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This in-depth study examines the relation between legal theory (uṣūl al-fiqh) and speculative theology (ʿīlm al-kalām). It compares the legal theory of four classical jurists who belonged to the same school of law, the Shāfiʿī school, yet followed three different theological traditions. The aim of this comparison is to understand to what extent, and in what way, the theology of each jurist shaped his choices in legal theory.
This book explores the legal and theological thought of Master Vacarius (c.1115/20 - c.1200), the renowned twelfth-century jurist. It focuses on this Italian master's four works, composed in the second half of the twelfth century, which deal with the resolution of conflict in law and theology. Vacarius is a paradox for scholars. They have found it difficult to reconcile his role as a legal teacher, notably through his textbook the Liber pauperum ('Book of the Poor'), which established a school of Roman law at Oxford, with his 'extra-legal' works on marriage, Christology and heretical theology. This study accounts for this paradox by exploring these three extra-legal treatises, composed in the 1160s and 1170s, in light of Vacarius' legal textbook. The author argues that Vacarius applies the legal method of the ius commune (European common law) to theological and sacramental debates. In this way, Vacarius represents a trend in medieval intellectual history, particular to the twelfth-century renaissance, which has been little appreciated to date - the hermeneutic of the 'lawyer-theologian'.
Law and Theology offers the definitive account of the relationship between law and theology in the Christian tradition. Drawing on diverse biblical texts and classic authors from the early church to contemporary voices from the modern period, David W. Opderbeck examines key legal questions and controversial case studies from an interdisciplinary perspective, breaking new ground for legal scholars and theologians alike. As a law professor, practicing attorney, and theologian, Opderbeck writes as an insider from both disciplines. This unique look brings fresh insight for both fields in a context where questions of theology and law are especially relevant--and increasingly urgent. Going beyond the culture wars, Opderbeck brings these real-world cases to life, examining the ins and outs of the most important legal questions facing American civic and religious life. Scholars and students of law and theology will find this book to be required reading in and outside the legal and theological classrooms.
The Law of Freedom: Justice and Mercy in the Practice of Law examines the legal and theological roots of the concept of equity, and the implications that the diminishment of equity as a legal concept has for the moral dilemmas faced by the practicing lawyer. Meditating on the book of Micah, the book argues that the Christian duty asks for both strict justice and gracious mercy, with the prophet’s third value—humility—essential for both the individual lawyer and the legal system as a whole to balance strict justice and mercy.
This book compares the respective concepts of the law of nations put forward by the Spanish theologian Francisco Suárez and by the Dutch jurist Hugo Grotius. This comparison is based on the fact that both thinkers developed quite similar notions and were the first to depart from the Roman conception, which persisted throughout the entire Middle Ages and the early Renaissance. In Rome, jus gentium was a law that applied to foreigners within the Empire, and one which was often mistaken for Natural Law itself. These two features can be found even in the works of writers such as Francisco de Vitória and Alberico Gentili. In Suárez and Grotius, the law of nations is applicable to an extra-national domain and inarguably becomes positive law. Yet, it also contains an ethical element that prevents it from transforming into a mere reflection of state interests. This work argues that this resemblance is hardly a coincidence: Grotius has read Suárez, and that influence has modified the foundations of his early thoughts on jus gentium. This should not be taken to imply that the Dutch jurist wasn’t original: in both authors, the definition of the law of nations pursues his own internal logic. Nevertheless, Suárez’s oeuvre allowed Grotius to solve a fundamental problem touched on in his early writings that had remained unanswered. Accordingly, his oeuvre promises to clarify one of the most significant moments in the History of International Law.
This classic work by one of Europe s most respected twentieth-century legal minds tackles law through the eyes of Martin Luther. Johannes Heckel first reveals the basic features of Luther s doctrine of law in its totality, drawing from an overwhelming amount of material from all genres of Luther s writing. Heckel then considers how Luther viewed law as the framework for the existence of a Christian in this world. He develops a picture of Luther s position on law by grounding it in Luther s theology, arguing that his concept of natural law has to be understood in terms of the divine and the secular. Finally, Heckel shows the practicality of Luther s position by focusing on the places in which a Christian interacts with legality in this world church, marriage and family, and politics. / When Johannes Heckel s Lex Charitatis appeared more than half a century ago it brought new clarity to the much disputed issue of Luther s understanding of the law and of God s governance of his created order. . . . Having Heckel s work in English will assist scholars and students alike in putting Luther s insights to use in the context of twenty-first-century problems. / Robert Kolb, Concordia Seminary
Carl Schmitt, one of the most influential legal and political thinkers of the twentieth century, is known chiefly for his work on international law, sovereignty, and his doctrine of political exception. This book argues that greater prominence should be given to his early work in legal studies. Schmitt himself repeatedly identified as a jurist, and Hugo E. Herrera demonstrates how for Schmitt, law plays a key role as an intermediary between ideal, conceptual theory and the complexity of practical, concrete situations. Law is concerned precisely with balancing the extremes of theory and reality, and in this respect, Schmitt associates it with philosophical thinking broadly as being able to understand and explain the tensions in human experience. Reviewing and analyzing prevailing interpretations of Schmitt by Jacques Derrida, Heinrich Meier, and others, Herrera argues that the importance of Schmitt's legal framework is both significant and overlooked.
What is the Law? Where does it get its authority? With unparalleled scope and minute detail, Historical &Theological Foundations of Law studies the earliest origins of Law in the legal systems of ancient societies all across the earth, explores their common threads and differences, traces their development through history, and notes common trends that should cause hope or alarm today. Volume I: Ancient Wisdom. Book I, The Foundation begins by exploring the laws of ancient civilizations: Egyptian stability, Babylonian precision, Persian enlightenment, Indian philosophy, Chinese Taoism/Buddhism/Confucianism, Polynesian kapu, Incan absolutism and efficiency, Mayan oligarchy, Aztec judicial independence, Cheyenne volunteerism, and the Iroquois Confederacy's sage balancing of power. How did these systems arise? What are the trends? Polytheism to monotheism, or monotheism to polytheism? Decentralization or centralization of power? Fewer laws or more laws? Gentleness or brutality? Book II, The Cornerstone, focuses on a unique people who many believe have influenced the world more than any other. In a canon of 39 books, the Hebrews established the Tanakh (Old Testament). How did the Hebrew constitution function, and upon what precepts was it based? Are the Ten Commandments truly the foundation of Western Law? Why is their influence so often overlooked today? Volume II: Classical and Medieval. Book III, The Structure, turns to Greece and Rome. Hailed as the birthplace of democracy, the Athenian system was unstable, inefficient, and short-lived. Nevertheless, Plato laid a philosophical basis for natural law, and Aristotle provided a foundation for justice. Rome had a genius for law and organization, but the constitutional constraints of the Republic gradually gave way to the Empire. However, the followers of Christ, once a persecuted minority, came to rule the Empire and put a Christian stamp on Roman law. Out of Roman law the rise of the Canon law of the Church occurs. The Sharia law of Islam is also surveyed. Book IV, The Centerpiece, begins with the Dark Ages--the darkness of the womb, out of which was born the Common Law. From the Celtic mists, with the Druids and their Brehon lawyers, St. Patrick and the Senchus Mor, the Anglo-Saxons in the forests of Germany with their witans and juries which they brought to Britain, Alfred the Great who began his Book of Dooms with the Ten Commandments, to the Norman Conquest and the warfare between the centralizing Norman kings and their opponents, the precepts and institutions of the Common Law took form. What is the Common Law? If it is so common, why is it so seldom defined? How does it relate to Canon law or civil law? And is it Christian, Roman, or a fusion of both? Volume III: Reformation and Colonial. Book V, The Pinnacle, examines the Lutheran and Calvinist Reformations, whereby the doctrines of justification by grace through faith and the priesthood of all believers led to republican concepts of government by consent of the governed, social contract, God-given rights, and justified resistance against tyranny. Constitutional jurists such as Selden, Milton, Coke, Althusius, Grotius, Locke, Montesquieu, and Blackstone fused Biblical theology with the Common Law. To take root and grow, the Common Law needed fresh soil. In Book VI, The Beacon, the Anglicans establish the Common Law in Jamestown and the Southern Colonies, Puritans in the New England Colonies, Presbyterians, Quakers, Catholics, and others in the Middle Colonies. In 1776 they took the ultimate republican step of declaring independence. When, in 1787, 55 delegates gathered in Independence Hall to draft a Constitution, they did not write on a blank slate. Rather, they were prepared with thousands of years of "echoes of Eden," Holy Writ, and the Common Law. The event, Washington said, was "in the hands of God." This book provides information and answers, but just as important are the questions it raises about the nature, purpose, and source of law. Jurists have articulated it, philosophers have theorized about it, theologians have explored the moral principles that underlie it. Statesmen have enacted it, judges have interpreted it, sheriffs have enforced it, soldiers have defended it, kings have implemented it. And then, after the fact, people have written about it, to try to explain what it is, and what it should be. This is a journey worth taking, for its insight into mankind's legal heritage. The truths contained in these volumes will reverberate to future generations who may well need reminding, even as needed today, of the foundations as well as the Founder of the unique American system of Law.