Moral Foundations of American Law

"This excellent book is about Western morality as it interacts with law. It is not contrasting the moral foundations of American law with other value systems. Rather the authors examine the history and great diversity of Western thought, the substance of moral ideas. They range from the ancients to the new old order of the New World. Hazard and Pinto see the various voices articulating moral, political and legal thought as "pregnant with future relevance" for practical decision-making. Thus their approach is not relativistic, but mindful of alternatives and historical context. Hazard and Pinto have written a most thoughtful and stimulating study." Gerhard Casper, Professor of Law, Emeritus and President Emeritus of Stanford University "Beginning with the reality and challenge of modern Supreme Court confirmation hearings, Hazard and Pinto demonstrate the relationships and differences among law, morals, and politics. Hazard, a legal ethicist and scholar, and Pinto, a biblical historian, are a unique team. Their succinct and vital work draws from the wisdom of the ancients and the evolution of modern thought. Anyone concerned with the living law must understand its moral roots to sense when the old growth should be pruned and the new nurtured in light of evolving principles of liberty, equality, and morality." Michael Traynor, President Emeritus of the American Law Institute "This is an unstuffy and lively account of fundamental values in American, and indeed Western, public and civic life. The whole historical background is presented both clearly and comprehensively. This attractively succinct book deserves to be read by all who are interested in our public life. The writing is so incisive and compelling that I read this book in a single sitting." Neil H. Andrews, Professor of Civil Justice and Private Law, University of Cambridge "In this concise meditation on the relationship between law and morality, Dr. Pinto and Professor Hazard - one of our leading thinkers on law and the legal profession and himself the embodiment of Aristotelian "practical wisdom" (arete) - take us on a most engaging tour of our intellectual and moral heritage, helping us to understand the moral foundations of our modern legal system and the language of the law. I commend this book to any interested reader and particularly to non-lawyers who may not have considered how deeply and mysteriously intertwined our legal rules are with religious belief and historical origins." David F. Levi, Dean and Professor of Law, Duke University School of Law

• Acknowledgments Chapter 1. Introduction What is Morality Good For? Morality as a Source of Law Foundations of Western Morality Morality and Epistemology Learning Morality Changes in Morality Public Discussion PART I. MATTERS OF PRINCIPLE Chapter 2. Modern Supreme Court Confi rmation Hearings The Bork Nomination "Political Issues" Justice Lewis Powell The Political Situation in the Bork Nomination The Bork Hearings Principle and Democracy Chapter 3. A Matter of Principle Principle, Rule and Ad Hoc Decision But what, exactly, is a Principle? Conflicting Principles "Neutral Principles" Chapter 4. Ethics and Epistemology The Courage to Decide "Transparency" Chapter 5. Portfolios of Principles Complexity of Our Moral Traditions The Democratic Ethos PART II. THE WISDOM OF THE ANCIENTS Chapter 6. Judaism and Early Christianity The Hebrew Bible "God Created the Heaven and the Earth" Covenant, Code and Contract Community Law Proverbs and "Cases" Written Word The Matter of Property Judges Interpretation Early Christianity Christian Attitude Toward Property Radical Moral Philosophy? Concepts of Christianity Concepts of Community Eternal Life, Eternal Responsibility Plato Aristotle Ethics Proportionality Telos and Rationality Acquiring Virtue: Practice Rhetoric Roman Reception of Greek Thought Cicero Seneca PART III. THE CHURCH TRIUMPHANT Chapter 8. Roman Empire The Roman Church St. Jerome and St. Augustine Multiple Ills Chapter 9. "Honeymoon" for Theology and Philosophy Charlemagne Proto-Nations, Papal Monarchy Canon Law and Roman Law Triumphalism Asserted and Resisted Summa Theologica Catholicism Defined Chapter 10. The Renaissance "The" Renaissance The Medieval Christian Mentalite The English Bill of Rights "Humanism" Printing The Crisis in Christianity Problematic Faith Chapter 11. Voices of Humanism William of Ockham Dante Bartolus of Saxoferrato Bartolome de Las Casas Montaigne Erasmus Machiavelli Thomas More Foundations of Modern Political Thought Chapter 12. Old Order Imperfectly Restored The Counter Reformation Transformation of Christendom The English Restorations The Sugar Islands Foundations of the Old Order Chapter 13. Old Order in the New World The Cycle of English Repression God 's Kingdom Redefined Localism Enlightenment Philosophy "Free" Land Free Enterprise Coming of the Revolutionary War Chapter 14. American Constitutions The Geopolitical Situation Localism The Louisiana Purchase Constitutional Development The Declaration of Independence New State Constitutions The Articles of Confederation Chapter 15. The Constitution of the United States The Founding Fathers The Labors of the Convention Religion The Difficult Issues Slavery Legislative Powers: "Necessary and Proper" Executive Power Judicial Power The American Bill of Rights. Trial by Jury Chapter 16. The Short Life of Virtue Politics The Retirement of George Washington Partisanship Foreign Relations Federal Agenda in the First Decades The Slavery Issue The Success of the Early Republic Political Philosophy The Role of the Federal Government Chapter 17. "All Men Are Created Equal" Morality and Status Women African-Americans Property Chapter 18. The Life of American Law The Enduring Constitution Local Religion. Equality and Freedom Then and Now Before the Civil War: De Tocqueville's America The Civil War Democracy? Index