What is the significance of Henry II being called the Father of the English Common Law of Nations? 

 ABSTRACT:  Most naive Christians believe that the Common Law of Nations is based on the Bible.  But alas, it turns out this is a myth that leads to endless confusion about God’s requirement for a nation’s law code.  As fate would have it, Henry II, the Father of the Common Law, had little interest in Bible law beyond what authority it gave him over the church. He was touchy about that. This was a church ruled by his former friend, Archbishop Thomas Beckett.  But no matter, Henry had him brutally murdered anyway. On the doorstep of the sanctuary, no less. Just a little spat among friends that got out of hand. 

Might Makes Right

Henry II was one of those 4 aggressive, law-making kings who spun out secular law codes following the Papal Revolution of 1075 to 1122.  Others were Roger II of Sicily, Phillip II of France, and Frederick II of Germany.  Interesting how most of them were former Vikings. You probably remember those guys. The ones who preferred to settle their disputes with a neighborly duel. In Savannah there was a convenient dueling range right next to the cemetary. That way you could just toss the loser over the fence without a lot of hassle. But wait a minute, that came a little later. Eight centuries later, maybe. Somebody came up with the catchy sound bite, might makes right, but he was soon canceled. Henry II rode circuit in Plantagenet England-France to make sure eveybody got the memo.

Henry adjudicated in terms of German Folk law, Justinian Code, Canon law, and judicial precedent. Whatever it took to get the job done. All these were variations of natural law, conveniently fluid, often contradictory, but nothing a creative king couldn’t handle. Fallen reason interpreting fallen nature to verify — or more often replace — revealed truth.  What could possibly go wrong. I’m sure God wouldn’t mind. By the early 18^th Century Enlightenment these judicial precedents had degenerated into 200+ crimes subject to the death penalty.  Something had to be done about those pesky pickpockets. Off with his hand. That didn’t work — he’s got another one. Off with his head.

Restitution vs. Retribution

How did we get to that point? For most of the Middle Ages Augustine’s Neo-Platonic, isolationist eschatology reigned over European culture via the monastery. They had little interest in institutional reform of the broader society.  Why bother. There was legal order, but no legal system.  No lawyers, no law schools, and very little by way of law codes.  What’s wrong with that, you say? It was heaven on earth. Things were quite decentralized under the early feudal system, perhaps too much so. So Alfred the Great and his kin got busy and wrote the restitutionary Mosaic Covenant into their English national constitution at the end of the 9th Century.   That’s how he got his last name: TheGreat.

How quaint. Any such Biblical legal system was simply too even-handed. Too simple. Can’t have that. It had to be replaced by the retributionary legal system of the Normans (rebranded Vikings) in 1066.  This institutionalized arbitrary punishment rather than cure. All of a sudden we have disfigurement or death for felony, trial by ordeal or battle, prison terms with corresponding prisons, and other such expediencies.  It makes for a great story if you’ve got a name like Ivanhoe.

Great Bible Reset Needed

Only when we grasp this dramatic shift away from King Alfred’s commitment to Mosaic law, will we cease to  muddle along under the illusion that the English Common law of Nations is acceptable to God.  Contrary to most ill-informed Christian history buffs, there was no post-Hastings continuity from the reign of Alfred. On the contrary, there was great discontinuity. Remember those exciting tales of bitter conflict between Robin Hood and the fat Sheriff of Nottingham?

Where is Robin Hood when we really need him? Our only hope today, is a great Bible reset back to an oath-bound commitment to the specific requirements of Bible law. With the good kings of Judah as our guide, this will require nothing less than an overhaul of our entire criminal justice system and cultural interactions, at every level.  That’s all. I bet you thought it was going to be difficult, didn’t you. Examples are man-initiated II Kings 23:3, and of course, God-initiated Exodus 20-24. Who said history is boring? This is turning into more like a stand-up routine than an Abstract, isn’t it. Anyway, on to the Introduction.

I. Introduction

A. The Common Law of Nations

1. Evolving Precedents

The intricate legal framework of the Common Law of Nations, emerges from judicial decisions rather than legislative statutes or theology. Its evolution is marked by the accumulation of precedents. Precedents shape legal principles organically.  In scientific terms it is therefore an inductive, evolving legal system, rather than deductive.  The starting point is the decision of man – or rather judge — regarding what is good and evil. We refuse to start with a specific command of God and come to a just application of that command based on reasoned judgment. 

God’s law does not evolve in spite of what dispensationalism might have told you.  God’s definition of perfect justice is unchanging through the ages. But we habitually decide that we are wiser than God when it comes to law. We succomb to Satan’s original temptation of Eve: “ye shall be as God, knowing good and evil.” To avoid such events in the future, the Common Law was codified by Glanville’s Treatise in 1554. William Blackstone had another go at it in the early 1700s, just in time for the Founding Fathers to show up.

2. Eternal Stability

We are told that the Common Law of Nations is not a static code but a dynamic system where judges interpret and adapt principles based on precedent. This allows the law to evolve with societal changes.  It thrives on the concept of stare decisis, which makes the law unsettled and thus inconsistent.  By Oxford definition, stare decisis is the legal principle of determining points in litigation according to precedent.  At certain points along the way some brilliant soul has to show up and give us the latest version of the Common Law in written form.

By way of contrast Jesus said, “And it is easier for heaven and earth to pass away than for one tittle of the law to fail” (Luke 16:17). A tittle is just a part of a Hebrew letter.  Man and his “needs” are supposed to accommodate to God’s Word, not vice versa.  This makes Common law by definition contrary to Scripture.  It is really just another form of “natural law,” which is by its very nature indeterminate. It is based on human opinion. 

B. Importance of Legal History

The significance of common law lies in its supposed adaptability and responsiveness to societal needs.  On the contrary, this is the great weakness of Common Law because nobody knows for sure what the standard is.  It’s like moving the goal posts in a football game – or the height of the basketball rim. 

The argument typically states that unlike rigid statutory laws, common law allows for flexibility and gradual evolution. Its roots trace back to medieval England, where local customs and unwritten traditions were recognized and applied in resolving disputes.  The word “rigid” is a pejorative, used in place of “stable,” “consistent,” or “predictable.” 

A compelling example of common law’s importance is the Assize of Clarendon in 1166, initiated by King Henry II. This landmark event formalized royal courts and standardized legal procedures. With little if any reference to Biblical due process, it allegedly laid the groundwork for a cohesive and accessible legal system.  Instead, it lay at the heart of the quarrel between the king and ArchBishop, Thomas a Beckett. Beckett challenged Henry’s usurpation of church prerogative to try bishops in church courts.  Ultimately, it led to Beckett’s murder by the king’s men. Henry subsequently repented and made a pilgrimage to Becket’s tomb and was whipped by all the bishops as he lay prostrate before Beckett’s shrine. These pilgrimages became a tradition, as recounted in the Canterbury Tales.

C. John of Salisbury and Stephen Langton

Philosophers John of Salisbury and Stephen Langton had a lot to say about the underpinnings of common law. John of Salisbury promoted rule of law and limited government. He emphasized the importance of legal structures in maintaining social order.  But, again we return to the question of whose law are we talking about?  Is it the law of God or some variation of the law of man?  Because any departure from the perfect law of God is necessarly to some degree “injustice,” the law of man can never lead to permanent “societal order.” For John of Salisbury, the Word of God was just one source of legal authority among many.

To illustrate, many of John of Salisbury’s ideas found expression in the Magna Carta of 1215. This was a pivotal document in legal history influenced by Archbishop Stephen Langton. Langton’s role in drafting Magna Carta underscored principles of liberty and justice, shaping legal thought that would last for centuries. 

But here we go again. There is no mention of the law of God in Magna Carta.  In the first sentence we learn that it is based on a grant of right or concession from the profligate, King John. Secondarily, it is based on the authority of “holy church” and third, “the law of the land.”  Magna Carta is nothing but Common Law on steroids.  It is subject to all the same fatal weaknesses as the Common law.  It’s all hat and no cattle in terms of long-term societal stability.

D. Justice Defined by God’s Word Alone

We must forever freeze II Peter 2: 18,19 on the top row so we never lose sight of it: “For speaking out arrogant words of vanity they entice by fleshly desires, by sensuality, those who barely escape from the ones who live in error, promising them freedom while they themselves are slaves of corruption: for by what a man is overcome, by this he is enslaved.”  Let us be alert to cast off every wind of Enlightenment doctrine.

In summary, the evolving nature of common law by definition contradicts the unchanging law of God. Its historical importance, and the influence of philosophers like John of Salisbury and Stephen Langton collectively showcase a shifting legal system. It’s a legal system shaped by adaptation, precedent, and the “pursuit of justice.” This makes any claim by ill-advised Christians that Common Law is essentially the same as God’s law to be a dangerous falsehood.

That’s because there is no need to “pursue justice,” when God has defined justice for us in the Pentateuch. This also puts the lie to Christian claims that the U.S. Constitution is a Christian document. That’s because of the Preamble’s claim to “establish justice,” with a constitution that totally ignores the only definition of what constitutes true justice. That would be the eternal Word of God. In effect we are telling God that He doesn’t know what He’s talking about. Let us not be “ever learning and never able to come to the knowledge of the truth.”

II. Development of Common Law

A. Early Origins of the Common Law

1. Anglo-Saxon Law

There’s a misconception among Christians that the Anglo-Saxon law of Alfred the Great laid the foundation for the common law of Henry II. It’s impossible because the first is based on the Mosaic Covenant of Exodus 20-23, while the second emphasizes community-based perceptions of justice.  Some will point to the Dooms of King Æthelberht that established a system of compensation for various crimes, which emphasized restitution over retribution.  However, this was before the Norman Conquest. Aethelberht was the descendant of Alfred the Great, whose law code began with a verbatim recital of the Mosaic Covenant in Exodus 20-23.  Aethelberht and others in the line of Alfred were faithful to that law, but they were canceled at the Battle of Hastings. 

2. Norman Conquest and Its Impact

The Norman Conquest of 1066 formalized feudal concepts and drastically altered the legal landscape. The Domesday Book, commissioned by William the Conqueror, documented landownership, stressing the normanization of legal structures.  Every pig, chicken, sow, and building was hand-tabulated for purposes of centralized state monitoring and taxation. Imagine what he could have done with a computer. That started a trend of government oversight and intrusion that has endured for a millennium.

B. Establishment of Royal Courts

1. King Henry II and the Assize of Clarendon:

As noted above, King Henry II’s Assize of Clarendon in 1166 marked a pivotal moment. The system introduced by the Assize established royal courts to hear civil and criminal cases. It also initiated a circuit system, to ensure that justice was administered throughout the kingdom.  It also instituted a jury system that is nowhere to be found in Scripture.  There is no guarantee that a Biblically and otherwise illiterate populace will be any more just in their judgments than a Biblically trained judge.  King Jehoshaphat (II Chron. 17 & 19) commissioned priests and Levites to travel throughout the land and instruct people and prince alike in the basics of God’s law.   Ezra likewise, was commissioned to read the law of God on a regular basis to adults and children alike.

2. Development of the Common Law Courts

The common law courts, such as the Court of Common Pleas and the Court of King’s Bench, evolved during this period. These courts were alleged to provide a standardized legal structure, enabling litigants to seek remedies beyond local jurisdictions.  The King’s Court was that group of legal advisors and courtiers who accompanied the King in riding the circuit to administer justice, or went in his place. 

The American system of appeals is unbiblical.  God told Moses in Exodus 18 that lower courts could appeal upward for cases that were too difficult for them to decide.  Otherwise, the decision of local priests and civil officials, functioning as a panel of judges was final unless new evidence was found later.  The American system of endless appeals in multiple jurisdictions is decidedly unbiblical and clogs the courts.

But, it is nonetheless encouraged by our system of courts functioning as a tribunal of outlaws. An outlaw is an official who operates outside the authority and the divinely inspired details of the law of God. Many ill-advised Christian leaders are teaching that these multiple jurisdictions are a guarantee of liberty. On the contrary, they contradict God’s explicit command to have only His one law code to cover every exigency. Multiple law codes leads to confusion and slavery. What we need is clerics trained in the Law of God to function as advisors in the civil courts. That’s the way they did it in Deuteronomy chapter 17.

C. Growth of Precedent

1. Importance of Stare Decisis

The doctrine of stare decisis gained prominence, ensuring inconsistency in legal decisions. In the landmark case of Mirehouse v Rennell (1596), the court explicitly referenced precedent, solidifying its role in shaping the common law.  As noted above this is an emphatically unbiblical approach to law.  Every decision of every court should be referenced back specifically to one or more of the Ten Commandments (Exodus 20) and their case law applications (Exodus 21-23) or elsewhere in the Bible.  That is the only precedent allowed, not some previous judgment of the fallen mind of man. God told Moses that there shall be ONE LAW for the stranger and the home-born Israelite.  Today we are mired in thousands if not millions of laws and bureaucratic decrees. It has gotten so bad that everybody cannot help but break multiple laws on a daily basis.

2. Emergence of the Legal Profession

With the growth of common law, a distinct legal profession emerged. Legal practitioners, exemplified by figures like Sir Edward Coke, played a crucial role in interpreting and applying precedent. Coke’s work, including “The Institutes of the Laws of England,” became foundational to legal education and practice.  Coke often resisted decisions of James I’s Ecclesiastical King’s Court from his common law bench. At one point he had to fall on his face and plead for James’s forgiveness. But he continuued to resist. All of this created an unstable, evolving legal system that has plagued England and America to the present day.

III. Height of the Common Law of Nations

A. Establishment of Legal Principles

1. Writ System

The writ system became a hallmark of the common law of Nations to provide individuals with specific legal remedies. Notable was the Writ of Habeas Corpus, established in the 1679 case of Rex v. Secretary of State for Home Affairs. This writ safeguarded personal liberty by demanding a detained person’s release unless lawful grounds were shown.  This was one of the reasonable legal provisions of Magna Carta, that was nonetheless not specifically tethered to God’s “Higher Law.”

It was thus subject to repeal at any time, which the autocratic Abraham Lincoln did not hesitate to do during the American Civil War. Lincoln was supposedly a benevolent dictator, although his insatiable blood lust killed handreds of thousands, not only combatants but civilians. Northern newspapers, voters, and state legislators alike experienced the weight of Lincoln’s iron fist. This was contrary to international law, not to mention Bible law. Perhaps this explains the Fasces iconography engraved on the arms of his throne in the Lincoln memorial. Grab your magnifying glass and take a close look. Lincoln was in fact a regular reader and fan of Karl Marx commentaries in the New York Daily Tribune.

2. Blackstone’s Commentaries

Common law judges, such as Sir William Blackstone, also played a pivotal role in shaping legal principles. Blackstone’s “Commentaries on the Laws of England” provided a comprehensive overview of the Common Law of Nations.  Here again we have sanctioned an out-of-control judiciary to influence generations via their unauthorized interpretive role.  The role of the judiciary is to apply God’s eternal law to specific cases and determine if there is a violation.  God does not authorize the judiciary to make up law as it goes along by precedent, per Blackstone. 

The Introduction of Blackstone’s Commentary makes a grandiloquent declaration of the two great pillars of truth. First, we have natural law, and second, we have God’s law — both of equal authority, according to Blackstone.  He then proceeds to his commentary based almost exclusively on natural law or as he puts it, common law. There are only a handful of references to the Bible in the entire 4-volume set. We find a precedent for this in the book of Micah 6:16. “The statutes of Omri and all the works of the house of Ahab are observed; and in their devices you walk. Therefore, I will give you up for destruction and your inhabitants for derision, and you will bear the reproach of My people.”

3. Massachusett’s Body of Liberties

What do we find in modern America today? “The statutes of William Blackstone are observed and all the works of the House of James Madison are observed; and in their devices you walk. Therefore, I will give you up for destruction…and you will bear the reproach of My people.” As of February 2024 the United States is bearing the reproach of the entire world for the funding of genocide.

This, for the folly of replacing God’s law in the original Massachusetts Body of Liberties with Madison’s law in the Constitution of 1787. But evangelicals refuse to accept this because 99% of them believe that God’s law has been abrogated. They have no time nor inclination to study Exodus 20-24 in detail with any of the commentaries available. Thus, when a nation refuses to apply the judgments of God’s law to the criminal, God applies those judgments to the entire culture of that nation. (R.J. Rushdoony, Institutes of Biblical Law (The Craig Press, December, 1984)

B. Independence of the Judiciary

1. Henry II and Judicial Authority

King Henry II’s efforts to centralize judicial power bolstered the independence of the judiciary. We mention The Constitutions of Clarendon of 1164 again in this context. This was an extension of the Assize of Clarendon, delineating the jurisdiction of royal courts and asserting the crown’s authority over the church. This is often lauded as a crucial step toward a more centralized and secular legal system.  There is nothing worthy of accolades in centralizing and secularizing the legal system. After his complicity in the death of Becket, Henry II indicated his “repeal of the offensive provisions of the Constitutions of Clarendon,” although these were not specified.

2. Contribution of Legal Commentaries

Legal treatises and commentaries, like Bracton’s “De Legibus et Consuetudinibus Angliae,” became the heart of legal education and practice. Bracton was the 13th Century version of 18th Century William Blackstone, in far fewer pages. Mankind’s pharisaical multiplication of laws and legal codes is unending. Bracton’s work was influenced by Roman law and canon law to provide a systematic analysis of principles of the Common Law of Nations. This further solidifying the legal profession’s understanding and application of the law, albeit divorced from the touchstone of God’s law.

In summary, the height of the Common Law of Nations saw establishment of legal principles through a writ system, with  predecessors of Blackstone shaping its evolution. The increasingly independent judiciary was fueled by Henry II’s reforms and legal treatises. Thus, it introduced a period of unstrained development and refinement within the tradition of the Common Law of Nations. It was completely, untethered from the law of God.

Instead of wasting time making up burdensome law codes, God’s command for the king is the exact opposite: “Now it shall come about when he sits on the throne of his kingdom, he shall write for himself a copy of this law on a scroll in the presence of the Levitical priests. And it shall be with him, and he shall read it all the days of his life, that he may learn to fear the Lord his God, by carefully observing all the words of this law and these statutes, that his heart may not be lifted up above his countrymen and that he may not turn aside…” (Dt. 17:18-20).

3. Henry II Versus Thomas a Beckett

Henry II’s conflict with Thomas a Becket, the Archbishop of Canterbury, was a pivotal episode in medieval English legal history. It had significant implications for development of common law.  Thomas a Becket, initially a close friend of Henry II, was appointed as the Archbishop of Canterbury in 1162. Henry thought he had a “yes-man” in his former friend, Beckett. However, their relationship soured as Becket suddenly, “got religion.” He began to assert the rights and privileges of the Church, challenging the king’s attempts to exert control over ecclesiastical matters. The conflict primarily revolved around the jurisdictional authority and the authority of church courts to try offenses of Bishops.

This had to do with the struggle over whether clergy accused of crimes should be tried in secular or ecclesiastical courts. Henry II sought to subject clerics to the jurisdiction of royal courts, as it would allow for greater control over them. Becket, on the other hand, fiercely defended the Church’s right to handle such cases internally, invoking the principles of canon law.  He was right to resist, but he should have resisted on the basis of Biblical law in passages such as I Corinthians 6, not the largely manmade canon law. Neither church nor state was operating on the basis of God’s eternal law, as in the days of Alfred the Great.

4. The Constitutions of Clarendon

This conflict reached its climax with the Constitutions of Clarendon in 1164, where Henry II attempted to codify royal control over the clergy. The Constitutions asserted the crown’s authority in matters involving the clergy, challenging the traditional independence of the Church. Becket initially accepted the Constitutions but later renounced them, leading to a breakdown in his relationship with the king.

Becket’s staunch defense of ecclesiastical independence and his subsequent murder in 1170 elevated him to martyrdom. This shocked Europe and strengthened the Church’s resolve for awhile. This conflict did not immediately reshape the Common Law of Nations, but it intensified the struggle between church and state, with the secular state ultimately winning the day.

5. Church Ownership of Real Property

The dispute between Henry II and Thomas a Becket deepened the divide between royal authority and the independence of the Church.  None of the conflict was necessary had church and state decided to work co-operatively in their Biblically assigned roles. The opportunity to do this at Canossa was botched. Bottom line was an argument over who had the privilege of collecting rents on church-owned property. For this very reason, it is a violation of God’s law for the church (or state for that matter) to own real property. No private person should be permitted to bequeath real property to either church or state. This goes back to God’s excluding the tribe of Levi from any inheritance of lot in the promised land beyond their personal dwellings in the various cities of refuge. God Himself was to be their heritage.

To violate this command means that eventually church and/or state will own everything. They may however receive voluntary tithes and presumably voluntary tributes to be administered as a diaconate. By means of canon law the church devised various legal entities in the canon law to circumvent God’s law in this regard – foundations, trusts, etc. God gave His dominion mandate – fill the earth and subdue it – to families, not to church and not to state.

Instead, the conflict accentuated the ongoing development of the Common Law of Nations. It did this by focusing on issues of jurisdiction, rule of law, and the relationship between secular and religious authorities.  All of this has created the legalistic and litigious society with which we are burdened today.  The United States, supposedly the bastion of liberty, has the highest rate of incarceration in the world. The church, once a formidable social force, has become as salt that has lost its savor, because it clings to its repudiation of the law of God (Mt. 5:13-20). Judgment must begin with the House of God.

IV. Devolution of the Common Law of Nations

A. Challenges to Judicial Independence

1. Attempts by Monarchs to Influence the Courts

Increasingly, Monarchs sought to manipulate the judiciary for political gain.  The development of the Common Law of Nations from about 1166 to 1500 corresponds almost exactly with the reign of the Plantagenate dynasty (1154 to 1485) of 14 kings over a 321 year period, the majority despotic. This was inevitable as they applied the Norman, retributionary legal system.  In the case of King John, he pressured judges to favor royal interests in cases against powerful nobles. This of course, compromised the impartiality of the legal system.  John set the tone for a millennium.

What we have witnessed was close to 200 years of restitutionary law under the Biblical restraint of King Alfred and his descendants.  This was followed by about 500 years of privileged autocrats under the retributionary legal system of Plantagenets, Tudors, and Stuart kings.  Along came the Reformation in 1517, which was rather quickly undermined by its refusal to deal decisively with natural law in the civil realm.  The Canaanites were permitted to live in the land.  Scotland’s John Knox was the main exception, but even he was replaced immediately by the Enlightenment-oriented George Buchanan. This trend was renforced by the 17^th Century British Commonwealth Men. Whigs like Harrington, Milton, and Locke who substituted a neutral, humanist constitution for the law of God.

2. Politicization of Judicial Appointments

Judicial appointments became tools for rewarding loyalty rather than merit. James II’s appointment of Judge Jeffreys, who was notorious for his harsh and biased judgments during the Bloody Assizes, was typical. It illusrates how political allegiance undermined the integrity of the judiciary.   This was the Plantagenate dynasty whose origin was shrouded in esoteric mystery.  The dynasty of which Richard the Lion Heart said, “From the Devil we came and to the Devil we shall return.”

B. Abuse of Legal Procedures

It was Harrington, Milton, Blackstone, and Locke who enticed America’s elite with the flowery language and economic, common sense of the Right-Wing Enlightenment.  It proved more than enough to sweep Jefferson, Franklin, and Madison off their pluralistic feet.  That’s admittedly a high-level sweep, but consider where we are today after a millennium of thumbing our nose at Biblical law. We are now buried under reams of paper work from a permanent bureaucracy, a rebellious legislature, and a presumptive judiciary, all of whom snub the specifics of Biblical law.  Ideas have consequences, especially legal ideas.

1. Expansion of Arbitrary Royal Prerogatives

Royal prerogatives expanded unchecked, enabling arbitrary actions. Henry VIII’s use of proclamations as a substitute for legislation eroded the rule of law and concentrated power in the monarch’s hands without proper legal scrutiny.  The corollary in modern America is the Executive Order. Henry Tudor was only following the example of his father Henry VII, who was famous for the tight-fisted bureaucracy he created, tripling royal income.  Perhaps he could be excused, having inherited a treasury exhausted by the Plantagenet’s  Hundred Years war, followed by the War of the Roses for another 30 years. 

Legal processes were manipulated to suppress political opposition. The Stuart monarchs, particularly Charles I, abused the Star Chamber to prosecute political dissenters. This illustrated how legal mechanisms of justice can easily become instruments of tyranny if unrestrained by an oath-bound commitment to God’s law.  The Tudor’s had Shakespeare to paper over their political abuses, but the Stuart’s were forced to rely on extravagant bribes of land and gold for the nobility.  This was a favorite trick of the Old Testament King Saul. He mourned that none of the dandy’s he had rewarded so richly would rid him of the pesky and elusive King David.

2. Manipulation of Legal Processes for Political Ends

The relationship of Common Law to the Ecclesiastical High Court was characterized by tension and jurisdictional disputes. While Common Law dealt with secular matters, the Ecclesiastical High Court, or Church Courts, had jurisdiction over spiritual and ecclesiastical issues. These had been wedded to the king by Richard Hooker’s Of the Lawes of Ecclesiasticall Politie. Common Law aimed to administer justice in worldly affairs by addressing crimes and disputes. At the same time, the Ecclesiastical High Court was to handle matters related to canon law, marriage, and moral offenses within the Church. The degeneration of the Common Law of Nations during certain periods did not directly correlate with the Ecclesiastical High Court. The entire system was adrift on a sea of legal anarchy, with no firm anchor in Biblical law.

V. Battle Against the Tyranny of Manmade Law

A. Enlightenment Ideas and Natural Law

1. John Locke and Natural Law

John Locke’s influence on natural law was profound. His “Second Treatise of Government” laid the groundwork for individual rights, challenging the idea of absolute monarchy. He replaced it with “the will of the majority,” no less capable of tyranny.  However, his emphasis on the social contract and the right to rebel against tyrannical rulers provided intellectual ammunition for those seeking to reform or overthrow oppressive systems. 

But again, the Creator’s law was nowhere to be found in their LEGAL arsenal, except by way of window dressing.  There was no oath-bound covenant commitment to base the legal system on the law of God. And so we find  Locke’s ideology and effusive language adorning the U.S. Declaration of Independence. There it creates the illusion of a revolutionary return to Biblical law. 

But having overthrown the petty taxation of the British Crown, the Founding Fathers almost immediately replaced it with a social contract tyranny even worse.  Incredibly in 1787, they outlawed any higher law of God above the Constitution itself (Article VI). Patrick Henry thundered that this is a revolution more radical than that which separated us from Great Britian. In what is known as “Patrick Henry’s Prophecy,” he predicted a bloody civil war within 100 years if the Constitution were ratified. Four score and seven years later we all know what happened. In spite of these and other fatal defects, American Christians are so spiritually mesmerized that they persist in virtually idolizing the very document that has wrought their enslavement.

2. Critiques of Common Law Tyranny

Enlightenment thinkers, like Voltaire and Montesquieu, critiqued common law inconsistency through secular glasses. Montesquieu’s “The Spirit of the Laws” advocated for the separation of powers. Thus, they challenged the unchecked authority inherent in the Common Law of Nations.  The failure of the Enlightenment is evident in its fruitless advocacy for legal reforms and a more just and humane legal system.  But how does one define “just and humane” apart from revealed truth.  The European Enlightenment ended with a brutal bang in 1790 and the scientific innovation of Dr. Guillotine.

B. Legal Reforms and Constitutionalism

1. Development of Constitutional Limitations on Power:

Enlightenment, secular ideals fueled the granting of alleged constitutional limitations on power. The Solemn League and Covenant of 1643 was hampered by its focus on denominational favoritism and so was ignored by Cromwell. Allegedly neutral, secular constitutionalism of the British Commonwealth men grew in favor. The Glorious Revolution of 1688 led to the English Bill of Rights, establishing constitutional constraints on the monarchy and affirming individual liberties.  These were the heady days of revolution and the charms of constitutional limits.

2. Legal Reforms to Safeguard Individual Rights

Calls for legal reforms aimed at safeguarding individual rights gained momentum in England. Jeremy Bentham published his utilitarian Fragment on Government in 1776. This emphasized the greatest happiness for the greatest number, another secular theory.  “It is the greatest happiness of the greatest number that is the measure of right and wrong,” declared Bentham. This was a reaction against the increase in capital punishment for relatively minor crimes under common law, with juries refusing to convict.   Bentham’s influence jumped the Atlantic to animate the enlightened pen of Thomas Jefferson, and define the incipient U.S. legal system.

3. The Good Old Days

During the Days of England’s James I, Sir Edward Coke defended the ancient rights of Englishmen against the King’s ecclesiastical High Commission.   In those days, the Common Law posed as an instrument for liberty, at the same time more and more “trivial” crimes carried the death penalty.  Pickpocket, for example.  The unbiblical juries were refusing to execute the unbiblical sentences of unbiblical laws.   The good ship “Common Law” was leaking and the pumps weren’t keeping up. 

Then came Jeremy Bentham to the rescue.   This lifelong bachelor had inherited a small fortune, and so devoted his days to introducing the world to an innovative new system called Utilitarian Law. It was the greatest happiness for the greatest number.  In all of this, Biblical law was tucked away safely out of mind.  Thomas Jefferson, himself assumed the Benthamite mantle and managed to work him into the Declaration of Independence along with Locke, “life, liberty, and the pursuit of happiness.” 

4. Irony of a Legal System Devoted to law and order That Ignores the Prince of Peace

“Natural law” may be defined as:  man’s fallen, natural reason contemplating fallen nature to arrive at a legal system independent of God’s revealed law.  In that sense both the Common Law of Nations and the king’s High Commission decrees were nothing but different species of the same natural law. Both struggling for pre-eminence in the absence of God’s eternal standard. 

The irony lay in the simultaneous defense of individual rights under Coke and the unreasonable expansion of the death penalty under his Common Law. For example, pickpocketing was considered a capital offense under English law as early as 1565. While Enlightenment thinkers sought to break the chains of tyranny, the increasing severity of punishments offended everybody’s sense of justice. The integration of natural law, by thinkers like Locke, exposed the danger of relying solely on human reason. 

The same “reason, rightly understood,” was leading to wildly diverse legal systems; i.e., common Law, utilitarian Law, natural law, canon law — any law but God’s law.   We’d rather be buried in reams of bureaucratic red ink, than humble ourselves and submit to God’s simple law.  When it comes to philosophy, there are always more “thinkers.” If the “thinkers” would spend as much time thinking about the interpretation and applications of Biblical law as they think about new versions of natural law we’d be well into the millennium by now.

VI. Legacy of Legal Philosophers

A. John of Salisbury

1. Advocacy for Rule of Law and Limited Government:

John of Salisbury, in his seminal work “Policraticus,” argued for the rule of law and limited government. He emphasized rule of law as a safeguard against tyranny and the necessity for rulers to be bound by legal principles.  The problem was John’s concept of law was based on a hodge-podge of legal authoties, only one of which was Scripture. Known as The Father of Political Science, John of Salisbury’s ideas influenced later legal thinkers like Sir Edward Coke. Coke echoed similar sentiments in defense of English liberties against royal encroachments.

2. Influence on Later Legal Thinkers:

John of Salisbury’s influence extended beyond his time. Sir William Blackstone, in his “Commentaries on the Laws of England,” drew upon Salisbury’s ideas, reinforcing the concept of the rule of law as a foundational principle in English legal thought.  These Commentaries, were widely studied in the 18th century and influenced those who drafted the U.S. Constitution.  John of Salisbury quoted the Bible quite extensively, but it is just one among many sources of ancient authority by which he arrived at his “body politic.  None was decisive, all were illustrative, including the Word of God.

B. Stephen Langton

1. Role of the Common Law of Nations in the Magna Carta

Stephen Langton was the key Common Law mid-wife presiding at the birth of Magna Carta in 1215. As Archbishop of Canterbury, he mediated between King John and the barons, leading to the sealing of the Magna Carta. Langton’s involvement ensured the Church’s support for the document.  He played a mediating role at the Field of Runnymeade to achieve a collaborative effort limiting royal power and protecting the barons’ rights. And the rights of the Commoners? Don’t worry, we’ll get to that some other time.

As noted above Magna Carta’s guarantees of liberty were at bottom just another variation of natural law.  The authority appealed to is “holy church” and “the law of the land” with no reference to the law of God.  Also, the opening sentence stresses that it is the king who is granting these rights, rather than enforcing God’s “perfect law of liberty” (James 1:25).   For example, Clause 39 asserts that no free man shall be arrested or imprisoned without lawful judgment, reflecting Langton’s influence on protecting individual liberties.

2. Contribution to Legal Principles of Liberty and Justice

Langton’s contributions extended to shaping legal principles embedded in the Magna Carta. This document lacked explicit reference to a foundation in divine law. However, its clauses, such as those guaranteeing due process and limiting arbitrary taxation, laid the groundwork for future safeguards on liberty and justice.   So we have John of Salisbury and Stephen Langton, encouraging the civil magistrate to part from the church and develop their own version of a just legal system.  This was a legal blunder of monumental proportions. In the first quarter of the 21st Century, it is becoming more and more obvious that the emperor has no clothes.

VII. Conclusion

A. Evolution of the Common Law of Nations

The Common Law of Nations, born after the Norman Conquest and cut off from Anglo-Saxon restitutionary law, has grown more and more enfeebled as the centuries pass.  It was erected on the scaffold of legal precedent and the rule of secular law. The establishment of royal courts, the cancerous growth of legal principles, and the pivotal role of influential thinkers has marked its trajectory.  Thus, royal courts were formalized with The Assize of Clarendon in 1166, setting the stage for the ever-evolving, precedents of the Common Law of Nations. It has become a legal paliative for Christians whose theology rejects the law of God.

B. Common Law and Natural Law Tyranny

The ongoing battle against the tendency toward tyranny within the Common Law of Nations is a complex story.  One champion after another fails to deliver on their promises.  These range from the struggles against divine right of kings to Enlightenment ideals challenging Common Law excesses.   National leaders continue to grapple with the great philosophical question of The One and the Many. That is the problem of striking a balance between order and individual liberties.  The law-word of the Trinitarian God is the only solution to this problem. For example, we have Sir Edward Coke defending Englishmen’s rights against James I’s ecclesiastical High Commission. This was happening at the same time the Common Law statutes required the death penalty for petty crimes and misdemeanors. 

C. Contributions of Influential Philosophers

All our best efforts at arriving at a Common Law solution have fallen short.  These include philosophic stalwarts like John of Salisbury, Stephen Langton, Jeremy Bentham, and Thomas Jefferson.   The evolution of Common Law, the ongoing battle against tyranny, and the contributions of philosophers collectively will never be enough. Apart from the law of God they cannot give us the liberty we so desperately crave.

“Man has made 32 million laws since THE COMMANDMENTS were handed down to Moses on Mount Sinai more than three thousand years ago, but he has never improved on God’s law. THE TEN COMMANDMENTS are the principles by which man may live with God and man may live with man. They are the expressions of the mind of God for His creatures. They are the charter and guide of human liberty, for there can be no liberty without the law.” ~ Cecil B. DeMille