Foundation for the Common Law
by Herbert W. Titus
“[W]hile the Roman law was a deathbed convert to Christianity, the common law was a cradle Christian.”1 So wrote John C.H. Wu in his 1955 encomium to the Anglo American legal system known as the common law. Wu, a convert to Christianity in the 1930’s and a noted international statesman, jurist and law professor, documented this claim by tracing the history of the English common law from Bracton through Coke to Blackstone. Bracton, named by Wu as the “Father of the Common Law,”2 was a Churchman, learned in both the canon and Roman law. Remembered for his great thirteenth century treatise, De Legibus et Consuetudinibus Angliae, the first systematic treatment of the English common law, Bracton laid down an unmistakably Christian philosophy of law:
The king himself . . . ought not to be under man but under God, and under the law, because the law makes the king …. [F]or there is no king where will, and not law, wields dominion. That as a vicar of God he [the king] ought to be under the law is clearly shown by the example of Jesus Christ … [f]or although there lay open to God, for the salvation of the human race, many ways and means … He used, not the force of his power, but the counsel of His justice. Thus He was willing to be under the Law, “that he might redeem those who were under the Law.” For He was unwilling to use power, but judgment.3
Coke, whom Wu praised as “the incarnate common law”4 or the Savior of the Common Law, showed incomparable courage when he cited Bracton in his momentous encounter with King James I, who claimed that he personified the law as King.5 Well prepared to defend the common law against tyranny even from the highest place in the kingdom, Coke, like Bracton, understood that God, not man, was the ultimate source of law, even that law which governed the civil realm. Before his confrontation with the King, Coke had confidently proclaimed that “the law of nature is part of the law of England,”6 that this “law of nature was before any judicial or municipal law,”7 and that this “law of nature is immutable.”8 What was this “law of nature?” Coke described it eloquently:
The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; … this is lex aeterna, the moral law. called also the law of nature. And by this law written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world.9
Coke’s “law of nature,” the “eternal law of God,” written on the heart of every man, paralleled John Calvin’s “moral law,” which the theologian characterized as “nothing else than a testimony of natural law and of that of conscience which God has engraved upon the minds of men.”10 Coke’s “law of nature” and Calvin’s “moral law,” in turn, drew support from the Apostle Paul’s letter to the church at Rome: “For when the Gentiles, which have not the [written] law, do by nature the things contained in the law, these, having not the law, are a law unto themselves which shew the work of the law written in their hearts, their conscience also bearing witness ….”11
This Christian philosophy of law came to full bloom in England with the work of Sir William Blackstone in his monumental Commentaries on the Law of England. In his seminal chapter on “the Nature of Laws in General,” Blackstone stated his Christian thesis with unmistakable clarity:
Man, considered as a creature, must necessarily be subject to the law of his creator, for he is entirely a dependent being … [A) state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct … And consequently, as man depends absolutely upon his maker for every thing, it is necessary that he should in all points conform to his maker’s will.
This will of his maker is called the law of nature….
* * *
This law of nature, being co-eval with mankind and dictated by God himself, is of course superior in obligation to all other. It is binding over all the globe, in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.12
Published in 1765, Blackstone’s Commentaries quickly became the definitive treatise on the common law both in England and in America. Blackstone’s statement of the meaning and significance of the law of nature served not only the cause of the common law, but providentially the cause of the American War for Independence. As for the common law, Blackstone provided to Associate United States Justice Joseph Story ample evidence to support the justice’s firm opinion that “[t]here never has been a period, in which the Common Law did not recognise Christianity as lying at. its foundations.”13 As for America’s claim to independence, Thomas Jefferson unhesitantly and confidently rested his case upon “the laws of nature and of nature’s God.”14
For over one hundred years, however, this Godly heritage of American law has been neglected. It is no longer generally acknowledged by her lawyers or her judges. The purpose of this article is twofold: (1) To document and to explain how God’s revelation provided the basic foundation for the Anglo-American common law system; and (2) To urge its renewal and restoration.
Part II contains a succinct summary of the Biblical philosophy that laid the foundation for the common law at the time of America’s founding. It concludes with a brief account of its demise, occasioned by a late nineteenth century Darwinian revolution, and with a forecast of a coming Christian counter-revolution. To illustrate how this Biblical philosophy was applied in the past, and how, if restored, it would make a difference in the future, Parts III and IV address two subjects, private property and civil jurisdiction. Both of these parts document the Biblical roots of the common law of property and of jurisdiction, and urge a return to them to preserve economic stability and to reestablish true liberty in America.
The Declaration of Independence’s reliance upon the laws of “nature’s God”15 as well as upon “the laws of nature”16 reflected the faith of America’s founders in a “God Who is there and Who is not silent.”17 They believed without reservation that God had created all mankind, that God had endowed them with certain rights, and that God actively judged and superintended the affairs of man, including that of nations.18 Their faith in God and in His revelation in support of their revolutionary cause mirrored Blackstone’s faith in God’s will as revealed in nature and in the holy Scriptures. Not surprisingly, America’s founders endeavored to preserve and to purify Blackstone’s philosophy of the common law even as they were leading the United States of America in a war against the mother country.
Jesse Root, in his “remarkable preface to the first volume of systematic Reports on Connecticut cases,”19 explained the revelational epistemology upon which all Americans understood the common law to rest:
What is common law? … [C]ommon law is the perfection of reason, arising from the nature of God, of man, and of things, and from their relations, dependencies, and connections: It is universal …. It is in itself perfect … it is immutable, … it is superior to all other laws and regulations …. It is immemorial … it is co-existent with the nature of man, …. It is most energetic and coercive ….
[W]ho will ascend into heaven to bring it down, or descend into the depths to bring it up, or traverse the Atlantic to import it? It is near us, it is within us, written upon the tablet of our hearts, in lively and indelible characters; … It is visible in the volume of nature, in all the works and ways of God. Its sound is gone forth into all the earth, and there is no people or nation so barbarous, where its language is not understood.
The dignity of its original, the sublimity of its principles, the purity, excellency and perpetuity of its precepts are most clearly made known and delineated in the book of divine revelations; heaven and earth may pass away and all the systems and works of man sink into oblivion, but not a jot or tittle of this law shall ever fall.20
Root’s explicit revelational epistemology was presupposed by Blackstone in his Commentaries. Thus, Blackstone unapologetically began his chapter on the Nature of Laws in general with propositional statements derived from the Genesis account of creation:
Law … signifies a … rule of action, which is prescribed by some superior, and which the inferior is bound to obey.
Thus when the supreme being formed the universe, and created matter out of nothing, he impressed certain principles upon that matter, from which it can never depart, and without which it would cease to be. When he put that matter into motion, he established certain laws of motion, to which all moveable bodies must conform.21
Continuing this Genesis theme of creation, Blackstone moved quickly from the laws of the creator governing the inanimate world to the rules of the same creator governing the animate world:
If we farther advance, from mere inactive matter to vegetable and animal life, we shall find them still governed by laws … equally fixed and invariable. The whole progress of plants … the method of animal nutrition, … and all other branches of vital economy . . . are not left to chance, or the will of the creature itself, but are performed in a wondrous involuntary manner, and guided by unerring rules laid down by the great creator.22
Again without hesitation, Blackstone moved from the rules governing the animate world to those applying to human action or conduct. While he acknowledged that man, unlike the animals, is “a creature endowed with both reason and freewill,”23 Blackstone drew a straight line from the laws governing the inanimate and animate worlds to the laws governing the “image-bearing nature world”24 peculiar to man:
For as God, when he created matter, and endued it with a principle of mobility, established certain rules for the perpetual direction of that motion; so, when he created man, and endued him with freewill to conduct himself in all parts of life, he laid down certain immutable laws of human nature, whereby that freewill is in degree regulated and restrained….25
By relating God’s laws governing mankind to those governing the inanimate physical world, Blackstone-whether advertently or inadvertently I do not know-followed God’s revelatory strategy in His dealing with Job. For in response to Job’s complaint, God answered by declaring His sovereign power as Creator over inanimate nature and, consequently, His rule of that inanimate world: “Where wast thou when I laid the foundations of the earth?… Who hath laid the measures thereof? … or who hath stretched the line upon it? … Knowest thou the ordinances of heaven? Canst thou set the dominion thereof in the earth?”26
God repeats this revelatory strategy throughout Scripture both in his relationships with Israel27 and with individual human beings. In a most telling passage in the Book of James, God likens His physical laws governing water quality to His moral laws governing what man speaks with his mouth:
[T]he tongue can no man tame; it is an unruly evil, full of deadly poison. Therewith bless we God … and therewith curse we men, which are made after the similitude of God. Out of the same mouth proceedeth blessing and cursing. My brethren these things ought not so to be. Doth a fountain send forth at the same place sweet water and bitter?28
Given these revelations of identity between the laws governing the physical world and those governing man’s free will, Blackstone envisioned the job of the lawyer or jurist to be like that of the physical scientist; namely, to use God’s gift of “reason to discover the purport of those laws” governing mankind’s freewill.29 Blackstone had faith that God “has enabled human reason to discover” these laws “so far as they are necessary for the conduct of human actions.”30
First, Blackstone contended that God created each individual human being in such a way that he but by his own self-love will discover the rules that lead to happiness.31 According to Blackstone, one need not be a metaphysician in order to know what is good and what is evil.32 Likewise, Jesse Root claimed that the law of nature created by God could be known through reason because God had created all human beings with the capacity to know those laws:
[T]he law exists … [not as] a matter of speculative reasoning merely; but of knowledge and feeling. We know that we have a property in our persons … we know that we have a right to think and believe as we choose … we know the value of a good name … we know that every man’s peace and happiness is his own. Nay, more when our persons are assaulted, our lives attached, our liberties infringed … our property … spoiled, we feel the injury that is done to us…. We know also that other men have the same rights. . . . When their rights are violated, this law is therefore evidenced both by the knowledge and the feelings of men.33
Notwithstanding the fact that God had revealed His laws clearly in nature and had created each human being with the capacity to discover those laws, both Blackstone and Root agreed that God’s revelation of His laws in the natural world was not the only source of man’s knowledge of the rules governing his free will. Indeed, both claimed that there was a better source than nature to consult, namely, the Holy Scriptures. Indeed, Root called the “book of divine revelations … the Magna Charta of all our natural and religious rights and liberties.”34
Calling the Bible the Magna Charta of justice and liberty did not mean that God had failed to make known His laws through the natural world; nor did it mean that God had failed to give man sufficient reasoning and emotional capacity to discover those laws in nature. To the contrary, God’s ways in nature were still discoverable by man through his reason. Nevertheless, God, in His mercy, provided man with a more sure guide. Blackstone captured best the reason why God took these laws already sufficiently revealed in nature and revealed them also in writing:
[I]f our reason were always, as in our first ancestor before his transgression, clear and perfect, unruffled by passions, unclouded by prejudice, unimpaired by disease or intemperance, the talk would be pleasant and easy; we should need no other guide but this [i.e., the law of nature]. But every man now finds the contrary in his own experience; that his reason is corrupt, and his understanding full of ignorance and error.
This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, hath been pleased … to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.35
For Blackstone and Root, then, the Biblical revelation did not displace the natural revelation, but confirmed it and made it possible for man, even though his reason had been corrupted by sin, to continue to discover the special rules that the Creator had imposed upon him as a human being created in the image of God. Again, Blackstone is most explicit:
These precepts [the ones written in the holy scriptures] … , when revealed, are found upon comparison to be really a part of the original law of nature, as they tend in all their consequences to man’s felicity. But we are not from thence to conclude that the knowledge of these truths was attainable by reason, in its present corrupted state; since we find that, until they were revealed [in writing], they were hid from the wisdom of ages. As then the moral precepts of this law are indeed of the same original with those of the law of nature, so their intrinsic obligation is of equal strength and perpetuity.36
In other words, God’s putting in written form “Thou shalt not murder”37 did not make murder wrong, but His putting the rule in writing revealed more effectively to fallen man the original law protecting the sanctity of human life that God had placed and revealed in the created order from the beginning. Murder was wrong, therefore, because it was contrary to the nature of man and to the very nature of God’s creation.
By presupposing God’s revelation in both nature and in the Holy Scriptures, Blackstone and Root established the common law heritage as rooted in an objective legal order that pre-existed civil society and the writings of men. That objective legal order Blackstone identified as ..the law of nature and the law of revelation.”38 As for the laws of civil order, Blackstone claimed that such laws were wholly dependent upon the law of nature and the law of revelation and that “no human laws should be suffered to contradict these.”39 As for the writings of men, these were only “what, by the assistance of human reason, we imagine to be” the law of nature.40 Blackstone called these writings the “natural law”41 and distinguished them from the law of nature, which he stated is “expressly declared … to be [Law] by God himself.”42
Having begun with God’s revelation in nature and in the Holy Scriptures to define law generally, Blackstone turned to the subject of “municipal or civil law; that is, the rule by which particular . . . nations are governed.”43 Before proposing a definition of “municipal law,” however, Blackstone laid one final building block from God’s revelation. While no human law could be law if it contradicted the law of nature and the law of revelation, there were, Blackstone claimed, “a great number of indifferent points, in which both the divine and the natural leave a man at his own liberty; but which are found necessary for the benefit of society.”44 In other words, God’s revelation does not command every single human law, jot and tittle; rather, God, having created man in His own image, bas allowed man freedom to adopt some rules that man finds efficacious about which God is indifferent.
To illustrate this point, Blackstone contrasted those human laws prohibiting murder and those laws governing the export of wool into foreign countries. As for murder Blackstone noted:
[T]his is expressly forbidden by the divine, and demonstrably by the natural law; and from these prohibitions arises the true unlawfulness of this crime. Those human laws, that annex a punishment to it, do not at all increase its moral guilt, or superadd any fresh obligation in foro conscientiae to abstain from its perpetuation. Nay, if any human law should allow or enjoin us to commit it, we are bound to transgress that human law, or else we must offend both the natural and the divine.45
In two later chapters Blackstone returned to the subject of murder with explicit reliance upon God’s revelation in the Holy Scriptures. On the question of civil authority to impose the death penalty, Blackstone rested his case squarely upon Genesis 9:6: “[C]apital punishments are in some instances inflicted by the immediate command of God himself to all mankind; as, in the ease of murder, by the precept delivered to Noah, their common ancestor and representative, whoso sheddeth man’s blood, by man shall his blood be shed.'”46
On the question of authority to pardon a convicted murderer, Blackstone claimed that it was prohibited, citing Numbers 35:31: “Moreover ye shall take no satisfaction for the life of a murderer, who is guilty of death, but he shall surely be put to death; for the land cannot be cleansed of the blood that is shed therein but by the blood of him that shed it.”47
With these two revelations Blackstone supported his observation that murder was a “crime at which human nature starts, and which is . . . punished almost universally throughout the world with death,”48 and his critique of the “Polish monarch … who thought it proper to remit penalties of murder to all the nobility, in an edict with this arrogant preamble, “nos divini juris rigorum moderantes, etc.”49
In contrast to the authority of civil rulers to impose the death penalty upon convicted murderers, Blackstone claimed that no civil ruler had authority to impose such a penalty for “offenses against the municipal law only, and not against the law of nature; since no individual has, naturally, a power of inflicting death upon himself or others for actions in themselves indifferent.”50 Whether or not an offense is “indifferent,” i.e., within the discretion of man to prohibit, was, however, determined by God’s revelation: “[W]ith regard to matters that are in themselves indifferent, and are not commanded or forbidden by those superior laws [the law of nature and the law of revelation] … here the inferior legislature has scope and opportunity to interpose, and to make that action unlawful which before was not so.”51
Armed with this foundational distinction from God’s revelation, Blackstone proceeded to define municipal or civil law as “a rule of civil conduct prescribed by the supreme power in a state, commanding what is right, and prohibiting what is wrong.”52 This definition tracked that of law generally: “Law … is that rule of action, which is prescribed by some superior, and which the inferior is bound to obey,”53 but it specified the criteria by which one determined if he was bound to obey.
With God all of His rules of action are binding on all of His creatures because His authority is universal and because His rules are inherently good: “As therefore the Creator is a being, not only of infinite power, and wisdom, but also of infinite goodness, . . . he has . . . inseparably interwoven the laws of eternal justice with the happiness of each individual, that the latter cannot be attained but by observing the former….”54
In contrast, the civil ruler, being both finite and limited in authority, could prescribe rules extending only to matters of civil conduct which, according to Blackstone, distinguished “municipal law from the law of nature, or revealed; the former of which is the rule of moral conduct, and the latter not only the rule of moral conduct, but also the rule of faith.”55 Such rules of morality and faith
regard man as a creature, and point out his duty to God, to himself, and to his neighbour, considered in light of an individual. But municipal or civil law regards him also as a citizen, and bound to other duties towards his neighbour, than those of mere nature and religion: duties … which amount to no more, than … to the subsistence and peace of the society.56
Whether a duty was moral only or faith only, as contrasted with civil, was in Blackstone’s view determined by God’s revelation, just as the distinction between duties commanded by God and those commanded solely by the civil ruler was determined by God’s revelation.
Blackstone reiterated this latter point in his discussion of the criteria governing what is right and what is wrong for the purpose of determining whether one was bound to obey a rule prescribed by municipal or civil law. On this point, Blackstone was clearly not a positivist; that is, he did not claim that a human law was binding solely because a lawful civil ruler had properly prescribed it. To the contrary, Blackstone expressly noted that “no human legislature has power to abridge or destroy … [t]hose rights which God and nature has established.”57
On the other hand, “with regard to things in themselves indifferent … [t]hese become either right or wrong, just or unjust . . . according as the municipal legislator sees proper, for promoting the welfare of the society, and more effectually carrying on the purposes of civil life.”58 Again Blackstone provided an example to illustrate this crucial distinction and once again the example rested upon God’s revelation: “[I]n civil duties; obedience to superiors is the doctrine of revealed as well as natural religion: but who those superiors shall be, and in what circumstances, or to what degrees they shall be obeyed, is in the province of human laws to determine.”59
Having drawn upon God’s revelation to define both the jurisdiction and the substance of municipal or civil law generally, Blackstone turned in the next section of Chapter 2 of Volume 1 of his Commentaries to the municipal law of England, which he claimed could be divided into “the unwritten, or common law” and “the written, or statute law.”60 In this section, Blackstone devoted over two-thirds of his discussion to the common law as “contained in the records of the several courts of justice, in books of reports and judicial decisions, and in the treatises of learned sages of the profession.”61
Blackstone noted first that the common law was considered to be unwritten because that law had become law not because it had been put into writing by judges in their opinions or by legislators as statutes, but rather, the common law had become law “by long and immemorial usage” or by custom.62 Thus, Blackstone claimed that common law judges in England did not make law, but only discovered and stated it.63 A court opinion, therefore, was only evidence of law, but not law itself. As “living oracles,” judges were “bound by oath to decide according to the law of the land.”64 Should a judge’s opinion be found not in conformity with that law, then that opinion was considered not to be “bad law” but “not law” at all.65
The common law contained two kinds of rules. First, there were the rules commanded by God and required of all nations and at all times. Second, there were the rules adopted by the community because felicitous to the societal order. These were known as customs, indifferent to God. As for the former, such rules were clearly subject to the “rule of reason.” If a court opinion setting forth such a rule was found “contrary to reason” or “much more … contrary to the divine law,” then it was incumbent on a “subsequent” judge to disregard that ruling as “not law, that is, that it is not the established custom of the realm, as bas been erroneously determined.”66 As for customs “indifferent to God,” a judge could never justify a departure from rules that were “fixed and established … without a breach of his oath and the law … [f]or herein there is nothing repugnant to natural justice … .”67
The common law of England, then, was but one form of the municipal or civil law of the nation and subject to the same limitations as to jurisdiction and as to substance. The customs of the realm could extend only to civil conduct, not to exclusively moral or exclusively religious conduct. And the customs could not proscribe what God has commanded or command or permit what God has prohibited.
Blackstone’s view of the common law and the role of the judge was accepted without debate in America at the time of her founding. Jesse Root, in answering the questions “What is the common law of America? Have we any common law in Connecticut?,”68 began first to describe those rules found “in the book of divine revelations”69 that are common to all mankind:
By this we are taught the dignity, the character, the rights and duties of man. . . . This teaches us, so to use our own as not to injure the rights of others. This enables us, to . . . construe contracts and agreements. . . . This designates crimes. . . . This defines the obligations and duties between husbands and wives, parents and children . . . between the rulers and the people, and the people or citizens towards each other. This is the Magna Charta of all our natural and religious rights and liberties-and the only solid basis of our civil constitution and privileges … the usages and customs of men and the decisions of the courts of justice serve to declare and illustrate the principles of this law.70
Root, like Blackstone, found that the common law also included customs not reflected in Holy Writ, but binding nonetheless. Customs were rules “adopted in practice by the citizens at large, or by particular classes of men, as the farmers, the merchants … which are reasonable and beneficial.”71 Root explained that
the courts of justice take notice of [these customs] as rules of right, and as having the force of laws formed and adopted under the authority of the people, [for] as statutes are positive laws enacted by authority oi the legislature … [as] representatives of the people, … [s]o these unwritten customs … have the force of law under the authority of the people.72
This view of the Anglo-American common law prevailed in both England and America into the early period of the 20th Century.73 At the end of the 19th Century, however, God’s revelation as the foundation and framework of the common law came under relentless attack from the pens of Oliver Wendell Holmes, Jr., and his Harvard colleague, John Chipman Gray, and from the new “case method” of teaching law installed by Dean Christopher Columbus Langdell at Harvard.
Langdell led the way in 1870 by recasting the science of law in evolutionary terms, thereby discarding the revelation of God as the source of laws governing the universe. Langdell wrote in 1879 in the Preface to his Cases on Contracts, the first law casebook ever published: “Law, considered as a science, consists of certain principles or doctrines …. Each of these doctrines has arrived at its present state by slow degrees; in other words, it is a growth, extending in many cases through centuries.”74
Two years later Holmes published his book on The Common Law. He tracked Langdell’s evolutionary scientific view of law with neither explanation nor justification:
The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy … even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.75
With God’s revelation cast aside as “a brooding omnipresence in the sky” not an “articulate voice of some sovereign … that can be identified,”76 Gray put on the finishing touches by disposing of Blackstone’s view that judges discover, but do not create law. He contended that there is no mysterious entity “the Law” apart from the rules of conduct which the courts apply, and that judges are the creators rather than the discoverers of the Law.77
This shift from a common law system founded and framed by God’s revelation to a common law system determined by judge’s opinions was not accidental. Indeed, Christopher Columbus Langdell had been chosen by Harvard President Charles William Eliot for the specific purpose of establishing a new method of teaching law based upon the Darwinian revolution that had taken hold of American higher education in the late 19th Century. As Eliot put it in his address celebrating the inauguration of the first president of Johns Hopkins University:
They [the new schools of which Johns Hopkins was one] can show how … biology with its principle of evolution through natural selection, [has] brought about within thirty years a wonderful change in men’s conception of the universe. If the universe, as science teaches, be an organism which has by slow degrees grown to its form of today on its way to its form of tomorrow, with slowly formed habits which we call laws, … then, as science also teaches, the life-principle or soul of that organism, for which science has no better name than God, pervades and informs it so absolutely that there is no separating God from nature ….78
Nearly 100 years later American historian, Henry Steele Commager, would write:
Fundamental changes in culture . . . were affected … decisively by the intellectual and philosophical revolution we associate with Darwin’s Origin of Species (1859)….
This shift, both inspired and dramatized by the speedy acceptance of the hypothesis of Darwin, was fundamental. It was a shift from the old teleologically-oriented moral and natural philosophy to the scientific ….
“My generation,” wrote the philosopher James Hayden Tufts, who had been born in the midst of the Civil War, “has seen the passing of systems of thought which reigned since Augustus. The conception of a world ruled by God and subject to his laws … has dissolved….”
What shattered that traditional world was science, which in almost every arena-including … the law… – substituted the operations of the law of evolution for the laws of God.79
As the 20th Century closes, man’s faith in evolutionary science is itself being challenged. Not only is the Darwinian hypothesis under siege,80 but the common law system that evolutionary science transformed is breaking down. At the same time there is a resurgence of Christian scholarship in law that is taking a second look at the Blackstonian legacy of the common law based upon a revelatory epistemology centered upon the Genesis account of creation in the Holy Scriptures. To illustrate the significance of this coming counter-revolution, I turn now to two major subjects that have long captured the minds of legal scholars; the law of private property and the law of freedom of religion.
1. John C.H. Wu, Fountain of Justice: a Study in the Natural Law 65 (1955).
2. Id. at 71.
3. Henry Bracton, De Legibus et Consuetudinibus Angliae 89 (Sir Travers Twiss ed. 1878).
4. Wu, supra note 1, at 93.
5. Id. at 91-93.
6. Id. at 91.
9. Wu, supra note 1, at 91 (quoting Calvin v. Smith, Eng. Rep. 377 (K.B. 1610)).
10. John Calvin, Institutes of the Christian Religion 1504 (John T. McNeill ed., Ford L. Battles trans. 1960).
11. Romans 2:14-15 (King James) [hereinafter all citations to the King James Version].
12. 1 William Blackstone, Commentaries *39, 41.
13. Joseph Story, Discourse Pronounced Upon the Inauguration of the Author, as Dane Professor of Law in Harvard University, August 25th, 1829, in The Legal Mind in America 176, 178 (Perry Miller ed. 1962).
14. The Declaration of Independence para. 1 (U.S. 1776).
17. The phrase has been inspired by Dr. Francis Schaeffer’s books, The God Who Is There (1968), and He Is There and He Is Not Silent (1972).
18. See generally, Gary Amos, Defending the Declaration (1989).
19. Jesse Root, The Origin of Government and Laws in Connecticut, 1798, in The Legal Mind in America, supra note 13, at 31.
20. Id. at 34-35.
21. 1 Blackstone, supra note 12. at *38.
22. Id. at *38-39.
23. Id. at *39.
24. This term reflects the realm of nature that was made in the image of God. Genesis 1:27. The term emphasizes the distinction between man and animals. The emphasis is necessary in this modern age so enamored with the Darwinian belief that man is only a “human animal.”
25. 1 Blackstone, supra note 12, at *39-40.
26. Job 38:4-5, 33.
27. See. e.g., Jeremiah 10:2-15.
28. James 3:8-11.
29. 1 Blackstone, supra note 12, at *40.
32. Id. at *40-41.
33. Root, supra note 19, at 36.
34. Id. at 35-36.
35. 1 Blackstone, supra note 12, at *41-42.
36. Id. at *42.
37. Exodus 20:13.
38. 1 Blackstone, supra note 12, at *42.
43. Id. at *44.
44. Id. at *42.
45. Id. at *42-43.
46. 4 William Blackstone, Commentaries *9 (quoting Genesis 9:6).
47. Id. at *194 (quoting Numbers 35:31).
49. Id. Nos divini juris rigorum moderantes is translated as “We are those who moderate the rigor of divine law.”
50. Id. at *9.
51. 1 Blackstone, supra note 12, at *43.
52. Id. at *44.
53. Id. at *38.
54. Id. at *40.
55. Id. at *45.
57. Id. at *54.
58. Id. at *55.
60. Id. at *63.
61. Id. at *63-64.
62. Id. at *64.
63. Id. at *69-70.
64. Id. at *69.
65. Id. at *69-71.
66. Id. at *70.
67. Id. at *70-71.
68. Root, supra note 19, at 34.
69. Id. at 35.
70. Id. at 35-36.
71. Id. at 37.
72. Id. at 37-38.
73. See, e.g., James C. Carter, Law; Its Origin, Growth, and Function, (DaCapo Press 1974)(1907).
74. Christopher Columbus Langdell, A Selection of Cases on the Law of Contracts vi (The Legal Classics Library ed. 1983) (Little, Brown, and Company, Boston 1871).
75. Oliver Wendell Holmes, Jr., The Common Law 1 (1887).
76. South Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917) (Holmes, J., dissenting).
77. John Chipman Gray, The Nature and Sources of Law 99 (2d ed. 1921).
78. Hugh Hawkins, Between Harvard and America 129-30 (1972).
79. Henry Steele Commager, 1978: The World of the Mind, 64 A.B.A.J. 1003, 1005-06 (1978).
80. See, e.g., Phillip E. Johnson, Darwin on Trial (1991).