Catholics and the Law (how Catholicism impacted Western law)

Inside Catholic ^ | January 15, 2010 | Michael P. Foley

[NYer]

Catholics in America have more reasons than ever to worry about the future of the law. The legal practice of the Catholic faith in the United States is already becoming difficult because of funding abortions via our taxes, scuttling our philanthropic organizations rather than supporting same-sex marriage, or paying for the artificial contraception of Catholic institutions' employees. The international scene is no better: Several years ago, the EU tried to deny Europe's Christian roots in its constitution, and two months ago the European Court of Human Rights fined the Italian government for having crucifixes in schoolrooms.

From all this it would be easy to conclude, like Thomas More's excitable son-in-law Roper in A Man for All Seasons, that the law is a cloak for the devil to do his mischief, and that every law in the land should be cut down in the service of God. But such a view overlooks a remarkable fact: Despite some legislators' hostility to Catholic morality, the legal tradition as we know it owes its existence in large part to the Catholic Church.

Catholicism's impact on Western law is considerable. It was the medieval development of canon law that retrieved, transformed, and then represented the long-forgotten Justinian Code of the Roman Empire to emerging European polities in dire need of good juridical models. Specifically, the emergence of ecclesiastical courts after Pope Gregory VII prompted civil courts to imitate and eventually supersede them.

This imitation can be seen in several areas, beginning with the very idea of the rule of law. Although this principle may be found in ancient civilization, it was reintroduced to the West thanks to the medieval Church. Catholicism's belief, for instance, in the reassuring rationality of a divine Logos was instrumental in weaning Europe's barbarian tribes off of such practices as trials by ordeal.

Catholicism is also discernible in the Anglo-American common law tradition. As John C. H. Wu observes, while "the Roman law was a deathbed convert to Christianity, the common law was a cradle Christian." It was this derivation that cultivated the notions of equity, intent, and liability in the West, just as it was the Catholic teaching on marriage that provided the foundations of modern contract law. And when the Catholic conscience confronted the evils of New World colonialism, it responded with the development of international law by 16th-century theologians like the Jesuit Rev. Francisco de Vitoria.

The West has borrowed from Catholic patrimony in smaller areas as well. Take, for example, the judge's black robes: The judicial gown hearkens back to clerical garb and the days when all law students, even laymen, dressed as clergy during their matriculation. In other parts of the world, such as Canada and Great Britain, the indebtedness to medieval church custom is even more conspicuous: The wig worn by justices and barristers in Commonwealth countries is a substitute for the skull cap worn by medieval clerics, and when a British magistrate sentences a guilty person to death, he is required to put on his black hat -- in imitation of the priest, who was once required to wear his biretta when hearing confession. Even the term "clerk" is an abbreviation of "cleric."

 

But perhaps the single most important contribution of Catholicism to Western law is the one that is so fundamental, it is the easiest of all to overlook: concern for the victim.

 

As René Girard argues, ancient myths were based on a collective scapegoating of a randomly chosen victim who was presumed guilty (though often, in fact, innocent). The community was able to project their internal conflicts onto this scapegoat and then purge them from the community; by uniting in their hostility to and ultimate blame of the "fall guy," the community was able to create peace among themselves. This pattern, Girard maintains, can be seen in all cosmogenic myths -- stories about the creation of the cosmos -- except one.

 

The Bible decisively breaks this pattern of justifying collective violence against an innocent proxy. Rather than offering another myth, Scripture is in fact a powerful demythologizer, incorporating mythic motifs only in order to expose and discredit them. This can be seen in the Psalms -- which, according to Girard, are the world's first poetry written from the perspective of the innocent victim rather than an angry mob. And it is crystal clear in the Gospels, which show how all of the parties involved in Jesus' crucifixion -- Caiaphas, Pilate, and Herod -- know that Jesus is innocent even as they execute him for political benefit.

 

Not surprisingly, then, the Christian story had a powerful effect on antiquity's cult of violence. As Girard notes, bloody sacrifices (a ritual reenactment of scapegoating) soon ceased after the spread of the gospel, as it became difficult to justify the sinister practice when its mask had been removed. And in the realm of law, much greater attention was paid to the simple principle that the accused may in fact be innocent, the victim of accidental or sinister forces colluding against him.

 

But how did Catholicism come to have such an impact on law in the first place? The superficial answer is that St. Peter established his see in the capital of an empire renowned for its law, so it is understandable that the Church of Rome would be influenced by this legacy. Take, for example, canon law's foundational principle that "the supreme law is the salvation of souls," a paraphrase of Cicero. Or the impact of Roman jurisprudence on sacramental theology (the Roman Catholic formulation that a couple's consent makes a marriage is lifted from Ulpian). And the Church continues to borrow from or engage civic law today, even from avowedly secular nations such as the United States.

 

But the more profound answer is that Catholicism and Western civic power have traditionally shared not only a common passion for justice but a realization that the law, by its very nature, encourages or discourages certain acts; that the repeated performance (or nonperformance) of these acts forms certain habits; that these habits go on to shape men's characters; and that their character in turn determines -- more than any other single factor in their lives -- their destiny. The goal of civic law properly understood, St. Thomas Aquinas notes in the Summa Theologiae, is the same as that of the Church: to make men good, to encourage good habits and discourage bad ones, so that they may lead morally righteous and happy lives. Some in our culture warn against the dangers of mixing morality and law; but the law is always about morality, and the people quickest to deny this are usually the ones trying to foist their own skewed moral systems on others through the coercion of law.

           

 

Catholicism, of course, no longer influences Western law as it used to. Modern legal theory tends to see law as the practice of keeping evildoers at bay or protecting individual rights rather than as an external goad to the Good; hence, it has lost a higher purpose that gave it something in common with Christian belief. With this loss of focus on the moral caliber of citizens has come a distorted view of personal freedom as the highest of all ends.

 

Moreover, the Catholic Christian concern for the victim has been warped into an ideology of victimhood that, in a bizarre twist, ruthlessly persecutes those supposed "persecutors" of any group that claims victim status. This cult of the victim has become so pronounced in today's society that it is itself a new form of scapegoating, targeting anyone who does not tow the line about victimhood as the culture has defined it. Hence the antipathy against Catholics and anyone who opposes same-sex marriage, for such opposition is seen as an ipso facto persecution of a victimized group. In a supreme irony, the institution that taught the West its concern for victims is now targeted as the enemy of victims.

 

It's unclear where the current state of affairs will lead us, but I can say that if Roper's pious anarchy is no solution, then More's combined respect for civic law and Catholic conscience must become our model for action. Of course, that also means that things might get worse before they get better.

[NYer]

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Michael P. Foley is an associate professor of Patristics at Baylor University and the author of Why Do Catholics Eat Fish on Friday? The Catholic Origin to Just About Everything (Palgrave Macmillan, 2005). This article is adapted from a presentation made to the Diocese of Dallas St. Thomas More Society on May 7, 2009.

[NYer]

Absolutely fascinating, ping!

[James C. Bennett]

Catholicism, of course, no longer influences Western law as it used to.

It has had a rather strong influence in Mexico and South America, for ages.

[vladimir998]

You wrote:

“It has had a rather strong influence in Mexico and South America, for ages.”

Certainly not much on some of the governments there in the last century. The Mexican government banned the Catholic Church in the 1920s for instance. Even Marxists were willing to admit in 1935, “The constitution of 1917, written towards the end of the agrarian civil war, embodies the laws of 1857 and sharpens and emphasizes them, completing what is probably the most radical body of anti-church laws in the world.” http://www.marxists.org/history/etol/newspape/ni/vol02/no01/mendez.htm

[James C. Bennett]

How about Mexico since the 1920s, and for most of the countries in that region, before and after the 1920s?

[RobbyS]

Since the 19th century, legal positivism, has been the dominant philosophy in Latin America. It takes its lead from the Napoleonic code,which is rationalistic.

[vladimir998]

You wrote:

“How about Mexico since the 1920s,”

I think the Church was technically illegal in Mexico for decades after the 1920s but I could be wrong. I think the Church has little to know real influence over the government there especially when run by the PRI from the 1920s to the 1990s.

“...and for most of the countries in that region, before and after the 1920s?”

Depends on the country. Uraguay is considered very secular, for instance, by political scientists. You might find this blog article interesting. Look at the dates in the first paragraph especially: http://benjamingedan.blogspot.com/2008/10/religion-makes-comeback-in-secular.html

[James C. Bennett]

The real reason for the unique prosperity of Northern and Western Europe, and as a consequence, of that of America, Canada, New Zealand and Australia, is the Protestant work ethic. It is this divorce of the individual from an imperialistic "church" that allowed for all the future success of this format of society.

It is the lack of this movement that kept much of the rest of Europe (read: Catholic Europe, and its daughters in Latin and South America) relatively backward, to this day.

No amount of revisionism can change this basic and bare-thread fact.

Associating the Common Law with the Catholic Church is especially dishonest:

"For we know that the Common Law is that system of law which was introduced by the Saxons on their settlement of England, and altered from time to time by proper legislative authority from that time to the date of the Magna Charta, which terminates the period of the Common Law ... This settlement took place about the middle of the fifth century. But Christianity was not introduced till the seventh century; the conversion of the first Christian king of the Heptarchy having taken place about the year 598, and that of the last about 686. Here then, was a space of two hundred years, during which the Common Law was in existence, and Christianity no part of it ... That system of religion could not be a part of the Common Law, because they were not yet Christians."

-- Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814.

[the invisib1e hand]

wait. I thought Catholics and Freemasons owned the world and that law was just a ruse to keep regular people busy.

[AliVeritas]

I bet one poster here would argue the ten commandments had nothing to do with law as well... and totally backed their removal.

[RobbyS]

Jefferson was taken with the Anglo-Saxon theory, but “clearly” we know little of what e in the century or more prior to the arrival of the Roman Mission in England. That’s why we called it the” dark age,” because we know so little. that we get stories like those King Arthur to fill in the space. As far as the Common law is concerned, it was actually created by the angevin kings, employing elements of English and Norman law, and like the canon law that was developing at the time, owed much to the Roman law. Henry II established king courts to reduce the authority of the manorial courts and to challenge the church courts.

So far as the “protestant ethic” and capitalism, the fact is that the Italian states and he Low countries were highly successful commercial societies long before the Reformation. and France, a Catholic State, was the wealthiest in Europe down to 1815.

[James C. Bennett]

Wasn’t it in France that someone once suggested the poor eat cake, if they didn’t have bread?

Protestantism and its work ethic allowed the wealth to be generated by the people, for the people.

[RobbyS]

France was the greatest and wealthiest power in Europe from the 15th to the 19th Century. It took the combined strength if the other powers in Europe to keep Louis XIV, and later Napoleon from establishing it as the hegemon of Europe. England owed its wealth in the 18th century as much to the Bank of England as to its faith. Before that Holland owed its wealth to the gold that moved to Amsterdam during the civil war that ravaged the low countries. Before that time, Antwerp was the financial center of the region. Don’t confuse Catholicism with the Spanish form of it.

[vladimir998]

You wrote:

“The real reason for the unique prosperity of Northern and Western Europe, and as a consequence, of that of America, Canada, New Zealand and Australia, is the Protestant work ethic.”

I have no reason to believe Max Weber. At times in modern history the richest countries of the world have been Catholic. Others they have been Protestant. Usually they’re a mix of the two. America, Canada, New Zealand and Australia are rich. They also have sizable and wealthy Catholic communities.

“It is this divorce of the individual from an imperialistic “church” that allowed for all the future success of this format of society.”

Couldn’t someone just as easily - even more easily - argue that a newfound materialism in Protestantism extolled the virtues of selfishness and amassing of wealth?

“It is the lack of this movement that kept much of the rest of Europe (read: Catholic Europe, and its daughters in Latin and South America) relatively backward, to this day.”

So Bavaria and Austria are backward? Italy - which has a higher GDP than the UK for more than 20 years now - is backward? “Italy first surpassed Britain’s economy in 1987. The milestone is being hailed as confirmation that Italy has proved its resilience.” http://seekingalpha.com/article/169099-etf-ideas-for-britain-s-reversal-of-fortune?utm_utm_medium=laconi

“No amount of revisionism can change this basic and bare-thread fact.”

Except for the fact that it isn’t a fact at all.

“Associating the Common Law with the Catholic Church is especially dishonest:
— Thomas Jefferson, letter to Dr. Thomas Cooper, February 10, 1814.”

Jefferson knew many things. The history of early medieval England was not one of them. I would rather rely on Margaret Helen Kerr and her book Catholic Church and Common Law: three studies in the influence of the church on English law.

[the invisib1e hand]

In a supreme irony

the devil is in the irony, they say. and if they don't, they should.

[the invisib1e hand]

The real reason for the unique prosperity of Northern and Western Europe, and as a consequence, of that of America, Canada, New Zealand and Australia, is the Protestant work ethic. It is this divorce of the individual from an imperialistic "church" that allowed for all the future success of this format of society.

Yeah, I used to think the only history was the Protestant history, back when I was one.

It's a bit like the fish denying the water that he swims in, though.

[SuziQ]

Law ping!

[James C. Bennett]

So Bavaria and Austria are backward?

Famous among other things, for spawning the likes of Hitler.

Any such mass-murdering monsters from Protestant lands?

[vladimir998]

You wrote:

“Famous among other things, for spawning the likes of Hitler.”

Boy are you desperate. We we’re talking about economies and you throw in Hitler? Well, I guess when your whole theory has been shot to hell, that’s all your left isn’t it?

“Any such mass-murdering monsters from Protestant lands?”

Were there mass-murdering Protestants? Yes. Anti-semitic Protestants? Yes. The fact that Hitler had to leave his faith and leave his country for a majority Protestant country to become such a mass murderer says little about Catholics. Your act of desperation tells us a lot about you, however.

[James C. Bennett]

Were there mass-murdering Protestants? Yes.

Name 'em.