Many people are not aware that our legal system has its roots in genuinely Christian thinking. This is not only about Sunday rest, but also about abstract principles such as the freedom of form of contracts and the prohibition of immoral transactions.
State and church are separate in Germany. But if you look at the law books, you'll see a religious handwriting – even in places where you wouldn't expect it.
Failure to provide aid
For example, the parable of the Good Samaritan: It is one of the most famous parables of Jesus. A man who has fallen among robbers gets no help from passers-by. Jesus is appealing here to the mercy of his listeners – but a jurist could also read something else: namely the criminal offense of failure to render assistance, which is dealt with in the German Criminal Code under section 323.
"Today's law has Christian roots. There may be traces of the Bible beyond that," says Marvin Yuen, a research associate at the Federal Court of Justice in Karlsruhe, Germany. For example, "discretion" as an important aspect of the legal system has its roots in Christianity. In essence, it is a matter of making a measured distinction, taking into account the circumstances of the individual case, weighing up. The law must leave room for maneuver despite all the rules, explains Yuen. "Not all the observation of justice is laid down in the rule," wrote in the 6. In the sixth century Benedict of Nursia, on whom the Benedictine order goes back and who wrote one of the most influential rules of the order. "If the state exercises discretion today, a prefiguration is found in Benedict's rule," says Marvin Yuen. "Even before that, there was room for maneuver for the public sector. Here, however, the emphasis was clearly more on the freedom of the office bearer than on the duty to realize law and justice in the individual case."
Freedom of form for the contract
The jurist cites other examples of Christian roots of today's legal system, such as the fundamental freedom of form for contracts in civil law. "When we pay at the checkout in the supermarket, it's legally a contract. Even if not a single word is exchanged, we understand the conduct as good faith dictates – Section 157 of the Civil Code," said Yuen. In the old Roman law it was still different. "In the law of early antiquity, form was everything in the conclusion of contracts, while control of content – for example, for immorality – did not take place," he says. It is possible that Matthew 5:37 – "Let your yes be yes, and your no be no" – influenced the freedom of form for concluding contracts in Catholic canon law, which in turn influenced state law.
Ban on immoral transactions
The prohibition of immoral transactions by usury of interest, as described in section 138 of the Civil Code, had its root in the prohibition of interest in Exodus 22:24. According to this, a comprehensive prohibition of interest applied to Jews and Christians. According to Jewish understanding, however, the prohibition of interest was limited to loans among Jews, which is why Jews were allowed to take interest from Christians on loans, thus providing an important impetus for economic development. Nevertheless, precisely this economically important activity of the Jews was one of the reasons for Christian anti-Judaism. In modern times, the prohibition of interest declined more and more, even in Christianity; what remained was the prohibition of usury.
The third commandment, to sanctify the Sabbath, changed in Christianity to the duty of Sunday rest. In this tradition, Article 139 of the Weimar Constitution, which is still valid today through Article 140 of the Basic Law, places Sunday under special protection. The separate examination of witnesses is also described in the Bible, in the Book of Daniel 13:51.
The fact that Christian ethics and human rights are not contradictory has already been emphasized by the former chairman of the Council of the Evangelical Church in Germany (EKD), Wolfgang Huber. "The legal order in which we live has been shaped by Christianity," he said at the German Protestant Church Congress in 2005. The knowledge of the ancient Greeks, the Roman order of rule, the discovery of the autonomous individual in the Enlightenment, together with Christianity, would have influenced our current conception of human rights, basic values and legal norms.
"However, to attribute the threat of punishment for murder and manslaughter to the fifth commandment is probably going too far," says Yuen. "The prohibition of killing is common to almost all legal systems." Why, however, after the Constantinian turn there was about 1.It took 700 years for both the Protestant and Catholic churches to come out unreservedly in favor of abolishing the death penalty, is worth asking, says the connoisseur of ecclesiastical and secular law.