Law and legal theory in the western tradition

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Emory University School of Law
Public Law & Legal Theory Research Paper Series Research Paper No. 05-19

LAW AND LEGAL THEORY IN THE WESTERN TRADITION

John Witte, Jr. Emory University School of Law

This paper can be downloaded without charge from: The Social Science Research Network Electronic Paper Collection: http://papers.ssrn.com/abstract=755086

Taken from the The Encyclopedia ofChristianity (Grand Rapids/Leiden: Wm. B. Eerdmans Publishing Company/E.J. Brill, 2004), vol. 3, 219-226. Law and Legal Theory in the Western Tradition John Witte, Jr. Abstract This Article provides a brief analysis of the main shifts in Western law and legal theory in four watershed periods: (1) the Christianization of Rome and Romanization of Christianity in the fourth and fifth centuries; (2)the Papal Revolution of the twelfth and thirteenth centuries; (3) the Protestant Reformation of the sixteenth century; and (4) the Enlightenment of the eighteenth and nineteenth centuries. It shows how major shifts in dominant religious ideas transformed the legal ideas and institutions of their day. It concludes that, although recent secular movements have removed traditional forms of religiousinfluence on Western law, contemporary Western law still retains important connections with Christian and other religious ideas and institutions. The term law does not admit of easy or universal definition. Viewed in its broadest social terms, law consists of all norms that govern human conduct (moral commandments, state statutes, church canons, family rules, commercial habits, communal customs,and others) and all actions taken to formulate and respond to those norms. Viewed in narrower political terms, law consists of the social enterprise by which certain norms are formulated by legitimate political authorities and actualized by persons legitimately subject to political authorities. The process of legal formulation involves legislating, adjudicating, administering, and other conduct bylegal officials. The process of legal actualization involves obeying, negotiating, litigating, and other conduct by legal subjects. Most Western nations today are dedicated to the rule of law and have constitutions that define the powers and provinces of political authorities and the rights and duties of citizens and subjects. Most nations make formal distinctions among the executive, legislative,and judicial powers of government and functions of law. Most distinguish among bodies of criminal law, public law (constitutional and administrative law), and private law (contracts, torts, property, inheritance, and others). Most have sophisticated rules and procedures to facilitate the legal transactions and interactions of their citizens and subjects and to resolve disputes among citizens andbetween citizens and the government. Most recognize multiple sources of law—-constitutions, treaties, statutes, regulations, judicial precedents, customary practices, and more. Of increasing importance to many nations today are public international laws (on diplomacy, warfare, humanitarian aid, human rights, and environmental protection) and private international laws (on global economics, trade,communications, and dispute resolution). Many of the legal ideas and institutions that prevail among Western nations today are parts and products of a long and venerable Western legal tradition. This legal tradition was born out of the ancient civilizations of Israel, Greece, and Rome, was nurtured for

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nearly two millennia by Christianity, and for more than two centuries by theEnlightenment. The Western legal tradition has embraced enduring postulates about justice and mercy, rule and equity, nature and custom, principle and precept. It has featured recurrent ideas about authority and power, rights and liberties, individuals and associations, public and private. It has developed distinctive methods of legislation and adjudication, of negotiation and litigation, of legal rhetoric...
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