Eugene, I may have missed your point, since it seems we are in agreement that the Ten C. are not the moral foundation of Am. law. But, I guess I would still argue that the moral, as opposed to perhaps the day-to-day practical, foundation of American law comes from the DoI and BoR. Alternatively, the "foundation" (perhaps no so moral) of American law is property and the right to own it (including, for Jefferson property in about 175 people). That might be the foundation of our legal culture -- protecting property while the moral aspiration was about liberty and equality. The day-to-day practical issues were about regulating human behavior to make life safe (so we could pursue our happiness and acquire property). I guess I don't see that laws against bad interpersonal behvaior (killing, stealing etc) are essentially a moral foundation, and if they are, they are found in every culture at all times, and so hardly unique to the US and certainly not based on the Ten C or even the Bible. If American law as a unique *America* foundation, it would be in the aspirational claims of the DoI and the BoR.
Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>: > 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 > > > 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.
