I'm puzzled here. Paul wrote that "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." I responded that (1) other principles such as no killing, stealing, defaming, battering, etc. (including "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," (2) much of English heritage therefore wasn't rejected, (3) the Americans of the Framing era didn't entirely reject established churches or official religions, though they rejected a national establishment (and some rejected state ones, though others didn't), and (4) many Americans took the view that "right and justice were largely defined by God's law was surely not rejected."
Now Paul responds by pointing out that the Ten Commandments weren't the foundation of American law. I agree, and have said so publicly (including some of the points that Paul makes), see, e.g., http://volokh.com/2003_04_27_volokh_archive.html#200199520 <http://volokh.com/2003_04_27_volokh_archive.html#200199520> and http://volokh.com/2003_04_20_volokh_archive.html#200195975 <http://volokh.com/2003_04_20_volokh_archive.html#200195975> . But I don't quite see how Paul's message responds to the points that I was making, and especially to my criticism of the statements in his original post. Eugene -----Original Message----- From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED] Sent: Fri 12/17/2004 11:48 PM To: Law & Religion issues for Law Academics Cc: Subject: RE: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system? 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
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