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Abstract:
At the time of nation's founding, the concept of stare decisis in our courts was very different from what it has become today. The purpose of this Article is to explore the meaning of stare decisis - precedent - as it would have meant to Chancellor James Kent in his third edition of Commentaries on American Law, published in 1836. This Article considers the meaning of each sentence and phrase from a single paragraph in light of the contemporary case law from the English and American courts, common philosophical presuppositions, and writings from late eighteenth and early nineteenth centuries. The conclusion asserts that the idea of precedent was indeed important at the time of our founding but it was by no means the same as the doctrine of strict precedent we have today.

stare decisis, precedent, jurisprudence

Abstract:
Christian legal thinkers have shaped and formed Western law from the latter days of the Roman Empire until nearly our own age. Historically, Christianity is of immense importance to the shape and substance of Western law. However, in the United States today, Christian legal scholars who seek to apply self-consciously Christian norms to the resolution of legal problems are accustomed to thinking that their work is marginalized. Even so, American Christians who take their faith seriously, who see it as relevant to questions of law, should take up the task of explaining exactly how it is relevant, how it can help to resolve pressing legal problems. Harold Berman recently observed that "[w]ith rare exceptions, American legal scholars of Christian faith have not, during the past century, attempted to explain law in terms of that faith."

This article examines the three great antinomies - that is, contradictions within the law - of modern jurisprudence and suggests how Christian jurisprudence might help to resolve them. Three antinomies have come to shape much modern thinking about the nature and function of law: (1) Law consists of commands backed by power, force, and external compulsion, and questions concerning the rightness or justice of those commands are not to be considered when determining whether a particular act of sovereign will should be considered to be law. (2) Law and morality should and must be viewed as existing as separate and apart from one another, such that the moral content of a particular sovereign decree is not used in determining whether to count a particular sovereign decree as law. (3) In determining whether a particular command, rule, or principle should count as law, one is allowed only to consider its formal source, irrespective, once again, of its content.

These are three antinomies in legal analysis that the average lawyer works with every day and that the average student of jurisprudence takes for granted as part of the foundation of her or his view of the legal world. They are antinomies because they seem to be at war with our instincts as to what should or should not count as law. Indeed, they are at war with other deeply cherished elements of the legal order. Law should be about justice. Power should be in the service of justice. Law and morality should not occupy separate spheres. Law should not only regulate conduct, but should seem to be inherently good.

The author contends that contemporary jurisprudence, by which he means the legal positivism that has come to prevail especially in the Anglo-American academy, embodies within itself these serious contradictions - "antinomies" - which can best be resolved by paying studious attention to some of the teachings of modern Christian jurisprudes. In contrast to the great antinomies of positivism, Catholic social thought emphasizes the integral connections between justice and law; the inseparability of law from morals and values; and the need to ground the validity of law not in a formal analysis of state authority but in human nature itself.

Legal history, law and religion, Catholic social thought, jurisprudence

Abstract:
This Article draws inspiration from the work of Fr. John Lynch, especially his studies of canonical influence on secular legal orders. Fr. Lynch appreciated that, in common with other legal systems, canon law was not a self-contained system of rules that should be studied in isolation from other intellectual currents. He further understood the pervasive influence canon law has had on western law generally, secular as well as sacred.

While the paper's purpose is broad - to examine the relationship of religion, the state, and marriage, it is largely historical in focus and concerned with the ways in which medieval canon law both directly and through the mediation of early-modern Anglican canon law, influenced American jurists and judges of the nineteenth and twentieth centuries. It has a philosophical dimension also, in its contention that this historical record reflects an inevitable human reality - that law and religion, marriage and the state not only have historically influenced each other but that they must do so, as a condition of a healthy society.

Marriage has been associated, within the western tradition, for nearly two millennia, with religious insight. In all societies, marriage is signified by some form of symbolic action or exchange; it reflects commitments not only by the individuals involved, but by larger communities, whether they be family, church, locality, or something larger or smaller than these groups. Marriage is a commitment that embraces not only the good of the parties, but points to something larger - a given society's sense of the ultimate.

Law itself points to a larger substantive vision of the good. For this reason, some, like Harold Berman, argue that the law itself has a religious dimension that we deny at the risk of imperiling the soundness of a society's legal order. And this religious dimension of law, this sense that the law must embody some larger, more transcendent understanding of right and wrong, also lies behind and animates much of the contemporary debate over marriage. Legislative or judicial attempts to sever the traditional bonds among marriage, religion, and law, are, for these reasons, doomed to failure, in either the short or the long term.

Marriage, canon law, law and religion

Abstract:
The article places modern adoption legislation in a historical context by providing a historical overview of the regulation of adoption and the rights of children and parents in the three Abrahimic faiths: Orthodox Judaism, Roman Catholicism, and Sunni Islamic law.

Judaism, Catholicism, Islam, rights of the child, adoption, rights of the parent

Abstract:
This article considers the medieval uses of the language of rights to describe the legal status of children. It begins with the late antique Christian campaign against the ubiquitous pagan population-control measure of infant exposure. Christian jurists and emperors outlawed the ancient Roman "right of life and death" that the Roman patriarchal father exercised over his offspring. The article considers measures the Church sought to put in place to see to the needs of abandoned children in the early middle ages. It also considers the development in the high middle ages of canonistic devices to enforce the right of children born out of wedlock to obtain support from their fathers. The article also considers two basic freedoms adolescent children and young adults possessed, vis a vis their parents. Children had the right to seek their own marriage partner, free from outside coercion, including especially parental coercion. They also had the right to seek a vocation within the Church (although no one has a right to ordination or to monastic profession, individuals at least have the right to be free from parents' preventing such a choice from being made). The article uses as a case study the struggle Thomas Aquinas was forced to fight with his family, who did not wish him to pursue a vocation with the Dominican Order.

Canon law, legal history, children's rights, children and the law

Abstract:
Critics of efforts to amend the U.S. Constitution so as to ensure the continued legal vitality of marriage as involving exclusively a relationship between a man and a woman have asserted that this is an impermissible step to take because traditionally marriage has belonged to the states to regulate. In fact, the Supreme Court has implicated itself in marriage and domestic relations law nearly from the foundation of the Republic. This involvement, moreover, has greatly intensified over the last forty years, such that the Court has taken-over many important features of domestic relations law. To be sure, in a narrow sense, the contemporary Court has refrained from using its diversity jurisdiction to decide cases and controversies directly involving divorce, alimony, or child custody. But on many important issues - including divorce, contraception, abortion, and parental/child relations - the Court has felt itself compelled to establish the ground rules under which the states may legislate. In this context, it is clear that, far from being a violation of principles of federalism, the Federal Marriage Amendment is a proportionate and appropriate response to a takeover by the central government of state responsibility to regulate the marital relationship.

marriage, domestic relations, Supreme Court history

Abstract:
Institutions embrace rules of law and other norms governing human interaction. They help us to channel human behavior in certain ways and not in others. Necessarily, they also embrace the belief-systems that stand behind and animate the rules. They help to define social expectations and to set standards.

The institutional weight of marriage, for most of the last two thousand years, has been in favor of seeing marriage as the appropriate vehicle in which to give birth to and to raise children. The procreative dimension of marriage has been the central core organizing principle of the institutional - that is, the legal - understanding of marriage from the time of pre-Christian Roman law to the present, although it is currently endangered by various shifts in legal norms and public philosophies. But, for most of its history, it can fairly be said that the legal order of the West has dedicated itself, through a variety of rules and understandings, incentives and disincentives, to preserving marriage as a principal means of bringing into being the next generation. To have made this sort of claim even as recently as two or three decades ago might have appeared as stating the obvious. But in light of recent arguments about the nature and function of marriage - recently accepted by courts in the United States and Canada - reviewing the history of the procreative dimension of marriage seems like a worthwhile undertaking.

In this paper, the author considers four societies that have existed in the course of western history: pre-Christian classical Rome; the early medieval West of the sixth through eleventh centuries; the high middle ages of the twelfth through fifteenth centuries; and the English theologians and canon lawyers of the early modern period. In each of these societies a great emphasis is placed on marriage as the legitimate means of bringing into being the next generation. Indeed, the procreative dimension of marriage can be said, in each of these societies, to be the central organizing principle of legal analysis and social life.

Family law, marriage, legal history, institutional change

Abstract:
This article considers the various emergence of an explicitly recognized right to life in papal teaching and the canon law of the last century and a quarter. The Church's opposition to abortion is deeply embedded within the tradition and law of the Church. It was, however, only in recent times, since the middle twentieth century, really, that the Church began to speak explicitly of a right to life. This paper explores the consequences for papal thought of this explicit recognition of rights. By speaking of a right to life, the Church has moved beyond the abortion debate to embrace a variety of other concerns. This is not to say that abortion does not remain important. Direct participation in abortion is a crime at canon law that results in automatic excommunication. But the language of rights has allowed the Church to address such matters as the protection of refugees; the moral requirement of adequate health care; the odious use of child-soldiers; and the use of economic embargoes that have the effect of destroying the civilian infrastructure (and public health systems) of entire societies.

Canon law, children and the law, children's rights, abortion, reproductive rights, right to life

Abstract:
Our primary purpose is to enable the general reader to better appreciate the nature of the controversy regarding abortion, politicians, and admission to the Eucharist, to provide scriptural, historical, and canon law context on the Church's solicitude for innocent human life, on the duty of bishops to instruct and protect their flocks, on the obligations of Catholic lay faithful in public life and particularly of those with political power, on the preparation for and proper attitude of those who present themselves for communion, and on the meaning of communion including the appropriate circumstances in which the Eucharistic sacrament may or should be withheld. We conclude that those bishops who determine in light of pastoral circumstances in their dioceses that the Eucharist should be withheld from a particular person or that political leaders with certain attitudes should be directed to voluntarily refrain from approaching the altar have acted comfortably within church tradition and ecclesial authority. At the same time, we acknowledge that other bishops may determine that withholding of this sacrament is not the appropriate pastoral or prudential response to different circumstances and people in their dioceses, instead being committed to other affirmative actions or expressions as better-suited to promote the Church's witness to life. Passive silence, in the face of contemptuous and public disregard by those exercising political power for Church teaching on the fundamental matter of innocent human life, is not a moral or pastoral option. First, each of us need once again to undertake, as we did at the time of our Confirmation, that rigorous examination of our own consciences toward the end of being drawn ever more deeply into full communion with the Church through Reconciliation as appropriate and then our due reception of the Body and Blood of Christ at the Lord's Supper. Second, the Church and its leaders in the United States must candidly acknowledge the painful truth that too many of those sitting in the pews, including those congregants who hold public office, have not been adequately catechized and have not developed a fully formed conscience on fundamental matters of human life. Third, by preaching from the pulpit, by counseling in the pastoral office, by building stronger relationships with public officials, by provocation through prophetic messages in the public arena, or, yes, by appropriate exercise of ecclesial discipline, the bishops need to more productively engage with those who exercise political power and influence in our society, lest another generation, of the born and the unborn, be lost.

Abstract:
Is Hugo Grotius the father of international law? There are two schools of thought on this issue. The first asserts Hugo Grotius' supremacy as the father of international law. The United States Court of Appeals for the Ninth Circuit, the Virginia Supreme Court, and numerous scholars of international law all share in this sentiment. The second school of thought while acknowledging the importance and impact of Grotius' work in the international law arena, has found that paternity must lie elsewhere.

Richard Tuck (editor of the Liberty Fund reprint of the 1738 English-language translation of Grotius' De Jure Belli ac Pacis) sees this work by Grotius as the central foundational work of modern moral and political theory. Tuck stresses that Grotius should be seen as the creator of a new science of morality -- a science which would find its most important application in the moral analysis of warfare. It is more appropriate, I contend, to see Grotius as an heir to a juristic tradition that was already several hundred years old. His ability to draw from these classical sources and his unconscious adoption of distinctively medieval ways of viewing the world is evident in his use of rights language, his treatment of marriage and his debt to older ways of viewing relations among states.

Is this a case of dubious paternity? Absolutely, Grotius was a father, but he was no Adam. Clearly, he was not the first person to think important thoughts about politics or morality or even the relations among states. He retains his paternity, but he has become the father not of international law or the law of nations, but of an entirely new way of viewing everything from political obligations to natural rights. He remains an important figure who speaks to us today but his theories are not always original and when they are, they do not necessarily lead us to a better life.

Grotius, International law, political theory, natural rights, natural law

Abstract:
The debate raging today in the Supreme Court over the precedential value of foreign law is not new; in his tenure on the Supreme Court, Chief Justice Edward Douglass White made extensive use of Roman and Canon law when American law either proved inadequate or needed supplementation. While Justice White's jurisprudential excursions at times veered into activism, his reliance on outside sources was the natural action of a classically-trained jurist looking for universal legal truths to guide his opinions. Three cases illustrate the ways in which Justice White's spacious interpretation of foreign law finds the seeds of American jurisprudence in the remnants of ancient Rome.

Supreme Court, foreign legal citations, Roman law, canon law Edward Douglass White

Abstract:
The modern secular view of marriage as resting principally on the continuing affection and consent of both parties is a particular manifestation of a kind of philosophical liberalism that sees the marital relationship merely as an aggregation of individual interests and expressed in terms of rights. This secularized, highly individualistic view of marriage and the family and the rights of parties within those relationships has had an enormous impact on the shape of the American law of domestic relations over the last several decades.

However, this secularist viewpoint clashes with other strongly held and popular beliefs about marital relationships and especially with our instinctive sense that marriage should be about community formation: the parties to a marriage should not be pursuing purely egoistic interests, but should be engaged in meeting one another's needs and providing for the upbringing of their offspring. Today, a renewed focus on marital obligation is a necessary antidote to threatening trends in popular as well as legal culture.

In this book, Dr. Reid demonstrates that many elements of the traditional understanding of marriage developed from concepts about rights and corresponding responsibilities that began to take shape in twelfth-century scholastic jurisprudence. American judges and lawyers over the past two centuries were hardly the first to speak in a vocabulary of conjugal rights or duties arising from natural obligations. These understandings have deep roots in Western notions of marital relations. Dr. Reid explores the historical foundations of this alternative way of thinking and speaking about the marital relationship and explains how a language of rights came to be grafted, at a very early date in Western history, onto the idea of marriage.

In the medieval period, marriage was understood as having a certain natural structure that neither the parties themselves, nor even the church, were free to alter. Marriage was ordered to the good of both spouses and the procreation and upbringing of children. Within this ordered structure, the canonist scholars of the twelfth and thirteenth centuries recognized the existence of certain rights and obligations in order to ensure that the basic goods and goals of marriage were fulfilled. Through the historical developments explained in this book, a new picture of the law governing the marital relationship, from its historical origins in the medieval period, emerges.

Marriage, domestic relations, family, canon law, legal history, rights of women