John Witte has written extensively on the influence of the Protestant thought on the development of Western law—from the magisterial Reformations of the sixteenth century until our day.1 Others have written on the adage that “Christianity is part of the common law.”2
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.
“The Catholic intellectual tradition” is a late-twentieth-century term that began to be widely used only in the 1990s, shortly after the term “Catholic social teaching” gained widespread currency. The former term is a kind of intellectual
In setting out the animating concerns of this tradition, I will lean on an acute unpublished analysis by Professor John Cavadini, who described “the integration of reason and revelation” as “one hallmark—perhaps the main one—
In addition to these definitions, one more preliminary point is necessary. The question considered in this chapter is broader than the influence upon the common law of the ius commune, a blend of Roman and canon law that spread throughout Europe in the late Middle Ages. The degree of that influence has long been debated, and the leading recent analyses are by Professor Dick Helmholz.8 Although the ius commune can be seen as an example or outworking of the Catholic intellectual tradition,9 it does not exhaust that tradition. The dialectic between faith and reason is not irreducibly legal. The question here, therefore, is how the common law was influenced not specifically by the ius commune but more broadly by the Catholic intellectual tradition.
With these preliminaries noted, we can return to the question with which this chapter began. As soon as the question is asked, we run headlong into a problem, one you might be tempted to see as an impasse. Much of what we call the common law was developed from the late sixteenth through the early nineteenth centuries. It was developed by the great judges of those centuries, judges such as Coke, Hale, and Mansfield. During these centuries, Roman Catholic belief and worship were proscribed in England. In fact, one could not be a judge or a lawyer appearing in court without taking the Oath of Supremacy.10 Although the oath required by King James I (VI of Scotland) was defended as requiring only political allegiance,11 after the Restoration office holders were specifically required to affirm Protestant teaching on points like transubstantiation and the invocation and adoration of saints. Moreover, the principal doctrinal formulary of the Church of England includes an article that expressly states: “The Bishop of Rome hath no jurisdiction in this Realm of England.”12 Common lawyers knew what jurisdiction meant. They 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. Edmund Plowden, the sixteenth-century lawyer whose work was influential for later thinking about the equity of the statute,13 was a Catholic. But that fact limited his opportunities for promotion.14
That answer would be too fast. There are three distinct ways we can speak of an influence of the Catholic intellectual tradition on the common law. These are inheriting, conversing, and generating.
We can start with inheriting. The common law has no date of enactment or ratification. Instead, it relies heavily on custom,15 and much of that custom can be traced to the medieval period. Fundamental structures of the common law—such as the writs, the jury, and the steady war on restraints against alienation of real property—go back to the Year Books and the late medieval law of England.16
We should not think that each of these had a theological origin. But they were often given theological justifications. For example, Lord Coke explained various rules about the jury, grounding them in practicality—what he called “expedition of justice”—and in custom, for he said “in this case usage and ancient course maketh law.”17 But why twelve members for the jury? He noted various places where there were twelve decision makers in English law, and then trotted out this justification: “And that number of twelve is much respected in holy writ, as 12 apostles, 12 stones, 12 tribes, &c.”18
That, then, is the first mode of influence. The common law inherited concepts, habits, and more from what we could call, with a little anachronism, the Catholic intellectual tradition.
The second mode of influence is conversing. If we look at the reports from the Courts of King’s Bench and Common Pleas, we will not find many Catholic theologians being expressly cited.23 But citations can overstate influence, and they can also understate influence. Here I will only be suggestive, but I will note new and largely unexplored terrain for legal scholars.
In the past three decades there have been major developments in the historiography of early modern Protestant Europe. The old idea that the Reformation was a rupture from natural theology or scholasticism as a theological method has been debunked. Taken as a whole, the Reformation was not a break from natural law, or from canon law, or from large swathes of the work of
For the first two centuries of the Reformation and Counter-Reformation, there was a huge traffic in ideas across the emerging confessional divide.26 Catholic and Protestant scholars read and responded to each other, and that was true in England as well as elsewhere. To give one instance from the early to middle sixteenth century, Christopher St. German supported the Henrician Reformation and battled in print with Thomas More.27 St. German also
education at early Harvard … remained substantially within the tradition of the medieval arts curriculum of European universities. Indeed, texts by Calvinist scholastics like Johann Heinrich Alsted and Bartolomeus Keckermann, themselves heavily influenced by Aristotelian Catholic scholasticism, were supplemented with books written by Catholics like Eustachius a Sancto Paulo. That 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 suggests that [other scholars are] wrong to dismiss the confluence of Calvinist and Catholic thought in this period.29
If that was the education that colonial judges were getting, how could it not influence their work?
Nor was this kind of curriculum limited to North America. Long after the Ninety-Five Theses and the Council of Trent, scholastic authors were central to the curriculum of the English universities.30 It was said of an ambitious student who studied at Queens’ College, Cambridge, in the second decade of the seventeenth century, that he “devoured the schoolmen, Scotus, Ockham, and Aquinas”; was “much affected” by Calvin; and had Aristotle for his “tutelary
Or consider Sir Matthew Hale, chief justice of the Court of King’s Bench (1671–1676). Fifteen volumes of Francisco Suárez’s work were in his library, and he “had studied them carefully already early in his life.”33 Later in life, Hale would spend his Sunday evenings reading and writing massive compendia of notes on theology and the Bible, which remain unpublished and have been given almost no attention by legal scholars.34 And he wrote religious poetry.35 Such avocations should not surprise us. Hale was the author not only of The History of the Common Law of England but also of a Treatise of the Nature of Laws in General and Touching the Nature of Law. In this latter work, he appealed to philosophers and theologians, mostly Christian, but also Jewish and Muslim. When discussing “the doctrine of Christian philosophers” on the divine influence on human understanding, he refers to two thirteenth-century bishops, Robert Grosseteste of Lincoln and William Auvergne of Paris; and two Franciscans, Adam de Marisco and Roger Bacon.36 Hale then remarks with approbation on the continuity between their views on this point and the later views of “the Roman councils and Schoolmen.”37 Matthew Hale shaped the common law, and theology—including scholastic theology—shaped Matthew Hale.
More needs to be done in tracing these lines of influence. Yet when the influence of the Catholic intellectual tradition on the common law is shown, we as contemporary lawyers and legal scholars will still be free to decide its valence. For some late moderns, the imprint of Christian theology will mar the
Those, then, are the first two modes of influence: inheriting and conversing. A third is generating.
If we are going to think of how the common lawyers were influenced, we need to get into their minds and think of how they saw the world. At the time of the Reformation, the Roman side obviously claimed the mantle of catholicity. But so did the Protestant side. Indeed, the Reformation was, in important respects, a debate about what catholicity consisted in.38 One side emphasized the connection to the ancient see of Rome, which carried forward the apostolic authority of Saint Peter. The other side emphasized other ecclesiological loci that also had patristic and medieval roots, whether general councils called by Christian princes or regional forms of episcopal governance, such as synods.
The Roman and non-Roman sides both appealed to the scriptures and invoked the tradition of the early church.39 Each side thought that it would win the argument if it could only show that the other side had—to use a Newmanesque word long before its time—“developed” the doctrine. All agreed that whoever had not changed or augmented the deposit of faith was the truly catholic side.40
So in Paris and Rouen, on the French side of the English Channel, the Catholic intellectual tradition was proceeding apace. And on the other side of the
In other words, if we are going to try to understand the jurists who developed the common law, we will find that they publicly identified themselves as “Catholic,” in the sense of being part of the universal church.49
At the beginning of his opinion, Chief Justice Vaughan knows that he needs to clear away misconceptions about the distinction between malum in se and malum prohibitum, so he starts with first principles, including the point that acts are not in themselves wrong without some kind of law that is being controverted. In this argument he appeals to the scholastic theologians: “And so all the schoolmen agree, that actus qua actus non est malus.”50
That a dispensation may he granted to a body corporate or aggregate, as well as to private persons, Suarez de Legibus, which Mr. Attorney cited in this case, and is in truth a most learned work, is very express.
Dispensation autem per se primo versari potest circa personam privatam, quia solum est particularis exceptio à Communi Lege; potest etiam ferri circa communitatem aliquam quae sit pars majoris communitatis, sicut uni Religioni, Ecclesiæ aut Civitati conceditur privilegium, per quod excipitur à Lege Communi. Potest etiam concedi toti communitati pro uno Actu, vel pro certo tempore per modum suspensionis. This last must be understood where the dispensator is the intire law-maker.
And accordingly dispensations are as frequently granted by the Pope, from whom the use of dispensations was principally derived to us, to bodies corporate, that is, to religious orders, as to private persons, as is apparent in the Bullaries, if any will consult them; but I forbear citing them, because they are forreign authorities.52
Thus the chief justice of the Court of Common Pleas could appeal to a Jesuit scholastic as an authority and praise him for his learning, which he does for no other authority quoted in the opinion. Chief Justice Vaughan declines to cite “forreign authorities,” but Suárez does not seem to him similarly remote. For this leading common law judge, the learning of Suárez was not foreign law.
The only remaining question is whether Chief Justices Vaughan and Hale were idiosyncratic. To answer that question with painstaking proof would require a book, not the conclusion to an essay. So consider the critical view of Andrew Amos. He served on an English criminal law commission, was a member of the council reforming the laws of India, and became the Downing Professor of the Laws of England at Cambridge. Early in his legal career, in 1825, Amos published an edition of Sir John Fortescue’s De laudibus legum Angliæ. Amos included a lengthy note on the first chapters, calling them “replete with exploded opinions of philosophy, antiquated definitions of law, and strained applications of Scripture.”53
theological learning was a favorite pursuit of the most eminent legal characters of this country. Sir E. Coke’s poetical advise to students respecting the study of the Scriptures is well known. Sir Thomas More gave lectures, when a young man, upon St. Augustine[’s] “de civitate De” in St. Lawrence’ church: Clarendon wrote reflections and contemplations upon the Psalms of David; and Burnet observes in his Life of Hale, that a person who should read the compositions upon the subject of divinity, which that Judge wrote, would imagine that the study of theology had occupied most of his time and thoughts. Fortescue informs us, in a subsequent part of his treatise, how much the reading of the Scriptures was blended with that of Law,
in the Inns of Court.… Not less remarkable is the strong tincture which the minds of our ancient lawyers imbibed from the Aristotelian philosophy: Sir John Dodderidge who died a Justice of the King’s Bench, A.D. 1628, in a treatise called “The English Lawyer” expounds the law of England according to the doctrines of the schoolmen, treating each subject with reference to its material, formal, efficient and final cause: A commission of sewers is viewed in the same fourfold light by Sir E. Coke in his reports, and he considers the creation of a corporation as taking place conformably to Aristotle’s notions respecting the origin of bodies in nature: The great deference paid by lawyers to the authority of that philosopher is very apparent from Plowden’s observations, at the conclusion of his report of the case of Eyston and Studd; and the impressions which the jurisprudence of the country has received from this circumstance are still very discernible.… It is also observable, that the writings of the civilians had a material influence in forming the opinions of the legal profession in this country.55
The conclusion is inescapable that the common law judges, such as Coke, Ellesmere, Hale, and Vaughan, had all the hallmarks of what today would be called the Catholic intellectual tradition.56 Later luminaries of the common law could be added, including Mansfield, Blackstone, Story, and Lushington.57
Recall that Professor Cavadini summarizes the Catholic intellectual tradition in eight theses.58 The first seven are simply the intellectual tradition of the Western church. The eighth refers to “one specific example” of how the
Allow me to put this a little more crisply. If we were to say the Catholic intellectual tradition means the Roman Catholic tradition, then there would be
Yet the contours of this intellectual tradition are not specifically Roman Catholic.61 All the great English jurists I mentioned would find themselves squarely within what could be called the Catholic, or catholic, intellectual tradition. In fact, given the cross-confessional argument and pollination in the early modern period, across the republic of letters, it is plausible to think that sharply demarcated “Catholic” and “Protestant” intellectual traditions are from a later time. Perhaps that time is even as late as the nineteenth century, with the rise of German universities and a resurgent papacy marked by skepticism of modernity.62 Such an inquiry, however, lies beyond the scope of this chapter. Also beyond this chapter’s scope is another nineteenth-century development, namely the argument by codifiers in the United States that the common law was too “Catholic.”63
In short, if we recognize a broader referent for the Catholic intellectual tradition, one that encompasses at least Western Christianity, the boundaries of the concept will prove less anachronistic. And then, once we allow the common law judges to fit within this tradition, the question asked at the start of this chapter receives a dramatic answer. We are face to face with the vast influence of Christianity on the common law.
This influence is no longer as visible on the surface of the law. Yet it still runs deep. Many of our most cherished concepts, including ideas of equality and human rights, are gifts in considerable part from this intellectual tradition.64
Acknowledgments
I am thankful for comments from Gerald Bray, Christian Burset, Kellen Funk, Layne Hancock, and Richard Helmholz.
See, for example, John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge: Cambridge University Press, 2002); id., The Reformation of Rights: Law, Religion, and Human Rights in Early Modern Calvinism (Cambridge: Cambridge University Press, 2007); John Witte, Jr. and Frank S. Alexander, eds., The Teachings of Modern Protestantism on Law, Politics, and Human Nature (New York: Columbia University Press, 2007). See further the chapters by R. H. Helmholz and Nicholas Wolterstorff herein.
See Stuart Banner, “When Christianity Was Part of the Common Law,” Law and History Review 16 (1998): 27–62.
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.
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).
See David Paul Deavel, “Preface: The Catholic Intellectual Tradition,” Logos: A Journal of Catholic Thought and Culture 24 (Fall 2021): 5–20, at 6.
J. C. Cavadini, “Eight Modest Theses on ‘The Catholic Intellectual Tradition,’” unpublished manuscript dated May 17, 2022. See below, note 59. It is standard for analyses of the Catholic intellectual tradition to emphasize the interplay of faith and reason. “The two major principles that undergird” the Catholic intellectual tradition are said to be “the unity of all knowledge and the complementarity of faith and reason”: Deavel, “Preface: The Catholic Intellectual Tradition,” 8. The “common criteria” of the Catholic intellectual tradition are “a complicated link between faith and reason”: Mary Ellen O’Donnell, “The Catholic Intellectual Tradition: A Classification and a Calling,” in The Catholic Studies Reader, ed. James T. Fisher and Margaret M. McGuinness (New York: Fordham University Press, 2011), 58. The tradition’s “fare” is “wherever faith and understanding are seeking each other”: John C. Haughey, Where Is Knowing Going?: The Horizons of the Knowing Subject (Washington, DC: Georgetown University Press, 2009), 69. See also Pope John Paul II, Fides et Ratio—Encyclical Letter, John Paul II (1998), ¶ 59 (referring to “the great tradition of Christian thought which unites faith and reason”).
Cavadini, “Eight Modest Theses on ‘The Catholic Intellectual Tradition.’”
See R. H. Helmholz, The Ius Commune in England: Four Studies (Oxford: Oxford University Press, 2001); R. H. Helmholz, Roman Canon Law in Reformation England (Cambridge: Cambridge University Press, 1990); and R. H. Helmholz, “Magna Carta and the ius commune,” University of Chicago Law Review 66 (1999): 297–371.
See Helmholz, The Ius Commune in England, 26 (noting Saint Augustine’s rationale for sanctuary within a church building, and the shifting rationale in later canon law).
See, for example, David Lemmings, Professors of the Law: Barristers and English Legal Culture in the Eighteenth Century (Oxford: Oxford University Press, 2000), 41n.64; and Alexandra Walsham Charitable Hatred: Tolerance and Intolerance in England, 1500–1700 (Manchester, UK: Manchester University Press, 2006), 59–62.
This was, however, hotly debated. On Bellarmine’s rejoinder, see Stefania Tutino, Empire of Souls: Robert Bellarmine and the Christian Commonwealth (Oxford: Oxford University Press, 2010), 117–58.
“The Thirty-Nine Articles of Religion,” in The Book of Common Prayer: The Texts of 1549, 1559, and 1662, ed. Brian Cummings (Oxford: Oxford University Press, 2011), 684.
See James Edelman, “The Equity of the Statute,” in Philosophical Foundations of the Law of Equity, ed. Dennis Klimchuk, Irit Samet, and Henry E. Smith (Oxford: Oxford University Press, 2020), 352; and Samuel E. Thorne, introduction to A Discourse upon the Exposicion & Understandinge of Statutes With Sir Thomas Egerton’s Additions, ed. Samuel E. Thorne (San Marino, CA: Huntington Library, 1942), 3, 55–56, 79–83.
See “Plowden, Edmund (c. 1518–1585),” Oxford Dictionary of National Biography, Jan. 3, 2008: “The family tradition that Elizabeth once offered Plowden the office of lord chancellor if he would renounce Catholicism is probably unfounded, but it is a fair reflection of his reputation as a lawyer, despite the disabilities caused by his faith.” See also Geoffrey de C. Parmiter, “Edmund Plowden and the Woolsack: A Query,” Law & Justice 134 (2000): 29–37 (finding the question close). Plowden’s recusancy did not prevent Lord Coke from commending him as “of great Gravity, Knowledge Integrity”: Sir Edward Coke, “Part Ten of the Reports: Preface,” in The Selected Writings and Speeches of Sir Edward Coke, vol. 1, ed. Steve Sheppard (Indianapolis, IN: Liberty Fund, 2003), 343.
See Bracton on the Laws and Customs of England, vol. 2, trans. and rev. Samuel E. Thorne (Cambridge, MA: Belknap Press, 1968), 19; and Oliver Wendell Holmes Jr., The Common Law, ed. Mark DeWolfe Howe (Cambridge, MA: Belknap Press of Harvard University Press, 1963), 5.
See, for example, F. W. Maitland, The Forms of Action at Common Law: A Course of Lectures ed. A. H. Chaytor and W. J. Whittaker (Cambridge: Cambridge University Press, 1909).
Edward Coke, The First Part of the Institutes of the Laws of England or, A Commentary Upon Littleton, 16th ed., ed. Francis Hargrave and Charles Butler (London, 1809), 155a, § 234.
Ibid. To a late-modern reader, such biblical and theological references may seem mere embellishments, but that would understate their apparent force for judges and lawyers such as Lord Coke. A more promising approach might be thinking of them as enabling a decision maker to choose an option. See Richard M. Re, “Precedent as Permission,” Texas Law Review 99 (2021): 907–49.
Samuel L. Bray and Paul B. Miller, “Getting into Equity,” Notre Dame Law Review 97 (2022): 1763–99; Henry E. Smith, “Equity as Meta-Law,” Yale Law Journal 130 (2021): 1123–30; P. G. Turner, “Rudiments of the Equitable Remedy of Compensation for Breach of Confidence,” in Equitable Compensation and Disgorgement of Profit, ed. Simone Degeling and Jason N. E. Varuhas (Oxford: Hart Publishing, 2017), 239, 240, 260–61, 266–69, 274–75.
See, for example, The Earl of Oxford’s Case, 21 Eng. Rep. 485, 486 (Chancery 1615). For discussion, see Samuel L. Bray and Paul B. Miller, “Christianity and Equity,” in The Oxford Handbook of Christianity and Law, ed. John Witte, Jr. and Rafael Domingo (Oxford: Oxford University Press, 2023); and D. Ibbetson, “A House Built on Sand: Equity in Early Modern English Law,” in Law & Equity: Approaches in Roman Law and Common Law, ed. E. Koops and W. J. Zwalve (Leiden: Martinus Nijhoff, 2014), 55–78.
On the complexity of conscience in the late fifteenth- and early sixteenth-century Chancery, see Sir John Baker, The Oxford History of the Laws of England: Volume VI, 1483–1558 (Oxford: Oxford University Press, 2002), 39–48.
Richard Hedlund, “The Theological Foundations of Equity’s Conscience,” Oxford Journal of Law and Religion 4 (2015): 119–40.
But see, for example, The Case of Modus Decimandi, 77 Eng. Rep. 1424, 1428 (Common Pleas 1608).
See, for example, Gerald Bray, “Canon Law and the Church of England,” in The Oxford History of Anglicanism, Volume 1: Reformation and Identity c. 1520–1662, 168–185, ed. Anthony Milton (Oxford: Oxford University Press, 2017); Bray and Miller, “Christianity and Equity”; Richard H. Helmholz, ed. Canon Law in Protestant Lands (Berlin: Duncker & Humblot, 1992); W. J. Torrance Kirby, “Richard Hooker’s Theory of Natural Law in the Context of Reformation Theology,” Sixteenth Century Journal 30 (1999): 681–703; Richard A. Muller, After Calvin: Studies in the Development of a Theological Tradition (Oxford: Oxford University Press, 2003); Richard A. Muller, The Unaccommodated Calvin: Studies in the Foundation of a Theological Tradition (Oxford: Oxford University Press, 2001); Carl R. Trueman and R. Scott Clark, eds., Protestant Scholasticism: Essays in Reassessment (Carlisle: Paternoster, 1999); and Witte, Law and Protestantism. For a recent general assessment, see Maarten Wisse, “Reformed Theology in Scholastic Development,” in The Oxford Handbook of Reformed Theology, ed. Michael Allen and Scott R. Swain (Oxford: Oxford University Press, 2020), 57–73.
See, for example, Stephen Mark Holmes, “The Title of Article 27(26): Cranmer, Durandus and Pope Innocent III,” Journal of Ecclesiastical History 64 (2013): 357–64, at 363: “Common sources and habits of mind, aided by the common use of Latin, remained among the scholars of the different Christian factions of late sixteenth- and seventeenth-century Europe, and the overthrow of an Anglo-Catholic historiography of the English Reformation should not obscure continuities in early British Protestantism.” See also Anthony Grafton, World Made by Words: Scholarship and Community in the Modern West (Cambridge, MA: Harvard University Press, 2009); and Dirk van Miert, “Language and Communication in the Republic of Letters: The Uses of Latin and French in the Correspondence of Joseph Scaliger,” Bibliothèque d’Humanisme et Renaissance 72 (2010): 7–34.
Many examples could be given, but one is chronology, the study of historical dates. Professor Anthony Grafton notes that “Kepler and other chronologers tried to construct a chronological Republic of Letters—a virtual realm where Calvinists, Lutherans, and Catholics could discuss the dates of Jesus’s life in a calm and constructive way.” Anthony Grafton, “Chronology, Controversy, and Community in the Republic of Letters: The Case of Keplar,” in World Made by Words, 133. “To some extent,” Grafton adds, “they managed it.” Ibid.
See Ian Williams, “Christopher St German: Religion, Conscience and Law in Reformation England,” in Great Christian Jurists in English History, ed. Mark Hill and R. H. Helmholz (Cambridge: Cambridge University Press, 2017), 69–92, at 72–76.
See J. L. Barton, introduction to St. German’s Doctor and Student, ed. F. T. Plucknett and J. L. Barton (London: Selden Society, 1974), XXIII–XXIV, XLIV–XLVII.
Scott McDermott, “The Opening of the American Mind: Protestant Scholasticism at Harvard, 1636–1700,” in Catholicism and Historical Narrative: A Catholic Engagement with Historical Scholarship, ed. Kevin Schmiesing (Lanham, MD: Rowman & Littlefield, 2014), 19–45, at 21. I am grateful to Layne Hancock for this source. On Alsted, see Howard Hotson, Johann Heinrich Alsted 1588–1638: Between Renaissance, Reformation, and Universal Reform (Oxford: Oxford University Press, 2000); on Keckermann, see Joseph S. Freedman, “The Career and Writings of Bartholomew Keckermann (d. 1609),” Proceedings of the American Philosophical Society 141 (1997): 305–64; on Eustachius, see Roger Ariew, “‘Le meilleur livre qui ait jamais été fait en cette matière’: Eustachius a Sancto Paulo and the Teaching of Philosophy in the Seventeenth Century,” in Teaching Philosophy in Early Modern Europe: Text and Image, ed. Susanna Berger and Daniel Garber (Cham: Springer, 2021), 31–46.
For a sketch, see John Twigg, The University of Cambridge and the English Revolution 1625–1688 (Woodbridge, UK: Boydell Press, 1990), at 207 and n2.
Sarah Bendall, Christopher Brooke, and Patrick Collinson, A History of Emmanuel College, Cambridge (Woodbridge, UK: Boydell Press,1999), 216.
Ibid. The student was John Preston, later master of Emmanuel College, Cambridge.
Gerald J. Postema, introduction to Matthew Hale, On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings, ed. Gerald J. Postema (Oxford: Oxford University Press, 2017), XXII.
David S. Sytsma, “Matthew Hale as Theologian and Natural Law Theorist,” in Hill and Helmholz, Great Christian Jurists in English History, 170.
See Robert C. Evans, Stephen Paul Bray, and Christina M. Garner, “The ‘Christmas Poems’ of Sir Matthew Hale: Brief Preface and Annotated Texts,” The Ben Jonson Journal 20 (2013): 95–125.
Matthew Hale, Treatise of the Nature of Laws in General and Touching the Law of Nature, in Hale, On the Law of Nature, Reason, and Common Law: Selected Jurisprudential Writings, 76. For their opinions, Hale cites John Selden’s De jure naturali et gentium juxta disciplinam Ebraeorum. For an introduction to Selden’s work, see Harold J. Berman and John Witte, Jr., “The Integrative Christian Jurisprudence of John Selden,” in Great Christian Jurists in English History, 139–61.
Ibid.
See, for example, An Apology or Answer in Defence of The Church Of England: Lady Anne Bacon’s Translation of Bishop John Jewel’s Apologia Ecclesiae Anglicanae, ed. Patricia Demers (Cambridge: Modern Humanities Research Association, 2016), 55–59. As Stephen Hampton notes, Suárez’s Defensio Fidei Catholicae was written as “a rejoinder to James I’s claim that he was entitled to call himself a catholic Christian.” Stephen Hampton, “Confessional Identity,” in The Oxford History of Anglicanism, Volume 1: Reformation and Identity c. 1520–1662, 210, 211.
See Diarmaid MacCulloch, Thomas Cranmer: A Life (New Haven: Yale University Press, 1996), 617: “To define Cranmer as a reformed Catholic is to define all the great Continental reformers in the same way: for they too sought to build up the Catholic Church anew on the same foundations of Bible, creeds and the great councils of the early Church.” For homiletic examples, see Katrin Ettenhuber, “The Preacher and Patristics,” in The Oxford Handbook of the Early Modern Sermon, ed. Hugh Adlington, Peter McCullough, and Emma Rhatigan (Oxford: Oxford University Press, 2012), 35–53. Jewel’s Challenge Sermon in 1559, for example, argued that transubstantiation was “newly deuised” and not found in the scriptures or the ancient church. Torrance Kirby, “John Jewel at Paul’s Cross: A Culture of Persuasion and England’s Emerging Public Sphere,” in Defending the Faith: John Jewel and the Elizabethan Church, ed. Angela Ranson, André A. Gazal, and Sarah Bastow (University Park: Pennsylvania State University Press, 2018), 53.
See Owen Chadwick, From Bossuet to Newman, 2d ed. (Cambridge: Cambridge University Press, 1987), 1–2, 13.
The Book of Common Prayer, 1662, in The Book of Common Prayer: The Texts of 1549, 1559, and 1662, at 210.
Ibid., 247, 255.
Ibid., 392.
Ibid., 257, 258, 259.
Ibid., 268. This prayer was a new composition, added in 1662.
Canons of 1571, in The Anglican Canons, 1529–1947, ed. Gerald Bray (Woodbridge, UK: Boydell & Brewer, 1998), 196–199 (no. 6, requiring preachers to teach nothing “but that which is agreeable to the doctrine of the Old Testament and the New, and that which the catholic fathers and ancient bishops have gathered out of that doctrine”); Canons of 1603 (1604), in The Anglican Canons, 1529–1947, at 342–343 (no. 55, giving a bidding prayer that begins: “Ye shall pray for Christ’s holy catholic church, that is, for the whole congregation of Christian people dispersed throughout the whole world, and especially for the churches of England, Scotland and Ireland”).
See, for example, Jewel, Apology, 131–42.
See, for example, Richard Hooker, Of the Laws of Ecclesiastical Polity: The Folger Library Edition of the Works of Richard Hooker, vol. 1, ed. Georges Edelen (Cambridge, MA: Belknap Press of Harvard University Press, 1977), bk. 3.1, at 194–206; see also Richard Hooker, “A Learned Discourse of Justification, Workes, and How the Foundation of Faith Is Overthrowne,” in Tractates and Sermons: The Folger Library Edition of the Works of Richard Hooker, vol. 5, ed. Laetitia Yeandle and Egil Grislis (Cambridge, MA: Belknap Press of Harvard University Press, 1990), 83, 155.
There was, of course, continuing contestation about the meaning of catholicity and the value of patristic tradition. See, for example, Anthony Milton, Catholic and Reformed: The Roman and Protestant Churches in English Protestant Thought 1600–1640 (Cambridge: Cambridge University Press, 1995), 150–56; and Jean-Louis Quantin, “Perceptions of Christian Antiquity,” in The Oxford History of Anglicanism, Volume 1: Reformation and Identity c. 1520–1662, 280–97.
Thomas v. Sorrell, 124 Eng. Rep. 1098, 1100 (Exchequer Chamber 1673/4).
These references appear in the marginal annotations in the edition in Vaughan’s Reports; some references first appear in the 1706 corrected edition. See Edward Vaughan, The Reports and Arguments of that Learned Judge, Sir John Vaughan, 2nd corr. ed. (London, 1706), 330.
Thomas v. Sorrell, 124 Eng. Rep. at 1107.
Fortescue, De Laudibus Legum Angliæ: The Translation into English, ed. A. Amos (Cambridge, 1825), 4, note a.
Ibid., 6.
Ibid., 4–5.
See Deavel, “Preface: The Catholic Intellectual Tradition.”
See, for example, S. M. Waddams, Law, Politics and the Church of England: The Career of Stephen Lushington 1782–1873 (Cambridge: Cambridge University Press, 1992); Wilfred Prest, “William Blackstone’s Anglicanism,” in Great Christian Jurists in English History, at 213–35. This does not, of course, mean that they are above critique, from outside as well as from within the Catholic intellectual tradition. For example, John Finnis, “Blackstone’s Theoretical Intentions,” in Philosophy of Law: Collected Essays, vol. 4 (Oxford: Oxford University Press, 2011), 189, 208 (noting that in William Blackstone’s work the theories of law’s relation to nature that were advanced by “Aquinas, Hooker, and St German have all disappeared and have not been replaced” [footnote omitted]).
The theses are quoted with Professor Cavadini’s permission (citations omitted):
One hallmark—perhaps the main one—of the Catholic Intellectual Tradition is its integration of reason and revelation—
Where “revelation” is not reducible to or derivative from “reason,” but can only be accepted by faith and each revealed truth[] is called a “mystery”—
While yet revelation does not replace reason, but is hospitable to reason, such that reason “seeks to understand” what it has received in faith.
Therefore this “quest to understand,” while it avoids reducing what is believed to something discoverable by reason alone, is not isolated or sequestered from the rest of the conversations reason has—
First because the common currency of intellectual discourse—e.g. what “language” is, what “beauty” is, what “knowledge” is, what a “human being” might be, etc.—must be invoked in order to have a coherent, rational conversation—this is the level of philosophy—
And second because the various disciplines are always developing and their very results pose questions which would only be questions if there is something that transcends their respective methodologies (for example, the status of human death and its relationship to sin requires some understanding of what a human being might be (a conversation that must be philosophically governed) and what sin might be (a theological conversation because it involves revelation)[)].
Thus we talk, not about a settled integration between “reason” and “revelation” valid for all time, but an ongoing “dialectic between faith and reason,” an ongoing quest for integration that is open ended.
Catholic Social Teaching is one specific example of this way of thinking about the Catholic Intellectual Tradition.
Cavadini, “Eight Modest Theses on ‘The Catholic Intellectual Tradition.’”
On Catholic social teaching, see, generally, Catholic Social Teaching: A Volume of Scholarly Essays, ed. Gerard V. Bradley and E. Christian Brugger (Cambridge: Cambridge University Press, 2019).
See, for example, W. J. Torrance Kirby, “Reason and Law,” in A Companion to Richard Hooker, ed. Torrance Kirby (Leiden: Brill, 2008), 251–71; A. S. McGrade, “Classical, Patristic, and Medieval Sources,” in A Companion to Richard Hooker, 51–87; Witte, Law and Protestantism, 154–168; and John Witte, Jr., “The Good Lutheran Jurist Johann Oldendorp (ca. 1486–1567),” in Great Christian Jurists in German History, ed. Mathias Schmoeckel and John Witte, Jr. (Tübingen: Mohr Siebeck, 2020). Professor Diarmaid MacCulloch described Hooker’s Laws as “a work which grounded its assault on its opponents on axioms from Aristotle, Plato and the medieval scholastics, rather than getting straight down to satisfyingly direct insults”: Diarmaid MacCulloch, “Richard Hooker’s Reputation,” The English Historical Review 117 (2002): 773–812, at 781.
See supra notes 6 and 58.
See, generally, Thomas Albert Howard, Protestant Theology and the Making of the Modern German University (Oxford: Oxford University Press, 2006); and John W. O’Malley, Vatican I: The Council and the Making of the Ultramontane Church (Cambridge, MA: Belknap Press of Harvard University Press, 2018). For an eighteenth-century episode of divergence, see Richard H. Popkin, “Skepticism and the Counter-Reformation in France,” Archiv für Reformationsgeschichte 51 (1960): 58–87.
See Kellen Funk, “Sect and Superstition: The Protestant Framework of American Codification” (draft under review).
See John Witte, Jr., “A New Calvinist Reformation of Rights” (The Gifford Lectures 2022); John Witte, Jr. and Frank S. Alexander, eds., Christianity and Human Rights: An Introduction (Cambridge: Cambridge University Press, 2010); Witte, The Reformation of Rights; and Witte, Law and Protestantism. For a twentieth-century case study, compare Christopher McCrudden, “Where Did ‘Human Dignity’ Come from? Drafting the Preamble to the Irish Constitution,” American Journal of Legal History 60 (2020): 485–535, with Samuel Moyn, “The Secret History of Constitutional Dignity,” Yale Human Rights & Development Law Journal 17 (2014): 39–73.
Desmond M. Tutu, “The First Word: To Be Human Is to Be Free,” in Witte and Alexander, Christianity and Human Rights, 1–7.
See Tom Holland, Dominion: How the Christian Revolution Remade the World (New York: Basic Books, 2021).
John Witte, Jr., foreword to id., God’s Joust, God’s Justice: Law and Religion in the Western Tradition (Grand Rapids: Eerdmans, 2006), IX–X.