U.S. Law and the History of English Common Law

by Mister Thorne http://www.misterthorne.org

A myth can become so pervasive and deep-seated that it becomes fact, even to those who should know better.  Such is the case with the myth, vigorously promoted by the likes of Roy Moore, that U.S. law is based on the first ten Mosaic laws: the Ten Commandments.  It's a myth that defies history and reality.  It's a myth that requires one to believe that our laws come not from the founders of Western civilization the Greeks and the Romans, but from a small tribe of Asians.


History

However much Roy Moore might believe that the Ten Commandments are the beginning of all law, we know otherwise.  Before the Ten Commandments, there was the Code of Hammurabi, the law that set out the concept of an eye for an eye, a tooth for a tooth.  Before the Code of Hammurabi, there was the Code of Ur-Nammu, and before that was Urukagina's Code.  Truth is, written law predates Mosaic law by at least 1,000 years.

So it might be asked if our laws don't come from the Old Testament, where do they come from?  Try English common law.  Isn't English common law based on the Ten Commandments?  Heck, no.

A touch of history.  We go back to ancient Rome, long before there is a Roman Empire, to a time when the Greeks are spreading their culture throughout the eastern Mediterranean and the region is dotted with city-states.  In the city-state of Rome, there were those who had power (the Patricians) and those who served them (the Plebeians).

In 449 BCE, the Plebs reacted against the old system of law that favored the Patricians.  Among their many complaints was that the Patricians refused to codify and publish the law.  To settle matters the Patricians couldn't afford a revolt by the Plebs the old system of law was revised, and the new system of law was codified and published as the Twelve Tables.

The new law introduced some of the most basic elements of our modern system of law:

  • Everyone is equal before the law.
  • The accused is innocent until proven guilty.
  • The accused has a right to defend himself and to know his accuser.
  • 300 years later, Palestine comes under Roman control.  By that time, the Roman system of law is well established.  There is no evidence that Roman law was influenced in any way by Mosaic law.

    Great!  But what does this have to do with English common law?

    Not long after the Romans take control of Palestine, they try to control Britain.  The Romans are fighting for control of Gaul (now France and Belgium and parts of Germany), but the Celts in Britain cousins to the folks in Gaul are proving troublesome, providing aid to their kinsfolk across the Channel.  So, Julius Caesar invades Britain (55 BCE), but the effort is only half-hearted, the Celts maintain their independence, and Gaul remains a battleground for the Romans.

    A century later and Gaul is under Roman control.  Emperor Claudius decides it's time to deal with those pesky Celts and so he invades Britain.  He has considerable success.  After just a few years, Rome controls much of the island.  The Romans continue to expand their control, but they never control the most northern part of the island, present-day Scotland.  Emperor Hadrian builds his famous wall (120 CE), and that marks the northern limit of Roman control.

    A hundred years after Hadrian erects his wall, things are going badly for the Romans.  Invaders are pounding on the Empire's borders.  Cracks are forming in the political structure.  Rather than one Caesar, there are several and the Empire is splitting in two: East and West.  Even the age-old state religion is under attack.  A new religion Christianity is gaining in popularity and it threatens to replace all the old gods with one: the only remaining god of the Jews.

    The Romans pack up and pull out of Britain.  They need to defend Gaul, and they can no longer afford to maintain the island province.  After the Romans leave, a new group of invaders from across the Channel begin showing up.  These are Teutons, Jutes, Angles, and Saxons, and they evict the Celts from the southern part of the island.

    These new invaders make a new world of the island.  They bring along their culture, and they create a new civilization.  They give the land a new name England, land of the Angles.  They settle into numerous, small principalities.  Over time, largely through warfare, the principalities evolve into a few kingdoms.  Feudalism becomes the order of the day.

    The Middle Ages have arrived.  The mighty own whatever land they can, the commoners work the land for their lords, and the lords serve their kings.  The commoners fight in their lord's armies, trading military service for peace and protection, and the landlords offer their armies to fight in the causes of their kings.

    What's the law in England?  It's whatever the king says it is.  The situation is pretty much the same across the Channel.  The western half of the Roman Empire has dissolved, replaced by a patchwork of feuding kingdoms.  Feudalism is the social-economic order, the commoners work the land and as kingdom fights kingdom the commoners fight on behalf of their lords and kings.  The kings are running things, and they decide the law.

    The situation is different in the East.  The eastern half of the Roman Empire the Byzantine Empire maintains itself for another 1,000 years.  One of its rulers is Justinian, and he is a very important figure in the development of the law that exists in Europe to this day.

    By the time Justinian comes to power, the law has become unwieldy.  Justinian reorganizes the law so it can be readily consulted and understood.  The effort is a great success, and when Justinian manages to regain control of the Western Empire, Justinian's Code becomes the law throughout the Empire, East and West.  It becomes the basis for law throughout Continental Europe that exists today.

    The point is this: the law in Continental Europe originates in ancient Rome.  The people of Palestine have no hand in it, and their laws mean nothing to anyone but them.  When the Romans develop the Twelve Tables, they don't even know about the Jews.

    Back to England.  Did the Anglo-Saxons somehow base their law on ancient Jewish law?  Not at all.  Before William the Conqueror showed up in 1066 CE, there was no set law in England.  There was a king of all England, and there were courts of law, but laws were local.  The laws and the courts were controlled by wealthy landowners, and clerics ran the courts for them.  But each manorial court had its own way of doing things, and each manor had its own laws to enforce.  Then William showed up, made himself King, and started getting things organized: to be a nation, England needed a common, national law.  William began that effort.

    One thing he did was to restrict the importance of the clergy in matters of law.  There would be Canon law (the clergy would be free to regulate the affairs of the church and to establish rules for things like marriage and divorce), and there would be a separate, secular law beyond the control of the church.

    Almost forty years after William arrived in England, his son Henry I became the King of England.  He set up a system of royal courts throughout the country.  At first, the royal courts didn't rely upon written law to decide matters.  Instead, judges (mostly clerics, the only people educated enough to preside over a royal court), were directed to be fair and reasonable, to use good sense in arriving at their judgments.  They established the common-law tradition of having courts determine the law where there was no written law.

    Later, Henry II continued the reforms that his grandfather Henry I started. The royal courts grew in importance and the feudal courts the independent courts controlled by powerful landowners became less and less important.  Henry II also put the church in its place: subordinate to the secular authority.  He made clerics subject to the same laws as everyone else, he forbade any appeals from the royal courts to the papal court, and he decided that he would appoint the bishops in his kingdom (modern-day England and France).

    Henry II accelerated what his grandfather started: the development of a law common throughout the entire kingdom in place of local laws.  Centuries later, English common law would become the law of the English colonies, including the thirteen colonies in North America.

    Did either Henry I or Henry II rely on the bible as a source of law?  Nope.  Turns out that the law of the bible the law that Yahweh gave to Moses had no influence on law in the West.  The Western world derives its law from the Romans, and indirectly from the Greeks who influenced the Romans.

    The only places where biblical law has any weight today are places controlled by Muslims.  Even in Israel, the bulk of Mosaic Law is disregarded except among a few, small religious sects like the Karaites (who are prohibited by national law from following the Mosaic laws that pertain to crimes, morality, and slavery).

    Of course, there's no denying that Christianity had a profound influence on Western civilization, including the law.  Were reminded of that whenever someone swears an oath in a court of law.  But it's one thing to say that Christianity influenced Western civilization; it's quite another to say that our law is based on the Ten Commandments.  Without doubt, it is not.

    All that Roy Moore and his kind (e.g., William Pryor) have to do is take a course in the history of Western civilization.  Then they can rid themselves of the belief that we inherited our law from a small tribe of Asians.  We did not.  We inherited it from a bunch of powerful Pagans.


    Reality

    In the U.S., we don't follow Mosaic Law.  We don't execute homosexuals or adulterers; we don't execute people who work on Sunday; we don't execute kids who curse their parents; we don't allow slavery; we don't stone people to death, we don't sacrifice goats and sheep when we invoke the Fifth Amendment, and we don't call priests when we find mildew in our homes, as required by the law of the Bible.  If there's any similarity of our laws to the Mosaic laws, it's only because all societies arrive at similar laws (just try to find a society that doesn't have a law equivalent to the 8th Commandment).

    Mosaic law contains elements that are extremely foreign to us.  For instance, Mosaic Law #1 prohibits honoring any other god but Yahweh.  U.S. law has no equivalent.  Mosaic Law #2 prohibits making pictures of birds and fish.  U.S. law has no equivalent.  Mosaic Law #3 prohibits any misuse of Yahweh's name.  U.S. law has no equivalent.  According to Mosaic Law, it's fine to have slaves, so long as you follow the laws regarding slaves.  Want to marry a virgin?  Just go and rape her, give her father some money, and she's all yours, according to Mosaic Law.

    According to Mosaic Law, a woman cannot get married unless she's a virgin, even if she was previously married.  But if her husband dies, her brother-in-law is supposed marry her even though she's not a virgin (and even though he's already married).  Mosaic law is so poorly constructed that in a number of instances, you really can't follow the law, no matter how much you might want to.

    Certain violations of the law require the violator to pony up a female sheep or goat to be sacrificed to Yahweh.  Those who can't afford a sheep or a goat have to come up with two pigeons.  Those who can't come up with two pigeons have to come up with two kilos of flour.  Is there a law anywhere in the U.S. that carries such a penalty?

    Other violations of Mosaic Law call for punishments that we find abhorrent.  One of the more popular punishments is being stoned to death by your neighbors.  They just keep throwing rocks at you until you die.  What sort of violations call for such a cruel punishment?  Homosexuality; adultery; working on Sunday.  In the U.S., we have capital punishment, but we certainly don't execute people who work on Sunday, as required by Mosaic Law.

    Imagine this: imagine that the good people of Roy Moore's town decide to implement Mosaic law.  Suppose they find a couple of homosexuals packing fudge and they stone them to death in public.  Guess what?  The good people of Roy Moore's town are going to find themselves in a courtroom, charged with violating the real law.


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