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.

Comments

[Dan Schiavetta]

Many Protestants considered themselves the true inheritors of that tradition so this is no surprise.

[Gandydancer]

How did "how much" in the text turn into "did" in the headline?

[Rev. Arthur L. Kirkland]

Given the lengthy period in which Christians in general and Catholics in particular outlawed dissent, tortured infidels, murdered those who didn't mouth the preferred flavor of superstition, controlled government, imposed their superstition by force, etc., should it be surprising that some of the foundation of legal thinking involved approved Catholic content?

Reason continues to improve legal and general modern thinking, eroding the influence of superstition and the Inquisition's inheritors. Thank goodness.

Carry on, clingers. During the period of relevance you have remaining.

[Theendoftheleft]

'Given the lengthy period in which Christians in general and Catholics in particular outlawed dissent, tortured infidels, murdered those who didn’t mouth the preferred flavor of superstition, controlled government, imposed their superstition by force, etc., should it be surprising that some of the foundation of legal thinking involved approved Catholic content?'

Sounds increasingly like liberal-progressive, Modern America.

Reason ITSELF improves?

You don't know anything about first-order logic and care nothing about your own regular transgressions of basic reasoning (identified repeatedly here). So how the fuck would you know?

It's like you're out and proud of being mentally retarded, AIDS. Carry on, oblivious illogical clinger. Your entire value system will be gone within two generations, as you breed yourself into irrelevancy.

[Rev. Arthur L. Kirkland]

I prefer reason to silly, childish, bigotry-fueling superstition. This seems to bother you. That makes you a culture war casualty, clinger.

But you will have the Volokh Conspiracy to connect you with the other right-wing losers as you await replacement.

[Theendoftheleft]

I don’t live in your country, Yankee Doodle dipshit, and I’m no libertarian. Your country is going to implode, and not just lose this new cold war/global culture war.

Still, the American right will most likely slaughter a great many of you before they’re replaced; once they fully come to see the immediate socio-economic ramifications of your policies for their own children… well… it ain’t for nothin’ that your non-compos mentis POTUS keeps identifying the #1 threat in America… You are totally fucked.

Again, though, you repeatedly demonstrate that know nothing about reason or logic. The future belongs to East Asia, the middle east, and Africa. Not only will of YOUR core values be flushed down the toilet when they take over, but Western liberal-progressives will also be held criminally accountable for your legal and cultural imperialism.

If you weren’t such a parochial American moron with your head directly up your own ass, you’d be making plans about where on this earth to hide yourself and the ones you love from what’s coming.

[Theendoftheleft]

What happens when America's white poor no longer joins the US military? Think you'll be able to sustain it with foreigners and the promise of citizenship?

Conscription? Today isn't at all like the Vietnam War period, with liberals and hippies burning draft cards and occupying uni buildings. Instead, you have a white poor which is getting poorer, and hears self-sabotaging imbeciles like you, AIDS, telling them that their values and identities are horrid and that they're to be replaced...

[Rev. Arthur L. Kirkland]

This is the blog for you.

[Theendoftheleft]

Your judgement has repeatedly been shown to be illogical and garbage, AIDS. Why, then, would anyone listen to you on this matter?

The evidence of your many posts here, clinger, also demonstrates that you certainly DO prefer childish, bigotry-fueled superstition; they’re what help you perpetuate your self-delusions of being equal and of your evolutionarily inferior meme constituting ‘progress’. Emancipate yourself from the vestigial Judeo-Christian concepts and toss your delusions of equality into the rubbish bin.

[The Margrave of Azilia]

Yet you continue to list anti-Catholicism among the bad characteristic of the clingers and the "depleted human residue" you so despise.

What's wrong with anti-Catholicism, from your point of view?

[Theendoftheleft]

Don't waste your time asking AIDS for a logical explanation. As a slave to his superficial ideology, he must present a pluralist 'tolerant' answer, even though he doesn't believe it at all. He's 'anti-bigotry', except (as he repeatedly evidences) not really at all.

Best to understand AIDS as a mindless sheep, incapable of independent rational thought or critiquing his own espoused concepts and beliefs.

[Rev. Arthur L. Kirkland]

Not all Catholics are lousy people. Not nearly.

The Catholic Church, though, is mostly a stain and drain on the better elements of modern society.

[The Margrave of Azilia]

So...why is anti-Catholicism wrong?

[Commenter_XY]

I failed the vocabulary test = festschrift

(A volume compiled as a tribute, especially to a scholar, consisting of articles or essays relating to the honoree's work or interests.)

Shades of Judge Selya. 🙂

[The Turtle Dove]

Well, rising to meet your argument are three spirits: Cromwell, Blackstone, and St. Thomas Becket. The first, because the specifically protestant asperity incarnate in the Republic repudiated much of the fecund intellectual tradition in which the structures of English justice had arisen. The second would testify to the romantic, historicist views of Englishness that Coke began and which were brought to fulsome flood by orations at the universities and subsequent well-distributed books. Praemunire, for example, as opposed to a mix of common law and legislation originating long before the schism, became an essential expression of English freedoms in repudiation of the courts of Rome. The third spirit, as tertium quids tend to be, is a bit more equivocal, but it's hard to ignore the fact that although the church might have taught England much, the fates of the two are not necessarily intertwined.

There's much else. Chancery is from the chancel, of course. From a skim, you set the common law period in the 16th c., presumably with the advent of binding precedent in Coke's Reports, etc. but things begin long before then, of course, with the split between the Inns and the civilians, Norman notions of property--basically insert Jolliffe's entire Constitutional History here. The quasi-religious ceremonies of the Inns have frequently been compared to the Eucharist, and they all had varying degrees of recusion toleration; I think there might have been an altar-cloth or two stashed at Grey's in the back-and-forth between Mary (not that one) burning the protestants and Elizabeth (yes that one) quartering the priests.

In a line, I'd say that the church taught the courts much; but even that guinea-stamp is still very much an image of Caesar. Cheers.

Mr. D.