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The Catholic Contribution to Western Law

  • MICHAEL P. FOLEY

The Catholic impact on Western law can hardly be overestimated.


canonlaw A common accusation against Roman Catholicism is that it is legalistic, slavishly beholden to an elaborate set of rules and precepts and thereby resistant to the movements of the Holy Spirit or the mercy of God.  The charge may not be entirely without its merits, especially at certain times in the Church's history, in certain places, and with certain figures, but for it to be evaluated fairly an important distinction must be drawn between the prominent use of or focus on law on the one hand and legalism on the other.  Legalism is the practice of law emptied of the virtue of prudence, and so it is not the presence of legal frameworks or legal thought but the absence of a cardinal virtue that determines the extent of legalism per se.  My goal this afternoon is not to answer whether the Catholic Church is or has been legalistic but to agree that it has had an abiding interest in the law and that Western civilization is much the better for it.

Impact of the Church on Western Law

For the Catholic impact on Western law can hardly be overestimated.  It was the development of canon law in the Middle Ages that retrieved, transformed, and then re-presented the long-forgotten Justinian code of the ancient Roman Empire to emerging European polities in dire need of good juridical models.  Specifically, it was the emergence of ecclesiastical courts after Pope Gregory VII that prompted civil courts to imitate and eventually supersede them.

This imitation can be seen in several different ways, beginning with the very idea of the rule of law.  Although this principle may be found in several ancient civilizations, its reintroduction to the West is the result of the medieval Church.  Professor Charles Donahue, Jr., speculates that several unique factors contributed to this development, including 1) the "dual" aspect of medieval society, with its conflicts between altar and throne; 2) a plurality of legal jurisdictions, including ecclesiastical courts and royal courts; and, perhaps most importantly, 3) the Catholic belief in the transcendence of God and in overarching immutable principles that transcend particular legal codes — in other words, in the reassuring rationality of the Divine Logos and the reasonableness of His order.

We can also see the impact of Catholicism on the Anglo-American common law tradition.  As John C. H. Wu writes, "[W]hile the Roman law was a deathbed convert to Christianity, the common law was a cradle Christian.  Common law presupposed that the same God who governs the "laws of nature" (such as gravity and generation) also governs the "natural law," those universally binding moral precepts that are knowable to all men and women because they are written on the tablets of their heart (Romans 2:15).  The Christian pedigree of common law was clearly recognized by jurisprudence theorists like Sir William Blackstone, whose Commentaries on the Law of England was to exert an enormous influence on British and early American law.  Indeed, in 1829 Joseph Story could write, "There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations."  (On a side note, the shift to a pure secularism that eventually did occur in the United States seems to be the result of Justice Oliver Wendell Holmes, who ridiculed the law's relation to the divine and instituted a positivist approach based on judiciary opinion.  The planks for Holmes's rejection, however, had been laid a century earlier by Thomas Jefferson, who vigorously denied that Christianity is or "ever was a part of the common law.")

"There never has been a period in which the Common Law did not recognize Christianity as lying at its foundations."

Another byproduct of the legal system to emerge from the crucible of medieval Catholic tradition is the concept of equity, the fair settlement of grievances and injustices often beyond the purview of statutory law.  It was the ecclesiastical courts and religious orders of the Church that introduced the idea of equity to the English realm and hence to Anglo-American law.  By combining aspects of Greco-Roman law, Celtic-Saxon custom, and Judeo-Christian principles in their efforts to be fair when adjudicating canon law cases, the Church and its courts became the locus for equitable justice in medieval England.  This, however, was seen as a threat to the civil courts, and so in 1349 the king transferred this power to his Chancery.  The once exclusively religious dimension of justice was then definitively secularized by Henry VIII, who eliminated all ecclesiastical courts in 1534 when he subjected the Church in England to the authority of the state.  Equity courts such as the Chancery, however, existed separately from law courts in Great Britain as well as the United States into the nineteenth century, when the two were conflated into one system.

The notions of intent and liability are also derived from a Catholic sensibility.  As canon lawyers in the twelfth century began to reflect on the nature of innocence and guilt, they were slowly able to replace the Germanic preference for ordeals by fire and water as a means of deciding culpability with trials that were governed by more rational principles.  One of the fruits of this was the development of the concepts of intent and liability in judiciary evaluations, concepts that are still with us today.  Canonists mulled over elaborate scenarios in order to flesh out the importance of both of these factors.  Here is one example: a man throws a stone at his friend with the intention of frightening him.  The friend jumps in order to dodge the stone and badly injures himself.  The friend then seeks medical assistance but receives poor treatment from a physician and dies.  To what extent is the man liable for his friend's death?

The Western borrowing from the Catholic patrimony may also be seen in smaller areas.  Not just the form but the forum of law, for instance, may be inspired by Catholic practice.  Though a strict historical causality is difficult to trace, it seems to be no coincidence that there is a remarkable resemblance between traditional church architecture and the design of a courtroom.  Public seating in a courtroom gallery, for example, is akin to the pews in the nave of a church; the space for the lawyers and judge, on the other hand, is similar to the sanctuary where traditionally only the clergy and their ministers would be allowed (note that many courtrooms demarcate this space with a "bar," a rail similar in appearance and function to a communion rail); the judge's bench, elevated and set apart, assumes the same importance as the similarly situated high altar, which only certain members of the clergy were permitted to approach and only at certain times; the jury box resembles the choir stalls found in many medieval churches; and the personnel who move in and out of the bench area, such as the bailiffs, resemble the acolytes serving the priest.  Even the drama of the court echoes the drama of the liturgy.  In a fascinating article entitled "Courting Reverence," Father Paul Scalia, son of Supreme Court Justice Antonin Scalia, argues that both the Mass and the court deal with forgiveness and punishment, innocence and guilt, life and death, and that the appropriate response to both is a sense of awe and respect.  Taking Father Scalia's argument a step further, one wonders if something cannot also be made of the connection between the court and the opening verses of the traditional Latin Mass: Judica me, Deus, et discerne causam meam de gente non sancta — "Judge me, O God, and distinguish my cause from the nation that is not holy" (Psalm 42:1).

One thing is certain; it is no coincidence that our judges wear black robes.  The judicial gown hearkens back to the cassock and to the days when only the clergy studied and practiced law or when even lay students wore clerical dress 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 of the tight-fitting skull-cap worn by medieval clerics, and the prohibition against wearing gloves on the bench mirrors the rubric against priests wearing gloves during Mass.  Further, when a British judge sentences a guilty person to death, he is required to put on his black hat when he does so; this is in imitation of a priest, who was once required to wear his biretta when hearing confession.

Finally, the term "clerking" testifies to the days when virtually all practitioners of the law were members of the clergy, men who had been tonsured or who had taken at least one of the four minor orders of the Church: acolyte, lector, doorkeeper, and exorcist.  (The major orders, by contrast, are deacon, priest, and bishop.) Because clerics were literate (a rare skill in those days), they were called upon to do a number of office-related tasks, especially in matters pertaining to the law.  Over time the association of the minor clergy with administrative and other bureaucratic duties grew so strong that the jobs themselves became known as "clerical" and the people who performed them as clerics or "clerks."

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But the Catholic faith has done more than just lend some of its features to civil law; it has also broken new ground.  It was Catholic conscience confronting the evils of New World colonialism that led vicariously to the development of the modern system of international law.  In 1511 a Dominican priest on the island of Hispaniola (modern-day Haiti and the Dominican Republic) launched a fiery volley against Spanish exploitation of the natives, which prompted King Ferdinand of Spain to convene a council of theologians and to draft legislation for the humane treatment of his new subjects.  Though most of the new laws were poorly enforced in the faraway colonies, they did "set the stage for the more systematic and lasting work of some of the great theological jurists of the sixteenth century.  Chief among these is Father Francisco de Vitoria (1486–1546), the Thomist scholar whose explication of just war theory essentially rejects a European "right" to conquer the inhabitants of the New World in the name of civilization or Christianity.  The alleged abuse or neglect of life and property by Native Americans, Vitoria taught, was not in itself sufficient grounds for waging war on them or subjugating them.  Native Americans were fully human and as such were entitled to rule themselves, no matter what a European power, even the papacy, said.  Such teachings, which were inspired by the Catholic natural law tradition and the Catholic understanding of the unity of the human race, contributed much to the emergence of international law.

Chief among these is Father Francisco de Vitoria (1486–1546), the Thomist scholar whose explication of just war theory essentially rejects a European "right" to conquer the inhabitants of the New World in the name of civilization or Christianity.

But perhaps the single most important contribution of Catholicism to Western law is the one that is so fundamental that it is the easiest to overlook: concern for the victim.  If you ever want to read a fascinating book, I highly recommend Rene Girard's I See Satan Fall Like Lightning.  In it Girard, a prominent professor of literature and anthropology at Stanford, argues that all ancient myths are based on a collective scapegoating of a randomly chosen victim who is presumed guilty but is in fact innocent.  Scapegoating this individual and hiding his innocence allow the tensions and conflicts within a community to be transferred onto the scapegoat and then purged from the community; by everyone blaming this "fall guy," they can become united in their hostility to him, thus creating peace and stability among themselves.  This pattern, Girard maintains, can be seen in all cosmogenic myths, be they Babylonian, Greek, Roman, Hindu, etc.  But this pattern is decisively broken by the Bible which, rather than be another instance of myth, is actually a powerful demythologizer, for it incorporates mythic patterns only in order to expose them, to bring their hidden mechanisms into the light of day and thus discredit them.  The Bible blows the whistle on mythic scapegoating.  This can be seen, for instance, in the Psalms, which according to Girard are the world's first poetry written from the perspective of the innocent victim rather than from the perspective of the angry mob.  And it is crystal clear in the Gospels, which show how all of the parties involved — Caiaphas, Pilate, and Herod — know that Jesus is innocent but go ahead with His execution anyway for its political benefits.

Not surprisingly, the content of the Christian message had a powerful effect wherever it was preached.  As Girard notes, blood sacrifices soon ceased after the spread of the Gospel, for animal and human sacrifices were a ritual reenactment of scapegoating, but scapegoating is difficult to do when the mask hiding its sinister mechanism has been ripped off.  In the realm of law, we may see the Gospel's effect in the West's greater attention to the simple principle that the accused may in fact be innocent, the victim of accidental or sinister forces colluding against him.

The Why or Whence

At this point we might ask ourselves: how is it that Catholicism gained such an interest in, or came to have such an impact on, the law? There are, in my opinion, at least three answers:

First, St. Peter established his See in the capitol of an empire renowned for its law.  It is said that the three cornerstones of Western civilization are represented in the three languages in the inscription on the cross that proclaimed Jesus of Nazareth to be King of the Jews: Hebrew, which gave the West monotheism; Greek, which gave the West its culture; and Latin, which gave the West the rule of law.  This certainly was Vergil's understanding of the Roman contribution to political life when he puts in the mouth of Aeneas' father the famous lines:

Remember, O Roman, these shall be your arts:
To rule earth's peoples by your strength
To pacify, impose the rule of law,
To spare the conquered, battle down the proud.

It is not surprising that the Church of Rome would be influenced by the city of Rome.  We can see this in the impact of the Justinian Code upon the development of Church canon law; we can see it in the impact of Roman jurisprudence upon even the sacred realm of sacramental theology (the Roman Catholic principle, consensus facit nuptias, that it is the consent of the couple that makes marriage a marriage, is lifted straight from the works of Ulpian).  We can see it in the foundational principle of canon law, that "the supreme law is the salvation of souls," since it is a paraphrase of a line from Cicero.  And we can see it in the fact that the Church continues to borrow from or engage civic law, even from avowedly secular nations such as the United States.  An interesting example of this is when Pope Pius XI approvingly quoted in his 1925 encyclical Divini Illius Magistri the U.S. Supreme Court case Pierce v. Society of Sisters of the Holy Names of Jesus and Mary:

This incontestable right of the family has at various times been recognized by nations anxious to respect the natural law in their civil enactments.  Thus, to give one recent example, the Supreme Court of the United States of America, in a decision on an important controversy, declared that it is not in the competence of the State to fix any uniform standard of education by forcing children to receive instruction exclusively in public schools, and it bases its decision on the natural law: 'the child is not the mere creature of the State; those who nurture him and direct his destiny have the right coupled with the high duty, to educate him and prepare him for the fulfillment of his obligations' (37).

Second, besides their obvious common interest in justice, both Catholicism and the classical understanding of law realize that the law habituates: that every law 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, is the same as that of the Church: to make its citizens good, to encourage good habits and discourage bad ones so that men may lead morally blameless and truly happy lives. 

It is no coincidence that Satan is actually Hebrew for the Accuser, and that, by contrast, one of the titles of the Holy Spirit, the Paraclete, is Greek for an advocate or defense attorney.

Third, the very life of the Trinity is described in judicial terms.  It is no coincidence, for example, that in the Book of Job Heaven is described as a court with God as the Judge and the devil as a prosecuting attorney against the hapless protagonist, with Satan accusing Job of being first unjust or only superficially just.  It is no coincidence that Satan is actually Hebrew for the Accuser, and that, by contrast, one of the titles of the Holy Spirit, the Paraclete, is Greek for an advocate or defense attorney.  And it is no coincidence that Christ, who came into this world not to judge but to save, shall nevertheless return to judge the living and the dead.  The image that emerges is clear: Satan is the evil spirit who encourages us to sin and then, like the rat that he is, accuses us of these sins and a few more besides before the heavenly court.  But Jesus Christ, who himself is a victim of Satan's injustice perpetrated through such minions as Caiaphas, Herod, and Pontius Pilate, as well as the Judge, knows this old trick and appoints the Holy Spirit, the Paraclete, to be our defense attorney, all so that we might be returned to our Father rather than condemned to everlasting darkness.

This legal portrayal of God, the devil, and us, I stress, is no mere window-dressing or exercise in metaphor.  Christianity boldly teaches that everything good in the world we see is a faint imitation of what exists preeminently in God.  In other words, we don't call God our father because He resembles in some way the various earthly fathers wandering around; we call the various earthly fathers father because they in some way resemble or participate in the Fatherhood of God (cf. Eph. 3:15).  God is the supreme archetype of every excellence, and so when we read in the Bible that God is a judge or an advocate, we mustn't think of this as mere metaphor.  On the contrary, calling our earthly practitioners of law judges or advocates is, in some respects, the metaphor.

Conclusion

Catholicism, of course, no longer influences Western law as it used to.  Modern legal theory tends to see the purpose of law as keeping evildoers at bay or protecting individual rights, but it no longer emphasizes law as an external goad to the Good; it has lost, one might say, a higher teleology that gave it something in common with Church thought.  And with this loss of focus on the moral caliber of citizens has come an obsession with personal freedom as the highest of all ends.  What is increasingly overlooked in this climate is an insight expressed by Cicero centuries ago:

Behold, certainly not philosophers but those who are quick to argue say that everyone who lives as he himself wants to is happy.  This, of course, is false; for to want what is not decent is itself the very worst misery.  And not obtaining what you want is not as miserable as wanting to obtain what is not right, for depravity of the will brings more evil than fortune brings good.

I can only end on the reluctantly ominous note that the more the West continues to forget or extricate itself from its Christian bloodline, the more we are all in for trouble.

Cicero, a great defender of liberty, understood that liberty must be oriented to the morally good rather than be understood as mere license.  Today, however, our current obsession with rights tends to see the law more in terms of the latter than the former. Moreover, the Catholic Christian concern for the victim has been warped in recent years into an ideology of victimhood that, in an interesting twist, ruthlessly persecutes anyone seen as persecuting a person or group that can claim for itself victim status.  Victimology, or the cult of the victim, has become so pronounced in today's society that it is becoming a new form of scapegoating, targeting as fair game anyone who does not tow the line about victimhood as the victimologists have defined it.  Hence the antipathy against Catholics and other Christians anytime they oppose 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 the victim of a victimology that vilifies said institution as the enemy of victims.

I do not know where this leaves us or where it will take us.  I can only end on the reluctantly ominous note that the more the West continues to forget or extricate itself from its Christian bloodline, the more we are all in for trouble.  Thank you.

dividertop

Acknowledgement

foley Michael P. Foley. "The Catholic Contribution to Western Law." St. Thomas More Society (May 7, 2009).

The above was a talk presented to the St. Thomas More Society in the Diocese of Dallas in 2009. 

Reprinted with permission of Michael P. Foley.

The Author

Foleyfoley1Michael P. Foley is associate professor of patristics in the Great Texts Program at Baylor University. He is the author of Why Do Catholics Eat Fish on Friday?: The Catholic Origins of Just About Everything and Wedding Rites: The Complete Guide to Traditional Weddings and Drinking With the Saints: A Sinner’s Guide to a Holy Happy Hour. He is the editor of the new edition of St. Augustine's Confessions.

Copyright © 2009 Michael P. Foley
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