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This collection, by leading legal scholars, judges and
practitioners, together with theologians and church historians,
presents historical, theological, philosophical and legal
perspectives on Christianity and criminal law. Following a Preface
by Lord Judge, formerly Lord Chief Justice of England and Wales,
and an introductory chapter, the book is divided into four thematic
sections. Part I addresses the historical contributions of
Christianity to criminal law drawing on biblical sources, early
church fathers and canonists, as far as the Enlightenment. Part II,
titled Christianity and the principles of criminal law, compares
crime and sin, examines concepts of mens rea and intention, and
considers the virtue of due process within criminal justice. Part
III looks at Christianity and criminal offences, considering their
Christian origins and continuing relevance for several basic crimes
that every legal system prohibits. Finally, in Part IV, the authors
consider Christianity and the enforcement of criminal law, looking
at defences, punishment and forgiveness. The book will be an
invaluable resource for students and academics working in the areas
of Law and Religion, Legal Philosophy and Theology.
This collection, by leading legal scholars, judges and
practitioners, together with theologians and church historians,
presents historical, theological, philosophical and legal
perspectives on Christianity and criminal law. Following a Preface
by Lord Judge, formerly Lord Chief Justice of England and Wales,
and an introductory chapter, the book is divided into four thematic
sections. Part I addresses the historical contributions of
Christianity to criminal law drawing on biblical sources, early
church fathers and canonists, as far as the Enlightenment. Part II,
titled Christianity and the principles of criminal law, compares
crime and sin, examines concepts of mens rea and intention, and
considers the virtue of due process within criminal justice. Part
III looks at Christianity and criminal offences, considering their
Christian origins and continuing relevance for several basic crimes
that every legal system prohibits. Finally, in Part IV, the authors
consider Christianity and the enforcement of criminal law, looking
at defences, punishment and forgiveness. The book will be an
invaluable resource for students and academics working in the areas
of Law and Religion, Legal Philosophy and Theology.
The theory of natural law grounds human laws in the universal
truths of God's creation. Until very recently, lawyers in the
Western tradition studied natural law as part of their training,
and the task of the judicial system was to put its tenets into
concrete form, building an edifice of positive law on natural law's
foundations. Although much has been written about natural law in
theory, surprisingly little has been said about how it has shaped
legal practice. Natural Law in Court asks how lawyers and judges
made and interpreted natural law arguments in England, Europe, and
the United States, from the beginning of the sixteenth century to
the American Civil War. R. H. Helmholz sees a remarkable
consistency in how English, Continental, and early American
jurisprudence understood and applied natural law in cases ranging
from family law and inheritance to criminal and commercial law.
Despite differences in their judicial systems, natural law was
treated across the board as the source of positive law, not its
rival. The idea that no person should be condemned without a day in
court, or that penalties should be proportional to the crime
committed, or that self-preservation confers the right to protect
oneself against attacks are valuable legal rules that originate in
natural law. From a historical perspective, Helmholz concludes,
natural law has advanced the cause of justice.
Historians of the English legal profession have written
comparatively little about the lawyers who served in the courts of
the Church. This volume fills a gap; it investigates the law by
which they were governed and discusses their careers in legal
practice. Using sources drawn from the Roman and canon laws and
also from manuscripts found in local archives, R. H. Helmholz
brings together previously published work and new evidence about
the professional careers of these men. His book covers the careers
of many lesser known ecclesiastical lawyers, dealing with their
education in law, their reaction to the coming of the Reformation,
and their relationship with English common lawyers on the eve of
the Civil War. Making connections with the European ius commune,
this volume will be of special interest to English and Continental
legal historians, as well as to students of the relationship
between law and religion.
The Great Christian Jurists series comprises a library of national
volumes of detailed biographies of leading jurists, judges and
practitioners, assessing the impact of their Christian faith on the
professional output of the individuals studied. Little has
previously been written about the faith of the great judges who
framed and developed the English common law over centuries, but
this unique volume explores how their beliefs were reflected in
their judicial functions. This comparative study, embracing ten
centuries of English law, draws some remarkable conclusions as to
how Christianity shaped the views of lawyers and judges. Adopting a
long historical perspective, this volume also explores the lives of
judges whose practice in or conception of law helped to shape the
Church, its law or the articulation of its doctrine.
This book tells one part of the long history of the institution of
marriage. Questions concerning the formation and annulment of
marriage came under the exclusive jurisdiction of the church courts
during the Middle Ages. Drawing on unpublished records of these
courts, Professor Helmholz describes the practical side of
matrimonial jurisdiction and relates it to his outline of the
formal law of marriage. He investigates the nature of the cases
heard, the procedure used, the people involved and changes over the
period covered, all of which add to what is known about marriage
and legal practice in medieval England. The concluding assessment
of canonical jurisdiction over marriage suggests that the
application of the law was more successful than is usually thought.
In this book one of the world's foremost legal historians draws upon the evidence of the canon law, court records and the English common-law system to demonstrate the extent to which, contrary to received wisdom, Roman canon law survived in England after the upheavals of the Protestant Reformation. Clearly and elegantly written, this study is both a companion to and development of Maitland's celebrated Roman Canon Law in Medieval England. It will be of great interest not only to legal and ecclesiastical specialists but to any reader seeking a wider understanding of the constitutional and intellectual context in which the English Reformation developed.
In this book one of the world's foremost legal historians draws
upon the evidence of the canon law, court records and the English
common-law system to demonstrate the extent to which, contrary to
received wisdom, Roman canon law survived in England after the
upheavals of the Protestant Reformation. R. H. Helmholz provides an
extensive examination of the manuscript records of the
ecclesiastical courts and professional literature of the English
civilians. Rebutting the views of Maitland and others, he shows how
English looked to the Continent for guidance and authority in
administering the system of justice they had inherited from the
Middle Ages. Intellectual links between England and the Continent
are shown to have survived the Reformation and the abolition of
papal jurisdiction. The extent to which papal material was still
used in England during the sixteenth and seventeenth centuries will
interest all readers and surprise many.
Challenging the accounts of John Henry Wigmore and Leonard W. Levy,
this history of the privilege against self-incrimination
demonstrates that what has sometimes been taken to be an unchanging
tenet of our legal system has actually encompassed many different
legal consequences in a history that reaches back to the Middle
Ages.
Each chapter of this definitive study uncovers what the privilege
meant in practice. The authors trace the privilege from its origins
in the medieval period to its first appearance in English common
law, and from its translation to the American colonies to its
development into an effective protection for criminal defendants in
the nineteenth century. The authors show that the modern
privilege--the right to remain silent--is far from being a basic
civil liberty. Rather, it has evolved through halting and
controversial steps. The book also questions how well an expansive
notion of the privilege accords with commonly accepted principles
of morality.
This book constitutes a major revision of our understanding of an
important aspect of both criminal and constitutional law.
This is one of the first volumes to appear in a landmark new series, The Oxford History of the Laws of England. It traces the history of the reception and role of the canon law in England between 597 and 1649, examining both the establishment of ecclesiastical courts and the heads of jurisdiction within them. Legal practice is viewed against the background of the formal canon law.
Ius commune is the amalgamation of Roman and canon laws on the continent. Helmholz addresses the ius commune's relation to and influence on English law. He begins by observing that there were many overlapping areas between English institutions. Through four studies (the law of sanctuary, the law of compurgation, mortuaries and the law of custom, and civil jurisdiction and the clergy), he draws out the coincidences between English law and the ius commune and shows where they developed parallel bodies of doctrine. Helmholz aims to fill in some of the gaps in scholarship on the common legal past of Western law, the history of the Roman and canon laws, the history of the ecclesiastical courts, parallels between the ius commune and English common law, and English church history.
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