The Volokh Conspiracy
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Did the Catholic Intellectual Tradition Influence the Common Law?
How much did the Catholic intellectual tradition influence the common law? If that question interests you, here's a new draft essay, The Influence of the Catholic Intellectual Tradition on the Common Law, that I am contributing to a festschrift to honor John Witte, one of the world's leading scholars on law and religion. The abstract:
This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term "Catholic intellectual tradition" is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor's conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan's opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.
If you'd like to see John Witte's recent Gifford Lecture on "A New Calvinist Reformation of Rights," you can watch it here.