Their judgments in court are also shown by this book to have been of critical importance to the common law. Mansfield has been said to have invented modern commercial law and set Britain on the path to the abolition of slavery. Denning was renowned for his brilliance as a judge, and his contributions to a number of fields, including contract law and negligence, are discussed. Sadly, Kenyon’s efforts to deal with adultery, through the criminal conversation cases he presided over, are seen as “largely unproductive.” Perhaps the most tangible legacy of the Christian jurists is recorded in the chapter on Palmer, who is shown to have been a proponent of the scheme to concentrate the courts within one purpose-built building, the Royal Courts of Justice, on the Strand, London.
What is also remarkable about the Christian jurists set out in this book is their independence of thought and commitment to the rule of law in the face of regal, clerical, and other encroachments. Bracton expected virtuous kings to live under the law. St. Germain argued both for chancery intervention where fallible human laws failed and against clerical abuses; Coke opposed the papacy for eroding the bond between sovereign and subject and was said to be mildly anti-clerical, being accused of seeking to overthrow the Church of England and even Christianity itself for his robust clashes with ecclesiastical courts. Selden was locked in the Tower of London partly for his work digging out medieval sources to support the House of Commons Protestation on the liberties of Parliament, and was also censored for concluding tithe payments were voluntary. Hale argued that obedience to the sovereign’s laws was limited to where these were not repugnant to the law of God. Mansfield saw tyranny in the state and persecution in the church as equally bad so favoured religious toleration.
This tradition of independent thought can be seen to be transformed as the nature of threats to liberty changed. Lushington is shown to have devoted thousands of hours over many years to the anti-slavery movement. Denning saw the dangers of abuse of power in whatever guise presented, and his concerns with both the welfare state and trade unions are discussed in the book.
The eminent U.S. Supreme Court Justice Oliver Wendall Holmes once said:
The life of the law has not been logic; it has been experience … The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become. (“The Common Law,” 1881).
We are reminded by this book of the remarkable contribution of Christian jurists to the development of English law. Their experiences of faith were diverse, from evangelical-style conversion to Anglican orthodoxy. Their contributions were also diverse: historical study, legal philosophy, law book authorship, and judicial and political activism. Their independence of thought sometimes required personal sacrifice, whether time spent in the Tower of London or thousands of hours devoted to anti-slavery campaigning. Yet the book does not shy away from difficult issues. For example, in the introduction the editors identify divergence in approaches to law derived from religion – for example, how slavery was regarded.
The editors and authors of this book are to be congratulated for putting together this substantial work of scholarship with the many fascinating insights it brings. It is hoped that it will indeed contribute to a wider debate about the connection between religion and law and serve as a reminder of what it meant for Christianity to be part of the law of England.
(Photo credit: Shark Attacks. This photo has been cropped. CC BY 2.0.)