The Common Law and the Religious Foundations of the Rule of Law Before Casey

Abstract

This paper describes the religious foundations of the rule of law, and especially the rule of law embraced within the common law. It also notes how a departure from religious foundations yields a change in the rule of law, marking that change in the opinion of the United States Supreme Court in Planned Parenthood v. Casey. Part I of this Article will briefly note some important religious underpinnings of different legal systems in order to demonstrate the inherent connection between religion and the rule of law. Part II will explore the influence of Christianity on Anglo-American common law regarding the fundamental tenets underlying the rule of law. Then, in Part III, this Article will highlight Casey as a seminal case showing the judiciary's increasing willingness to depart from foundations that previously characterized the use of stare decisis. Part IV concludes that this departure from traditional foundations will result in a lawlessness that bodes ill.

Keywords: rule of law, common law, jurisprudence, law and religion, legal history