The History
of Jurisprudence: The Catholic
Tradition
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Catholic
jurisprudence was formed by the rules and regulations that governed the
communities and institutions of Christendom from the birth of Jesus to the
Protestant Reformation in the sixteenth century. Canon (Ecclesiastical) law was established by early Christian
communities that were skeptical of law.
The word canon reflects their skepticism. In Greek, canon means a device with which things were
measured. Early Christians did not want
to call their usages
Alaws.@
Nevertheless, between the first and the fifth centuries Christian
communities established rules through custom, conciliar canons, and papal
decretals. Canon law eventually became
a very sophisticated legal system. It
is the only legal system that we can trace from its birth to its maturation as
a part of the Ius commune from 1100 to 1800.
Jurists who
taught canon law and wrote commentaries on between ca. 1100 and 1800 combined
the hardheaded concerns that jurists in every legal system have --- procedural
rules, civil and criminal justice, institutional governance --- with a focus
that most legal systems do not have in their formative stages: a need to fit the positive law of the
Christian Church into the larger framework of divine law (especially the
teachings of the New Testament), natural law, the law of peoples (ius gentium),
and justice. These jurists were the first to coin the phrase positive law (ca.
1200) and discuss in depth its relationship to higher norms. The result was a jurisprudence that created
many of the ideas, concepts, and norms that we think of as central elements of
our legal system. The jurists of the
Ius commune were the first to parse the concepts of justice, equity, rights,
due process, natural law, necessity, the common good, the inviolability of
contracts, individual property rights, and many others that have become part
of the European and American legal
traditions. The focus of this course
would be the rich history of this jurisprudence.
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