Historical and Theological Foundations of Law

Bill Graves

Noted Constitutional authority John Eidsmoe has written a legal classic on the origins and theological foundations of law. The three-volume series is entitled Historical and Theological Foundations of Law (American Vision Press, 2011) in which Eidsmoe demonstrates that throughout history the laws of virtually every nation and every legal system, if not all, have had theological foundations.

What is law and whence comes its authority? Is it law because someone with a crown commanded it? Or is it because a judge decreed so or a legislature said so? Is it law because a Higher Authority said so? What is Common Law? When did it begin? Is it relevant today? Eidsmoe answers these and many other questions.

In Vol. One, Ancient Wisdom, Eidsmoe examines the legal systems of ancient societies. He notes that Moses is “a colossus of history, the consummate statesman and lawgiver….” Eidsmoe observed the influence of the Ten Commandments and the Mosaic Laws on the Laws of King Alfred the Great of England (about 890) which were a part of the basis of the English Common Law. He also noted how both British legal giants, Sir Edward Coke and Sir William Blackstone, held “Christianity is part …..of our general laws, and (held) all revealed or divine law, so far as enacted by the Holy Scriptures to be of universal obligation.”

In Vol. Two, Classical and Medieval, Eidsmoe noted the deficiencies of the Greeks, their gods and their laws. Eidsmoe observes that “Alexander the Great is as famous for his ability to conquer and build a great empire as for his inability to govern it, just as Greek political philosophy is as remarkable for its pristine beauty in theory as for its utter failure in practice.” However, Eidsmoe states how the great Augustine pointed out differences between the city of man and The City of God – the title of his great classic. In the city of man, the earthly city was created by self-love reaching contempt for God while the in the city of God, the heavenly city was punctuated by contempt for self. The earthly city glories in itself while the heavenly city glories in God. Man’s city loves its own strength, shown in powerful leaders, but the city of God says: “I will love you, my Lord, my strength.”

Eidsmoe said Islamic law and philosophy, allegedly based on the will of Allah their God, is characterized not by faith, but by submission. He states the purpose of the Crusades was to help the Eastern Roman Empire fend off Muslim aggression and to regain people and territory that had been lost to Islamic aggression. He states that “the Crusaders never sought to conquer a single inch of territory that had not been earlier taken from Christians by Muslims through Jihadic warfare.”

In Vol, Three, Reformation and Colonial, Eidsmoe said the judges, scholars, philosophers and theologians who gave us the common law believed the true Law of Nature existed from time immemorial, having been created and decreed in the mind of God. By 1500, the common law had taken shape and Martin Luther and John Calvin would sharpen the “Two Kingdoms” theory and showed how they could function according to God’s law in a sinful world. Simultaneously, John Locke, Charles Montesquieu, Blackstone and others articulated the common law and its application to law and government in a philosophy that was both rational and distinctly Christian. America was a product of the Protestant Reformation. American historian George Bancroft wrote that Calvin was the virtual father of America because at its founding the country was two-thirds Calvinistic.

Eidsmoe had earlier written Christianity and the Constitution: The Faith of Our Founding Fathers in which he documents America’s Biblical and Christian foundations. In the Declaration of Independence God is mentioned four different times and it is stated that our rights come not from Government, but from the Creator. The Constitution is dated “in the Year of our Lord” 1787. The Framers believed that Christianity should be encouraged by the State and that Christianity is, as Daniel Webster said, a part of the law of the land. For 100 years after framing of the First Amendment, the federal Government sponsored the teaching of Christianity. Alexis de Tocqueville wrote that “Americans combine the notions of Christianity and liberty so intimately that it is impossible to make them conceive the one without the other.” The Supreme Court early on supported the teaching of the Bible and Christianity in education, outlawed polygamy because it is contrary to Christianity, held that America is “a Christian nation” and that we have “a duty of obedience to God’s will.”

Eidsmoe’s work is a tour de force and should be read by all who wish to know and understand the true origins of law.