question regarding the basis of US law

[CincyInDC]

Hi all, this is not my bet or anything, but I thought it was interesting enough to bring up to the group.

Is the basis of US law

1) the 10 commandments
b) British common law
4) the US Constitution

I remember at some point hearing it was actually British common law. The founders needed a starting point for the mundane Laws that weren't "on the books" as the US was a fledgling nation. Sounds like a reasonable answer. Anyone have something a little more concrete?

The friend of mine in the middle of the bet...well, it's not really a bet so much as a family feud...is certain her sister is wrong when the sister says it's the 10 commandments. Separation of church and state ought to have nippped that one pretty quickly, but I'm not involved, thank goodness.

[rudi32]

If I recall from all of the history classes, I think you are correct cincy, I think its based partly on common law, with some other thrown in.

[Homer_Rice]

The short answer is the Constitution. That is the document which elicits and enumerates the concepts which serve as the touchstone for the republic. The Constitution is superior to positive law in this country, which is why specific enactments are either in conformance or non-compliance with the Constitution. That's what our court system, and especially the Supreme Court, is all about.

But a more complex answer is found by asking, "What intellectual strains informed the founders such that they were able to produce such a document?" In this respect, British common law played a role, as did various other traditions--such as the continental natural law tradition associated with folks like Jean Bodin, Hugo Grotius, and Samuel Pufendorf, among others. You may have never even heard of a fellow named Emmerich Vattel, but he's cited by Hamilton in the Federalist Papers, and Vattel is explicitly in the tradition of Wolff and Leibniz.

It's the confluence of these strains which inform not only the basis of our law, but also our interpretation of it. It's why there are divergent, and sometimes contradictory, claims about the nature of our Constitution and it's intent. Sometimes that causes confusion; but, in my opinion, it also explains the vibrance of our form of governance. The principle of "hashing things out" through legal dialogue and interpretation is a fairly sacrosant element of our social structure. It's principled, but also flexible enough to keep us from killing each other.

Something we take for granted it the fact that we have crafted a system which makes the peaceful transfer of power matter of fact. That's an idea which also has its roots in some of the same traditions which informed the founders when they composed the primary legal document of this nation. But we actually have managed to pull it off for over 200 years, whereas in some countries, coups and counter-coups are a significant aspect of their history.

[Go Tory Go!]

[quote name='CincyInDC' post='722714' date='Nov 10 2008, 10:39 AM']Hi all, this is not my bet or anything, but I thought it was interesting enough to bring up to the group.

Is the basis of US law

1) the 10 commandments
b ) British common law
4) the US Constitution

I remember at some point hearing it was actually British common law. The founders needed a starting point for the mundane Laws that weren't "on the books" as the US was a fledgling nation. Sounds like a reasonable answer. Anyone have something a little more concrete?

The friend of mine in the middle of the bet...well, it's not really a bet so much as a family feud...is certain her sister is wrong when the sister says it's the 10 commandments. Separation of church and state ought to have nippped that one pretty quickly, but I'm not involved, thank goodness.[/quote]

Interesting question...now which answer should I pick - "1," "b," or "4"...

[Scoutforlife591]

Don't we always say we use a judeo-christian value system?

Meaning ten commandments et. al?

Honestly, if you say it's based on British common law, don't you then need to ask what was the basis of british common law?

Upon further review the answer of 10 commandments is incomplete in my view. Apparently common law primarily refers to civil cases. The Torah (of which the 10 commandments are included) or the Bible (of which the Torah is included) would be a better answer.

I'd would argue that BCL is based on it though, or at least some derivation of religious context.

Where's actium?

[url="http://en.wikipedia.org/wiki/Common_law#History_of_the_common_law"]http://en.wikipedia.org/wiki/Common_law#Hi..._the_common_law[/url]

[Homer_Rice]

Common law is based on precedent. In the case of the British, they have no formal written Constitution. The natural law tradition is based upon philosophical conceptions of equity and justice. One of the places where conflicts sometimes occurs. Lots of interesting Elizabethan literature examined this conflict--most famously, Shakespeare's "Merchant of Venice."

I'm not so sure that I would call the judeo-christian ethical system the source of our legal system as much as I would suggest that it was the social context (taken implicitly and very seriously by the culture of the 16th-18th century period.) It was the "ocean" in which concepts of law and justice (in the West) "swam." In this sense j-c ethics are very important.

But that doesn't make this a Christian nation.

[Scoutforlife591]

[quote name='Homer_Rice' post='722837' date='Nov 10 2008, 07:11 PM']Common law is based on precedent. In the case of the British, they have no formal written Constitution. The natural law tradition is based upon philosophical conceptions of equity and justice. One of the places where conflicts sometimes occurs. Lots of interesting Elizabethan literature examined this conflict--most famously, Shakespeare's "Merchant of Venice."

I'm not so sure that I would call the judeo-christian ethical system the source of our legal system as much as I would suggest that it was the social context (taken implicitly and very seriously by the culture of the 16th-18th century period.) It was the "ocean" in which concepts of law and justice (in the West) "swam." In this sense j-c ethics are very important.

But that doesn't make this a Christian nation.[/quote]

Let me be clear that I'm replying to make three different and separate points.

1st, the social context at the time was HIGHLY religious. Church of England and Catholicism would have ruled the day at any given time.

2nd, US law is most certainly based on J-C values. It may be a modern or progressive now, since we don't wear burkas, but just think about the laws and how they evolved. Gay sex laws, only now repealing gay marriage, adultery laws, child care laws, sexual harassment, capital punishment etc. And then there are the shinier things life equal rights, Life Liberty...etc (unless your gay). And while many Americans would like to do away with a lot of these social values laws, the law remains conservatively J-C.

3rd, and most importantly a separate statement of fact. The US is most certainly "Christian" there really isn't a county that can touch us. There at about 80% in the last census. We're are a bunch of Jesus Freaks, at least that's what we say.

In terms of J-C percentages, England comes close for protestants, Israel for Jewish traditions, and Italy for the catholics.

[Homer_Rice]

[quote name='Scoutforlife591' post='722882' date='Nov 11 2008, 12:15 AM']Let me be clear that I'm replying to make three different and separate points.

1st, the social context at the time was HIGHLY religious. Church of England and Catholicism would have ruled the day at any given time.[/quote]
Agree on predominance of faith if you include the non-practicing folks, too. Though the CoE was considered to be part of the problem for many and Catholicism was looked at a potentially subversive by many.

[quote]2nd, US law is most certainly based on J-C values. It may be a modern or progressive now, since we don't wear burkas, but just think about the laws and how they evolved. Gay sex laws, only now repealing gay marriage, adultery laws, child care laws, sexual harassment, capital punishment etc. And then there are the shinier things life equal rights, Life Liberty...etc (unless your gay). And while many Americans would like to do away with a lot of these social values laws, the law remains conservatively J-C.[/quote]
Based in values--agree. Source of law--disagree, if one means what the nuttier folks among us are promoting.

[quote]3rd, and most importantly a separate statement of fact. The US is most certainly "Christian" there really isn't a county that can touch us. There at about 80% in the last census. We're are a bunch of Jesus Freaks, at least that's what we say.

In terms of J-C percentages, England comes close for protestants, Israel for Jewish traditions, and Italy for the catholics.[/quote]
Probably better to say that the bulk of citizens maintain some allegiance to one or another variation of christian faith. But it isn't one's christianity which makes one a citizen. (But I think you know and agree with that.)

[Scoutforlife591]

[quote name='Homer_Rice' post='722896' date='Nov 11 2008, 02:11 AM']Agree on predominance of faith if you include the non-practicing folks, too. Though the CoE was considered to be part of the problem for many and Catholicism was looked at a potentially subversive by many.


Based in values--agree. Source of law--disagree, if one means what the nuttier folks among us are promoting.


Probably better to say that the bulk of citizens maintain some allegiance to one or another variation of christian faith. But it isn't one's christianity which makes one a citizen. (But I think you know and agree with that.)[/quote]

Right, based in values different from source of law, though I don't think we have a definitive answer there yet.

And yes, your paranthetical assumption is correct.

[Actium]

Obviously, this analysis is much simplified because it takes into account only US law, not the laws of the respective states, which I would argue were more important to the early leaders of our young nation. For them, the federal government was supposed to be the referee of the states, and do only the things it didn't make sense for the individual states to do (print money, regulate disputes among the states, laws affecting all the states, provide for defense of all the states, etc.).

So, to be a contrarian, I'm going to say None of the Above. Britain is of course a unitary system, not a federal system, and so we would not apply common law directly to the federal US government, as that would not make sense. Common Law is judge-made law, and we have that in the US as well--basically, when judges get to a case they can't make sense of, they will invent a solution to apply to the facts. Most of the time the legislatures agree with them, and may codify it in statutes. Maybe not. But BCL has more to do with If X, then Y, rather than something that provides the foundation of US Law. Congress did codify many of these principles, but I think that has more to do with pragmatism rather than ideology. In short, they needed for something to be there, so why not use what they knew best to provide for the practical governance of the fledling nation?

As for the 10 Commandments, those are very much related to Hammurabi's Code, and are so basic as to apply to almost every society. It is too generalized to say it provides the foundation of US Law, as it is more appropriate to say it provides the basis for human society in general. This is not a religous application, as I believe all Hammurabi (and others) did was codify the best of human behavior, which is necessary to make society self-perpetuating.

Now, as for the US Constitution, I believe that is the product of other philosophies, and as such those underlying philosophies of Locke and Hobbes (although for Hobbes only the Social Contract, not the absolute monarchism) are operative. Furthermore, the US Constitution has become essentially meaningless on its own, and has become nothing more than the hive-mind of the current SCOTUS. So, whatever they say it is, it is. It has no instrinsic meaning anymore.

So what, then, is US Law based on? I will say: Nothing. It is nothing more than a random outcome of numerous personalities, ad hoc solutions, and practical compromises of local issues. Looking for a deeper meaning is natural, but assumes the Founders had a plan and knew what they were doing. They didn't, it is just mythologized ex post facto to provide a sense of legitimacy.

[Jason]

[quote name='Homer_Rice' post='722734' date='Nov 10 2008, 12:48 PM']The short answer is the Constitution. That is the document which elicits and enumerates the concepts which serve as the touchstone for the republic. The Constitution is superior to positive law in this country, which is why specific enactments are either in conformance or non-compliance with the Constitution. That's what our court system, and especially the Supreme Court, is all about.

But a more complex answer is found by asking, "What intellectual strains informed the founders such that they were able to produce such a document?" In this respect, British common law played a role, as did various other traditions--such as the continental natural law tradition associated with folks like Jean Bodin, Hugo Grotius, and Samuel Pufendorf, among others. You may have never even heard of a fellow named Emmerich Vattel, but he's cited by Hamilton in the Federalist Papers, and Vattel is explicitly in the tradition of Wolff and Leibniz.

It's the confluence of these strains which inform not only the basis of our law, but also our interpretation of it. It's why there are divergent, and sometimes contradictory, claims about the nature of our Constitution and it's intent. Sometimes that causes confusion; but, in my opinion, it also explains the vibrance of our form of governance. The principle of "hashing things out" through legal dialogue and interpretation is a fairly sacrosant element of our social structure. It's principled, but also flexible enough to keep us from killing each other.

Something we take for granted it the fact that we have crafted a system which makes the peaceful transfer of power matter of fact. That's an idea which also has its roots in some of the same traditions which informed the founders when they composed the primary legal document of this nation. But we actually have managed to pull it off for over 200 years, whereas in some countries, coups and counter-coups are a significant aspect of their history.[/quote]

Our government USED to be based on the Constitution, but hasn't been since FDR.

[Homer_Rice]

[quote name='Jason' post='723603' date='Nov 14 2008, 02:18 PM']Our government USED to be based on the Constitution, but hasn't been since FDR.[/quote]
You really ought to put some pants on before you go out in public, Jason.

[Homer_Rice]

[quote name='Actium' post='723584' date='Nov 14 2008, 12:32 PM']Obviously, this analysis is much simplified because it takes into account only US law, not the laws of the respective states, which I would argue were more important to the early leaders of our young nation. For them, the federal government was supposed to be the referee of the states, and do only the things it didn't make sense for the individual states to do (print money, regulate disputes among the states, laws affecting all the states, provide for defense of all the states, etc.).

So, to be a contrarian, I'm going to say None of the Above. Britain is of course a unitary system, not a federal system, and so we would not apply common law directly to the federal US government, as that would not make sense. Common Law is judge-made law, and we have that in the US as well--basically, when judges get to a case they can't make sense of, they will invent a solution to apply to the facts. Most of the time the legislatures agree with them, and may codify it in statutes. Maybe not. But BCL has more to do with If X, then Y, rather than something that provides the foundation of US Law. Congress did codify many of these principles, but I think that has more to do with pragmatism rather than ideology. In short, they needed for something to be there, so why not use what they knew best to provide for the practical governance of the fledling nation?

As for the 10 Commandments, those are very much related to Hammurabi's Code, and are so basic as to apply to almost every society. It is too generalized to say it provides the foundation of US Law, as it is more appropriate to say it provides the basis for human society in general. This is not a religous application, as I believe all Hammurabi (and others) did was codify the best of human behavior, which is necessary to make society self-perpetuating.

Now, as for the US Constitution, I believe that is the product of other philosophies, and as such those underlying philosophies of Locke and Hobbes (although for Hobbes only the Social Contract, not the absolute monarchism) are operative. Furthermore, the US Constitution has become essentially meaningless on its own, and has become nothing more than the hive-mind of the current SCOTUS. So, whatever they say it is, it is. It has no instrinsic meaning anymore.

So what, then, is US Law based on? I will say: Nothing. It is nothing more than a random outcome of numerous personalities, ad hoc solutions, and practical compromises of local issues. Looking for a deeper meaning is natural, but assumes the Founders had a plan and knew what they were doing. They didn't, it is just mythologized ex post facto to provide a sense of legitimacy.[/quote]
Good points, Actium. Although I think you're mistaken on the random outcome aspect. Read the writings of enough of the Founders and you would have to conclude that many of them had keenly developed ideas about the nature of law and what our republic ought to be. Adms, Jay, Hamilton and Jefferson are pretty explicit advocates for variants on the theme, drawing from recent European concepts as well as classical. You can assert that is has no meaning for our present day, and to some extent you would be correctly pointing out something important--but that "something important" would tell us more about the poverty of the modern mind than it does of those whom created this nation. Jefferson kept a portrait of Locke in his house and I suspect that it was there for a reason.

In that vein, I just looked around this room. I have 16 items on the wall. Take away the 5 whiteboard/corkboards, and it breaks down like this: a diploma, my honorable discharge, 1 pic each of the ships I served on in the Navy, 3 maps, portraits of Lincoln and Beethoven, Trumbull's famous painting of the Signing of the Declaration, and Raphael's "School of Athens." Even if one concedes the "metaphoric" nature of the last two, anyone not knowing me would have to conclude that there is something thematic and full of intent by this choice of wall hangings. Just so, our observations of the leavings of the Founders. What we have to be careful of is this: to what extent are we approaching that actual intent of the object(s) under observation, in contrast to what extent are we allowing our own preferences and predilections to color those observations?

[Actium]

[quote name='Homer_Rice' post='723639' date='Nov 14 2008, 05:57 PM']Good points, Actium. Although I think you're mistaken on the random outcome aspect. Read the writings of enough of the Founders and you would have to conclude that many of them had keenly developed ideas about the nature of law and what our republic ought to be. Adms, Jay, Hamilton and Jefferson are pretty explicit advocates for variants on the theme, drawing from recent European concepts as well as classical. You can assert that is has no meaning for our present day, and to some extent you would be correctly pointing out something important--but that "something important" would tell us more about the poverty of the modern mind than it does of those whom created this nation. [b]Jefferson kept a portrait of Locke in his house and I suspect that it was there for a reason.[/quote][/b]

Because he was dreamy?

[quote]In that vein, I just looked around this room. I have 16 items on the wall. Take away the 5 whiteboard/corkboards, and it breaks down like this: a diploma, my honorable discharge, 1 pic each of the ships I served on in the Navy, 3 maps, portraits of Lincoln and Beethoven, Trumbull's famous painting of the Signing of the Declaration, and Raphael's "School of Athens." Even if one concedes the "metaphoric" nature of the last two, anyone not knowing me would have to conclude that there is something thematic and full of intent by this choice of wall hangings. Just so, our observations of the leavings of the Founders. What we have to be careful of is this: to what extent are we approaching that actual intent of the object(s) under observation, in contrast to what extent are we allowing our own preferences and predilections to color those observations?[/quote]

Yeah, I was pretending to be postmodernist, but my heart wasn't in it. You had basically already stolen my answer, but did so in a much better way than I would have.

So you are a big Beethoven fan? I am as well, my favorite work of his is probably the Missa Solemnis. Fancy a bit of the ultraviolence? On a side note, I am afraid that my contrarian side somewhat denigrates the "popular" choice, and so I usually gravitate towards the lesser-known-figures. For an example, I prefer Schubert to Beethoven, Haydn to Mozart, Handel to Bach, etc. I am concerned that I am this way in all respects, and ergo am incapable of enjoying things that are popular as much as I might.

[Homer_Rice]

[quote name='Actium' post='723643' date='Nov 14 2008, 07:30 PM']Because he was dreamy? [/quote]
Oh my. That conjures up a horrific picture in my head!

[quote]So you are a big Beethoven fan? I am as well, my favorite work of his is probably the Missa Solemnis. Fancy a bit of the ultraviolence? On a side note, I am afraid that my contrarian side somewhat denigrates the "popular" choice, and so I usually gravitate towards the lesser-known-figures. For an example, I prefer Schubert to Beethoven, Haydn to Mozart, Handel to Bach, etc. I am concerned that I am this way in all respects, and ergo am incapable of enjoying things that are popular as much as I might.[/quote]
Yes. I tend to lean towards string stuff but I sometimes go on a piano kick a la Bach. I like all the folks you mention, plus others like Boccherini, Corelli, etc..., too. Lately, been playing these two quite a bit, been sitting on my shelf for a while till I dusted them off.

[url="http://www.amazon.com/Arcangelo-Corelli-Concerti-Grossi-Op/dp/B0000057DA/ref=sr_1_10?ie=UTF8&s=music&qid=1226706789&sr=1-10"]12 Concerti Grossi Op 6.[/url]
[url="http://www.amazon.com/Brahms-Quintets-Sextets/dp/B000001G8J/ref=sr_1_3?ie=UTF8&s=music&qid=1226706831&sr=1-3"]Brahms/Amadeus Quartet[/url]

[Actium]

[quote name='Homer_Rice' post='723648' date='Nov 14 2008, 07:03 PM']Oh my. That conjures up a horrific picture in my head!


Yes. I tend to lean towards string stuff but I sometimes go on a piano kick a la Bach. I like all the folks you mention, plus others like Boccherini, Corelli, etc..., too. Lately, been playing these two quite a bit, been sitting on my shelf for a while till I dusted them off.

[url="http://www.amazon.com/Arcangelo-Corelli-Concerti-Grossi-Op/dp/B0000057DA/ref=sr_1_10?ie=UTF8&s=music&qid=1226706789&sr=1-10"]12 Concerti Grossi Op 6.[/url]
[url="http://www.amazon.com/Brahms-Quintets-Sextets/dp/B000001G8J/ref=sr_1_3?ie=UTF8&s=music&qid=1226706831&sr=1-3"]Brahms/Amadeus Quartet[/url][/quote]

My other faves are Mahler, Bruckner, and Berlioz. I am also really getting into the organ (easy to make jokes about that line), so Vierne and Widor are becoming more popular in my rotation.

[Jamie_B]

[quote name='Homer_Rice' post='723637' date='Nov 14 2008, 05:38 PM']You really ought to put some pants on before you go out in public, Jason.[/quote]

You know what gets me, is that were living in a time where our crisis is not unlike the one FDR had to face, I mean the parallels are there, and yet some people still miss what he did.

[Homer_Rice]

[quote name='Jamie_B' post='723683' date='Nov 15 2008, 02:55 AM']You know what gets me, is that were living in a time where our crisis is not unlike the one FDR had to face, I mean the parallels are there, and yet some people still miss what he did.[/quote]
It's not so much that that irks me, Jamie--although you are right on your point. A fair amount of the legislation that FDR pushed was overruled by the courts. And at one point FDR did try to expand and pack the Supreme Court which was kind of a slimy run-of-the-mill politician's end around. The principle of judicial review had been well-established in the early days of the Marshall Court, so the appropriate question to ask in this instance would be: "What was the attitude of the Roosevelt admin towards judicial review?" The answer is, for the most part, it was respected. That's part of the whole give and take of checks and balances.

What bothers me is that Jason shows up from time to time to leave a one-liner that, without any supporting argument, cannot be taken seriously. Which wouldn't be so bad except that it's like a man walking through a crowded room at a party to cut a juicy fart as he slips out the door. You would only momentarily notice the person if it weren't for the nasty smell left behind. Now everybody cuts a "fart" in a social situation from time to time, it's a forgivable part of human weakness. But that's his modus operandi and coming from a person who clearly showed his support for what might truly be the fastest and loosest admin with regard to the Constitution in the entire history of this nation, it really stinks. So to speak. At least have the balls to make an argument for your views.