Will Kamin (00:00:02):
Thank you all for coming. My name is Will Kamin and I will be joining the faculty here at Catholic University this coming spring. As an assistant professor of law and a fellow in The Project on Constitutional Originalism and the Catholic Intellectual Tradition. And so, we will start this event as we do all of our on-campus events with the prayer. So please join me in prayer. In the name of the Father, son, and the Holy Spirit. Hail Mary, full of grace. The Lord is with thee. Blessed or thou among women, and blessed is the fruit of thy womb, Jesus. Holy Mary, mother of God, pray for us sinners now and at the hour of our death. Amen. Father, Son, Holy Spirit. Amen.

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All right. So, this event, I was going to say it’s one of our first, but I guess it’s actually the sixth event this semester here on campus for The Project on Constitutional Originalism and the Catholic Intellectual Tradition. Which was founded just last year to explore the relationship between the deep and rich tradition of Catholic thought on law, politics and government and American constitutionalism generally, and constitutional originalism in particular. So today, we are going to be talking about the Catholic Church’s influence on the development of the common law and equity. And how those two bodies of jurisprudence shaped each other and how the church shaped them both. Both in England and here in the United States.

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So, we are delighted today to have two outstanding scholars, Sam Bray and John Stinneford, to discuss that topic with us. I will do my best to introduce them and there are many distinctions, although if I tried to rattle all of them off, we would be here late into the night. And so, I’ll have to summarize. But in short, Sam Bray is the John and Matthews professor of law at Notre Dame Law School where his research is focused on remedies and equity. Professor Bray has also taught at Columbia Stanford, UCLA, and the University of Texas at Austin. Prior to entering the legal academy, he practiced at Mayor Brown and served as a law clerk to then judge now Professor Michael McConnell on the 10th Circuit. He is a summa cum laude graduate of Bob Jones University and a graduate with honors of the University of Chicago Law School where he served on the University of Chicago Law Review.

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And John Stinneford is professor of law at the University of Florida Levin College of Law, where he holds the Edward Root Eminent Scholar chair. And he also serves as the director of the Hamilton Center for Classical and Civic Education.

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He’s also taught at Georgetown where he’s spent a year as a visiting scholar at Georgetown Center for the Constitution. And prior to joining the faculty at Florida, he served as a law clerk to James Moran on the Northern District of Illinois as an assistant US attorney in that same district and practiced at Winston and Strawn. He received his BA from the University of Virginia where he was an Echols scholar and both a masters in English literature and a JDE from Harvard. So, with that, I believe our format today will be that Professor Bray will speak first, then Professor Stinneford. Then I will kick some questions to them and then open it up to all of you to ask some questions of their own. So, without further ado. Sam.

Samuel Bray (00:04:46):
Thank you. It’s an honor to be with you and I really appreciate the invitation and admire very much the project here at Catholic University. And there’s not a better place to be discussing the topic of the relationship between the common law and the Catholic intellectual tradition. Now, the title of this event suggests a one-way path of influence, the influence of the Catholic intellectual tradition on the common law. We could raise the question of the influence the other way around. How has the common law influenced the Catholic intellectual tradition? Think of John Henry Newman who might have pioneered the idea of church dogma as something akin to common law. But that is an interesting question that we’ll have to wait for another day. So, we have two topics, the Catholic intellectual tradition and the common law. And the question is about how the former influenced the latter.

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How do we put them together? Now, I want to start with a quick definition of each of these. By the common law, I mean the legal tradition that was developed in England and then transplanted to Australia and Nigeria and the United States and many other places. More specifically by the common law, I mean, the aspect of this legal tradition that has judges finding, discovering, and articulating what the law is. And for my purposes today, I’m not distinguishing between the common law as excluding equity. Both equity and the common law are part of the common law for purposes of the title.

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For the Catholic intellectual tradition, I will lean on an analysis by Professor John Cavadini, who’s also a Notre Dame. Who described, “The integration of reason and revelation as one hallmark, perhaps the main one of the Catholic intellectual tradition.” This integration of reason and revelation isn’t settled at one point in time, but is Cavadini says, “An ongoing dialectic between faith and reason.” And of course, the revelation to which he refers is preeminently the revelation of Jesus Christ in the scriptures, the written word of God.

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It’s important to note what I do not mean by the Catholic intellectual tradition here. I am not asking about the influence of the use community. The blend of Roman law and canon law that develops on the continent, especially that question has been asked and answered by others, especially Professor Dick Humboldt. So, I don’t mean Roman and canon law, I mean the theological and intellectual tradition that shaped Roman and canon law in the use community. So now, that we’ve got the preliminaries out of the way, we can ask the question. What is the influence of the Catholic intellectual tradition on the common law? And as soon as we ask that question, we run headlong into a problem. I’m tempted to call it an impasse. Much of what we call the common law was developed in the 17th, 18th, and 19th centuries. Think of the great common law judges Coke, Hale, Mansfield, names like that.

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And during these centuries, Roman Catholic belief and worship were prescribed in England. In fact, one could not be a judge on the King’s Bench without taking an oath that included adherence to the articles of religion, which were the confessional statement for the Church of England. And one of them, Article 37 expressly says, “The Bishop of Rome have no jurisdiction in this realm of England.” So, if you were a common lawyer, you knew what jurisdiction meant and you knew what it meant to say that the Bishop of Rome did not have any. There were recusants, but they were typically on the margins of power. So, Edmund Plowden, the great 16th century lawyer whose work is so influential for later thinking about the equity of the statute, was a Catholic. An absolutely brilliant lawyer, but he was not permitted to argue in court. So, in other words, if I can put the point in a somewhat misleading way, and I’m going to backtrack from this later on, but we could say that the common law was by and large developed by people who had taken an oath not to adhere to the Catholic intellectual tradition.

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So that’s the problem. So what do we make of the title of this event? Is it a faint? Is the answer that there was in fact no influence of the Catholic intellectual tradition on the common law not so fast. I think there are three distinct and important ways in which we can speak about the influence of the Catholic intellectual tradition on the common law. And I’m going to call these, you could perhaps quibble with or improve these titles, but I’m going to call them inheriting, conversing, and generating. Inheriting, conversing, and generating. Let’s start with inheriting. The common law doesn’t have a zero hour, it relies very heavily on custom. And my colleague here, John Stinneford has described this brilliantly in his work on the Eighth Amendment, which helped change a lot of the way I thought about the relationship between the common law and custom in the US Constitution.

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And a lot of that custom goes back to the medieval period, the fundamental structures of the common law, the Ritz, the jury, the steady war of real property on restraints against alienation. All of these go back to the yearbook period, medieval England. Now, I don’t want to make an assertion that each of these had a theological rationale, but they were often given theological justifications. So, let me give an example from Lord Coke’s discussion of the jury. He explains various rules about the jury, grounding them in practicality what he called expedition of justice, which you can see a leftover echo of that in rule one of the federal rules of civil procedure, I guess. Sorry if that’s bring nightmares if you’re in a CivPro class right now. And in custom, it was another grounding for the rules of the jury because he said, “In this case, usage in ancient course make it law.”

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But why 12 members for the jury, he noted various places that were 12 decision makers in English law and then he brought down the boom.” And that number of 12 is much respected in holy writ as 12 apostles, 12 stones, 12 tribes, et cetera.” But there are many other things that the common law inherited, we could say from the Catholic intellectual tradition. And one is the chancellor’s conscience. Before chancellor was known as a court of equity, it was known as a court of conscience. And that language has never gone out of equity. But what is this conscience? It’s sometimes said to be the conscience of the individual litigant. And so in contempt proceedings, you’ll still find sometimes courts referring to reforming the conscience of the recalcitrant contemnor. But more often it’s the conscience of the chancellor of the judge who’s wielding equitable powers. I am not going to trace the developments here, but there’s a fascinating article by Richard Headland called, “The Theological Foundations of Equities Conscience.”

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And he emphasizes the equities conscience is not something individual and subjective, but something communal and objective. And he traces it to scholastic theology. That’s where the idea of conscience inequity comes from. Okay. So that’s inheriting the common law, inherited concepts, habits, and more from what we could call with just a little acronism because they didn’t think of it that way in these terms, the Catholic intellectual tradition. So that is a source for the common law. The second mode of influence is conversing. If we look at the reports from King’s bench, we will not find many Catholic theologians being cited. But citations can overstate influence. They can just be wind addressing, but they can also understand influence. And here I’m only going to be suggestive, but I’m going to suggest a new and still largely unexplored terrain for legal scholars. One of the biggest developments in Reformation related historiography over the last three decades has been the recovery of the idea of Protestant scholasticism.

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The leading figure in this recovery is Richard Mueller at Calvin, and there are of course others. It’s now absolutely clear, and this is going to be important for understanding law in England that the Reformation was not a break from natural law or from canon law or from Aristotle or from vast swaths of Aquinas. And for the first century of the Reformation and counter Reformation. There was a huge traffic in ideas with Catholic and Protestant scholars reading each other and responding to each other in a scholastic vein. And that was also true in England, in the middle of the 16th century, Christopher St. German was a Protestant and he popularized Aristotelian equity in England and seems to have relied heavily on Jean Curzon. But it wasn’t just a phenomenon of early modern English juris reading medieval scholastics, they were reading contemporaries. Let me give one example from this side of the Atlantic of how strong this commitment to a reformed scholasticism was, which included conversation with Catholic scholastic theologians and scholars.

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This is a quote from an article by Scott McDermott on Protestant scholasticism at Harvard from 1636 to 1700. “Education at early Harvard remains substantially within the tradition of the medieval arts curriculum of European universities. Indeed, texts by Calvinist Scholastics like Johann Heinrich Alsted and Bartholomäus Keckermann themselves heavily influenced by Aristotelean Catholics Scholasticism. Were supplemented with books written by Catholics like [inaudible 00:15:35]. But the founders of Massachusetts Bay within the first decade of its settlement, made it a priority to establish a college in which the scholastic tradition could be taught, suggest that other scholars are wrong to dismiss the confluence of Calvinist and Catholic thought in this period.” Now if that’s the education that the judges, the common law judges were getting, how could it not influence their work? Matthew Hale spent his Sunday afternoons reading and writing massive compendia of notes on theology in the Bible.

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These are not in print and have been given almost no attention by legal scholars. Hail shaped the common law and theology, which would likely have considered to a considerable degree included scholastic theology for hails training shaped Matthew Hale. Much more needs to be done in tracing these lines of influence as always showing that influence is there, leaves us free as contemporary lawyers and legal scholars that decide what to do with it. And for some late moderns that will taint the common law for others, it will disrupt fetish narratives about modernity as inevitable theological decline. So, those are two modes of influence, inheriting and conversing. And I want to suggest one more generating. Now, this is probably the controversial part of the talk, but if we’re going to think of how the common lawyers were influenced, we need to get into their minds and think of how they solve the world. So at the time of the Reformation, the Roman side obviously claimed catholicity. It’s right, it’s on the tin, on the label of the university here and my own.

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But so did the Protestant side. The Reformation was an important respect, a debate about what Catholicity consisted in. One side emphasized the connection with the ancient sea of Rome, which carried forward the apostolic authority of St. Peter. The other side did not, but both sides appealed to scripture and the tradition of the early church. And both sides thought if only they could show that the other had deviated from the Apostles doctrine, they would win. So if I could use a new menneske word, if they could show that the other side had developed the doctrine, then it was game over.

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And the other side lost whoever preserved the doctrine and didn’t develop or change or augment the deposit of faith. That was the truly Catholic side. And everyone agreed on that. The disagreement was just about which side had been developing the doctrine. So in Normandy, on the French side of the English channel, the Catholic intellectual tradition was humming along and over in Dover and London on the English side of the English channel by the lights of the English bishops and the jus and the common law judges, the Catholic intellectual tradition was humming along the jus in the Church of England, King’s bench considered themselves Catholic.

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Again, you don’t have to agree with this, but we’re getting ourselves into the mindset of the common law judges. How are they thinking about what is theirs to draw on? So the preface to the 1660 do book, common prayer says the revisers weren’t going to take any guff. That’s a paraphrase from the people who wanted to strike at the doctrines and practices, “Of the whole Catholic Church of Christ.” The judges on King’s bench regularly said the Apostles Creed, the I Creed and the Aphasian Creed, which all refer repeatedly to the Catholic church and the Catholic faith. And to give just one more example, the prayer for all conditions of men used about four times a week expressly praised for, “The good estate of the Catholic church.” Now, I could give many more citations to Bishop Jewel’s, apology to Richard Hooker’s Laws of Ecclesiastical Polity and to the cans of the Church of England.

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But the point is, if we’re going to get into the heads of the great jurors who developed the common law, we’re going to find that they identified themselves as Catholic in the sense of universal church so far. You might not be surprised, or you might be, but I want to go one step further and say that the intellectual tradition of Cook, Seldon, Hale, Mansfield, Blackstone had all the hallmarks of what leading Catholic theologians today would identify as the Catholic intellectual tradition. That integration of faith and reason, revelation and reason and the distinctive ways in the Catholic intellectual tradition that those are brought to bear together would be true of those great common law judges. So, I’m thinking here, I’m not going to list them, but the list of theses about the Catholic intellectual tradition from Professor Cavadini. Everything on that list is, if I can put it this way, Western Catholic tradition, and if I can put it even a little more provocatively, the hallmarks of the Catholic intellectual tradition are simply the hallmarks of mere Christianity in Cavadini’s list and who wrote that book?

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So, this is the third way in which I think we can speak of the Catholic intellectual tradition influencing the common law. So, the first is inheriting. The second is conversing after the Reformation, the discussion and debate continues in a common theological tradition of scholasticism. And then the third is if we broaden out the meaning of Catholic intellectual tradition and see it in a way that includes Hale, Seldon, Mansfield, et cetera, Story, Kent, then it’s absolutely pervasive and the influences everywhere.

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So, you can define Catholic intellectual tradition in a way that’s going to be specifically Roman Catholic. And then it’s going to have a narrower influence on the common law. It’s going to be those first two. It’s the inheriting and the conversing. And it’s always like from the perspective of the common law judges, you can see it, but it’s either in the distant past or in the distant present, but it’s not there. But if we broaden out that definition as I would do a lower-case C Catholic reading of the upper case C Catholic intellectual tradition, then absolutely pervasive. And we could just spend hours with testimonials from Kent and Story and Blackstone about the influence and the common law of decisions about the influence of the Christian intellectual tradition, western Christian intellectual tradition on the common law that influence is vast, or it was.

Will Kamin (00:23:02):
Thank you, Sam. That is fascinating. John?

John Stinneford (00:23:07):
Great. Well, it’s intimidating to go after Sam because Sam has forgotten more about law and tradition than I will ever know. But I’ll do my best caveman lawyer a follow up. I’m really going to talk about two things today. One is the way the Catholic intellectual tradition may have influenced the development of the criminal common law that is that particular area because that is one of my specialties. And then I’m going to talk a bit about how some of the conceptual ideas that developed may relate to current constitutional interpretation in fact. So let me start by saying, again, this is a difficult topic as Sam said. I’m going to highlight a somewhat different difficulty, which is we talk about the influence of the Catholic intellectual tradition on the common law, but it may be more appropriate to talk about the confluence of the two, right? That in fact the relationship between the Catholic intellectual tradition and the common law is pervasive throughout history and there are deep conceptual relationships with each other so that it’s very difficult for a historian to figure out who influenced who or what caused what.

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And let me talk a little bit about why I think that is, so. First of all, prior to the rise of legal positivism, English and American law were explicitly built on a foundation of natural law and divine law. And Sam made some reference to that. I mean, you will see a Coke or Blackstone refer to the natural law. You will also see them cite the Bible. You will also see them interchangeably that these are all sources of secular law. We see some echoes of that today when we see debates about whether you should have a monument to the 10 commandments in front of a courthouse, right? That’s that would’ve been completely uncontroversial throughout most of English and American history because it was just taken as a given that the positive law has a natural and divine law backstop. And so, there’s also a lot of conceptual similarities because a lot of the premises are exactly the same.

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It’s also true that for most of English history, at least the common law thinkers were Catholic, and many Catholic thinkers wrote about law. So again, there’s confluence and it’s often hard to figure out what caused what. It’s also worth noting that throughout certainly English history, the church, the Catholic church, and then the Anglican church had its own courts, it had the Ecclesiastical courts, and it had its own body of canon law that it enforced in those courts. And so, Sam bracketed that, and I’m going to mainly bracket that too. But one thing that especially Richard Helmholtz has written about is looking for areas where the canon law seems to have influenced the common law or vice versa. And there are some areas that I will briefly touch on today with respect to criminal law in particular. So again, I’m going to talk about two main things today.

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One is the multifaceted relationship between Catholic thought and the common law of crime. And I’m only going to be able to really touch on the greatest hits here because there’s a lot to it. And then the second I want to focus on, I was told that we should be talking about the relationship between common law and equity. And I’m not an expert on equity at all, so all the questions should go to Sam. But I will talk a little bit about the tension between a common law approach to law and an equitable approach to law. And how that actually, I think we might see that as reflected both in conflicts between Protestant ways of thinking about Christianity and Catholic ways. And also, today conflicting views about how to interpret the constitution, especially when we’re thinking about things like enumerated rights.

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Okay. But let’s start with crime. So, first of all, it’s worth noting that the first crime was committed by Adam and Eve. So now it was a sin when they ate that apple, but it was also a crime that is they violated God’s command, but also it was property rights. It was his orchard. He said, don’t eat my apple from that tree. And they went ahead and ate it. In fact, this is a specific crime under English law. It’s called crumping. If you eat an apple from someone else’s orchard, then I think that’s a nickname for it. I’m sure not sure it’s in the statute books, but, nonetheless. And so, you may say, okay, fine, right? Sin, crime, the relationship seems obvious to me in both cases you’re intentionally doing something wrong, et cetera, but it’s not a necessary connection. In fact, if you look back deep into English history, there was no clear distinction between criminal and civil liability. And there are many aspects of what we might now call criminal law that seemed to have a strict liability aspect to it.

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But that didn’t matter whether you intentionally killed the person or did so accidentally, you still had to pay the wear guild for the killing, right? Now, it’s not completely clear how far that goes, but at least to some extent the distinctions are not super clear. And if we were to think about criminal law as mainly about compensation for injury, and that’s not an irrational way to think about it, we might not worry about a lot of the things that we do worry about today, especially culpability, but we do worry about culpability. So, let’s focus on that and let’s think. I’m going to do a very brief through line on that point. So, Catholic thought from the beginning has focused on culpa or sometimes in English called malice or mens rea in English law.

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Just one example, Saint Augustine and one of his sermons in the fifth century started discussing the crime of perjury. And he wrote [foreign language 00:29:18] which means the tongue is not a liar unless the mind is guilty. So, if you say something false in court, but you don’t know it’s false, then you’re not a perjurer. He says, right? Because you need a guilty mind to be guilty of perjury. And again, this is in part because of the Christian notion that you have to of have a guilty mind before you can be guilty of sin. Now this point, and in fact this language was later transformed into a general aphorism of English common law. It’s one that I still teach in my class criminal law class every year, which is [foreign language 00:29:52], a person is not guilty unless he has guilty intent, right? So to be guilty of a crime, you have to be blame worthy, you have to be individually blame worthy. And this is a concept that is very closely related to the concept of sin, and I think has a close historical parallel.

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And this is a very consistent throughline throughout English history. So, Brockton in the 13th century wrote it is will and purpose, which mark crimes and a crime is not committed unless the intention to injure exists, right? Accidents are not crimes because you’re not blameworthy. In the 18th century, Blackstone wrote the abuse only of that free will is the object of legal punishment. So, here we see it explicitly, we’re making a metaphysical claim, we have free will and we’re only guilty of crime when we abuse that free will, right? So this comes from Christian thought about, and of course Catholic thought because Catholic thought was Christian thought, and I’m, I mean big C Catholic thought, right? Was Christian thought for most of European history. Finally, the US Supreme Court in the 1950s and the famous Morissette versus United States case wrote, “The contention that an injury can amount to a crime only when inflicted by intention is universal and persistent in mature systems of law as belief in freedom of human will and a consequent ability and duty of the normal individual to choose between good and evil.” Right?

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So, this is again, this is the language of Christian moral anthropology, right? This is the language of sin. It is also the language of criminal law and it was not inevitable. This is part of our historical and development. Now, as these quotes indicate, generally speaking under English and American criminal law. In order to have a crime, you need three conditions. At least three conditions are necessary before you can have a crime. One is the act must be personal. That is we don’t punish groups for wrongful acts committed by individuals. It must be voluntary, non-coerced. You have to make the choice of your own free will to do something wrongful and it must be performed with a culpable state of mind, right? These are all, again, not completely today anymore unfortunately, but traditionally these were all conditions necessary to establish that someone was guilty of a crime. These are also the conditions necessary to establish that one is guilty of a sin. Okay. So, very closely related.

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So, these are necessary conditions. Now, they may not be sufficient conditions that is, and the Catholic church and also the English common law, American common law have always been clear. Not all sins are crimes, right? There has to be some injury to the public interest in the sin before we can punish it as crime. But nonetheless, they do share these deep commonalities. And by the way, when we think about the public interest, and this is another crucial point, the interest could always be a moral interest throughout most of history, okay? Legal positivism in the 20th century purported to eliminate this idea and say, no, no, no, it’s the harm principle, right? Only when you harm someone else can you be guilty of a crime. A criminal law does not exist to enforce morality. Traditionally, though it did exist, at least in part to shape human conduct and move it in the direction of moral conduct, even if you couldn’t necessarily identify an injury to a specific victim.

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And by the way, let me just throw this out there, although many of us today think, oh we are, we’re way beyond all that old moralism. We don’t do that anymore. In fact, a lot of crime today does exactly the same thing, but perhaps with a different emphasis. So think of hate crimes. Why do we punish hate crimes more harshly than the same crime committed without the forbidden intent? It’s not because the victim’s harmed more, but because we consider the person who acts based on hatred of a person’s race or gender or whatever the case may be to be more culpable. So this is once again, morality being enforced through the criminal law, right? So, it’s still there in a shadowy form, maybe an incomplete form today, but it’s still there.

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So the conceptual similarities between sin and crime explain a whole panoply of common law criminal doctrines. For example, the duress defense. The duress defense. Traditionally a common law says if you are coerced with a threat that an ordinary person wouldn’t be able to resist to commit a crime, then you’re not guilty of that crime. We’re not going to hold you liable unless the crime is homicide because a person should prefer to die themselves rather than kill an innocent person. This is the traditional doctrine.

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A deeply moral idea about when a person can be criminally liable or when they cannot. Similar ideas run through the insanity defense, the rule against collective punishment for the acts of an individual, even the requirement of a voluntary act. The fact that you have to a reflex action that harms someone is not going to ever be the basis for criminal liability because again, without some voluntary decision to commit an act, you’re not morally culpable. This may also help us see, by the way, this understanding of the conceptual relationship between Catholic and Christian doctrine and the criminal law may help us see today, and this is part of the project of the new project at Catholic, the very exciting project to see where we’ve made a wrong turn, right?

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So for example, the turn towards strict liability crimes over the last century where you may not be morally culpable at all, you may not even know what was happening at the time. You may not have had reason to know there may not have been anything you could have done to prevent something from happening. And yet we still hold you criminally liable under adoption of strict liability that’s directly inconsistent with this notion of what makes crime, crime. So again, one process that… one interesting thing to think about is an idea of recovery. To what extent have we lost something really important as we’ve made this move towards legal positivism, right? Morality is still there in interstitial and partial and shadowy form, but it’s not complete anymore. And so, we punish now in ways that would’ve been recognized through most of our history as deeply unjust, right? That’s part of our system.

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Okay. A few other points about criminal law and then I’ll going to riff a little bit on today, another interesting influence of Catholic thought, I think on the English common law flows from actually St. Paul’s. Letter to the Romans 13:4, talking about rulers, the power of rulers. And Paul writes, “For he is God’s servant for your good, but if you do wrong, be afraid for he does not bear the sword in vain, for he is the servant of God and avenger who carries out God’s wrath on the wrong doer.” Okay. So, this is obey Caesar, right? English common law writers took this statement and others like it to mean that the government has an affirmative duty to punish wrongdoing. And if it fails in that duty, it’s failing in its duty to God if it fails to protect victims of crime.

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So, if a government chose, for example, not to punish murderers, the government would be violating in its duty to the public and in its duty to God. And again, this might be something relevant to some of today’s debates. He said abortion under his breath. So that’s an interesting point. Another possible influence that comes from the canon law but also from the biblical tradition is ideas of procedural fairness in criminal law. So, the canon law and the common law both have built in ideas about procedural fairness and to some degree they flow directly from the Bible. So for example, let’s go back to Adam and Eve after they did their crumping, right? After they stole the apple and ate it. What did God do before punishing them? God summoned them into his presence and let them talk, right? What did you do? Tell me what you did. Give me your defense. Notice in a hearing before punishment, right? And you think I’m joking, but this is actually cited by English legal thinkers about why due process is so very important. It was a precedent established by God himself at the beginning of history, right?

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Few other ideas, the idea of proportionality and punishment of course comes from the Lex Tallons originally in the Hebrew Bible. But also canon law contains proportionality ideas. Common law contains proportionality ideas. This is where… I’m sure that both canon law and common law were influenced by the Bible. They didn’t influence the Bible, but it’s hard to see. It’s hard to tell how much they influenced each other, but they both had these ideas built in. And finally, one interesting one for me as a criminal law person is the idea of shaming punishments. So, in the Christian tradition, the Catholic tradition, if you committed a notorious sin, one of the conditions for, and one of the punishments actually inflicted on you would be some public shaming. So, you could be reconciled to the community, you’d have to show up at church in sack cloth and ashes.

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You might have to publicly confess to what you did before you could be reintegrated into the community. This was actually a very common practice in the secular criminal law as well, right up until the founding of the American Republic where you would be put in the pillar. You’d be put in the stocks. You’d be subject to some public corporal punishment. You might be flogged. But then after the punishment was done, the hope was you could be quickly reintegrated into the community. And it’s an interesting thing to think about today because if you look at colonial records in America, you’ll see someone getting punished in Year X and in year X plus 30, they’re the lieutenant governor of the colony, right? Why is that? Well, because they reintegrated into the community. And once you’re forgiven, it’s forgotten you can be anything.

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Whereas today, you carry the scarlet letter of a criminal record with you for the rest of your life and you’re not going to be lieutenant governor, you’re not going to be anything because we’ve lost this notion that the purpose of punishment in part is to facilitate reform and then reintegration into the community.

(00:40:58):
Okay. So that’s the criminal law side. Again, just throwing out greatest hits and maybe some ideas for future research for some of you all. The second part I want to talk about is going to be more controversial. You got to end with the controversial stuff. And this is just thinking about common law and equity and what our current legal system looks like. So, if you think about the Catholic intellectual tradition or the Christian tradition more broadly and law, there are certain things in common in both categories. You have an authoritative text or text right now, common law may not be based on a text, but there are always statutes out there. In our system we have the constitution as well. So, text or text tradition or custom both in the Catholic tradition, certainly we rely heavily on tradition. Tradition is co-equal with scripture and its authority. And English common law is nothing other than tradition or custom.

(00:41:58):
And you have in both cases an interpreter or an adjudicator, the person who makes decisions about how to apply the authoritative text or tradition to a given current situation. All three situations or all three characteristics apply in both contexts. And given those the parallels we might profit by considering three contexts in which these things have shown up and been debated. One context that’s important is, although not directly legally related, is the debate between Catholics and Protestants on the respective roles of text and tradition. So, one of the key Protestant critiques of Catholicism has been this notion that tradition is co-equal with scripture, that the tradition and scripture of equal authority. Whereas, some Protestant denominations would say, sola scriptura, don’t give me your tradition. I want to see what the Bible says. Others may have some reverence for tradition, but it doesn’t have the same degree of authority.

(00:43:05):
And of course, this is also a debate in current constitutional law, sola scriptura, the tax original meaning or tradition and custom or something else. This is a very similar debate. And some of the same concerns apply in both contexts. Can we live without tradition? Is the text alone going to be enough to get us where we need to go? Is somewhat different problem with respect to the Bible and the Constitution, the Bible, the problem is that it’s so big and so multifarious and there’s so many things in it which may appear to conflict with each other without appropriate context. How could we ever rely just on the Bible without some tradition to help us figure out how it works? What it means? Right?

(00:43:54):
And the Constitution is the opposite problem, which is it’s so brief, it’s so spare. The text leaves so much to the imagination. How could we do without something like tradition or custom to figure out how it should apply in practice? But again, it’s a similar problem is working out if we have an authoritative text, which is supposed to tell us what to do, how do we use that text properly in our lives or in our law?

(00:44:22):
Okay. And so that’s one thing to think about. A second thing to think about is common law versus equity on the question of how to identify and apply norms. Okay. So, and this is something, I just want to throw this out there, because you talk like David Strauss and the common law constitution. It should really be called the equity constitution, not the common law constitution because the common law in theory is custom. It is custom, which is none other than long standing practices, not long standing universally accepted practices. So, the critique of the common law has always been that it’s not flexible enough. This is why we have equity that it can’t handle every situation because in theory at least it’s supposed to be unchangeable and fixed and grounded in specific practice as opposed to theory. Whereas equity is you know more than me, so correct me, I’m probably wrong, but I’m going to say it anyway.

(00:45:22):
Equity is abstract moral reasoning, right? We don’t look to what we’ve done forever in ways. No. No. No. We look to the chancellor’s conscience, what do I think? I feel like this is wrong. I know what the law tells me, but it feels wrong. And if it feels wrong, it can’t be right. So, this is what equity so will correct the common law when in some situation it doesn’t seem to match my sense of fairness. Now, a common lawyer’s response to this, and I think that one of the reasons that there was so much tension between the common law courts and the equity courts is that who are you chancellor to tell us what’s right and wrong? We enforce the common law because the customs and traditions of a free people over a very long period of time are virtually guaranteed to comport with natural principles of justice.

(00:46:13):
Our customs are much more reliable than our abstract moral reasoning. And so common lawyers didn’t like having the court of equity jump in there and overrule their judgments, right? Issue prohibitions and that sort of thing. This is exactly what we’re seeing today in constitutional law. And this will be my final point, think about the debate over how to identify unenumerated rights in the Constitution. The Supreme Court always… when I teach constitutional law to my students, it’s always whiplash, right? Because they’ll see a series of cases like Griswold and Rowe where the courts engaging in abstract moral reasoning and coming up with a new right that seems to be jumping from the head of Zeus fully formed. And then the court will, in other cases like Glucksberg will say, “No. No. No. No. No. For there to be an unenumerated right, it has to have existed at a concrete level for a very long period of time.” Because that’s how we know that the American people accept us as a right and have accepted it as a right over a very long period of time.

(00:47:19):
And then we get to Lawrence versus Texas where the court’s like, “Well, yeah, but we really like abstract moral reasoning. So chancellor’s conscience is going to rule this time.” Or in Obergefell as well. And we’re going to reach our conclusion here. And then of course in Dobbs, the court once again says, “No. No. No. No. No. We’re really common lawyers. We’re going to focus on history and tradition.”

(00:47:40):
And so, I think as we think about this question, and by the way, this applies to enumerated rights as well as enumerate rights, it applies to the structural parts of the Constitution as well as the rights parts. When we think about how to go about interpreting the Constitution, I think it can be useful to look at some of the earlier debates. The debates between Catholics and Protestants over sola scriptura. The debates between the common law and equity over what the proper way is to interpret and enforce the law. Because I think they can inform us as to some of the benefits and pitfalls of these two approaches, which are still, I think, in conflict with each other today. All right. Thank you very much.

…Let’s see. I guess I will maybe ask a quick question or two and then open it up to the house. So Sam, my first question is for you. You had talked about the idea of the chancellor’s conscience and the idea of that religiously conceptualized or theologically conceptualized idea of conscience being a key moderating factor on law in chancery. But at the same time, in the law courts, and particularly in King’s Bench, there’s this understanding of divine miracles and the notion that some of the prerogative writs are an enactment of sovereign miracles in law. And so, how do the ideas of sovereign miracle and chancellor’s conscience on the law and equity sides interact?

Samuel Bray (00:49:52):
And one way to answer this question is to say that for both equity and the prerogative writs, these are ultimately going back to royal power. So, before equity is seen as a court, you basically, you’ve got some problem where the law won’t give you justice. So what you do is you go to the king, but the king’s busy. So, then you go to the king’s right hand man who’s in effect, my former colleague at UCLA, Steve Uzel would use the analogy of the White House chief of staff for the chancellor. And I think that captures both how he was an administrator, but he was also a stand in for the president for the king. So, there’s an exercise of royal prerogative. So, just like the sovereign can give the prerogative writs habeas, [inaudible 00:50:52] mandamus prohibition. Those are exercises of the sovereign’s power. So is equity.

(00:51:02):
And when in the early 16th century, you get some canonical formulations and mid… and so in the late 16th, early 17th century, you get canonical formulations of what equity’s about and what chancellor is about. In part of this is a direct appeal to scripture. So, the Earl of Oxford’s case, Lord Chancellor Ellesmere, will appeal to what he calls the law of God and quotes scripture, but he will also appeal to Aristotle. And the idea of the lawmaker can’t foresee all the circumstances. And so, there needs to be an adjustment for the unforeseen circumstance. But those unforeseen circumstances, the adjustment is still an exercise of the power of the sovereign.

(00:51:49):
So, I think that’s how those get fit together. Miracle language tends not to get used for justifying equity. And I suspect one reason would be that the chancellors are always, their footing is a little precarious. They got to make sure to preserve the conditions of their legitimacy. And so part of what they need to say is, there’s nothing to see here. This is not unusual. This is not exceptional. And so, I suspect that would be one reason as a matter of political survival where they’re not going to emphasize what we’re doing is miraculous.

Will Kamin (00:52:28):
Interesting. Thank you. Let’s see. And John, I guess for you, I was curious as to your point about, of parallels between originalism and Catholic ways of thinking about law or excuse me originalism. I guess in Protestant ways of thinking about law and more anti originalist or non-originalist methodologies and Catholic ways of thinking about law. Which raises the interesting question of why so many of the great originalist thinkers have themselves been Catholics. And not only Catholics, but ones who’ve spoken on the extent to which their commitments to faith have influenced their public commitments in the law. So, how do you see this? Is there a discordance there or I guess how do we reconcile that?

John Stinneford (00:53:37):
Well, I think, and again, this is where, this is the part where I was just riffing, so I don’t fully thought through all this stuff. But I do think that… I think most people who try to interpret the constitution, whatever their interpretive methodology recognize that the text alone doesn’t answer every question. And so, the question will be, what do you do when the text doesn’t answer a question? And so, one answer might be theorian, what’s the word restraint, where you simply just don’t, the court doesn’t do anything and you let the government do what it’s going to do. You could do abstract moral reasoning like an Obergefell. You could rely on history and tradition. You could rely on practices that maybe don’t go all the way back to the founding, but that are well established. So there’s different things you can do.

(00:54:39):
So for me, and so for myself, I’m an originalist, I should say, and I’m a Catholic. I think a lot of the text in the Constitution actually points us towards history and tradition. So again, my specialty has been the Eighth Amendment, cruel and unusual punishments, the word unusual actually means contrary to long usage or contrary to the tradition. And I think anytime you see a reference to the common law in the constitution, it’s asking us to look to our longstanding practices, because that’s what the common law is. We’ve forgotten that because today we’re all taught that the common law is simply judge made law. But that’s not how it was thought of really for all of English and American history until homes. So to some extent, I think that sometimes you have to supplement the text and you can do it either through restraint or through reference to whatever the appropriate body of law is that the text asks you to make reference to.

(00:55:40):
And as a Catholic, I think mean it’s not obviously a direct relation because the constitution is not sacred scripture. I mean, especially the original Constitution had some evil stuff in it as well as some good stuff. But there is this sense in which you have an authoritative text that in the Catholic tradition that again, there’s been a recognition that number one, even figuring out which texts were authoritative had to be determined through the traditions of the church. It wasn’t until what the third century that we had the cannon in place. And the tradition also has helped to understand the complexities and the gaps that we might may otherwise see in the Bible. So, I think that maybe being Catholic gives you a sensibility that text is important, text is authoritative. I myself don’t have the authority to override a text, but also some sensibility about looking to tradition, looking to authoritative sources to figure out how to answer questions that maybe you couldn’t do on your own.

Will Kamin (00:56:47):
Thank you. Well, that is fascinating. It looks like most of our students have had to go for 2 o’clock classes, but if any of you have questions…

Speaker 5 (00:57:03):
We might have time for one question.

Will Kamin (00:57:05):
We could probably take one?

Speaker 5 (00:57:06):
If there are any questions.

Will Kamin (00:57:14):
All right.

Speaker 6 (00:57:14):
I’ll ask a question. We’re here, we should. So I was intrigued Sam, by the Catholic intellectual tradition as mere Christianity, right? And the support for that makes a lot of sense. That is the appeals to revelation and to fidelity to tradition. But then as John was speaking, particularly when he was talking about abstract moral reasoning. And it occurred to me that maybe though one of the divides and where the of Catholic Protestant aspect of this small C Catholic where it becomes manifest is less in this common factor of appeal to the tradition, and as carried on the apostolic tradition. And more in the notion of reason, right? And so, it maybe the extent that you talk about this consonance of reason and revelation as an aspect of the Catholic intellectual tradition. Could it be that the influence of Catholic conceptions of reason and of that consonance broke apart more in the 17th, 18th, 19th centuries. So that it was really on the reason side that there was discontinuity or a different break between Catholics and Protestants in terms of influence on thinking about the law.

Samuel Bray (00:58:48):
So, it’s a very provocative idea that the points of commonality are on the faith and the approaches to reason are different I think there’s probably going to be a huge amount of variation and contingency here. So, let me just give two of episodes in this one is like what does sola scriptura mean? Can have very different approaches. So, John mentioned sola scriptura as you just throw out everything but the Bible, it’s just read my Bible that’s got all the truth in it. Which is not… that’s not what Hale’s doing. Hale’s not going to think that way. Seldon’s not going to think that way. That’s not for the magisterial Reformation traditions. So Anglican, Protestant, Lutheran, none of them are doing that. Sola scriptura means you can’t require anything to be an essential of the faith unless you can show it in scripture. But there are lots of other things that are needed to order our common life as a religious tradition.

(01:00:03):
And a huge amount of weight goes to the church tradition and especially the early fathers on you. You could almost see it in a Will Baude liquidation type way. You get ambiguities and then they get resolved by the tradition. That would be a very magisterial way of thinking about it. So, there’s an embrace of reason and tradition. So, in Richard Hooker, Eccles Laws of Ecclesiastical Polity. He has a very large role for reason now. Our reason is fallible. Our reason is tainted by the fall. So that’s why we don’t want to say the reason Trump’s scripture. The reason is part of how we access and interpret and understand. And we refine by checking with the tradition and ultimately always the norming Norman scripture. So, I think, one way to see the divergences of reason is, I mean the divergence on reason may be true with some parts of Protestant churches now more so, than others and more so than with the Protestant tradition that you see in the common law in England. So that’s part of the answer.

(01:01:11):
And then there are also just some historical surprises like the alignment of in late 17th century France, early 18th century, you get the philosophes are more aligned with some of the Catholic thinkers against the Hugues. And so, the views to which reason and skepticism of reason, that was a particular place where the side of reason was taken by the Huguenots and the skeptics of reason or the Catholic thinkers. And there are many places where you might get the reverse, but it’s some contingency when you look across many different contexts. And it’s not always going to be what it appears to us in our particular moment right now.

Will Kamin (01:02:00):
All right. Well, I think that’s all the time we’ve got, but thank you all for coming and thank you especially to those of you who are able to stay despite our running a few minutes over. And thank you to everyone at the university for putting this on. And to our fantastic, fantastic guests for coming here. And just giving such a fascinating talk.

Samuel Bray (01:02:31):
Thank you.

John Stinneford (01:02:31):
Thank you.