- Feb 3, 2001
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To me, this stuff should be common knowledge taught in civics courses. The history of the Common Law, upon which American law is based, extends WELL before the conquest of the Normans over Britain, much less their eventual conversion to Christianity. It's about time someone started talking about the real history of this widely, MASSIVELY misunderstood topic.
Jason
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The Ten Commandments have no significance in the American legal system; they had virtually nothing to do with the development of our conception of law, and still less to do with our substantive laws ? including those laws (such as the prohibitions of murder or theft in our criminal codes) that seem to parallel those in the Decalogue. The English common law ? the body of substantive law on which early American law was based ? originally derived from the customary laws of the pagan Anglo-Saxons. The Anglo-Saxons had no criminal law, as we understand it; their legal system was based on restitution, or compensation of victims (or victims? families) for harms done to them by wrongdoers ? similar to our modern law of torts ? in order to forestall blood feuds. Murder was among those wrongs; its compensation was payment of wergeld (?man-money?), the worth of the victim?s life. After the Anglo-Saxons converted to Christianity, their legal system remained the same; the Anglo-Saxon kings, beginning with Aethelbert of Kent (the first English king to convert to Christianity), promulgated their so-called ?dooms,? or laws, which merely codified the existing customs. Even after the Norman Conquest, English law continued to be based on the Anglo-Saxon system of restitution. The first criminal penalties for ?murder? concerned an additional payment, or fine (called the murdrum) that was to be paid to the Norman kings of England, but only if a Norman was killed; the penalty did not apply to the killing of a native Englishman. Later, when something like true criminal laws were instituted ? including laws that punished as murder the killing of any person ? those laws had more to do with the king?s responsibility to keep the peace and to see that justice was done rather than with enforcing Biblical commandments. Indeed, as Thomas Jefferson showed in an essay written in his retirement years, Christianity was no part of the English common law.
When we consider the Ten Commandments themselves ? something that many of their defenders seem to have failed to do ? we can understand further why they are not part of the ?Foundations of American Law and Government.? Rather, they are literally foreign to our legal and constitutional system ? at best, irrelevant to it; and at worst, inconsistent with it.
The Ten Commandments are imbued with religious significance; they are religious doctrine, a key part of the teachings of the Judeo-Christian religious tradition, and specifically the religion of the ancient Israelites as embodied in the Old Testament (Book of Exodus, chapters 20-24). As philosopher George Walsh has pointed out, the Ten Commandments fall into two groups: the last six and the first four. The last six ? ?honor your father and mother,? ?do not commit murder,? ?do not commit adultery,? ?do not steal,? ?do not bear false witness,? and ?do not covet what belongs to others? ? are supposed to be the ethical base of the Judeo-Christian tradition, but their content is not unique to that tradition, for similar moral principles and the values lying behind them ?have been shared by many ethical and legal systems and by many other societies,? as Professor Walsh notes. (The specific formulation of these rules, however, is uniquely part of the Judeo-Christian religion and is, in fact, the subject of some controversy, depending on one?s translation of the Old Testament text. Catholics and Protestants have different versions of the ?do not covet? injunction, for example ? something that?s been overlooked in the constitutional analysis and which may pose problems for one part of the Lemon test, which forbids government ?entanglement? with religion: if the government displays the Commandments? text, which version ? Catholic or Protestant ? should be used?) Nevertheless, as Professor Walsh adds, there is a critical difference between these six prohibitions in the Ten Commandments and similar rules in other moral or legal codes: the Commandments are absolute. ?They contain no provisions for exceptions. There are no situations in which it is permitted not to honor one?s father and mother, for example.? Also, they do not distinguish between lawful killing (in one?s self-defense, for example) and unlawful killing, or murder; the commandment is absolute, ?thou shalt not kill.? (In this particular regard, they?re totally unlike the substantive content of Anglo-American criminal law.) ?These commandments are given in the form that Immanuel Kant was later to call `apodictic.? It means `unyielding,? `unconditional,? `absolutely necessary,? `in the form of absolute, categorical imperatives.? Other moral codes contain provisos for special situations or for mitigations; these commandments do not. Now, why do they have this absolute form? Because they are revealed. Because the nature of the revealer is hidden from the scrutiny of reason, and because the revealer refuses to entertain any questions as to the premises behind the commandments or any of his actions. His answer is always, `Because I say so.?? (George Walsh, The Role of Religion in History (1998), p. 109.)
The other group of commandments, the first four of the Ten Commandments, clearly show their authoritarian nature and clearly pertain to a particular religion, that of the ancient Jews. ?I am Yahweh your God. You shall have no other gods before me.? ?You shall not make a carved image of me or any natural object, or bow down to such an image, for I, Yahweh your God, am a jealous God.? ?You shall not use my name lightly.? ?You shall not do any work on the seventh day, the Sabbath.? As Professor Walsh notes, ?these commandments are unique to the Judaic tradition?: ?They deal with attitudes and actions to be taken up by those who accept the last six commandments ? attitudes toward the revealer of the commandments, Yahweh. First, Yahweh is to be the only object of reverence. He openly states that he is jealous. Secondly, he is not to be represented as having any form. Now `form? is what you can scrutinize with your senses or examine by your reason. `Form? means `identity,? but Yahweh is beyond form, beyond identity, beyond identification. If you ask him what he is, he answers, `I am inscrutable.? Now, all nature has form. Yahweh is therefore beyond all nature, beyond the universe. Just as `apodictic? is the correct word for his commands, so `transcendent? and `inscrutible? are the correct words for his nature. Transcendent: he is hidden, he is beyond our scrutiny. Thirdly, his name must not be used lightly. Later the Jews elaborated this commandment as to prohibit the very pronunciation of the name `Yahweh.? There is a prohibition of perceiving Yahweh. There is a prohibition of framing a concept of him, and finally a prohibition of naming him. . . . Finally, there is the consecration of a special day to Yahweh, a day on which man?s productive activities must come to a complete halt, in order to acknowledge the fact that Yahweh is the supreme creator.? (Walsh, The Role of Religion in History, pp. 109-110.)
The authoritarianism of the Ten Commandments, and not just their overtly religious content, is totally contrary to the American conception of law. Law is not to be based on religious beliefs, whether biblical Scriptures or any other authoritarian source. The law ? which is to say, the rules prescribing human conduct and enforceable by the coercive power of government, its unique power legitimately to use force ? is derived from ?the consent of the governed,? as our founding document, the Declaration of Independence, states. Indeed, the Constitution itself owes is legitimacy to ?the consent of the governed,? its ratification by the American people (that is, by the people of the several states that comprise the United States). In no way can an honest historian of American law ? that is, one who is not advancing a particular political/religious agenda, as many conservative Christian scholars do ? say that the Ten Commandments, or other specific teachings within the Judeo-Christian tradition, are truly part of the ?Foundations of American Law and Government.? America?s Founding Fathers included many Christians, to be sure; but many of them were not Christians in the traditional sense but were rather deists, believers in God as the Creator who acts through nature rather than against it. Importantly, when Thomas Jefferson wrote the Declaration of Independence, speaking for the members of the First Continental Congress and basing their case for American independence on the surest possible ground, he chose the scientific thought of the 18th-century Enlightenment tradition, ?the laws of nature and of nature?s god,? and based individual rights not on revealed religion but on the ?self-evident? truths of logical reasoning. (Note that in his original draft of the Declaration, Jefferson followed his usual practice of not even capitalizing the word god.) When certain religious conservatives claim that America was founded on Christian principles simply because the Declaration includes the word god, they are ignoring context and fundamentally misunderstanding the history and principles of this country?s founding. (For more on this, hear my lecture ?The Declaration of Independence as a Philosophical and Literary Document,? available on audio cassettes from The Objectivist Center, at www.objectivismstore.com .)
Considering the real content of the Ten Commandments ? the peculiar understanding of law and even of God that they proscribe ? it should be clear that, by themselves, the Commandments are contrary to one of America?s fundamental constitutional principles, freedom of religion. The core idea behind the First Amendment?s religion clause ? both its protection of an individual?s ?free exercise? rights and its prohibition of government ?establishment? ? is that religion is a private matter, a matter of an individual?s own conscience, over which government simply has no business. That?s what Jefferson meant when he described the First Amendment religion clause as erecting ?a wall of separation between church and state,? and that?s what the Supreme Court tried to recognize when it endorsed Jefferson?s conception and applied it in cases involving government aid to parochial schools and other church-state issues. If the justices of the Supreme Court were truly to decide this issue according to first principles of American constitutional law, they would find that government display of the Ten Commandments, in any context, is an unconstitutional endorsement of religion and thus prohibited by the Constitution.
But don?t hold your breath waiting for the Court to consistently follow first principles. It seems that a majority of the justices on the Court, like conservative defenders of government display of religious symbols like the Ten Commandments, really do want the government to endorse religious belief, notwithstanding the Constitution?s prohibition. The myth of the Ten Commandments provides a convenient rationale for them to indulge in their subjective preferences ? and to give the sanction of law to their private religious beliefs.
To me, this stuff should be common knowledge taught in civics courses. The history of the Common Law, upon which American law is based, extends WELL before the conquest of the Normans over Britain, much less their eventual conversion to Christianity. It's about time someone started talking about the real history of this widely, MASSIVELY misunderstood topic.
Jason
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