Disclaimer first: I AM NOT A JUDICIAL SCHOLAR. That said, I AM a lover of history and, though my life doesn't give me much time to do it these days, I read a lot of primary sources. For those who have never studied history, a "primary source" is stuff written at the time of events by people who were witnesses (or who claim to be, part of a historian's job is to figure out if the source is "reliable"). I have not looked at any of Jefferson's writings since high school. I have, however, recently started rereading David Hume, a Scottish philosopher of the 18th century. (This is pertinent, bear with me
Now, jump to another subject: Not very long ago, what was USUALLY claimed as the basis for the US legal system was "english common law". This is the kind of law that exists in a place with a monarch (no, not a butterfly
) who is the 'ultimate court of appeal' and a fairly stable populace. Stable in caste and stable in location. This is stuff like, "I graze my sheep on the common because I've always done it, and my father before me and his father before him." And then the local earl (who owns, umm, let's say 10,000 acres upon which lay two villages and greens with sheep and a large market town) decides he was really in need of some new orchards and decides to plant them on the common. If the yeomanry are lucky and the monarch is travelling nearby and due to "hold court" (which CAN include a ball like in the sanitized fairy tales, but ORIGINALLY meant to sit in judgment), the people who are being evicted from their ancestral grazing rights can go to the King (or Queen) and beg for an audience and if they get it can present their case and MAYBE, if the earl has recently pissed off the King and if the King is aware how important a happy peasantry is (ranks of longbowmen in the next war, for example), the earl has to plant his orchards elsewhere. [An early attempt to make this more consistent was the Magna Carta, signed by King John, younger brother of Richard Lionheart at Runnymeade. Here is a translation found on the British Library site: http://vincent.bl.uk/cgi-bin/htm_hl?...er_first_match
NOW, notice, no one brought up what was done in another town at a different 'court'. There is no use of "precedent".
SO, here is where I always wondered why on earth we were supposedly so indebted to English Common Law
Recently, probably since the Great Newt Revolt (or is the Greatly Revolting Newt
), I have heard this claim that our law is based on the 10 Commandments of the Judeo-Christian Tradition. (But, but, but,
didn't Mel Brooks drop the other tablet and we REALLY had fifteen?
ag --- never mind, scratch that
I've got to say, this is the first I've heard of it.
Yes, it is true that the 10 Commandments are brought up as a great code of law. But, so are the Code of Hammurabi, the laws of the thanes among the Norse, Solon, Solomon, Draco (who we get the word "Draconian" from), Eshunna and the Roman Empire. IN FACT, SPQR was what I usually recall as being hailed as the source of our laws -- American Republic and Roman Republic? Get it? (Nudge, nudge
) Btw, SPQR stands for Senatus Populusque Romani -- the Senate and the People of Rome. (See http://iuscivile.com/
to get sources to read if you are interested.)
AND, an interesting thesis has been suggest to me by the book How the Scots Invented the Western World
, which was loaned to me by a friend at work who insisted I read it. That is that much of our legal system grew out of the thinking of a number of Scottish Enlightenment philosopers (hence my reference to David Hume -- read about him in brief here: http://www.english.upenn.edu/~jlynch...ople/hume.html
-- in the first paragraph) and the work of several judges in Edinburgh who were determined to make the legal system of Scotland (Yeah, yeah, I know they are part of the United Kingdom, but there is a long story behind that and, besides, lawyers who can practice in England STILL can't practice in Scotland because of their different legal system and bar.) follow the "Rule of Law" instead of the somewhat potentially arbitrary "English Common Law" as described above. (Of course, the English Law is NOW NOT arbitrary as they have a Constitutional Monarchy. Things have been written down and, I think, dragging "predecent" into the courts is allowed.)
If you have read this far, you will agree we need a wiping-the-brow smilie.
edited for grammer and spelling
and edited to add this link on the history of western jurispridence from the Catholic University of America: http://faculty.cua.edu/pennington/Law508/Law508.html
If you check this out, you will note that there is no lecture titled "The 10 Commandments". I'm sure he brings it up some time; but, it doesn't seem to be a major issue.