Develop a one- to two reflection/reaction paper in which you give me your OPINION as to whether religion should or should not play a role in ruling our justice system. This is NOT a research paper, but your submission should prove that you read Berman's article. 

 

The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken.

Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. "We are a religious people," wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, "whose institutions presuppose a Supreme Being." Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called "the laws of Nature and Nature's God."

It is true that, starting with the Enlightenment of the late eighteenth century, many intellectuals in Europe and America campaigned vigorously for the emancipation of political and legal institutions from religious influences. Some went so far as to insist on the separation of law not only from traditional religion as such but also from any system of morality other than that of utilitarianism or pragmatism. However, the religious and moral skepticism of intellectuals, including leading law teachers of the time, failed to penetrate the public mind in the late eighteenth, nineteenth, and early twentieth centuries. In the United States, the great majority of lawyers continued until the twentieth century to learn their law from Blackstone, who taught that "the law of nature . . . dictated by God himself . . . is binding . . . in all countries and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately, from this original.
Blackstone, who wrote for, and was widely ready by, non-law- yers as well as lawyers, described in the first part of his Commentaries, the following kinds of law that prevailed in England: natural law, divine law, the law of nations, the English common law, local customary law, Roman law (in the universities), ecclesiastical law (in the church courts), the law merchant, statutory law, and equity. Implicit in this catalogue was a view of law as a product of overlapping histories-the history of Christianity and Judaism, the history of Greece, the history of Rome, the history of the church, local history, national history, international history, and more. Such a view,  by linking Blackstone's readers with various past times, strengthened their belief not only in the rootedness of law in history itself but also in the providential character of law as part of a divine plan.
It was undoubtedly comforting to people living in the Progressive Era to be told that their criminal law went back to the Ten Commandments, that their contract law went back to the religious oath and the pledge of faith, and that, in general, their legal institutions were derived from divine and natural law. This helped to firm the words of the Victorian poet, "God's in His heaven, all's right with the world." Since that time, the belief that our secular law is rooted in divine law and natural law has virtually disappeared from the population as a whole, including those who are religious. It is undoubtedly discomforting to realize that this leaves our legal tradition without its original foundations---suspended, so to speak, in mid-air. 

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Title Religion in the Justice System A Reflection Introduction In this reflection paper I will express my opinion on whether religion should or should not play a role in ruling our justice system I wi... View the full answer