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

Document Type

Book Chapter

Publication Date

2024

Publication Information

in Faith in Law, Law in Faith: Reflecting and Building on the Work of John Witte, Jr. 235 (Rafael Domingo et al. eds. 2024).
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Abstract

This chapter considers a related question that has been not so much studied: What is the influence of the Catholic intellectual tradition on the common law? That question asks about the relationship between two things, and each requires definition. “The common law” refers to the legal tradition that was developed in England and subsequently transplanted into many other lands, from Australia to Nigeria to the United States.3 I will focus here on the aspect of the common law that has judges finding and articulating what the law is.4 As used in this chapter, “the common law” is capacious enough to include both law and equity.

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3 On its origins, see Sir John Baker, An Introduction to English Legal History, 5th ed. (Oxford: Oxford University Press, 2019), 25–43; on its spread around the world, see Christian R. Burset, An Empire of Laws: Legal Pluralism in British Colonial Policy (forthcoming 2023); and on its theory, see Gerald J. Postema, Bentham and the Common Law Tradition, 2nd ed. (Oxford: Oxford University Press, 2019), 3–78. 4 See, for example, Stephen E. Sachs, “Finding Law,” California Law Review 107 (2019): 527–81; and James B. Beam Distilling Co. v. Georgia, 501 U.S. 529, 549 (1991) (Scalia, J., concurring in the judgment).

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