When the Catholic Faith Was Part of the Common Law: The Influence of the Catholic Intellectual Tradition on the Common Law

Faith in Law, Law in Faith (Rafael Domingo, Gary S. Hauk, and Timothy P. Jackson eds., Brill Forthcoming)

27 Pages Posted: 16 May 2023 Last revised: 15 Jun 2023

Date Written: June 14, 2023

Abstract

This essay considers the influence of the Catholic intellectual tradition on the common law. As a preliminary matter, the essay notes that the term "Catholic intellectual tradition" is of recent vintage, though its referent is much older. It identifies three mechanisms of influence: inheriting, conversing, and generating. For inheriting, the essay notes that some common law doctrines, such as the Chancellor's conscience, were inherited from the Catholic intellectual tradition. For conversing, the essay notes the conversation across confessional boundaries in early modern Europe, which was facilitated by the use of Latin and scholastic curricula well after the Reformation. This point, while familiar to early modern intellectual historians because of revisionist work over the last quarter century, may be surprising to legal scholars. Finally, for generating, this essay shows that the common law judges, by their own lights, were participants in the Catholic intellectual tradition. This is demonstrated, for example, by analysis of Chief Justice Vaughan's opinion in Thomas v. Sorrell (1673/4). When this intellectual tradition is viewed without anachronistic narrowness, its influence on the common law is substantial.

Keywords: common law, religion, Christianity, Catholic intellectual tradition, Reformation

Suggested Citation

Bray, Samuel L., When the Catholic Faith Was Part of the Common Law: The Influence of the Catholic Intellectual Tradition on the Common Law (June 14, 2023). Faith in Law, Law in Faith (Rafael Domingo, Gary S. Hauk, and Timothy P. Jackson eds., Brill Forthcoming), Available at SSRN: https://ssrn.com/abstract=4439728

Samuel L. Bray (Contact Author)

Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

HOME PAGE: http://law.nd.edu/directory/samuel-bray/

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