In Gods We Trust: The Polytheistic Pedigree of the U.S. System of Law and Government (Guest Post)

In Gods We Trust: The Polytheistic Pedigree of the U.S. System of Law and Government (Guest Post) January 6, 2020

This guest post is from commenter Lex Lata. As his name suggests, he is trained in the law. This makes him well suited to deal with an issue that I’ve neglected to some extent, responding to the popular Christian claim that the U.S. is a Christian nation. In the sense that it contains lots of Christians, sure. But in the sense that it was built on a biblical foundation, not so much.

Any number of Christian apologists and nationalists contend—inaccurately—that the Bible is the historical foundation of the U.S. system of law and government. Ex-judge Roy “Not Without the Permission of Her Mother“ Moore recently restated his position that “the Ten Commandments [are] the law upon which our nation is founded.” A few years ago, current Trump courtier Michele Bachmann ended her stint representing/embarrassing my state of Minnesota in Congress with a rambling declaration that “in the United States the Ten Commandments that God gave to Moses is the very foundation of the law that has given the happiness and the rise of the greatest prosperity that any nation has known before.” And pseudo-historian David Barton continues to credit the Bible as the direct source for the key concepts and structures in the federal Constitution; he goes so far as to claim the Bible is “quoted” and “cited” in the Constitution, placing into question his grasp of not only 18th century U.S. political history, but also the meanings of words like “quote” and “cite.” Less extreme formulations of these views include “Judeo-Christian principles” being the basis of our legal system, or the Ten Commandments being the “moral foundation” of our law.

As a matter of history, arguments of this sort tend to be unduly reductive at best, and deceptive at worst. To be sure, Judeo-Christian learning, theology, ethics, and notions of justice have been consequential in several key respects over the course of time, but the taproots of the legal tradition inherited and renovated by the Founding Generation reach back to the raucous timber mead-halls of northern Germanic tribes and the bustling stoae and fora of ancient Greece and Rome.

Genesis of the Anglo-American Legal Heritage

Legal scholars and historians of the early Middle Ages discern the nativity of English law in the kingdoms founded by pagan Angles, Saxons, Jutes, and Frisians (Anglo-Saxons, for short) who invaded or migrated to Great Britain from what is now Denmark and northern Germany and the Netherlands in the fifth to seventh centuries CE.[1] These sea-faring settlers did not find a wholly lawless island, of course. The indigenous Celtic Britons of antiquity relied on an unwritten system of rules memorized and applied by priest-judges known as druids (no half-elves, as far as we know), and the Romans who governed the province of Britannia from roughly 43 to 410 CE brought the civil law of the empire with them. No less a figure than Papinian, a giant of Roman jurisprudence, reportedly adjudicated cases in the forum of York while in the service of Emperor Severus, ca. 200–210. There is no extant evidence, however, that these Celtic and Roman legal cultures directly influenced the land’s increasingly dominant and numerous Germanic occupants, who appear to have imported their own legal customs with them. (As noted below, elements of Roman civil law made their way into English law somewhat later, via different channels.)

Like the Celts and other “barbarians,” the pre-Christian Anglo-Saxons possessed little in the way of a written tradition, and regulated rights and liabilities with their own oral catalog of penalties for breaching specified norms. The oldest known recorded versions of many of those rules appear in the law code transcribed during the reign of King Æthelberht I of Kent (ca. 560–616). This code consisted of a tariff of monetary damages linked to particular harms and often the aggrieved party’s social rank. “If a man lie with the king’s maiden [i.e., maidservant], let him pay a bot [compensation] of fifty shillings. . . . If a man lie with an eorl’s [nobleman’s] birele [cupbearer], let him make bot with twelve shillings. . . . If a man lie with a ceorl’s [freeman’s] birele, let him make bot with six shillings. . . .”

There were likewise penalties for killing, theft, and assorted amputations, disfigurements, and other injuries listed with colorful particularity. Crude and gritty as this system might seem to us, it illuminates some of the priorities (or perhaps pastimes) of a warrior society that, at least in principle if not always in practice, had evolved beyond the purely talionic justice of retributive self-help and violent blood-feuds in favor of a more organized, pro-social system of compensatory justice—Teutonic tort reform, in a manner of speaking.

While these rules (and others) developed in large part among the pagan Anglo-Saxons, we see in this collection the early and unmistakable fingerprints of Christianity, a religion to which Æthelberht was the first Anglo-Saxon royal convert (ca. 600). For one thing, the code begins with protections for the property of the Church. For another, and perhaps more significantly from a historical perspective, these laws were put to parchment by the Gregorian missionaries who brought with them the Roman practices and tools of literacy and codification. (The derivation of modern “clerk” from Old English “cleric” reflects the clergy’s quasi-monopoly on writing skills in early medieval England.) The codes assembled during the reigns of Æthelberht and later Anglo-Saxon kings such as Alfred the Great (ca. 847–899), were the products of Christian hands transcribing rules of largely Teutonic provenance, typically in Old English rendered in the Latin alphabet of Virgil and Livy.

Evolution of the Law in Christian England

In the space of this post, the maturation and formalization of English justice over the next several centuries can be described in only the most general and possibly unsatisfactory terms. Temporal authorities, from the crown to shire reeves and other local magistrates, adopted, adapted, and invoked various substantive laws and procedural rules, frequently aided by churchmen serving as scribes, advisors, and specialists involved in the administration of oaths and trials by ordeal in particular. Not long after the Norman conquest of 1066, separate networks of secular/royal and ecclesiastical courts emerged. The former applied what became known as the common law to adjudicate most property, contract, debt, injury, and violent criminal matters, whereas the latter relied on canon law (itself essentially the lovechild of Roman civil law and Christian precepts) in exercising jurisdiction over complaints of clerical misconduct, justiciable sins such as adultery and heresy, disputes involving Church property, defamation, and matrimonial and probate cases.[2] Theologians debated and refined ideas about the relationship between divine, natural, and manmade law—drawing not only on scripture, but also on ideas traceable to admired classical heathens such as Cicero and Aristotle. And durable principles, methodologies, maxims, and terms of art originating in ancient Roman law surfaced in English commentaries and jurisprudence, as well as the formal legal education offered at Church-affiliated universities.[3]

Without a doubt, Christian institutions, clergy, and ideas had a role shaping the course of English law in certain practical and philosophical respects. But characterizing that law as originally or fundamentally “biblical” would be misleading. The substance of the English legal tradition was “formed in the main from a stock of Teutonic customs, with some additions of matter, and considerable additions or modification of form received directly, or indirectly, from the Roman system; and both the Germanic and Romanic elements have been constituted and reinforced at different times and from different sources.”[4] Christianity was a tributary, rather than the wellspring, of the legal system and doctrines that England passed to its ornery colonies in North America.

In part two of this piece, we’ll discuss the scant evidence of biblical contributions to the drafting of the U.S. Constitution.

King Æthelberht [with] the advice of wise persons,
introduced judicial decrees, after the Roman model;
which, being written in English,
are still kept and observed by them.
—Bede’s
Ecclesiastical History of the English Nation
(ca. 791 CE)

[1] Much of the information summarized in this section can be found in Sir John Baker, An Introduction to English Legal History (5th ed., Oxford University Press, 2019); Daniel R. Coquillette, The Anglo-American Legal Heritage (2nd ed., Carolina Academic Press, 2004); Tom Lambert, Law and Order in Anglo-Saxon England (Oxford University Press, 2017); and Sir Frederick Pollock and Frederic William Maitland, The History of English Law Before the Time of Edward I (2nd ed., Liberty Fund, 2010).

[2] See Charles Sherman, A Brief History of Roman Canon Law in Medieval England, 68 University of Pennsylvania Law Review 233 (1920).

[3] See Edward D. Re, The Roman Contribution to the Common Law, 29 Fordham Law Review 447 (1961); and Charles Sherman, The Romanization of English Law, 23 Yale Law Journal 318 (1914).

[4] A.H.F. Lefroy, The Anglo-Saxon Period of English Law, 26 Yale Law Journal 291, 291-292 (1917).

 

Image from Rochester Cathedral


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