In today's society, the idea of religious doctrine being married to or forming the basis of a legal system is a difficult one to advocate to legislators or to those in the legal profession. However, historically English common law owes much of its development to Judaeo-Christian influences. In this essay, I will examine the role as well as the symbols and images of Christian theology in the English common law in order to assess the importance of Judaeo-Christian theology in the development of English common lawyer and the secular legal profession. Influence of Judaeo-Christian Theology on the Common law
The Henrician Reformation prohibited the teaching of Canon law in England and prompted the rise of the secular legal system in England. However the strong influence of Judaeo-Christian theology is evident in English law, as it inherited much of the jurisdiction of ecclesiastic courts and the traditions and laws of the Roman Catholic Church. 1 Moreover with the Act of Supremacy2 the merging of the authority of the crown and the church led to the common law absorbing much of what used to be the ecclesiastical courts' jurisdiction and the inheritance of the customs and traditions of the Roman church.
3 Additionally, as Raffield highlights many eminent prelates remained as members to the Inns of Court. 4 One particular reason that Judaeo-Christian theology was able to play a major role on the stage of early English Common Law was the unwritten nature of the English Constitution. It was the contention of William Dugdale thtat '… the Common Law is, out of question, no less antient than the beginning of differences betwixt man, after the first peopling of this land, it being no other than pure and tried Reason…
or the absolute perfection of Reason, as Sir Edward Coke affirmeth, adding that the ground therof is beyond the memory or Register of any beginning'5. This emphasis on antiquity could have been to persuade others of the primacy of the common law. Jurists of the time have argued to the effect that 'substantive law derived from the distillation of ancient custom and was therefore largely unwritten; the principles enshrined in common law having their textual origins in Judaeo-Christian scripture'5b As a result Christian theology and the law were considered indivisible from one another.
According to Fullbecke, in 'A Direction for Preparative to the study of the Lawe'; 'Where God is not, there is no truth, there is no light, there is no Law. "6 From this it is gathered that law and theology existed together and they was no way for one to be separated from another. Moreover, given that the rival jurisdictions to English common law followed the civil law tradition emanating from Rome and consequently perhaps drove English legal commentators of the early modern period to write about legitimacy of English law.
Judaeo-Christian theology was a way of elevating the Common law. When Fortescue was reigning as Chief Justice of Henry VI referred to the Book of Deuteronomy as the written constitution of England so that the King may rule in accordance with the laws God handed down to Moses. This idea of extending Old Testament law to English law and building a bridge between the two were not limited to the writings of Sir John Fortescue. So fundamental was the idea that English law stemmed from the higher authority of God's laws, Coke asserted that;
"In nature we see the infinite distinction of things proceed from same unity, as many rivers from one fountain, many arteries in the body of man from one heart, many veins from one liver, and many sinews from the brain: so without question, this admirable unity, and consent in such diversity of things proceed only from God, the fountain and founder of all good laws… '7 A similar idea is conveyed when Sir Coke notes that the basic laws of England were not a product of design by the state but 'written with the finger of God in the Human Heart'.
8 This is a notion carried on by Dugdale who wrote in Origines Juridiciales; 'the Common Laws of England are grounded upon the Law of God, and extend themselves to the original Law of Nature, and the universal Law of Nations and that they are not originally Leges scriptae'. 9 Moreover, in the Doctor and Student by Christopher St German, whose writings influenced English law for a period of two centuries; we are told that law is founded first on the eternal law, which is the wisdom of God. 10
By marrying the Holy Scripture to English law and proclaiming God to the Supreme author of English law, Fortescue and Coke were both able to make the nationalistic claim that English law is 'not only Good the very Best'11 and therefore beyond reproach in the eyes of rival jurisdictions. Additionally, there are examples in Coke's writing, which shows that Christian theology was not merely of theoretical significance in the development of the common law. As mentioned earlier, there was an attempt by jurists to include biblical texts as law.
Coke invokes the Holy Ghost in a matter of substantive law12; "… Against these Inventors and Propounders of evill things, the holy ghost hath spoken. "13 The result of this, according to Pollock and Maitland is that 'Theology itself must become jurisprudence, albeit Jurisprudence of a supernatural sort, in order that it may rule the world'. 14 It would seem therefore that Christian theology, despite the establishment of a secular legal order following the Henrician Reformation, became essentially part of English common law. In this way a Christian tradition in common law began emerging and stayed.
Even in relatively modern cases, judges have applied principles within Christianity. A famous example is Donaghue V Stevenson15 where Lord Atkins developed the neighbour principle for the duty of care, which is largely derived from the Gospels- the Christian duty to love one's neighbours. The example of Coke with regards to monopolists and the modern day example of the neighbour principle clearly illustrates the significance of Judaeo-Christian theology in the way it has shaped the English legal system from the early modern period and its survival into modern day.
Influence of Judaeo-Christian Theology on the Secular Legal Profession According to Megarry's assertions, the Inns of Court began taking shape as the physical centre of a secular legal profession in the early 1290s following the Ordinance of Edward I. 16 The Ordinance prohibited members of the clergy acting as advocates in secular actions and subsequently, facilitated that 'emergence of an unprecedented body of non-clerical lawyers'. 17 However, even after the Ordinance however many Christian theological influences continued to permeate the training and daily rituals and as well as the perceived role of lawyers.
As discussed earlier, given the strong influence of Judaeo-Christianity on the very fabric of the common law and the unwritten nature of the constitution, it is hardly surprising that the legal profession should also assert it's position as interpreters of the ancient constitution. Fortestcue's bold proclamation in De Laudibus Legum Angliae; 'we who are the Ministerial Officers, who sit and preside in the Courts of Justice, are therefore not improperly called: Sacredotes: The import of the Latin Word being one who gives or teaches Holy Things'18.
Having perceived the Common law as nothing less than the Word of God, Fortescue endows a religious element to the role of lawyers. It is also true that the legal profession sought to establish their position as interpreters of the ancient constitution, just as the church tried to establish itself as the 'sole guardian of the word, in who resided he elusive right to interpret God's will. 19 Raffield has noted that since the common law was unwritten and based on ancient custom, it was for the common lawyers to expound upon the mysteries of that custom.
From here followed the idea that the lawyers had the 'exclusive right to interpret the ancient constitution'21, just as clergy held exclusivity in interpreting scripture. Coke draws a line of demarcation and warns against any attempts by laymen or churchmen in interpreting the law and thus giving the secular legal profession authority over others; "it is a desperate and dangerous matter for Civilians and Canonists to write either of the Common Laws of England, which they profess not or against them which they know not.
"22 Having made a fundamental impact on the status and role of lawyers, Christian theology and its practices, as well as its symbolisms seeped into the Inns of Court and into the lives of lawyers. In fact Blair noted the strong resemblance of the commons to the Rule of the Order of Saint Benedict and directly compares them and their practices: reading must not be wanting while the brethren eat at table… let this verse be said thrice in the Oratory: 'Domine, labia mea aperies, et os meum annuntiabit laudem tuam.
(O Lord, Thour Shalt open my lips, and my mouth shall declare thy Praise. )"23 Pollock and Maitland also highlighted the similarities between the laws governing Inns of Court and Christian religious organisations. 24 Dugdale wrote in Origines Juridiciales that Christian service and worship was an essential part to life at the Inns; 'they have every day three Masses said: one after the other: And the first Masse doth begin in the morning at seaven of the Clock, or thereabouts.
The Festivall days they have Mattens and Masse solemnly sung; and during the Matyns singings they have three Masses said'. 25 The public veneration of God was compulsory and like in the monasteries of the St Benedictine Order, absence could result in exclusion. Moreover, the Christian tradition of Eucharist is an obvious manifestation of Judaeo-Christian theology that influenced the profession. It is an 'exemplary sign of the Christian faith. '26 Goodrich notes that the Eucharist is ' the sacrament, the appearance of grace and the continuing presence of Christ'.