The Forgotten Foundations of Constitutional Law (Nicholas Aroney, 6/08/26, Public Discourse)
Sir William Blackstone once observed that “Christianity is part of the laws of England.” Although this statement struck the mind of Thomas Jefferson as a kind of “judicial forgery,” Blackstone was expressing an idea that was commonplace among English lawyers. The question is not so much whether Christianity is part of the common law, but what parts and in what respects it is, or has been, integral to the body of law as a whole. And what can be said of the common law in general can also be said of constitutional law in particular. Certain important parts of our contemporary inheritance of constitutional law have been shaped decisively by Christian beliefs, practices and institutions, and the whole body of constitutional law, in its variegated national forms, reflects numerous specific Christian influences.
Christianity is not, of course, the only influence on the common law and on constitutional law in particular. Many interweaving historical influences have shaped modern constitutional law. Among these, four broad strands stand out as especially influential: Greek philosophy, Roman law, Christian theology, and Enlightenment principles. While the exact contribution that each of these has made—and should continue to make—is a matter of debate, there is little doubt that each has contributed substantially to how constitutional law is conceived and practised in our day.
Greek philosophy introduced a taxonomy of constitutional types and the concept of the rule of law. Roman law contributed the crucial notion of jurisdiction, a fundamental aspect of contemporary constitutional law. Christian theology provided a framework that qualified the authority of civil government by a higher natural or divine law, with the church’s spiritual authority placing practical limits on temporal powers. The powers of civil and ecclesiastical rulers were tempered through various means, including the administration of oaths of office and the issuing of charters guaranteeing the rights of religious, social, economic, and civil associations of many kinds. And while the Enlightenment is rightly associated with the modern principle of the separation of powers and the establishment of written constitutions enforced by judicial review, these principles also owe much to practices established prior to the Age of Enlightenment, especially those developed and extended during the Reformation. Despite important Greek, Roman, and Enlightenment contributions, constitutional law would not be what it is today if it were not for the influence of Christianity.
After Magna Carta the rest follows.
