The Natural Law: A Study in Legal and Social History and Philosophy

Heinrich Rommen, The Natural Law: A Study in Legal and Social History and Philosophy (Thomas R. Hanley trans., Liberty Fund 1998) (1936).

From the publisher: Originally published in German in 1936, The Natural Law is the first work to clarify the differences between traditional natural law as represented in the writings of Cicero, Aquinas, and Hooker and the revolutionary doctrines of natural fights espoused by Hobbes, Locke, and Rousseau. Beginning with the legacies of Greek and Roman life and thought, Rommen traces the natural law tradition to its displacement by legal positivism and concludes with what the author calls "the reappearance" of natural law thought in more recent times. In seven chapters each, Rommen explores "The History of the Idea of Natural Law" and "The Philosophy and Content of the Natural Law." In his introduction, Russell Hittinger places Rommen's work in the context of contemporary debate on the relevance of natural law to philosophical inquiry and constitutional interpretation.

The Intellectual Context of Natural Law

James V. Schall, The Intellectual Context of Natural Law, 38 Am. J. Juris. 85 (1993).

From the author's introduction:
The subject of natural law, though one of the really fascinating subjects of our philosophic and legal tradition, is not widely considered today even in law schools or political science departments, let alone in philosophic or theological treatises, all of which actually have something to say about the subject. However, it is a perennial theme of remarkable vigor and interest to those perceptive thinkers who are brave enough to reconsider the topic.

In Search of a Christian Commonwealth

Daniel L. Dreisbach, In Search of a Christian Commonwealth: An Examination of Selected Nineteenth-Century Commentaries on References to God and the Christian Religion in the United States Constitution, 48 Baylor L. Rev. 927 (Fall 1996).

Justinian: Lieutenant of Christ, Legislator for Christendom

Craig A. Stern, Justinian: Lieutenant of Christ, Legislator for Christendom, 11 Regent U. L. Rev. 151 (1998-99).

Christianity and Law

Stephen C. Perks, Christianity and Law: An Enquiry into the Influence of Christianity on the Development of English Common Law (Avant 1993).

A very brief history, traveling the same ground that Berman covers so much more thoroughly (Perks’s book is a mere 59 pages). A good introduction, but a very summary treatment.

God's Revelation: Foundation for the Common Law

Herbert W. Titus, God’s Revelation: Foundation for the Common Law, 4 Regent U. L. Rev. 1 (1994).

This relatively short article (37 pages) provides an excellent introduction to the common law and its Christian roots. The article touches on all the fundamental issues for the Christian lawyer: It is an excellent introduction to natural law, the law of property, biblical jurisdiction, and religious freedom. Because it is short and introduces the student to a wide range of important biblical issues, it is a must read.

Law and Revolution

Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Harvard 1983).

Professor Berman, in one of the 20th century's most important legal histories,

concludes that ‘the history of Western law, and especially of its origins, reveals its rootedness in the deepest beliefs and emotions of a people. Without the fear of purgatory and the hope of the Last Judgment, the Western legal tradition could not have come into being’ (p. 558). This is the challenging thesis of a powerfully argued history and theory of law and jurisprudence. Berman methodically (and repeatedly) takes aim at the prevailing dogmas and Idols of the Theater in conventional scholarship of every trendy ideological stripe in a synthesis of polemic, analysis, and narrative history presenting a master of his craft at his magisterial best. This is an outstanding book, perhaps a great one.

Ellis Sandoz, Book Review, 45 La. L. Rev. 1111 (1985).

Law and Revolution is neither an easy nor a quick read (558 pages, plus notes and index), but it is an important book, well worth the effort.

The Weightier Matters of the Law

The Weightier Matters of the Law: Essays on Law and Religion (John Witte, Jr. & Frank S. Alexander eds., 1988).

This book is a great collection of essays in tribute to Harold J. Berman.

Legal History (pp. 1-170):
This section contains six essays on “Historical Interaction of Law and Religion,” including essays on “Ockham and the Origin of Individual Rights,” “Marriage Law in the Lutheran Reformation,” and “Religion, Law, and Revolution in the Shaping of Harvard College.”

Jurisprudence (pp. 179-335):
This section, "Religious Perspectives on Law," contains seven essays, including: James Luther Adams, Conceptions of Natural Law, From Troeltsch to Berman (179); W. Cole Durham, Jr., Religion and the Criminal Law: Types and Contexts of Interaction (193); John V. Orth, Casting the Priests Out of the Temple: John Austin and the Relation Between Law and Religion (229).

A Higher Law: Readings

Jeffrey A. Brauch, A Higher Law: Readings on the Influence of Christian Thought in Anglo-American Law (2nd ed. 2008). xix, 479 pp.

This work, prepared as an introduction to basic principles of legal philosophy and legal history for first-year law students, “encourages students to recognize and seek the biblical foundations of law and legal institutions.” The comments and questions throughout point the reader to major issues and further study. The readings are edited specifically for 1Ls, so it is well suited to the inquiring novice. Its breadth and depth of inquiry, however, give plenty of fodder to the scholar as well. This is a great introduction to the basic issues in biblical integration and a helpful outline of the history of the common law.

Legal History: the first section of this book gives a brief but comprehensive look at the foundation of Anglo-American common law (pp. 1-191). Chapter 1 contains historical examples of higher law thinking from Aquinas, Blackstone, and others (pp. 3-80). Chapter 2 focuses more closely on examples of higher law thinking within the common law itself (pp. 81-127). And Chapter 3 discusses how higher law thinking has been replaced by legal relativism (pp. 129-91).

Criminal Law: the readings on Criminal Law provide a brief, but deep introduction to the major philosophical issues in the criminal law (pp. 195-283). Excerpts from Blackstone, Charles Colson, Judge Nygaard, Jeff Tuomala, C.S. Lewis, and others center on human responsibility, competing theories of punishment, and the nature of the criminal law.

Civil & Criminal Procedure: the section on civil and criminal procedure (pp. 285-316) provides a brief history of a few procedural protections of the common law and the sources from which these protections arose.

International Law: in this collection of essays and excerpts, Dean Brauch includes a chapter discussing preemptive war and the just war theory (pp. 359-82).

Relevance of the Higher Law: Part C of this book, “Current Thinking on How God’s Law Should Affect Man’s Law,” excerpts definitive works from major modern movements (pp. 383-471). The chapter titles in Part C indicate the focus: "What is the Role of the Old Testament Law Today?" and "To What Extent Should Higher Law Be Applied to Modern Society?" This is a fine introduction to the major modern themes in the state, the church, and the law.