Tag Archives: Theology

John Noonan, judge and historian

John T. Noonan Jr. - photo Kenneth Pennington, 1998

John T. Noonan Jr – Erice,1998 – photo Kenneth Pennington

Should an historian act as a judge, pronouncing verdicts on the past? Should a judge express views about the past or even use the past for his judgments? How can legal history help judges? Can you imagine that knowing about the history of medieval canon law, a subject seemingly quite distant from modern times, can prepare someone to become a respected judge? For a moment you might think I seduce you to follow me in an experiment, but I had rather tell here about the experiences of a scholar and judge who dealt in his life with exactly the questions at the start of this post. On April 17, 2017 John T. Noonan Jr. died. He served for thirty years as a judge of the Ninth U.S. Circuit Court of Appeals in San Francisco. Before and during his period as a judge he did research in the field of medieval and modern canon law. Noonan (1926-2017) wrote also about American law in past and present. A number of obituaries have appeared which focus on his contributions as a judge. Here I would like to honour his achievements by looking at his work as a legal historian.

Near to major themes in law and society

The obituaries I have seen until now understandably focus on his work as a judge. In particular the obituary issued by the Ninth Circuit Court of Appeals mentions a number of major cases – with full references – to which Noonan contributed, sometimes with a dissenting opinion which was eventually followed by the Supreme Court of the United States. Even Wikipedia gives substantial quotes from these important cases in the article about Noonan. The obituaries in the San Francisco Chronicle and The New York Times single out his political independence. Noonan was a Catholic who opposed abortion, but he certainly could not be labelled conservative. In the Commonweal Magazine‘s obituary there is attention for Noonan’s clear views about liberalism, but also on Shakespeare and the lack of attention to the Bard’s religion. The Faculty Lounge has a short notice by Alfred Brophy about Noonan’s passing, but he redeems it by sending you to a moving tribute at the blog of Diane Marie Amann (University of Georgia). She goes straight to the heart of the matter by showing Noonan in action. If you prefer to skip the section here below about the impact of medieval canon law you are right to proceed to her fine post.

Noonan came from Boston and studied at Harvard University, Cambridge and the Catholic University of America. To mention only his academic posts, he was a professor at Notre Dame University between 1961 and 1966 and from 1967 onwards at the University of California at Berkeley (Boalt Hall). His first book was on a subject touching medieval canon law, theology and economic history, The scholastic analysis of usury (Cambridge, MA, 1957). In a modern textbook about medieval views of the economy [Diana Wood, Medieval economic thought (Cambridge, etc., 2002)] the two chapters about usury frequently refer you to Noonan’s book. Intention is one of the keys in understanding and defining usury and interest. His second book, Contraception. A history of its treatment by the Catholic theologians and canonists (Cambridge, MA, 1965; enlarged edition, 1986) appeared at a crucial moment in the history of the Catholic Church, in the aftermath of the Second Vatican Council when pope Paul VI created a commission to study contraception. He invited Noonan to participate in it as a consultant. Another study, too, brought medieval theology and canon law together [Power to dissolve. Lawyers and marriage in the courts of the Roman curia (Cambridge, MA, 1972)].

How authors come to a subject can be mysterious, but I think it is not entirely by chance that Noonan wrote about matters of life and death, in particular about moral conduct. Bonds dissolved or not are also at stake in his book on The Antelope : the ordeal of the recaptured Africans in the administrations of James Monroe and John Quincy Adams (Berkeley-Los Angeles, 1977). I could not resist going to the digital collection Slavery in America – discussed here in some detail last year – and to check for the presence of this case around a ship with slaves in 1820. Changing views on slavery are among the subjects in his study A Church that can and cannot change. The development of Catholic moral teaching (Notre Dame, IN, 2005). The personal conduct of judges through the centuries is the subject of Bribes. The intellectual history of a moral idea (New York, 1984). Many students of American law will know about his volumes with selected cases around religious freedom and the responsibilities of lawyers.

It is tempting to discuss here more of Noonan’s books which discuss developments in American law from a historical perspective, but I promised you to focus on medieval canon law. A fair number of Noonan’s articles can conveniently be consulted in the volume Canons and canonists in context (Goldbach 1997). Articles about medieval canon law appear not only in the few journals created for this field, but also elsewhere, sometimes in Festschriften. Thus the volumes in this series are most useful, also for the additions and corrections added by the authors. The bibliographical database of the Regesta Imperii (Akademie der Wissenschaften, Mainz) lists most of Noonan’s articles about medieval canon law.

Noonan wrote two major articles about the author of the Decretum Gratiani, a subject at the heart of the modern study of medieval canon law, because Gratian’s book is often seen as the core and cause of the very birth of medieval canon law. In the first article, ‘Was Gratian approved at Ferentino?’, Bulletin of Medieval Canon Law N.S. 6 (1976) 15-28, he investigates the historical evidence around a papal approbation of Gratian’s textbook. The second article, ‘Gratian slept here: the changing identity of the father of the systematic study of canon law’, Traditio 35 (1979) 145-172, is an object lesson in making distinctions about reliable and unreliable evidence. Noonan crushes sloppy thinking and careless repetition of unchecked information. Even his colleague at Berkeley, Stephan Kuttner, receives a frown at one point. Thirty years later Anders Winroth could establish at last some facts about the life of Gratian with certainty in ‘Where Gratian Slept: The Life and Death of the Father of Canon Law’, Zeitschrift der Savigny-Stiftung für Rechtsgeschichte. Kanonistische Abteilung 99 (2013) 105-128. Kenneth Pennington gives at his website a more colourful presentation of John Noonan’s work on Gratian, including the covers of some books and some remarkable photographs of Noonan.

Intention is a matter of concern in medieval canon law ever since its appearance in the twelfth century as a subject in medieval theology. It is through canon law that intention became a theme in criminal law. Judges were called upon to consider someone’s intentions. Stephan Kuttner, Noonan’s teacher in Washington, D.C., wrote the classic study tracing this development [Kanonistische Schuldlehre von Gratian bis auf die Dekretalen Gregors IX systematisch auf Grund der handschriftlichen Quellen dargestellt (Città del Vaticano 1935)] and Noonan clearly studied it in great depth. For Noonan the facts and intentions counted in judging historical situations. In his view facts matter indeed, because he wanted to judge cases, not persons. Some of his views of famous American judges can be found in Persons and masks of the law : Cardozo, Holmes, Jefferson, and Wythe as makers of the masks (New York, 1976). Noonan did not keep ethics and moral questions at a safe distance. Making the right judgments is only possible when knowledge of the law, insight into what consist justice and a fine-tuned and ever developing conscience come into action, or to put it more briefly, where mind and heart fully work together. It is exactly how Noonan impressed those who met him. Being a judge and a historian in one person is challenging, but he had the greatness to achieve this in a long and fruitful life.

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Love and natural law

Homepage Natural law project, Universität ErfurtSometimes a title can be very evocative or curious. When I read about an upcoming conference about Love as the principle of natural law. The natural law of Johann Gottlieb Heineccius and its context at Halle on November 24 to 26, 2016, I simply wanted to know more about this event. What is the connexion between love and law? What is the role of love in or for natural law? In this post I would like to make a foray into the history of natural law, an important movement in the European legal history of the Early Modern period. The event at Halle is organized by the platform Natural Law 1625-1850, an international research project led by scholars at Erfurt, Halle and Bayreuth.

Love is the word

The project Natural Law 1625-1850 aims at studying natural law as a phenomenon which connect law with other disciplines, such as philosophy, political thought, theology and the arts. Natural law as a concept or a set of ideas gained importance not only in Western Europe but also in North and South America. To help achieving this aim the project website will eventually contain digitized sources, a scholarly bibliography and a biographical database, all surrounded by a scholarly network with accompanying events.

Portrait of J.G. Heineccius

Portrait of Heineccius by Christian Fritzsch in his “Opera posthuma” (1744) – Herzog August Bibliothek, Wolfenbüttel / Porträtdatenbank Franckesche Stiftungen, Halle

The conference in Halle has as its objective getting Heineccius out of the shadows cast by his much more famous colleague Christian Wolff (1679-1754). In fact the main venue of the conference, the Christian-Wolff-Haus at Halle, is the very house where Johann Gottlieb Heineccius (1681-1741) lived for some years, too. Heineccius’ major book concerning natural law, his Elementa iuris naturae et gentium (1737) was certainly as influential as any of Wolff’s publications. Before you start arguing that the scope of this conference is rather small, it is good to be aware of a second conference organized by the platform around the theme Sacred Polities, Natural Law and the Law of Nations in the 16th-17th Centuries (Budapest-Olomouc, November 10-12, 2016). Exactly the impact of natural law across the borders of Northern and Southern Europe, continental and common law, and the exchanges between Protestant and Catholic Europe will be discussed at this event.

One of the reasons to focus on Heineccius is the simple fact that although his works both in the field of Roman and natural law are famous enough, his own life and career and the development of his views is still a field to be discovered. Luckily there is at least one modern biography by Patricia Wardemann, Johann Gottlieb Heineccius (1681-1741). Leben und Werk (Frankfurt am Main, 2007). In the first edition of Michael Stolleis’ Juristen. Ein biographisches Lexikon. Von der Antike bis zum 20. Jahrhundert (Munich 1995) Klaus Luig did not mention at all in his contribution Heineccius was first trained as a theologian before he started studying philosophy and law. In this respect the concise article by Rolf Lieberwirth for the Neue Deutsche Biographie 8 (1969) 296-297 is better. The online version of this article at the portal Deutsche Biographie has as great assets direct links to various online projects in which persons appear. The conference program has a judicious mixture of contributions focusing on the person of Heineccius on one side, and on the other side papers discussing in particular his impact in various European countries. Alas only the introductory lecture by Knut Haakonsen and Frank Grunert, with Diethelm Klippel founders of the platform, will address directly the theme of love as a principle of natural law. Here Klaus Luig’s short biographic article is helpful with a terse note that Heineccius meant love as a command of God. Natural law tends to be viewed as an attempt to build a legal system without massive reliance on Christian religion or at the best a decidedly Protestant legal order. Luig adds that precisely this religious character made Heineccius’ views also interesting for lawyers in Catholic countries.

Heineccius published his work in Latin whereas Wolff became famous for his use of German in his learned publications. He gained even praise for his excellent grasp of Latin. Interestingly, there is a modern German translation of Heineccius’ Elementa iuris naturae et gentium by Peter Mortzfeld, Grundlagen des Natur- und Völkerrechts, Christoph Bergfeld (ed.) (Frankfurt am Main, 1994). One of the things that merit attention when looking at natural law is the interplay between theology, philosophy and law. Maybe natural law deserves our attention exactly because it forces you to see legal history in a wider context.

Searching for portraits of Heineccius luckily brought me to the English translation by George Turnbull (1741, 1763) of Heineccius’ Elementa iuris naturae et gentium, now available online in the Online Library of Liberty. The modern introduction to this translation offers a welcome sketch in English of Heineccius’ views and the role of love as a guiding principle. It becomes clear he saw love not as an infatuation, an affinity or an Affekt, but as “the desire for good”, working in our relations to God, ourselves and other people.

Natural law has its attractions as offering a supranational foundation beyond existing legal systems, but in reality either religious influences or Roman law became their actual source. In this respect attempts to create a system for natural law are flawed, but they offer for historians fascinating views as a kind of projection screen for the vision of the lawyers working in this direction. For me it is also the changing character of nature itself that has made me cautious about natural law and its supposed independence of existing forms of law and justice.

A Frisian connection

Banner Franeker Universiteit

Another reason for me to look at Heineccius is the period he spent at the university of Franeker between 1723 and 1727. The university of Franker existed from 1585 to 1811. Heineccius quickly came into contact with for example Cornelis van Bijnkershoek. He wrote a preface to Van Bijnkershoek’s Observationes iuris Romani in the edition Frankfurt and Leipzig: ex officina Krugiana, 1738. In the licensed database of the Corpus Epistolarum Neerlandicarum (Royal Library, The Hague and Picarta) I could find just one letter to Heineccius written by Tiberius Hemsterhuis (Leiden, UB, BPL 3100). Using the search portal for Dutch archives I could find Heineccius as one of the people mentioned in the correspondence now part of the StadhouderlijkerArchief kept at Tresoar, the combined Frisian archive and provincial library at Leeuwarden.

Alas I checked in vain for Heineccius in several online projects dealing with Early Modern correspondence and networks. The project Cultures of Knowledge give you a selection of relevant links. Only the Kalliope Verbund has records for a few letters to and by Heineccius in the holdings of German libraries. The Archivportal Deutschland mentions a portrait of Heineccius and a letter of king Friedrich Wilhelm of Prussia from 1737 who did not allow Heineccius to become a professor at Leiden. Just like the university of Harderwijk Franeker was for a considerable number of professors only a stop to go to either Utrecht or Leiden. The letter at the Bayerisches Hauptstaatsarchiv in Munich [BayHStA, Gesandtschaft Haag 2532] is also traceable through the portal of the Deutsche Digitale Bibliothek, but there is no access to a digitized version of this document. By the way, the Bibliografie van hoogleraren in de rechten aan de Universiteiten van Groningen en Harderwijk tot 1811, B.S. Hempenius-Van Dijk et alii (eds.) (Amsterdam 2013) can be downloaded as a PDF, as is the case, too, with the volume Bibliografie van hoogleraren in de rechten aan de Utrechtse Universiteit tot 1811, edited by Margreet Ahsmann, Robert Feenstra and Corjo Jansen (Amsterdam, etc., 1993). You will spot several professors who climbed from minor universities to the most famous! It has to be said that these volumes do not offer complete bibliographies in the sense librarians and book historians use this term. They should be seen as extensive finding lists with descriptions of copies of the works of these professors found in major libraries around the world. Robert Feenstra wrote an extensive bibliographical article about Heineccius in the Low Countries, ‘Heineccius in den alten Niederlanden : Ein bibliographischer Beitrag’, Tijdschrift voor Rechtsgeschiedenis 72 (2004) 297-326, and Klaus Luig, too, should be mentioned again, now with his article ‘Heineccius, ein deutscher Jurist in Franeker’, Tijdschrift voor Rechtsgeschiedenis 77 (2011) 219-227.

Heineccius in context

If you want to delve into Frisian history the website of Martin Engels contains lots of transcriptions of documents on many subjects, including the history of the university in Franeker. In the corner Iuridica of his colourful website Engels presents things of more general interest for legal historians. He has created a webpage with the contents of the Practisijns woordenboekje by Franciscus Lievens Kersteman (Dordrecht 1785), a concise glossary of Dutch legal terms. There is a page about the Soevereine Raad or Hof van Gelre in Roermond, a court in the province Guelders. For Frisian legal history Engels made extracts for a glossary of Frisian law in the Early Modern period from S.J. Fockema Andreae, Proeve van een woordenlijst der aan Friesland (onder de Republiek) eigene bestuurs- en rechtstermen (Leeuwarden 1967). The very core of his website are pages about the copy at Leeuwarden of a sixteenth-century collection of legal treatises, the Oceanus iuris, meaning the Tractatus universi iuris or Tractatus illustrium (…) iurisconsultorum (Venetiis 1584-1586), originally donated in the early seventeenth century to the university of Franeker. Engels scanned and indexed the lists of authors in the Oceanus iuris. I wrote here about this massive legal collection and its forerunners in an earlier post. When studying publications by lawyers from Franeker it is useful to look at the Bibliografie van hoogleraren in de rechten aan de Franeker universiteit tot 1811, Robert Feenstra, Theo Veen and Margreet Ahsmann (eds.) (Amsterdam 2003). Personal reasons forced Heineccius to return to Germany. The website on the history of the Franeker Universiteit contains concise but interesting information centered around the Museum Martena in the historical buildings of the Martenastins, a stately mansion in Franeker from 1506. I did not spot Heineccius among the selection of portraits of professors on this website. A search in the rich online databases of the Dutch Rijksbureau voor Kunsthistorische Documentatie in The Hague yielded no results for Heineccius.

Banner IZEA, Halle

In the team of scholars leading the project on the history of natural law between 1625 and 1850 Frank Grunert (Halle) is clearly the one closest to the German luminaries of the eighteenth century. At the Interdisziplinäres Zentrum für die Erforschung der Europäischen Aufklärung of the Universität Halle he leads the projects for the modern critical edition of selected works of Christian Thomasius (1655-1728) and his correspondence. Eventually the volumes of the edituion of Thomasius’ letters will be put online. The website of the IZEA can be visited in German, English and French. There is also a digitized version of a current bibliography for Thomasius [Bibliographie der Thomasius-Literatur 1945-2008 (Halle 2009); PDF], and you might also want to use Gerhard Biller, Wolff nach Kant. Eine Bibliographie (2nd edition, Halle 2009). Among the recent publications of the IZEA the Handbuch Europäische Aufklärung: Begriffe, Konzepte, Wirkung, Heinz Thoma (ed.) (Stuttgart 2015) stands out, a volume with fifty contributions about central concepts, ideas and the impact of the Enlightenment.

The IZEA is located in the former Rote Schule, the building of the girls school on the grounds of the famous Franckesche Stiftungen zu Halle, the institution which supported the influential pietist movement started by August Hermann Francke (1663-1727), becoming eventually a major phenomenon in German culture. Its buildings survived the DDR period, but it is still chilling to see the highway above street level directly opposite the beautiful grounds and buildings. The Franckesche Stiftungen have created a fine portrait database in which you can find images of many German people. In the digital library of the Franckesche Stiftungen I did notice the Epistolar Franckes, a project for digitizing Francke’s correspondence, but currently there is no trace of Heineccius. Let’s not forget to mention that the Universitäts- und Landesbibliothek Sachsen-Anhalt in Halle is one of the libraries participating in the project VD18, the overview of eighteenth-century German imprints. Its digital library contains a number of Heineccius’ works. The Repertorium Alba Amicorum contains records for the entries in 1719 of Heineccius, Wolff and Francke himself in the album of Immanuel Petrus Geier [Halle, Frankesche Stiftungen, Archiv: AFSt/H D 133].

Within the project Natural Law 1625-1850 four scholars look at German universities (Frank Grunert, Diethelm Klippel, Heiner Lück and Gerhard Lingelbach); Wilhelm Brauneder will focus on universities in Austria. For other countries individual scholars come into action. I would have expected more information on the project website in the very month two scholarly events take place, but perhaps the energy of the organizers was focused for good reasons on these events! Hopefully the attention to the European context of the great figures in the history of natural law and their interest in and connections with other disciplines will lead to interesting results.