Re: Ten Commandments "Basis of Our Laws" Position

[Ed Brayton]

Title: Message

Mike Schutt wrote: In response to Ed's and Prof Lipkin's post, just a quick thought or two.   I think what is traditionally meant by the "basis of our laws" position is the following:   1.  The Ten Commandments is a stark (if not the first surviving) demonstration that law comes from "outside" humankind-- that is, that law is not merely a human artifact.  This has a long tradition in the common law, from Magna Carta, to Coke, to Bracton and Blackstone.  The ten commandments "are the basis of our laws," then, in the sense that the common law has taken the view that the King us under law, because law comes from God.  Russell Kirk in his Roots of American Order, for example, cites the giving of the ten commandments as the foundation of Western order.  So, first, the position is that the fact that the Ten Commandments were from God, not man (being written with the finger of God) are the basis for many of the fundamental common law propositions, beginning with "no man is above the law." What you call a "demonstration" and "a fact", I call an unsupported assertion. The mere fact that Moses, or whoever wrote on his behalf, claimed that the laws came from God is no more compelling an argument than the fact that Mesha, king of the Moabites, said the same thing about the laws he allegedly got from Chemosh. More importantly, as I said, most of those laws not only don't form the basis of our laws, they would be entirely forbidden as laws under our Constitution. The fact is that we could explain and trace the reasoning for virtually every provision in the Constitution without ever once referencing the bible or "judeo-christian" tradition or theology. Take away the theological references, and nothing much changes in the Constitution. This hardly seems a compelling case for such traditions being the basis of our system of government. 2.  Theologians, including Augustine and Calvin and many other Protestant and Catholic theologians in the history of the West have made direct connection between the Ten Commandments and *all* civil, moral, and ceremonial law.  Therefore, "all law" in a sense is based on or-- maybe this is better put-- summarized by the Ten.  This is a pretty supportable proposition from the Old and New Testaments.  So even laws that should not be civil laws, such as the ones that Ed points out, are still "law" in the sense of moral law, as Ed also points out.  Furthermore, civil laws should be based on, modeled after, and in conformance with the moral law; so in that sense, our civil laws are "based on the Ten Commandments." No, I did not point out that those parts of the Ten Commandments that cannot be civil law should still be considered "moral law". I may agree, on different grounds, that adultery is immoral (and I do), but that does not mean that this constitutes "moral law", and it certainly doesn't mean that civil laws should be "based on, modeled after, and in conformance with" this "moral law". In fact, I strongly disagree with that position. Again, all of those prohibitions found in the ten commandments could never have existed, and it would not change our civil and criminal law in the slightest. Indeed, even without the few commandments that do find analogs in our civil law, the laws would still be the same simply because prohibitions against murder and theft are universal in nature and found in every non-biblical legal or ethical system as well. Ed Brayton

_______________________________________________
To post, send message to [EMAIL PROTECTED]
To subscribe, unsubscribe, change options, or get password, see 
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private.  
Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.