Tugendhat, “Liberty Intact”

As readers of this blog know, the Center is in the midst of a three-year research project, the Tradition Project, which examines the continuing relevance of tradition–the received wisdom of the past–for law, politics, and culture. At our first meeting last fall, we focused on tradition in law and, specifically, the traditionalism of the common law method. A new book by Sir Michael Tugendhat, a Judge of the High Court of England and Wales, Liberty Intact: Human Rights in English Law (Oxford) argues that contemporary human rights law derives from English common law antecedents. Several participants in the Tradition Project would no doubt agree. Here’s a description from the Oxford website:

9780198790990 (1)What are the connections between conceptions of rights found in English law and those found in bills of rights around the World? How has English Common Law influenced the Universal Declaration of Human Rights (UDHR) 1948 and the European Convention on Human Rights (ECHR) 1950? These questions and more are answered in Michael Tugendhat’s historical account of human rights from the eighteenth century to present day.

Focusing specifically on the first modern declarations of the rights of mankind- the ‘Virginian Declaration of Rights’, 1776, the French ‘Declaration of the Rights of Man and of the Citizen’, 1789, and the ‘United States Bill of Rights’, 1791- the book recognises that the human rights documented in these declarations of the eighteenth century were already enshrined in English common law, many originating from English law and politics of the fifteenth century. The influence of English Common Law , taken largely from Blackstone’s Commentaries on the Laws of England, can also be realised in the British revolutions of 1642 and 1688; the American and French Revolutions of 1776 and 1789 respectively; and through them, on the UDHR and ECHR. Moreover, Tugendhat argues that British law, in all but a few instances, either meets or exceeds human rights standards, and thus demonstrates that human rights law is British law and not a recent invention imported from abroad.

Structured in three sections, this volume (I) provides a brief history of human rights; (II) examines the rights found in the American and French declarations and demonstrates their ancestry with English law; and (III) discusses the functions of rights and how they have been, and are, put to use.

Jurisprudential and Religious Tradition

From Chapter 4 of Edward Shils’s Tradition:

Muteness of sentiment and unthinking acceptance of a model visible in the conduct of others, the recognition of convenience and the acceptance of results at an expected level of satisfactoriness, are sometimes infused with a level of piety toward the past. The pastness of a model of action or belief may be an object of reverence. Not givenness, and not convenience, but its sheer pastness may commend the performance of an action or the acceptance of a belief. Deference divested of reverence is contained in the principle of the jurisprudence of the common law which commands respect for precedent. The fact of pastness is acknowledged as normative. A decision under the common law ordinarily entails no attachment to a particular epoch or a particular deed or a particular generation in the past, it is the pastness of the precedent as such. Its normative necessity is self-evident: that is the way it was, that is the way it ought to be. There is no sentiment of reverence formed about the way it was. Attachment to a particular past epoch infused with charismatic quality by sacred revelation or a sacred person and sacred events which is characteristic of the Christian attitude toward the age of the Gospels is a different sort of thing in sentiment and in the scope of significance from the attitude toward the judicial precedent. Both attachments have in common, however, the normativeness of the past pattern.

Interesting observations, which make me wonder precisely in what position constitutional stare decisis might be situated in terms of sentiments of “attachment to a particular epoch or a particular deed or a particular generation in the past.”

Sobecki, “Unwritten Verities”

This March, Notre Dame University Press released the fascinating lookingSobecki volume, Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463-1549, by Sebastian Sobecki (University of Groningen). The publisher’s description follows.

In Unwritten Verities: The Making of England’s Vernacular Legal Culture, 1463-1549, Sebastian Sobecki argues that the commitment by English common law to an unwritten tradition, along with its association with Lancastrian political ideas of consensual government, generated a vernacular legal culture on the eve of the Reformation that challenged the centralizing ambitions of Tudor monarchs, the scriptural literalism of ardent Protestants, and the Latinity of English humanists.

Sobecki identifies the widespread dissemination of legal books and William Caxton’s printing of the Statutes of Henry VII as crucial events in the creation of a vernacular legal culture. He reveals the impact of medieval concepts of language, governance, and unwritten authority on such sixteenth-century humanists, reformers, playwrights, and legal writers as John Rastell, Thomas Elyot, Christopher St. German, Edmund Dudley, John Heywood, and Thomas Starkey. Unwritten Verities argues that three significant developments contributed to the emergence of a vernacular legal culture in fifteenth-century England: medieval literary theories of translation, a Lancastrian legacy of conciliar government, and an adherence to unwritten tradition. This vernacular legal culture, in turn, challenged the textual practices of English humanism and the early Reformation in the following century. Ultimately, the spread of vernacular law books found a response in the popular rebellions of 1549, at the helm of which often stood petitioners trained in legal writing. Informed by new developments in medieval literature and early modern social history, Unwritten Verities sheds new light on law printing, John Fortescue’s constitutional thought, ideas of the commonwealth, and the role of French in medieval and Tudor England.

Rappaport on Common Law Constitutionalism

Professor Michael Rappaport has a really neat post about common law rights that are constitutionalized, and how one should interpret such rights. The post is particularly interesting for me because in my constitutional theory seminar, we are in between two classes that consider, respectively, the role of tradition and historical practice in constitutional interpretation, and the relationship between precedent and interpretive theory. But as Professor James Stoner has shown, there are many textual features of the Constitution that use terms rooted in common law understandings. What are the interpretive possibilities in such cases; what happens to a common law right that has been constitutionalized? Rappaport sets out 3 options:

1. Static: When the common law right is constitutionalized, it becomes fully frozen, as if it were written law. To determine the meaning of the right, one looks to the common law in 1789. The existing decisions regarding the common law constitute the full meaning of the right.

2. Dynamic: Although the common law right was written into the Constitution, it did not change its character. Instead, it remains as flexible as a common law right. Under this interpretation, one might see something like the living constitution view in the Constitution.

3. Intermediate: When the common law right was constitutionalized, it changed its character, but it did not become fully frozen as if it were written law. Under this view, one treats the right as a common law right as of the time it was enacted, but does not give it a dynamic effect with changing circumstances.

It is not surprising that Professor Rappaport ends up opting for choice #3, because this choice maps neatly on his general interpretive defense (with Professor John McGinnis) of original methods originalism! See the post for his reasons. What is of special interest to me is the extent to which the Constitution depends upon common law terminology and common law ideas. For this, you really can’t do better than Professor Stoner’s work. But I suspect there is much more to be done in that area. In fact, sometimes I wonder whether anybody has ever reviewed the English experience with the term “establishment of religion” in the centuries before the Constitution’s drafting (surely someone has).

Coke on the Virtues of Obedience to the Common Law

Sir Edward Coke was a lawyer, an MP, Attorney General, and Chief Justice of the Court of Common Pleas of the King’s Bench. He is widely considered one of the fathers of the common law. Here is a fragment of the preface to Part Two of his Reports. I was struck by the terms in which he discusses the common law:

To the learned Reader

There are (sayeth Euripides) three Virtues worthy [of] our meditation; To honor God, our Parents who begat us, and the Common Lawes of Greece: The like doe I say to thee (Gentle Reader) next to thy dutie and pietie to God, and his annointed thy gracious Soveraigne, and thy honor to thy Parents, yeeld due reverence and obedience to the Common Lawes of England: For of all Lawes (I speak of humane) these are most equall, and most certaine, of greatest antiquitie, and least delay, and most beneficiall and easie to be observed; As if the module of a Preface would permit, I could defend against any man that is not malicious without understanding, and make manifest to any of judgement and indifferency, by proofes pregnant and demonstrative, and by Records and Testimonies luculent and irrefragable: Sed sunt quidam fastidiosi, qui nescio quo malo affectu oderunt Artes antequam pernoverunt [MOD trans.: But there are some disdainful types who hate every high calling with which they are unfamiliar, I know not for what reason]. There is no Jewell in the world comparable to learning; No learning so excellent both for Prince and Subject as knowledge of Lawes; and no knowledge of any Lawes, (I speak of humane) so necessary for all estates, and for all causes, concerning goods, lands, or life, as the Common Lawes of England….

Their example [that of the “Sages of the Law”] and thy profession doe require thy imitation: for hitherto I never saw any man of a loose and lawlesse life, attaine to any sound and perfect knowledge of the said lawes: And on the other side, I never saw any many of excellent judgement in these Lawes, but was withall (being taught by such a Master) honest, faithfull, and vertuous.

If you observe any diversities of opinion amongst the professors of the Lawes, contend you (as it behoveth) to be learned in your profession, and you shall finde that it is Hominis vitium, non professionis [MOD trans.: the vice of man, not of the profession].

Christianity and the Rise of “the Problem of Church and State”

I have begun reading the British legal historian Theodore F.T. Plucknett’s massive work, A Concise History of the Common Law, a wonderful treatment of the subject written in the mid-twentieth century. Here’s something from early in the book:

While imperial Rome was slowly declining, Christianity was entering on a period of remarkable growth. At first it was hardly noticed among the numerous new cults which were fashionable importations from the Near East, some of which were extremely popular. After being ignored, it was later persecuted, then under the great Constantine it was at last tolerated (324). So far, the established “Hellenistic” religion had been considered as an official department, and its priests as civil servants. Attempts had been made to incorporate with it the religions of Isis, Mithras, Christ, and others, on a similar footing, combining all the known gods in one vast polytheism, whose cult was to be maintained and controlled by the State. It was soon evident, however, that Christianity would not accept this inferior position. Although some things were Caesar’s, others were God’s, and from this fundamental conflict arose the problem of Church and State, which has lasted from Constantine’s day to our own. The controversy took a variety of forms in the course of the succeeding sixteen centuries. Stated in its broadest and most general terms, it means that many earnest thinkers find it impossible to accept the State as the highest form of human society, and that they recognize some situations in which they would feel bound to obey some other duty than that imposed by the State. On the continent it lay at the root of the long conflict between the Empire and the papacy; in England it took such varied forms as the conflict with Thomas Becket, the discussion in Bracton as to the real position of the King (who is subject, he says, to God “and the law”), the Puritan revolution–and may even be traced in the American constitutions, for the modern attempts to curb the power of the State by means of constitutional limitations are the result of the same distrust of the State as was expressed in former days in the conflict between religion and the secular power.

It was also during the reign of Constantine that the great Council of Nicaea was held (325), attended by almost three hundred bishops from all parts of the world. Besides settling many fundamental matters of doctrine, this council gave an imposing demonstration of the world-wide organisation of the Church, and from this point onwards that organisation grew increasingly effective, and the Church became more and more a world power. As a result, the Empire had to admit the presence first of a potent ally, and soon of a vigorous rival.

The Nicene canons are the earliest code that can be called canon law of the whole Church, and at least in the West they enjoyed something like the same finality in the realm of discipline that the Nicene Creed enjoyed in the realm of doctrine. [citing C.H. Turner, Cambridge Mediaeval History]

Indeed, while the organization of the Empire was slowly breaking down, that of the Church was steadily growing, with the result that the Church soon offered a career comparable to, if not better than, that afforded by the State to men of ability who felt called to public life. Some specialised in the study of theology; others took up the work of creating the great body of canon law which for a long time was to perpetuate the old Roman ideal of universal law. With all this, the growth of the episcopate, and particularly of the papacy, was to give a new aspect to the ancient city of Rome, and slowly, but certainly, the Empire ruled from Rome was being replaced for many purposes by Christendom ruled by the papacy. [4-5]

Stoner on the Disposition of the Common Law

James Stoner’s work on common law constitutionalism has been deeply influential on my own thinking about the interpretation of the religion clauses, as well as on more general questions of constitutional interpretation. My own approach in fact adopts something like Professor Stoner’s common law constitutional method (though its motivation for adopting that method is different than Stoner’s), distinguishing it from other common law constitutionalist methodologies (e.g., the approach of David Strauss). Here is an interesting post that Professor Stoner has just written on the disposition of the common law (in part it is a response to CLR Forum friend, John McGinnis). A longish bit:

To the authors of the Constitution, the Bill of Rights, and the Civil War Amendments, common law meant nothing like “judge-made law,” and the use of the modern supposition to untether constitutional law from the Constitution is unwarranted. Moreover, the original understanding of common law—as the unwritten customary law of England, registered in decisions of the courts, and carried over to the American colonies as an inheritance and adjusted to their circumstances—seems to me essential to the interpretation of the Constitution itself, which includes common-law language and takes for granted that the judicial power it established would largely operate by common-law forms: following precedent, recording judicial opinions, drawing the bench from the bar, employing trial by jury, and adhering to due process in myriad other ways . . . .

Originalism and textualism, for example, derive from maxims you can find in Blackstone’s account of how to interpret statutes, and I think they make sense not as free-standing theories of interpretation but in the context of all Blackstone’s adages, including, for example, that one begin by discerning whether the text declares the common law in writing or remedies some mischief, that one interpret criminal statutes strictly and statutes against frauds liberally, and the like. True, constitutions are not exactly statutes, only similar to them: Like statutes, they are put in writing; unlike statutes, they are made by a constituent authority and cannot be easily changed. Are the powers of government granted in constitutions to be interpreted strictly or liberally? What about rights that are reserved?

These questions fell to judges to decide, reasoning according to “the nature and the reason of the thing,” to borrow Hamilton’s words in The Federalist, and this was something common-law judges were trained to do, bound on the one hand by “strict rules and precedents” (Hamilton’s words again) and accustomed on the other to settling new cases through reasoning by analogy, as Edward Levi nicely explains in his Introduction to Legal Reasoning (Chicago, 1949). Understanding the common-law meaning of “judicial power” in the Constitution resolves what would otherwise be the paradox of judicial review, an unwritten power to enforce a written Constitution. And it makes perfect sense of constitutional passages like the Due Process Clause or the reference to “other rights” in the Ninth Amendment. These are not blank checks given to judges, but indication that there is a rich texture of established though unwritten law that they are charged to remember. Hamilton, again, indicates as much when he writes approvingly of the ability of judges “to mitigat[e] the severity and confin[e] the operation” of “unjust and partial laws.” . . . .

Leaving the Constitution to be interpreted in court by judges trained in common law meant it was in the hands of men who habitually looked to find the law applicable to the case before them, not who set out to replace it. When called to interpret the Constitution, the presumption in favor of the authority of the text and its original intent might be heightened, given its sovereign source, but precisely because the Constitution was meant to endure, its meaning had to be adapted to novel circumstances. One can’t avoid asking what comprises a constitutional search in an age of electronic communications, or what is “commerce with foreign nations, and among the states” when the manufacturing process from design through production is fully globalized and you can complete the purchase of almost any item from across the ocean at any time of day without leaving your home.

By focusing on the individual case, allowing the appeal to reason, settling the meaning of law to make property secure and the application of government coercion predictable, and including rules and maxims that leave individuals free to take initiative while holding them responsible for the consequences of their deeds, the common law was held by its advocates to be a great friend and promoter of human liberty. It had its critics, too, who complained that unwritten law was obscure, too much the preserve of the lawyers’ guild, and its favor for private property and individual liberty were inappropriate in a collectivist age. The abandonment of common-law rules and perhaps above all of the common-law spirit by many in the guild of lawyers over the course of the twentieth century no doubt contributed to the eclipse of common law—Professor McGinnis has valuable insights on this score—but probably more fundamental was the culture’s growing historicism: its skepticism toward any permanent standards of right and wrong, its consequent indifference toward tradition as a repository of wisdom, its expectation, not to say, encouragement of intractable partisan division given the supposition that questions of value cannot be rationally settled. Actually, common law really claimed to be common, to articulate a social consensus, more than it claimed to be unchanging; jury verdicts at common law have to be unanimous, and judges on the losing side of cases decisively settled typically feel constrained thereafter to accept the precedent and direct their argument to new issues, where they hope to limit a bad precedent’s future reach.

Notes on Kabala’s Book About Church-State Relations in the Early Republic

I just read James S. Kabala’s Church-State Relations in the Early American Republic, 1787-1846 (2013). I recommend it; it recounts lots of interesting details and debates which Kabala presents very effectively. The book’s general theme is that the unsettled quality of the relationship between church and state in our own time is not new, but part of an ongoing unsettled history whose roots may be traced to the founding and which persisted thereafter.

Here’s a bit from the introduction:

[P]resent-day believers that the United States was founded on Christian principles often claim the Founding Fathers for their cause, while advocates of church-state separation often presume that the issue was a settled matter after the ratification of the First Amendment in 1791.  This book will complicate such assumptions by exploring sixty years of contentious debate in American civic culture over the proper role of religion in public life.  Between the 1780s and the 1840s, clergymen, legislators, jurists, and pamphleteers argued over whether the government could fund Christian missionaries, whether the government should proclaim fast and Thanksgiving days, whether it was proper for Christians to pledge to vote only for Christian candidates, whether there should be religious restrictions on who could serve in public office or testify in court, whether blasphemy prosecutions were legitimate, whether public schools could offer a religious curriculum, whether state legislatures should open each day’s session with prayer and many more such issues.  Instances of the government’s long-standing entanglement with religion, such as the funding of religiously affiliated schools among the Indian tribes, can seem startling today.  In other areas, however, separation between religion and government was more strongly enforced than today.  The mail was delivered on Sundays, and a nationwide petition campaign to end this practice caused a strong backlash.  Several state legislatures, at least for a time, abolished the position of chaplain and the practice of opening each day’s sessions with prayer.  In short, debate over the proper relationship between religion and government was as divisive two hundred years ago as it is today and involved people from all denominations, parties and regions.

Kabala’s focus is not on the First Amendment but on the more general issue of church state relations. Recognizing “the heavy entanglement of the federal government with religion in this period,” he favors the federalism interpretation of well-known episodes such as Andrew Jackson’s refusal to proclaim a day of fasting in 1832 and others.

An interesting later chapter entitled “The Limits of Consensus: The Unorthodox in the Court System,” deals in part with the issue of whether Christianity was part of the common law (a view consistently denied by Jefferson).  One of the final episodes that Kabala recounts involves a Supreme Court case,Vidal v. Girard’s Executors (1844), which dealt with a rather eccentric French-born resident of Philadelphia who had become extremely wealthy.  The man had been raised a Catholic and had made occasional contributions to Catholic institutions, but his own religious convictions were not clear (apparently, he was a shipping magnate who had given his ships somewhat suspicious names like “Voltaire” and “Rousseau”).  He died in 1831 and his will established a school for orphans.  But the will also provided that “no ecclesiastic, missionary, or minister, or any sect whatever” should ever set foot in the school because “as there is such a diversity of opinion amongst them, I desire to keep the tender minds of the orphans who are to derive advantage from this bequest free from the excitement which clashing doctrines and sectarian controversy are so apt to produce.”  Instead, the teachers at the orphanage were to “take pains to instill into the minds of the scholars the purest principles of morality,” and these noble ambitions demanded the purging of religion.  The will was contested by Girard’s relatives (who were represented by Daniel Webster) and eventually the case made its way to the Court.  Here is Kabala’s description (p.149):

[I]n his oration before the court, [Webster] endorsed the idea that the only true charity was a Christian charity.  According to Webster, Girard’s school was a school of ‘mere, sheer, low, ribald, vulgar deism and infidelity’….Webster cited both blasphemy cases and restrictions on oath-takers as evidence of his claims that Christianity was part of the common law and that the health of society depended upon religious faith.  He did, however, take pains to assert that his was a non-sectarian Christianity, ‘general, tolerant Christianity, Christianity independent of sects or parties, that Christianity to which the sword and the fagot are unknown.’

Many hailed Webster’s oration before the court as a masterpiece….Joseph Story, by now the senior Associate Justice on the court, was less impressed with it.  He wrote to his wife that he was

not a little amused with the manner in which…the language of the Scriptures, and the doctrines of Christianity, were brought in to point the argument; and to find the Court engaged in hearing homilies of faith, and expostulations of Christianity.

Story eventually wrote an unanimous opinion for the court upholding Girard’s will as valid….He later wrote to James Kent, who despite his hostility toward blasphemers and atheists had written to Story supporting his decision, that Webster’s speech had been a mere ‘address to the prejudices of the clergy.’

However, Story’s opinion, while it upheld Girard’s will, was not a repudiation of the idea that Christianity was a part of the common law.  Rather, Story explicitly endorsed the belief ‘that the Christian religion is a part of the common law of Pennsylvania.’ The rest of the decision attempted to enunciate the Protestant non-sectarian consensus as it had developed by 1844, guaranteeing the privileged position of Christianity while preserving the right of polite disagreement from it.

Michaelson on the Religious Roots of American Antinomianism

Jay Michaelson (Ph.D. student at Hebrew University) has posted Hating the Law for Christian Reasons: The Religious Roots of American Antinomianism.  The abstract follows.

Popular American law-talk is a religious discourse. While Americans routinely valorize the “rule of law” and “common sense,” they express hatred for lawyers and laws, which are supposedly drowning our country in a sea of regulation and litigation. What explains this curious ambivalence is a Protestant ethic, beginning with the Apostle Paul, who, in an explicit rejoinder against Judaism, denied that the law (which governs the body) is a path to salvation (which is a matter of the soul). The result is a philosophy of “law without laws,” a religious antinomianism that has shaped, explicitly and implicitly, such disparate phenomena as the jury system, debates over the common law, and contemporary jeremiads about litigation and regulation.

This article, forthcoming in the anthology “Jews and the Law,” edited by Suzanne Last Stone and Ari Mermelstein, traces this American antinomianism in secular and religious sources. It begins by analyzing three different moments in American popular legal history: the Clinton impeachment, the debates surrounding the adoption of the English common law in the early republic, and discourse about the value of the jury from the Colonial period. The paper then turns to the religious sources, chiefly Paul’s letters to the Romans and Corinthians, and later texts by Augustine, Aquinas, and Luther. It concludes by observing that the contemporary American mistrust of law is not a secular, civic, or jurisprudential ideology but a deep, religious conviction.

Goodman, “Banished: Common Law and the Rhetoric of Social Exclusion in Early New England”

This July, University of Pennsylvania Press published Banished: Common Law and the Rhetoric of Social Exclusion in Early New England by Nan Goodman (University of Colorado). The publisher’s description follows.

 A community is defined not only by inclusion but also by exclusion. Seventeenth-century New England Puritans, themselves exiled from one society, ruthlessly invoked the law of banishment from another: over time, hundreds of people were forcibly excluded from this developing but sparsely settled colony. Nan Goodman suggests that the methods of banishment rivaled—even overpowered—contractual and constitutional methods of inclusion as the means of defining people and place. The law and rhetoric that enacted the exclusion of certain parties, she contends, had the inverse effect of strengthening the connections and collective identity of those that remained.

Banished investigates the practices of social exclusion and its implications through the lens of the period’s common law. For Goodman, common law is a site of negotiation where the concepts of community and territory are more fluid and elastic than has previously been assumed for Puritan society. Her legal history brings fresh insight to well-known as well as more obscure banishment cases, including those of Anne Hutchinson, Roger Williams, Thomas Morton, the Quakers, and the Indians banished to Deer Island during King Philip’s War. Many of these cases were driven less by the religious violations that may have triggered them than by the establishment of rules for membership in a civil society. Law provided a language for the Puritans to know and say who they were—and who they were not.Banished reveals the Puritans’ previously neglected investment in the legal rhetoric that continues to shape our understanding of borders, boundaries, and social exclusion.