannot > be > > > viewed as > > > >private. Anyone can subscribe to the list and read > messages > > > that are > > > >posted; people can read the Web archives; and list > members > > > can (rightly or > > > >wrongly) forward the messages to others. > > > > > > _______________________________________________ > > > To post, send message to [EMAIL PROTECTED] > > > To subscribe, unsubscribe, change options, or get > password, see > > > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > > > Please note that messages sent to this large list cannot > be > > viewed as > > > private. Anyone can subscribe to the list and read > > messages that are > > > posted; people can read the Web archives; and list members > can > > > (rightly or wrongly) forward the messages to others. > > > > > > > > > > > Paul Finkelman > > Chapman Distinguished Professor of Law > > Univ. of Tulsa College of Law > > 2120 East 4th Place > > Tulsa OK 74104-3189 > > > > Phone: 918-631-3706 > > Fax: 918-631-2194 > > _______________________________________________ > > To post, send message to [EMAIL PROTECTED] > > To subscribe, unsubscribe, change options, or get password, > > > see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > > > Please note that messages sent to this large list cannot be > > > viewed as private. Anyone can subscribe to the list and > read > > messages that are posted; people can read the Web archives; > > > and list members can (rightly or wrongly) forward the > > messages to others. > > > _______________________________________________ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, > see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the messages > to others. > Paul Finkelman Chapman Distinguished Professor of Law Univ. of Tulsa College of Law 2120 East 4th Place Tulsa OK 74104-3189 Phone: 918-631-3706 Fax: 918-631-2194 _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
