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Source: (consider it)
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Thread: Is English Law Based On The Bible?
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Frank Mitchell
planked
# 17946
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Posted
The Ten Commandments seem quite influential. But I read somewhere that the English Legal System itself contains alot of Ancient Roman and Germanic Law. Are there any Lawyers around, or anybody else who can give an opinion?
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Faictz Ce Que Vouldras
Posts: 72 | From: Cheshire, England | Registered: Dec 2013
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Og, King of Bashan
Ship's giant Amorite
# 9562
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Posted
Common Law is based on judicial precedent. A client comes into your office, and tells you their complicated set of facts. You as a lawyer go to the books of published opinions and see if a similar set of facts has ever gone in front of a judge who has authority in your jurisdiction. If it has, you can use that decision as a guide to what might happen if you take your client in front of a judge. If your clients facts are slightly different (they always are,) you can try to come up with a reason for a judge to determine that the different facts merit a different conclusion.
Early judges might have been influenced by existing Ecclesiastical laws in making certain decisions. And there are some similar moral concepts that exist in Biblical law and the Common law (you shouldn't kill people, for instance). So maybe on the first page of a 500 page history of the Common Law, you could say that there was some basis in Christian law, or in Roman law, or in Germanic law. But the remaining 499 pages tell a different story. Common Law had to start from someplace, but you are missing the whole point if you say that anything influenced it more than judicial precedent.
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"I like to eat crawfish and drink beer. That's despair?" ― Walker Percy
Posts: 3259 | From: Denver, Colorado, USA | Registered: May 2005
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Barnabas62
Shipmate
# 9110
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Posted
Frank's not on board any more, so there won't be any dialogue with him. Not a bad thread to leave open to see what Shipmates make of it.
B62, Purg Host
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Who is it that you seek? How then shall we live? How shall we sing the Lord's song in a strange land?
Posts: 21397 | From: Norfolk UK | Registered: Feb 2005
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Ad Orientem
Shipmate
# 17574
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Posted
When I did a bit of kaw ar school many years ago i was told that after the Norman conquest of England circuit judges where sent around the country to judge cases and find a common law which became a precedent for future judicial decisions. Seeing that at the time of the Norman conquest the Saxons where largely Christianised then certainöy the laws then would have been influenced to some degree by that.
Posts: 2606 | From: Finland | Registered: Feb 2013
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Og, King of Bashan
Ship's giant Amorite
# 9562
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Posted
Influenced, yes. But in the intervening 1000 years or so, it has evolved pretty far from where it started.
In the last 100 years, judges and lawmakers have started to draw from other sources as well. In my world of commercial law, we do a lot of work with the Uniform Commercial Code. That started out as an exercise to try to essentially codify standard business practices. But of course, we still have judges interpreting the law, so you may start with the code, but to really get your answer, you might have to dig into case law.
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"I like to eat crawfish and drink beer. That's despair?" ― Walker Percy
Posts: 3259 | From: Denver, Colorado, USA | Registered: May 2005
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Leorning Cniht
Shipmate
# 17564
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Posted
quote:
Originally posted by Ad Orientem:
Seeing that at the time of the Norman conquest the Saxons where largely Christianised then certainöy the laws then would have been influenced to some degree by that.
Although in some cases, such as the Frankish practice of trial by ordeal, which spread around Europe in the early Middle Ages due to the dominance of the Franks, what you have is more of a Christian gloss painted over a pre-Christian practice.
Posts: 5026 | From: USA | Registered: Feb 2013
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passer
Indigo
# 13329
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Posted
I've always assumed that there was a lot of religious (i.e. Christian) influence on our legal system. There's an interesting article here, which is worth a read, and which includes in a case discussion the observation:
"It is not possible to cite even a small fraction of the cases where the influence of Christianity reveals itself with sudden, blinding radiance. But the few instances I have given are representative."
I do wonder whether the OP had seen this item, but alas, we shall never know.
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Posts: 1289 | From: Sheffield | Registered: Jan 2008
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Callan
Shipmate
# 525
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Posted
Years ago, when I read Fortescue, I was struck by how Sir John was pretty heavily of the view that English Law was quite superior to Roman Law on the grounds that English Law does not permit torture or allow the legitimisation of bastards (15th century jurist, I report, I do not endorse, oh, all right, except for the bit about torture). I think, off the top of my head, that Sir John would have said that English Law was not based on the Mosaic Law but as a Christian would have said that it incorporated all the good bits.
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How easy it would be to live in England, if only one did not love her. - G.K. Chesterton
Posts: 9757 | From: Citizen of the World | Registered: Jun 2001
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Penny S
Shipmate
# 14768
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Posted
By a curious piece of synchronicity, I am just watching Neil Oliver travelling round the Sacred Places of Britain, and while he was in Canterbury I was musing on a visit I paid to St Martin's Church* there with a friend of mine. The odd thing I was musing on was that on many occasions when I visit an interesting church with this friend, we meet interesting elderly men who tell us about the history. (It doesn't happen when I'm alone.) In this case, we were told about King Ethelbert and how he had had written out the laws of the people of Kent, which were based on the laws of his people before his conversion, and that this was the origin of all later legal codes in England.
*This was there before Augustine, and the place where Queen Bertha worshipped before her husband was converted and before Augustine arrived. It seemed odd to us that the Cathedral was established on the same alignment, and Augustine put his monastery between the two, so that the church was no longer visible from the city.
[ 14. January 2014, 20:44: Message edited by: Penny S ]
Posts: 5833 | Registered: May 2009
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Sober Preacher's Kid
Presbymethegationalist
# 12699
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Posted
Curiously, there have been a few cases of jurisdictions switching from Civil Law to the Common Law, mostly through British conquest. Québec is the leading case. In 1760 the British tried to impose Common law across the board, but that failed. They reinstated the French law for "Property & Civil Rights", aka lawsuits, property, family law and commercial law, and kept the Common Law for criminal matters in 1774.
British criminal law was popular in Québec; even at its worst, and those were the days of the Georgian "Bloody Code" it was less harsh, more uniform and fairer to defendants than the French criminal law of the Ancienne Regime.
Which is why today in Canada all criminal law is Federal and has been since 1867 while Québec has the only complete Civil Code in the English Language. (Louisiana gives priority to the French version of their Code, but Québec statues are in English and French and both are equal and complete on their own.)
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NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
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ken
Ship's Roundhead
# 2460
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Posted
The answer to the OP question is pretty clearly "no". English law is as others said based on the Common Law of the late Middle Ages - but so much revised and reformed by precedent and legislation that its not much like it any more.
And that old Common Law was itself a sort of nationalisation, or royal expropriation, of lots and lots of traditional and local laws that go back to the laws the English brought with them from Germany and Jutland. So ancient Germanic law is at the root of it.
BUT... there were all sorts of other sources of law that got into the mix. There was ecclesiastical law and canon law (which overlap but aren't quite the same thing) There were manorial laws and feudal laws. There was Forest Law, which the Normans more or less invented. There was Equity which English lawyers made into a paralel system of law for various complicated reasons. There were royal decrees, and international treaties, and all sorts of administrative laws. And treaties between the Crown and other feudal lords, like Magna Carta And half a dozen Bills of Rights and so on There was Admiralty Law, and the laws and customs of the sea. (Everyone should read the book called "Cannibalism
and the Common Law)
So in the end I guess the Bible and the Ten Commandnentd
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Ken
L’amor che move il sole e l’altre stelle.
Posts: 39579 | From: London | Registered: Mar 2002
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ken
Ship's Roundhead
# 2460
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Posted
(bloody iphone won't scroll down to edit last line...)
I meant to say that 10 commandments and so on are one of many sources of English Law, but a very minor one. Probably not in top ten.
Roman Civil Law ditto. Though maybe a flavouring of it has been imported via the European Court and the EU. But that traffic goes both ways and is perhaps strongest in the other direction. As with the Human Rights declaration - not EU law but inflential on EU - which is basically our law foisted on everyone else.
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Ken
L’amor che move il sole e l’altre stelle.
Posts: 39579 | From: London | Registered: Mar 2002
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Pre-cambrian
Shipmate
# 2055
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Posted
You haven't mentioned Statute Law, which until the last 20-30 years overruled everything else. But it doesn't alter the thrust of your point, that English law isn't based on the Bible, even though individual legislators might draw their arguments from it.
If you take the first four of the 10 Commandments (up to and including the keeping of the Sabbath) it is Statute Law which has dismantled any biblical hold on the English law.
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"We cannot leave the appointment of Bishops to the Holy Ghost, because no one is confident that the Holy Ghost would understand what makes a good Church of England bishop."
Posts: 2314 | From: Croydon | Registered: Dec 2001
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Sober Preacher's Kid
Presbymethegationalist
# 12699
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Posted
quote:
Saith ken:
As with the Human Rights declaration - not EU law but inflential on EU - which is basically our law foisted on everyone else.
And yet you have Australia which resolutely declares that they don't need a Charter of Rights, let Parliament reign supreme, and then you have Canada which is in love with its constitutionally-entrenched Charter of Rights. Two kids, two takes on the idea. A rather fascinating comparison.
Though speaking of statute law, there was a fascinating case recently about "common-law" couples in Québec. Which is an oxymoron, as Québec uses the Civil Code. A judge could find some sort of "common law" status in the other provinces, but not in Québec, where the Civil Code rules. That case went to the Supreme Court of Canada, which found that the couple were in fact just very good friends. There is no such thing as a "common law" couple under the Civil Code of Québec, and that was that.
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NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
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orfeo
Ship's Musical Counterpoint
# 13878
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Posted
One of the most famous passages (at least in law circles) of any UK decision references the Bible while saying that the law does not follow the Bible.
The case is Donoghue v Stevenson, and the famous bit is essentially about 'who is my neighbour?' -to whom, under law, do I owe a duty to take care?
The full text is here if anyone wants it, but one key sentence will illustrate the point perfectly:
quote:
The rule that you are to love your neighbour becomes in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply.
I think it was my textbook when I first studied the case that explicitly pointed out that the priest and Levite in the parable of the Good Samaritan fulfilled their legal obligations by not kicking dust into the robbery victim's wounds.
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Technology has brought us all closer together. Turns out a lot of the people you meet as a result are complete idiots.
Posts: 18173 | From: Under | Registered: Jul 2008
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bad man
Apprentice
# 17449
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Posted
The answer to the OP is no.
quote:
... the laws and usages of the realm do not include Christianity, in whatever form. The aphorism that “Christianity is part of the common law of England” is mere rhetoric; at least since the decision of the House of Lords in Bowman v Secular Society Limited [1917] A.C. 406 it has been impossible to contend that it is law.
This quotation is from Lord Justice Munby and Mr Justice Beatson giving judgment in R. (on the application of Johns) v Derby City Council [2011] EWHC 375 (Admin) and [2011] H.R.L.R. 20.
Posts: 49 | From: Diocese of Guildford | Registered: Nov 2012
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Augustine the Aleut
Shipmate
# 1472
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Posted
SPK writes:
quote:
Though speaking of statute law, there was a fascinating case recently about "common-law" couples in Québec. Which is an oxymoron, as Québec uses the Civil Code. A judge could find some sort of "common law" status in the other provinces, but not in Québec, where the Civil Code rules. That case went to the Supreme Court of Canada, which found that the couple were in fact just very good friends. There is no such thing as a "common law" couple under the Civil Code of Québec, and that was that.
Indeed, this is so, and when I took my public service pre-retirement workshop in Montréal in 2011, a couple present was horrified to find out that they were not common-law married, and we had a meltdown on our hands in the middle of the workshop. The lawyer present was very good in calming down the weeping and shouting couple.
Biblical precepts have come up in judicial decisions in Québec, and there's a fair bit of literature on this. Much of it is from the 1800s has to do with a rather Old Testamentish approach to reinforcing patriarchal authority.
Posts: 6236 | From: Ottawa, Canada | Registered: Oct 2001
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Sober Preacher's Kid
Presbymethegationalist
# 12699
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Posted
Yes, I remembered your story, Augustine. Aside from a fascination with the Civil Code, I have to rewrite my Will and Power of Attorney if I move to Québec, and the Mandate, as the POA is known, has some special features unique to Québec that makes my Ontario one useless. To use it my Mandatee has to file it with my Notaire, who files it with the court. It's not like the Ontario process at all. And I would have to make sure my Notaire speaks acceptable English so she can deal with my family in a crisis situation.
I can't really understand why exactly that Québec case got as far as it did. The clear legal rule is that if the principle or idea is not present in the Civil Code of Québec, it does not exist, period. The National Assembly has to write it in, judges can't. There's nothing to discover or expand.
It's good fodder for the next Québec election and frankly much better then the dreadful things currently coming out out Québec City, but it isn't grounds for a trip to the Supreme Court.
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NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
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Augustine the Aleut
Shipmate
# 1472
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Posted
I fear that we have to let this return to the laws of England, even if the Civil Code is really far more interesting.
Posts: 6236 | From: Ottawa, Canada | Registered: Oct 2001
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Sober Preacher's Kid
Presbymethegationalist
# 12699
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Posted
Anyway,
quote:
Biblical precepts have come up in judicial decisions in Québec, and there's a fair bit of literature on this. Much of it is from the 1800s has to do with a rather Old Testamentish approach to reinforcing patriarchal authority.
Civil or Criminal? If civil, then it's just commentary and can be ignored, like it probably is nowadays.
[ 16. January 2014, 00:41: Message edited by: Sober Preacher's Kid ]
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NDP Federal Convention Ottawa 2018: A random assortment of Prots and Trots.
Posts: 7646 | From: Peterborough, Upper Canada | Registered: Jun 2007
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Augustine the Aleut
Shipmate
# 1472
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Posted
quote:
Originally posted by Sober Preacher's Kid:
Anyway,
quote:
Biblical precepts have come up in judicial decisions in Québec, and there's a fair bit of literature on this. Much of it is from the 1800s has to do with a rather Old Testamentish approach to reinforcing patriarchal authority.
Civil or Criminal? If civil, then it's just commentary and can be ignored, like it probably is nowadays.
Civil code, and it is ignored, excepting by friends doing gender studies and the law LLM theses.
Posts: 6236 | From: Ottawa, Canada | Registered: Oct 2001
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