The Foundation of English Common Law

Anglo – Saxon law

The law of the Anglo – Saxons prior to the invasion of the Normans in 1066 A. D. was a legal political system similar to the Old Testament Israel. In their decentralized government, a head of ten families was called a “tithing man.” The head of fifty families was a “vil-man”. The head of a hundred families was named a “hundred-man” while the head of a thousand families was known as an “eolderman”. The term "eolderman" may be related to the Scandinavian term “jarl.” Eventually the “eolderman” became known as an “earl” and governed a region called a “shire.” A “shire reef” was his assistant and became known as a “sheriff.”

The Code of Alfred the Great

Alfred the Great codified biblical law throughout his kingdom. He became known as the "Father of English common law."

“The Laws of Alfred (about A. D. 890) start with a recitation of the Ten Commandments and excerpts from the Mosaic Law; and in restating and revising the native Anglo – Saxon laws. Alfred includes such great principles as: ‘doom (i.e. judge) every evenly; doom not one doom to the rich, another to the poor, nor doom one to your friend, another to your foe.’” (Cf. Exodus 23: 1-3; Deut. 1:16 – 18)

Ecclesiastical law

The law of the church known as ecclesiastical law was an important influence on the creation of English common law. The Bible was the foundation of law of an independent church court system.

Jewish law

The church prohibited money lending (based on interpretation of various passages of Scripture) during the Middle Ages. Jewish people were not bound by the interpretations of passages of Scripture by the church for they interpreted the passages differently. The Jews were almost the only people from whom money could be borrowed during the Middle Ages. Rabbi Moses Ben Maimon (Maimonides) codified Jewish law which formed the basis of commercial law in England. Consequently, this was based on Jewish interpretation of passages from the Old Testament.

Viking law

Extensive portions of England, Ireland, and Scotland were controlled by the Danes and Norwegians. Territory north of a boundary in England was called “Danelaw” where Scandinavian law of the Vikings was observed. Thamar E. Dufwa traced the effect of Scandinavian law of the Vikings on the Magna Carta. He compared portions of Viking law with portions of the Magna Carta. Most of the noblemen who forced King John to sign the Magna Carta in 1218 A.D. came from a region where the Vikings ruled for centuries north of "Danelaw." The individualistic quality of Scandinavian law is reflected in the Magna Carta and in the institutions of England and America.

Roman law

Roman law did have an influence upon the creation of English common law. We must consider the facts that Roman law was not the primary influence and was chiefly based upon the Bible. Classical Roman law was compatible with Biblical law in many areas. After the Roman Empire adopted Christianity as the state religion; Roman law was revised to reflect the principles of the Bible. There were three major revisions of Roman law in the latter years of the empire. The first revision was the Constantinian Code of the 4th Century followed by the Theodosian Code of the 5th Century and finally the Justinian Code in the 6th Century. Each revision of law brought Roman law in agreement with the principles of the Bible. The Justinian Code of Roman law was discovered in the 11th Century and applied in England. This was not classic Roman law but law revised and in agreement with the Scriptures.

The Magna Carta

King John unwillingly signed the Magna Carta in 1215 A.D. It has been called the “fountainhead of Anglo-American liberty.” Helen Silving, Professor of Law of the University of Puerto Rico traced in precise detail the Scriptural Biblical foundation and origin of the Magna Carta.

“Some scholars have noted a similarity between the English and Spanish charters, and inferred from this feature that the latter charter must have served as a pattern for the former. While there is no reason to exclude altogether the possibility of such a direct relationship between the two charters, it seems to be equally, or even more likely, that this similarity is referable to the charters’ common origin in the Bible. Such probability is supported by the fact that the draftsmen of both charters were undoubtedly Churchmen, learned in the Bible and Canon law.”

Parallels between the Bible and the Magna Carta are “self-curse” found in both documents, the fear of monarchy, the requirement that a king hold fast to law secured by the Magna Carta and in Deuteronomy 17. Further parallels are the authority to excommunicate or ‘being cut off from the people,’ the land becomes an agent of authorization while the king is under oath, law must be clearly written (Deut. 1:5), limitations are placed upon forms of punishment (Deut 25: 1-3), comparable punishments for perjury in criminal cases (Deut. 13:15; 19:17-21; Magna Carta Leonesa, articles 12-13) and the sole foundation of authority is based upon covenant.

Professor Silving maintains that many old legal documents of the Western culture may have their origins in the Bible.

“It is remarkable, indeed, and has an interesting bearing on the nature of our reactions to the Bible, that this has passed unnoticed, while efforts have been made to connect our constitutional documents with Greek and Roman ideas.”

Consequently, English common law reflects the Biblical Scriptural heritage of the Western civilization.

Eugen Rosenstock-Huessy, author of “Out of Revolution, Autobiography of Western Man” declared, “Common law was Christian law.”

George W. Keeton author of “The Norman Conquest and the Common Law” adds:

“The judges of earlier times spoke with a certainty which was derived from their conviction that the common law was an expression of Christian doctrine, which none challenged.”