Christianity and the Common Law: An Irish Perspective

In May 2024 an international group of scholars gathered at Kylemore Abbey to discuss Irish Christian perspectives on law. English and American lawyers have long made claims about the rationality and superiority of the common law to civil law systems based on Roman law. In Ireland, where first the Anglo-Norman and then the Protestant Ascendancy used the law to enforce their dominance over the native Irish and their customs, the law was often seen as oppressive. Nonetheless, there were Irishmen such as Edmund Burke, who argued that the common law, if applied properly and fairly, was a source of liberties and protections.

Richard O’Sullivan KC: Championing Christian Values in Common Law

My own contribution to this gathering was to speak about the work of Richard O’Sullivan KC, whose most important essays were published as The Spirit of the Common Law: The Papers of Richard O’Sullivan ed. B.A. Wortley (1965).

O’Sullivan was a lifelong, committed, Irish Catholic, who turned down a scholarship to Trinity College Dublin because the Irish Catholic Bishops said Catholics should not study there. Instead he came to England, where he studied at London University at night, before going to read for the English Bar. He enjoyed a successful legal practice across both criminal and civil law and received death threats in 1939 when he prosecuted the IRA bombers responsible for a fatal bombing in Coventry. He was a keen supporter of Catholic organizations and causes, most notably the canonization of Thomas More in 1935.

The Common Law’s Christian Foundations and Their Modern Implications

O’Sullivan’s big idea was that the common law, as it had developed in England in the Middle Ages, was the expression of Christian values: see ‘A Scale of Values in the Common Law’ (1937) 1 Modern Law Review 27-38. He thought that those Christian values continued to resonate in the common law down to this day, despite what he saw as the evil of Parliamentary sovereignty.

For O’Sullivan, the connection between Christianity and the common law had three important consequences. First, the common law was based on a Christian view of men and women which meant that it promoted human flourishing. Second, the common law was built upon the natural law, which therefore provided a standard for critiquing and resisting government. Third, the common law provided support and inspiration for resisting totalitarianism.

Human flourishing, Natural Law, and Resistance to Totalitarianism

Turning to those three ideas in turn. First, the common law treats people as reasonable, free and lawful until proven otherwise. Its vision of the ideal community is of free and responsible men and women united in fellowship and in obedience to one law to which even the king is answerable. The common law values life most of all, then bodily well-being and integrity, then honour and reputation, and after that property, conveyance, and contract. People matter more than things and things more than promises.

Second, all human law-making was subject to the overruling law of nature. The common law had developed through Christian minds using the gift of reason to discover ‘the necessary principles and rules of moral action’, having regard to humanity’s place in the natural order and to the psychology, ethics and metaphysics of being human. True freedom is expressed in obedience to the natural law because it is the responsible exercise of choice to choose those things it is reasonable to choose.

Third, human beings who understood their worth and their freedom could use their reason and conscience to discern when it was right to defy the command of a ruler which was in violation of right morals and the natural law. Thomas More was a hero of Richard O’Sullivan’s because he ‘died for the right of individual conscience as against the state; for the belief that there is an ultimate standard of right and wrong beyond what the state may at any moment command.’

O’Sullivan died in 1963, just before the revolution in social attitudes he had seen coming throughout his lifetime. His legacy lives on in a memorial lecture on the relationship between Christianity and law. He was anxious to remind a generation that the reason the common law promoted and protected freedom and human flourishing was because of the Christian vision of humanity which infused it. His fear was that if this was forgotten, a new generation would lose sight of what true freedom is, would not realise what the limitations on legislative and executive power are, and would fail to resist rulers who adopt false ideologies about what how human beings can truly flourish.

Conference Highlights and Upcoming Publication

The proceedings of the conference will be published in due course as Irish Christian Perspectives on Law. When they are published, subscribers to theologyoflaw.org will be able to order a copy of the book at a discount.