TW Viewpoint | The Demise of LawJuly 25, 2018 | Stuart Wachowicz
What is the original source of many of our laws in Canada today? Have we lost our grasp on history and along with this are we witnessing the demise of law?
A recent comment on our Viewpoint entitled, "Is Tradition Important?" challenged the assertion that the Bible is in fact the primary source of the laws that make up the legal code of much of the western world. The comment reads:
I must disagree that The Bible is the source for 'most of our laws.' ...any actual modern laws that define us as 'Western' Cultures were only conceived during the Enlightenment, Protestant Reformation, etc.
Is this true? Did our laws come about from the concepts of men during the Enlightenment period or even on the basis of ancient texts such as Hammurabi's code? Is the Bible to be excluded as a primary source? It's time we opened a history book...
In order to understand the development of Canadian Law, we must first look at the history of British Law. In England the Anglo-Saxons were united as a people under the leadership of Alfred the Great. He ruled from AD 871 to 899 and "He appended to his laws a free translation of the Ten Commandments and an abridgement of the enactments of Exodus 21 to 23." (Encyclopedia Britannica 15th Ed. Vol 2, p 889).
During the reign of Henry VIII (1509-1547) marriage laws in England were refined using the Bible to determine who was permitted to marry with whom. Henry and his advisors decreed:
All persons may lawfully marry, but such as are prohibited by God's law. Henry cited Leviticus 18 as that which identified marriage relationships which are to be prohibited and cited in the marriage laws of the time were sections of Leviticus 20 ("The Canon law of the Henry VIII Divorce Case", Phillip Campbell, Madonna University, June 14, 2009).
Solicitor General of England, Sir William Blackstone in 1765 authored "Commentaries on the Laws of England". This was the first text in England that set out all of the existing laws of the land and commented on their source. In the Introduction, pages 39-43 Blackstone makes the following comments:
When the Supreme Being formed the universe and created matter out of nothing, He impressed certain principles upon the matter from which it can never depart...This will of his maker is called the law of nature...This law of nature...is binding over all the globe...no human laws are of any validity if contrary to this...because man's reason is corrupt...The doctrines thus delivered we call revealed or divine law and they are to be found only in the holy scriptures...Upon these two foundations, the law of nature and the law of revelation, depend all human laws.
During the years 1750 to 1900 the British Empire spread and carried with it the laws of Britain. That law, even if imperfectly implemented, was designed to produce peace and order in the family and in the nation. It should not be surprising the Empire was known for its legal systems, and that even modern day China has sought advice from judges and lawyers in Britain and Canada in developing a sound legal system.
During and after the American Revolution, although the 13 colonies rejected British rule over perceptions of unjust governance, they still preserved the British legal system; referring to its judicial precedents as "case law". Britain and America have both maintained Common Law which formally recognizes God's law as its foundation. An example is found in the case of The Queen vs Taylor (1877, Ontario Supreme Court Judgements).
Lord Chief Justice Hale stated:
Christianity is part and parcel of the laws of England and that to cast obloquy (strong public criticism or verbal abuse) upon its precepts is to speak subversion of the law.
In the United States the case of Sparrow vs Union Pass, Judge Strong stated:
Christianity is a part of the Common Law of this state (Pennsylvania)...It was part of the Common Law of England before this state was settled...(it) is an indictable offense at Common Law to write or speak of Christianity contemptuously. (A. Barber, Christianity and Common Law Vidal vs Philadelphia 1844)
It is simply incorrect for anyone to suggest that the laws of the English-speaking world are not inexorably linked to the Bible. History shows when these laws are implemented, even imperfectly, the produced a society that the world admired and sought to emulate. Yet now that same society and many of its leaders are striving with all their heart to destroy and disdain this very law and its source.
Perhaps it is worth taking some time to consider the conditions that enabled the English speaking world to achieve what it did, one of which were just laws, and carefully evaluate the consequences of repudiating those conditions. We should carefully read our history and learn from the past, in particular we should read the foundation of our nation's laws.