Friday, December 10, 2004

Ten Commandments and the Courts - Part 1

Bush is now backing allowing the Ten commandments to be displayed in the court room (Link). It is a common theme among Right-sided poliblogs to claim that the Ten Commandments should be allowed to be displayed in the court room because our judicial system is based on the Ten Commandments. First, this assertion is wrong. Our judicial system is only partly based on Judeo-Christian roots. The majority of our law actually comes from ancient Greek and Roman sources modified by Anglo-Saxon common law. Secondly, even if our judicial system was tempered by the Ten Commandments, there are valid reasons to keep it out of the courtroom. I will address each issue in a separate heading.

First, the founding of modern law - I admit that Judeo-Christian principles have played a part in shaping our laws, but that cannot be directly tied to the Ten Commandments, nor does it have any direct correlation to our current laws. Our modern laws have their roots in ancient Greek and Roman law that was absorbed by Byzantine and than later codified by Justinian I after 1000 years of evolution. As seen in Grecian law "The Law Code of Gortyn" (Crete), 450 BCE, the idea of basic jurisprudence and rule of law is seen. (Excerpts)

I. Whoever intends to bring suit in relation to a free man or slave, shall not take action by seizure before trial; but if he do seize him, let the judge fine him ten staters for the free man, five for the slave, and let him release him within three days. (subpoena)

II. If one commit rape on a free man or woman, he shall pay 100 staters

IV. If a husband and wife be divorced, she shall have her own property that she came with to her husband, and the half of the income if it be from her own property, and whatever she has woven, the half, whatever it may be, and five staters, if her husband be the cause of her dismissal; but if the husband deny that he was the cause, the judge shall decide. . . (Divorce courts)

XVII. Adoption may take place whence one will; and the declaration shall be made in the market-place when the citizens are gathered.

Roman laws were concurrently evolving around the same time as the Greeks. The Romans never had a formal written constitution, but their form of their government, the Republic parallels the modern American division of executive, legislative, and judicial branches since the passage of Lex Hortensia (287 BCE). On the civil law side, 450 BCE saw the codification of the Twelve Tables as law of the land, giving precursors to modern civil law (excerpts):

Table I.
1. If anyone summons a man before the magistrate, he must go. If the man summoned does not go, let the one summoning him call the bystanders to witness and then take him by force. (receiving a subpoena)

Table III.
1. One who has confessed a debt, or against whom judgment has been pronounced, shall have thirty days to pay it in. After that forcible seizure of his person is allowed. The creditor shall bring him before the magistrate. (creditors and debtors)

Table IV.
4. If one is mad but has no guardian, the power over him and his money shall belong to his agnates and the members of his gens. (legal guardian)

5. A child born after ten months since the father's death will not be admitted into a legal inheritance. (ten months proving illegitimacy of the child)

Table VI.
1. When one makes a bond and a conveyance of property, as he has made formal declaration so let it be binding. (contracts)

Table VII.
9. Should a tree on a neighbor's farm be bend crooked by the wind and lean over your farm, you may take legal action for removal of that tree. (property rights)

Table VIII.
2. If one has maimed a limb and does not compromise with the injured person, let there be retaliation. If one has broken a bone of a freeman with his hand or with a cudgel, let him pay a penalty of three hundred coins If he has broken the bone of a slave, let him have one hundred and fifty coins. If one is guilty of insult, the penalty shall be twenty-five coins. (Personal injury Tort law)

3. If one is slain while committing theft by night, he is rightly slain. (security in ones possessions)

13. It is unlawful for a thief to be killed by day....unless he defends himself with a weapon; even though he has come with a weapon, unless he shall use the weapon and fight back, you shall not kill him. And even if he resists, first call out so that someone may hear and come up. (self defense and justifiable/non-justifiable homicide - eg. you can't shoot a mugger unless they threaten you with deadly force)

23. A person who had been found guilty of giving false witness shall be hurled down from the Tarpeian Rock. (perjury - a little extreme for our times, but the idea is the same)

Table IX.
4. The penalty shall be capital for a judge or arbiter legally appointed who has been found guilty of receiving a bribe for giving a decision. (public corruption)

5. Treason: he who shall have roused up a public enemy or handed over a citizen to a public enemy must suffer capital punishment. (this one speaks for itself)

6. Putting to death of any man, whosoever he might be unconvicted is forbidden. (innocent until proven guilty)

While Roman law lost favor after the fall of the empire, it regained prominence in continental Europe during the middle ages where it was modified and eventually recodified as "civil law" and is the predominate legal system in western jurisprudence. Even though Justinian I was a Christian (and not a good one at that) the laws that he codified into a written legal system were based mainly on pagan legal tradition. Even though England never fully adopted former Roman law the civil law principles were taught in universities throughout English history, starting in the middle ages.

In Converse, when we look at the Ten Commandments and modern US law, there are no basis in the ten Commandments that do not also flow from ancient Greek and Roman law. Additionally, the majority of the Ten Commandments have no weight or recognition in our legal system.

I AM THE LORD THY GOD, THOU SHALT NOT HAVE strange gods BEFORE ME. - obviously, we are a nation with freedom of religion. No court can force any American to worship only one god, much less one specific god.

THOU SHALT NOT TAKE THE NAME OF THE LORD THY GOD IN VAIN. - This one carries no weight in our judicial system either.

REMEMBER THOU KEEP HOLY THE SABBATH DAY. - Ask anyone working on a weekend if this is part of our judicial system.

HONOR THY FATHER AND THY MOTHER. - No law says you have to do this either. A child has no legal responsibility towards their parents. In fact, it is vice-versa

THOU SHALT NOT KILL. - Well, we do have this principle, but not exactly strictly followed. We have state executions and justifiable homicides. Our legal system actually follows more closely to the Roman Twelve Tables (Table VIII and Table IX)

THOU SHALT NOT COMMIT ADULTERY. - this is found in both the ten commandments and the Roman and Greek laws. Even so, there is no legal penalty for committing adultery in our legal system.

THOU SHALT NOT STEAL. - I really don't know of a single culture around the world that permits this, but if someone has an example, please let me know.

THOU SHALT NOT BEAR FALSE WITNESS AGAINST THY NEIGHBOR. - Taken literally, this would be liable or could also be taken to mean perjury in a court room. This is used by our judicial system and hold both criminal and civil penalties dependant on the circumstances.

THOU SHALT NOT COVET THY NEIGHBOR'S WIFE. - Perfectly acceptable and practiced by many American men.

THOU SHALT NOT COVET THY NEIGHBOR'S GOODS - Yeah, if you borrow a neighbors lawn mower, you have to return it, but beyond that, just wishing you could have what they have is perfectly acceptable. Ever hear of "keeping up with the Jones."

So, out of the 10, only 3 have any bearing on our judicial system, and very loosely at that. Looking at the Roman/Civil laws, you will see that they are much more similar to our laws than the Ten Commandments. So, if you insist on putting a list of the ten commandment on the wall of a courtroom, you should put it in-between a statue of Zeus and Athena because they were as much of an influence on our judicial system as Moses. I will address why it is just a bad idea to put the Ten Commandments in the courtroom in my next posting.

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