Paul Finkelman
Volokh, Eugene wrote:
I appreciate Paul's response, though I don't think I quite agree: It seems to me that even relatively universal principles are part of the moral foundation of our law. Nonetheless, this is a fairly narrow disagreement, so I'll leave it at that.-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Paul Finkelman Sent: Monday, December 20, 2004 7:51 PM To: Law & Religion issues for Law Academics Subject: Re: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system? Ok, I think I now understand Eugene's point. I also disagree with him on what constitutes moral foundations of a legal system. It seems to me that a "moral foundation of law" would require more than simply a set of rules of behavior. Especially if those rules are universal. If all cultures ban murder, rape, robbery, then it is hard to see banning those things as the moral foundation of the culture or the legal system. Rather, these are practical rules for any society. Basic principles of society say you have othave such rules. Such behavior was illegal in the Soviet Union, Nazi Germany, ancient Rome, modern France, etc. Each society of course *defines* these things differently. And punishes them differently. The US South in the 1890s considered murder a crime, but did not see it as such when whites lynched blacks; Nazi Germany considered murder a crime, but not when the state slaughtered Jews. The US in the 19th Century considered robbery a crime, but not when the govt. took land belonging to Indians; same for when the Soviet state took farms belonging to small farmers (or large ones). My point here is that these rules -- no murder, rape, robbery -- are universal, although applied differently in different places. What makes legal cultures different is the moral and political foundations, that go beyond mere day-to-day rules of behavior. Most countries don't live up to their moral foundations, but nevertheless the moral foundations are there to appeal to and to promote change. Thus the Declaration proclaims equality and rights of life, liberty and pursuit of happiness. The Bill of Rights sets a standard of religious liberty and personal liberty in areas of freedom of _expression_ and protection for arbitrary incarceration or the taking of property by the government. Much of the history of the US has been the struggle to implement these foundations. Lincoln resurrected the promise of the D of I at Gettysburg and in his five years as President. There, by the way, are not principles found in all cultures; they are not universal. Many nations deny religious liberty, freedom of speech, or basic equality. Most nations have not embraces such foundations, nor have they embraced notions of self-government -- most of the world has not accepted the idea that "governments are instituted among men, deriving their just powers from the consent of the governed." The US and the old USSR both banned murder, rape, robberty, but the latter did not embrace equality, religious liberty, free speech, or notions of the "consent of the governed." Nor did it embrace private property and individualism. The "moral foundation" of the USSR was in part the idea that individuals were to serve the state and the greater good of the state, and that property was to be shared to each according to his needs (whether the USSR ever achieve this is of course another matter). Our legal system embraces the individual -- the state is subserviant to the will of the people, mediated by constitutional limitations, and the government gains its authority from the consent of the governed. These are the moral foundations of our system that are not based on day-to-day rules or (and I now understand Eugene is not arguing this) the Ten Commandments. Paul Finkelman Volokh, Eugene wrote:Paul asks me to "Go read [the Ten Commandments] and see what is there." I wonder if he might go read my posts and see what is there. In my most recent post, I wrote, "Hmm; seems to me thatno murder,rape, robbery, and the like are a moral foundation ofAmerican law asmuch as a practical one. But, as I've said before, I agree that the Ten Commandments are not a major moral foundation of American law." Given this, how can it possibly be that "Surely [I am]arguing that butfor the 10 C we would not have such rules"? In my post last Friday responding to a message of Paul's, I wrote: "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>." In my post last Friday responding to a message of Bobby's, I wrote: "I actually agree with Bobby on this point; I'vewritten in thepast (on my blog, not in any scholarly work) that the TenCommandmentsdon't form much of a basis for modern American law, and thatit's notclear to what extent they even formed a but-for cause ofAmerican lawhistorically, partly for the very reasons that Bobby mentions. My point was simply a criticism of the particular arguments that Paul Finkelman made in an earlier post." I am certainly NOT arguing that the Ten Commandmentsare a major moralfoundation of American law. Nor am I arguing that theprohibitions ofmurder, rape, and robbery come from the Ten Commandments. I don't believe that I've ever made such an argument, on this thread or elsewhere. Paul has been arguing that the moral foundation ofAmerican law hasbeen the Declaration of Independence and the Bill of Rights.I thinkthat the prohibitions on murder, rape, robbery, etc. are important moral foundations of American law, probably more important than the Declaration or the Bill of Rights; and I think it's a mistake to dismiss them as merely "practical." This has been the core of the disagreement at the heart of my posts in this subthread.But somehowthe responses seem to be arguing against a claim that Inever made, andthat I have explicitly said I wasn't making. Eugene-- 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] _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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 Religionlaw@lists.ucla.edu 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 University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED]
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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.
