Legal Traditions

In the recent dust-up over Rowan Williams’ comments on Sharia law in the UK, one comment struck me. The two most consistent positions on this matter would seem to either total plurality for some kinds of civil law (family, business disputes) provided the parties agreed to it – something equivalent secular forms of alternative dispute resolution (mediation, et cetera) already practiced in some jurisdictions, or one legal standard for everyone, no special religious cases.

Lorne Gunter though supports neither – he would rather there be one special exception for Orthodox Jews. Why? Well in part he trots out this old nostrum:

“Moreover, since our laws are based on our Judeo-Christian heritage, it could be argued that Jewish law has from the start been a vital strand in the braid of the western legal tradition.”

The second part of Gunter’s statement seems fundamentally correct to me, but the first bit – the bit about our laws being based on our “Judeo-Christian heritage” strikes me as a bit problematic.

Procedurally, our law owes more to the traditions developed by the English in the medieval period than anything else. The importance we place on precedent in our laws, jury trials, et cetera has much more to do with English tradition than anything else. If you look at, say, France’s legal tradition (and remember that medieval English nobles were French-speaking and often Norman French themselves) it’s entirely different from the English one. In France you have prosecutorial judges and relative disregard for precedent in deciding cases – stuff that wouldn’t even be recognizable in Quebec. I mention this just to point out that it appears that two very similar cultures with a similar level of Christian influence came up with very different legal systems – appearing to indicate that other factors must play an equal or greater role.

So where does the Judeo-Christian thing come into play? Codification (i.e. the writing down of laws)? Hammurabi beat Moses to that by at least a couple centuries (maybe more depending on how you view the Pentateuch, but I really, really don’t want to get into a debate about the dates and historicity of Moses). Most of the ten commandments appear in other legal codes independently – as Christopher Hitchens has pointed out: did the Israelites really have no inkling that murder was wrong until they got to Mt. Sinai?

It is inaccurate to say that Jewish or Christian thought has had no role in our legal heritage but it’s just as inaccurate to suggest – to the exclusion of everything else – that it is the basis of our legal tradition. It’s in there but it’s cobbled together with Greco-Roman thought (which I haven’t even touched on), Anglo-Saxon practices, classical liberal political philosophy (Locke, Rousseau) and a whole hodge-podge of other stuff. To attribute all of our legal tradition to “Judeo-Christian heritage” is to make a significant error of omission.