Theological Sources of the Western Legal Tradition
It is impossible to understand the revolutionary quality of the Western legal tradition without exploring its religious dimension. It has been said that the metaphors of the day before yesterday are the analogies of yesterday and the concepts of today.
So the eleventhcentury legal metaphors were the twelfth-century legal analogies and the thirteenth-century legal concepts. The legal metaphors that lay at the foundation of the legal analogies and concepts were chiefly of a religious nature. They were metaphors of the Last Judgment and of purgatory, of Christ's atonement for Adam's fall, of the transubstantiation of bread and wine in the sacrament of the eucharist, of the absolution of sins in the sacrament of penance, and of the power of the priesthood "to bind and to loose" -- that is, to impose or remit eternal punishment. Other legal metaphors were chiefly feudal, though they had religious overtones-metaphors of honor, of satisfaction for violation of honor, of pledge of faith, of reciprocal bonds of service and protection. All of these metaphors were part of a unified structure of rituals and myths. (The word "myth" is used here not in the old sense of "fable" but rather in the opposite, now widely accepted, sense of "sacred truth.") 1What such an exploration shows is that basic institutions, concepts, and values of Western legal systems have their sources in religious rituals, liturgies, and doctrines of the eleventh and twelfth centuries, reflecting new attitudes toward death, sin, punishment, forgiveness, and salvation, as well as new assumptions concerning the relationship of the divine to the human and of faith to reason. Over the intervening centuries, these religious attitudes and assumptions have changed fundamentally, and today their theological sources seem to be in the process of drying up. Yet the legal institutions, concepts, and values that have derived from them still survive, often unchanged.
Western legal science is a secular theology, which often makes no sense because its theological presuppositions are no longer accepted.165-
A bizarre example may shed light on the paradoxes of a legal tradition that has lost contact with its theological sources. If a sane man is convicted of murder and sentenced to death, and thereafter, before the sentence is carried out, he becomes insane, his execution will be postponed until he recovers his sanity. Generally speaking, this is the law in Western countries and in many non_
Western countries as well. Why? The historical answer, in the West, is that if a man is executed while he is insane he will not have had the opportunity freely to confess his sins and to take the sacrament of holy communion. He must be allowed to recover his sanity before he dies so that his soul will not be condemned to eternal hellfire but will instead have the opportunity to expiate his sins in p urgatory and ultimately, at the Last Judgment, to enter the kingdom of heaven. But where none of this is believed, why keep the insane man alive until he recovers, and then kill him?
The example is, perhaps, of minor importance in itself; but what it illustrates is that the legal systems of all Western countries, and of all nonWestern countries that have come under the influence of Western law, are a secular residue of religious attitudes and assumptions which historically found expression first in the liturgy and rituals and doctrine of the church and thereafter in the institutions and concepts and values of the law. When these historical roots are not understood, many parts of the law appear to lack any underlying source of validity.