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Religious Foundations of Law in the West: An Historical Perspective*

Abstract

The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken.

Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. “We are a religious people,” wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, “whose institutions presuppose a Supreme Being.” Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called “the laws of Nature and Nature's God.”

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Parts I, IV, and V of this article are based largely on H. Berman, Law and Revolution: The Formation of the Western Legal Tradition, scheduled for Fall publication, 1983 by the Harvard University Press, to which grateful acknowledgement is made for permission to reproduce substantial portions of pages 31-33, 37-40, and 558. Several paragraphs are also reproduced from H. Berman, The Interaction of Law and Religion (1974). With respect to the rest of the article, copyright is reserved by the author. © Harold J. Berman.

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This list contains references from the content that can be linked to their source. For a full set of references and notes please see the PDF or HTML where available.

John H. Langbein , Prosecuting Crime in the Renaissance: England, Germany, France (1974)

J. Langbein , Torture and the Law of Proof: Europe and England in the Ancien Regime (1977)

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Journal of Law and Religion
  • ISSN: 0748-0814
  • EISSN: 2163-3088
  • URL: /core/journals/journal-of-law-and-religion
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