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When people speak about separation of religion and politics, particularly “legislating morality” as improper, they display a stupendous ignorance. 

For example, why is it wrong to lie to get someone’s money? Well, that is fraud. Why is fraud wrong? Because it is lying? Why is lying wrong? The answer to that question is itself a moral proposition. 

Morality is either a type of aesthetics or is based upon some sort of transcendent proposition: some morals may be more functional than others (everyone lying would soon destroy all commerce), but even caring about the effects is a moral decision.

The basic premises of Western law have a theological basis – a legislative morality: Consider this proposition:

God has ordained contracts of various kinds, Melanchthon wrote, to facilitate tate the sale, lease, or exchange of property, the procurement of labor and employment, and the lending of money and extension of credit.” God has called his political officials to promulgate general contract laws that prescribe “fair, equal, and equitable” agreements, that invalidate contracts based on fraud, duress, mistake, or coercion, and that proscribe contracts that are unconscionable, conscionable, immoral, or offensive to the public good. Melanchthon was content, for the most part, to state these general principles of contract law in categorical form. Occasionally he applied these general principles to specific cases. He condemned with particular vehemence loan contracts that obligated debtors to pay excessive rates of interest or entitled creditors to secure the loan with property whose value far exceeded the amount of the loan, unilateral labor and employment contracts that conditioned a master’s obligation to pay on full performance from the servant, and contracts of purchase and sale that were based on inequality of the exchange.

Law and Revolution II

Howard J. Berman

Harvard University Press 2003