Posted on 04/20/2002 4:22:05 PM PDT by lockeliberty
That which God at the time of creation of the nature of man infused into his heart for his preservation; and this is lex aerterna, the moral law, called also the law of nature. And by this law written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or writer of law in the world. -Lord Edward Coke (1610).
There exists a dichotomy between God's sovereignty and the sovereignty of man as expressed in jurisprudence. It becomes possible, therefore, to classify all of the world's legal cultures in terms of their openness to Engendering Experience, i.e. the experience in reality of that truth which articulates the principles of the Noachic Covenant as rules of right order. In the balance of this essay, we will briefly consider
1. the similarity and difference between certain aspects of Deuteronomy and the suzerain treaties of the Middle East
2. the covenant structure of Natural Law jurisprudence, and
3. the dichotomy of (1) and the covenant structure of (2) in the context of the two principal systems , of modern law.
The suzerain treaties constituted legal agreements or promises the ancient kings of the Middle East made with their vassals. Suzerains, i.e. the kings with rule over vassal kings, entered such treaties, for examples, during the Hittite rule of ; the l7th-l6th centuries B.C.E. and the Assyrian rule of the 8th-7th centuries ' B.C.E.
These suzerain treaties contained six points in common. First, the "preamble" provided an introductory declaration of the king and his power. Second, an "historical prologue" offered a survey of the king's rule. Third, "stipulations," or specific provisions, evidenced the law as between the contracting parties. Fourth, "blessings and cursings," embracing a s e 1 f - maledictory oath, articulated the respective responsibilities and account abilities. Fifth, successional arrangements were entered. Sixth, depository arrangements were enumerated whereby a covenant lawsuit could be sought if the king reneged on his promises.
These suzerain treaties followed the Biblical covenant pattern from which also derives the modern systems of jurisprudence. The covenant structure of Deuteronomy preceded the suzerain treaties, and contained five points. First, ' a "preamble" declared God's transcendence and recognized God as dis2inct from his creation (Deut.1:1-5). Second, an "historical prologue" explained the hierarchy of God's relationship to his people. Third, "stipulations," or ethics, were enunciated (Deut. 5-26). Fourth, "sanctions" were provided. Fifth, "continuity" found expression (Deut. 33-34). Projecting this covenant structure into modern realms of law, an ancient dichotomy emerges between the two principal families of legal systems, i.e., the Anglo-American Common Law family (hereinafter, "Common Law") and the Romano-Germanic Civil Law family (hereinafter "Civil Law"). Because these two legal cultures exert global influence, the ways in which they articulate principles of "Natural Law" or at least tacitly acknowledge the Noachic Covenant proves of critical importance.
The Common Law family of legal systems today extends throughout the English-speaking world. The Common Law possesses an inherent openness to God's will in the search for precedent in its quest for truth, and in its implicit receptivity to God's will. Applying the covenant structure of Deuteronomy to the Common Law, "engendering experiences" exhibit an acknowledgment of God's sovereignty.
For the preamble of the Common Law, we turn to the "father of the Common Law ", Henry de Bracton ( l3th century). In his classic legal treatise, De Legibus Et Consuetudinibus Angliae, Bracton wrote that the king, as God's representative on earth, enjoyed the responsibility of doing justice to all so that his subjects could live honestly, causing no injury to others, each receiving his due and making his reasonable contribution in return. Although the king was above the people, he was below God and under His Law. In other words, the will of man cannot alter the nature of things, nor can the rules of human law derogate from God's Natural Law.
Sir John Fortescue (l5th century) provides the historical prologue for the Common Law. He stressed the supreme importance of the Natural Law as a fundamental law to which all other laws must conform. He rejected the old Roman precept that whatever pleased the sovereign had the force of law, because the Natural Law, as revealed in the Old Testament, was the supreme authoritative source of law. Thus, the Natural Law renders God's revelation as the fountain of justice.
The stipulations in the Common Law are manifest in the body of the common law, that is case law which accumulates through the decisions of righteous judges discovering and applying principles of Natural Law in their efforts at doing justice. When righteous judges no longer do justice, but instead, arrogate the roles of legislators, then the Common Law is severed from its Engendering Experience. Accordingly, men suffer the consequences of the decapitation of God's authority, i.e., sanctions emerge. Modern sanctions of the Common Law are experienced through the cursings of gnosticism, which erodes the Common Law's openness to revelation. This is manifested as legal positivism in law and as secular humanism in society.
As for continuity in the Common Law, the law which is inscribed in the hearts of man and discovered by judges is preserved in the form of precedents. As the Common Law spread from its culture hearth to the colonies in an earlier age, Coke wrote: "Conquered heathen countries at once lose their rights or laws, to the extent they be against the law of God and of nature contained in the Decalogue." The eternal laws of God are, of course, the very substance of the Natural Law, which is rooted in the Noachic Covenant.
The Civil Law family, by contrast, places the paramount source of law rules in legislation, especially in the form of codes. The Civil Law demonstrates a remarkable ability to survive changing ideological conditions. Prevalent throughout continental Europe by the late l9th century, the Civil Law systems, with their civil codes as cornerstones, remained in place after the fall of those systems in Eastern Europe under Communist rule. To be sure, the codes were substantively modified by Marxist ideology, such as with the abolition of private property rights. Nevertheless, such legislative alterations are consistent with the very nature of the Civil Law. This adaptability and resilience is further evidenced by the reception of civil codes for purposes of modernizing the commercial law of the increasingly secularized legal systems of the Islamic Middle East.
When we consider the offspring of the Roman law, the Civil Law, we soon confront the personality of the man who gave his names to the civil code, Napoleon.
The Code was conceived as a model for the organization and perfection of society. It was born, along with the rise of the political religions, out of the aftermath of the French Revolution, as an integral part of n new secular order. When we read the Code, we can easily imagine Napoleon alone in his study, surrounded by the musty tomes of Roman Law, writing. He sits in "god-like" splendor. Behind him, in the shadows, stands a "whispering wizard. "
In the preamble of the Civil Law, Napoleon pronounces that law is nothing more than a solemn expression of legislative will. And the wizard says, "Yea, hath God said, Ye shall not eat of every tree of the garden?" (Gen. 3:1). The historical prologue is expressed in the Code's inherent quest for the legislative management of history. After a11, the control of history is the act of a "god". In eloquent terms, a recent Civilian has written:
"If rationalism was the mother of the Code Napoleon, then hubris was its father. By means of the Cartesian method, men might become masters and possessors of nature, but implicit in such an achievement was the potential usurpation of God's authority. Descartes' philosophy, because it stressed self-reliance, subjective certitude, and the untrustworthiness of the visible natural order, constituted a manual for revolutionaries. Men would become godlike as they generated nature from their own mental processes and forced it to change as they willed. For the French revolutionaries this view of man's unlimited power implied the possibility of abolishing the complex feudal restraints of the Ancient Regime by means of a coherent body of legislation derived from the presumably immutable principles of human interaction. The Code Civil was the consequence of utopian vision. (Shael Herman, "Legislative Management of History," 53 Tulane Law Review 380, 389-90).
In its stipulations, we find the body of law rules. For the most part, they express the principles embodied in the Natural Law as enunciated by Grotius, Suarez, John Selden and others. But the law rules now derive their authority and legitimacy as the pronouncement of man's reason. The Natural Law remains to the extent that it is incorporated as legislative will. What man has made, however, he can also change. Thus, the legal system, with its codes, survives its fall into Communism and its descent into other modern gnosticisms. The novelty of the Code, since the early days of the 19th century codification movement, encourages its reception and embrace by secularized legal systems.
The blessings and cursings reflect the political religion, gnosticism or Zeitgeist, which prevails at any given moment. Remember Napoleon in his study? The wizard whispers, "For God doth know that in the day ye eat thereof [of the fruit of the forbidden tree], then your eyes shall be opened, and ye shall be as gods, knowing good and evil. " (Gen. 3 :5). The successional arrangements, already suggested, are expressed in the survival of the Code from one modern ideological regime to the next. The depository arrangements for the Civil Law indicate the source of appeal, to man. Apparently, Napoleon proved prescient when he told Montholon at St. Helena: "My true glory is not to have won forty battles...Waterloo will erase the memory of so many victories...But what nothing will destroy, what will live forever, is my Civil Code." And the wizard said, "Ye shall not surely die." (Gen. 3:4).
In this all too brief, too succinct, review, we see the ancient dichotomy between the Hittite and the Israelite in the Civil Law and the Common Law. The world experienced the deluge of the Civil Law during the 19th and 20th centuries. Even in modern Israel, we find a struggle for the soul of the law. The remains of the American legal system exist in ruins. From time to time, however, hopeful reminders appear. For example, a 1991 Joint Resolution of Congress (promulgated as Public Law 102-14) declared that "the ethical values and principles [upon which our Nation was founded] have been the bedrock of society from the dawn of civilization, when they were known as the Seven Noahide Laws" and "without these ethical values and principles the edifice of civilization stands in serious peril of returning to chaos". The choice, however, remains, either God is sovereign or man.
Good Read - Thanks!
Apply this to the ACLU and the other corrosive influences produced by the modern Left...
PING!
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