The Principle
English common law - the judge-made body of law that governs the United Kingdom, the United States, Canada, Australia, and much of the former British Empire - did not develop in a cultural vacuum. It grew within a civilization that was consciously Christian, administered by courts whose judges were frequently clergy, shaped by canon law developed by theologians, and justified by appeal to divine reason and natural law. Harold Berman's monumental Law and Revolution (1983) demonstrated this systematically, and its thesis - that Western law cannot be understood without understanding its theological foundations - has become a cornerstone of comparative legal history.
Biblical Foundation
Proverbs 8:15 provided the classic biblical warrant for human governance: "By me kings reign, and princes decree justice." The verse attributed all lawful government to divine Wisdom, grounding the claim that law participates in divine reason.
Romans 13:1-4 gave the apostolic mandate: "Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God. Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation. For rulers are not a terror to good works, but to the evil... for he is the minister of God to thee for good." This passage was interpreted throughout the medieval period as sanctifying the entire legal order as a participation in divine governance.
Micah 6:8 - "He hath shewed thee, O man, what is good; and what doth the LORD require of thee, but to do justly, and to love mercy, and to walk humbly with thy God?" - was frequently cited in equity jurisdiction, where the Chancellor's court operated under the standard of conscience and good conscience (bona conscientia) rather than strict legal rules. The explicit theological vocabulary of the Court of Chancery - which was literally the "Court of Conscience" - reflected the continuous presence of biblical ethics in the common law's supplementary jurisdiction.
Historical Transmission
The common law was born in the 12th-century administrative revolution that Harold Berman calls "the first great legal revolution of the West." The Gregorian Reform (beginning c. 1075) professionalized canon law, created the first European law schools, and deployed an army of legally trained clergy into secular administration. Henry II's legal reforms of the 1160s and 1170s - creating the royal courts, standardizing procedure, and beginning the common law's development - were responses to the canon law's systematic organization and drew on its conceptual tools.
Henry de Bracton's De Legibus et Consuetudinibus Angliae (c. 1235), the foundational treatise of English common law, is saturated with Roman law concepts absorbed through canon law, with Augustinian theology of justice, and with the biblical principle that the king is subject to law. Bracton's famous formulation - "rex non debet esse sub homine sed sub Deo et lege" (the king ought not to be under man but under God and under the law) - is a direct translation of the biblical principle of the rule of law into the language of medieval jurisprudence.
The Chancellor's equity jurisdiction - which developed from the 14th century onward - was explicitly theological in its operation. The Lord Chancellor was almost always a bishop or other senior cleric until the 16th century, and the court's standard of decision was "good conscience" informed by moral theology. The maxims of equity - "Equity regards as done what ought to be done," "He who comes into equity must come with clean hands" - are moral rather than technical standards, reflecting the biblical ethics that equity's ecclesiastical practitioners brought to their work.
The common law's criminal law similarly developed in dialogue with canon law's penitential theology. The distinction between malice aforethought and manslaughter - which is still the basic structure of homicide law - reflects the biblical and canonical attention to the moral state of the actor, not merely the external act.
Key Champions
Henry de Bracton (d. 1268) is the foundational figure: his synthesis of Roman-canonical learning with English custom created a legal literature through which biblical principles continuously operated. Ranulf de Glanvill (d. 1190), whose Tractatus is the earliest systematic account of English law, was also deeply formed by canonical learning. In the modern era, Harold Berman (1918-2007) is the indispensable scholar; his Law and Revolution and Law and Revolution II re-established the biblical and canonical foundations of Western law against a century of secular legal historiography that had largely suppressed them.
Modern Application
The biblical foundations of common law are most directly visible in the law of trusts (fiduciary duty derives from the idea of moral stewardship), in the maxims of equity (which remain in force and are explicitly moral rather than technical), and in the criminal law's mens rea requirement (the requirement of guilty mind, which reflects the biblical insistence on interior moral state as determinative of guilt). Constitutional interpretation debates in the United States - particularly between originalists and living constitutionalists - recapitulate in secular terms the medieval debate between those who saw law as fixed divine command and those who saw it as reason progressively disclosing natural law.
Scholarly Debate
Berman's thesis has been contested by legal positivists who argue that the common law's structure is explained by feudal social relations and royal administrative needs rather than by theology. Brian Simpson's A History of the Common Law of Contract (1975) traced contract law's development through thoroughly secular economic and institutional mechanisms. Against this, Berman's research established that the canonist contribution to English procedure and substantive law was specific, documented, and large. The debate reflects a broader question about whether ideas drive legal development or merely rationalize it - a question that, for legal history, remains genuinely open.
Comparative Perspective
The civil law tradition of continental Europe, derived from Roman law through Justinian's Corpus Juris Civilis and developed through the canon law universities of Bologna, Paris, and Oxford, shares many of the same biblical foundations while reaching different institutional conclusions. The divergence between common law (judge-made, precedent-based, adversarial) and civil law (code-based, inquisitorial, scholarly) reflects different institutional pathways through which biblical principles were filtered, not different ultimate sources. The Islamic legal tradition (fiqh) developed in rough historical parallel, with similar questions about the relationship between divine revelation (wahy) and human legal reasoning (ijtihad) producing a sophisticated jurisprudential tradition with structural parallels to both common law and civil law thinking.