So, if our civil system relies on both written law and common law, are there any western systems that fully and only rely on written laws, with no common law? Well, actually there was an attempt at such a system. What is that system? The Code Napoleón of France, promulgated by Napoleon Bonaparte in 1804. It was then known as the Code civil des Français.
Because of judicial excesses on both the monarchist and republican sides, the code forbade judges from promulgating judgments that had any legislative impact. “This is reflected in the Napoleonic Code prohibiting judges from passing judgments exceeding the matter that is to be judged, because general rules are the domain of the law, a legislative, not judicial, power. In theory, there is thus no case law in France.” In fact, the Napoleonic Code had no notion of precedent of stare decisis since that would essentially be a type of legislative-like power. Technically, each judge was to rule strictly based on what was written and on nothing else, not even the judgment of fellow judges. To that extent, the original Napoleonic Code would have satisfied the arguments of your standard modern USA strict constructionists. The power of judges was severely limited to plain pronouncements on the law, precedent was forbidden because it would set up a case law parallel to the written law, and only the written law applies.
So did this system work? No, not as planned by those who wrote the code. You see, no set of laws can cover every possible contingency. Nor can any corpus of laws foresee every single situation. Thus, inevitably, judges ended up having to make some judgments to fill in the gaps. And, because, inevitably, certain courts were more “important” than others, their decisions tended to be followed. So, though the code forbade stare decisis, case law, common law, nevertheless a type of common law did arise. But what else arose in other countries that tended to be modeled on the Napoleonic Code was a multiplying of laws to the point that most of us in the USA would find them utterly ridiculous. That is, if judges cannot make judgments that do anything but apply what is written then every time one of those gaps comes up, a law has to be written. Moreover, the judgment of there is no law therefore there is no crime is much more frequent in Napoleonic Code countries.
The same is true in our Christian practice. There has yet to be a Christian group that has been able to run purely on what is written in Scripture. In fact, the multiplicity of Christian groups is a grave example of what happens when one tries to interpret what is written without regard to previous interpretations. Without the context of the Church version of common law, the linguistic meaning of Scripture is multiple, and the gaps in Scripture become all the more apparent. Every Christian group has either developed a type of common law approach, once it has been founded, or it has tended to multiply “laws” even if they are not written. Think of the rules against dancing, smoking, drinking, etc., in many Christian groups and you will see what I mean.
Holy Tradition is our common law, that gives context and meaning to Scripture. It gives us the canons to interpret our Scriptures and to apply them in exactly the same way that common law does for written law. The precedents set by our Church Fathers, regarding worship, the administration of the sacraments, etc., are held like stare decisis. It does not mean that those precedents can never be changed, but it does mean that until such a time as they are changed by a competent authority, they are binding upon the Christian community. And, like the common law, they are truly lawful and not to be put aside simply because they are not in writing.
Now, Holy Tradition is more than simply precedent and judgments. There is the work of the Holy Spirit involved. And, just like there are parts of common law regarding property rights that would essentially cause a revolution in the USA if we were to try to change them, despite the fact they are not in written law, in the same way, there are parts of Holy Tradition that are so set into the warp and woof of the Church by the Holy Spirit, that it would cause a major upheaval in the Church to change them.
This is where both strict constructionists and sola scriptura advocates both make a mistake. They both believe in the sufficiency of the written law. However, in neither law nor in Christian history has what is written, by itself, been able to deal with all the experiences into which we run. In fact, by insisting on either strict constructionism (with no common law) or sola scriptura, it makes the running of a country or a Church impossible, and usually leads, inevitably, to either a multiplicity of additional laws or to a non-sanctioned form of common law.
Finally, just like the Orthodox reject sola scriptura, so should the Orthodox reject strict constructionism or a Napoleonic Code approach to USA law, and for the same reasons. That type of system does not work. While the alternatives are not perfect, they are better than either sola scriptura or strict constructionism.
===MORE TO COME===
Fr. Ernesto,
Do you have any quick examples [hypothetical is okay] of changing Holy Tradition that would cause major upheaval? Or, common law from the Protestant tradition? Or a non-sanctioned form of common law? Thanks.
Sure, look at the Jehovah’s Witnesses attempts to convince Christianity to do away with Christmas! It has not worked, has it? But, Christmas is a Holy Tradition not found in Scripture. It is probably the only Holy Tradition some Christian groups have, but they have it. As for common law in the USA, just try allowing “squatting” in the USA, the way it it allowed in the Netherlands, a country with a strong history of Protestantism in its background. Our view of private property does not allow for that, even if the property is essentially abandoned by the owner.
Quick and to the point. I was racking my brain trying to think of an example.