OF THE WESTERN LEGAL TRADITION
AND THE FOUNDATIONS OF
Copyright © 1998 by Barnabas D. Johnson
2005 Note: This 1998 essay is offered here primarily for its
Other Jurlandia essays address almost all these issues much better.
See especially the references and links at the end of this essay.
2006 Note: Links to later writings have been added.
Our task is to illuminate the theory and advance the reality of something that is not self-defining: law, the Rule of Law — constitutional democracy in which majority and coalition rule is balanced by minority and individual rights, and in which all rights are triangulated by responsibilities growing out of our status as participants in an experiment of consciously-evolving regenerative intelligence. Our task is to illuminate the Rule of Reason.
No person or country has a monopoly of wisdom in this endeavor, but that does not mean all opinions thereon are equal, are based on the same depth of wisdom, the same grasp of history, the same comprehension of human experience. What follows is my attempt to begin harvesting wisdoms that seem to have withstood the test of time. This is a work-in-progress, and will be modified as experience dictates. We live and learn, whether as individuals or — and this is the key to understanding law — as a society, a civilization, a world. Feedback is the lifeblood of law and of all manifestations of regenerative intelligence.
Law — properly conceived — results from a "conversation" between past and present, a conversation that projects into the future as choice, action, feedback, and the anticipation of further conversations. Nothing that has a history can be defined except within the context of history, the context of those human experiences that gave it birth and have sustained its evolution.
Law — that is, the first "legal system" and the basis of our evolving global legal system — was born almost a millennium ago, not before, as a synthesis of the Greek genius for systematic thought, the Roman genius for pragmatic administration, and the Hebrew belief in a universal moral order. This synthesis was the earliest manifestation of what became the Great Synthesis of Synergism: a break-through following what, in retrospect, appears to have been a societal mental breakdown. To understand law, one must understand its origins and development.
The causes of historical developments recede into the mists of time; every beginning has its own history; but I think it is fair to say that the fundamental cause of that societal mental breakdown was a spiritual breakdown having to do with what I will here call the Millennial Bust — the disappointment of the clergy, the educated, when they realized that the New Millennium had not brought the expected new Kingdom of God on Earth. This disappointment was more severe in Western Christendom than in Eastern Christendom, for reasons that speak well for the latter, but this point will not be delved into here. Suffice it to say that part of this entire historical dynamic related to the 1054 A.D. divorce between East and West. Another crucial aspect, which can only be touched upon here, was that Jewish and Islamic scholars — especially those in the great civilization then flourishing in Spain — did not share in this millennial disappointment, and in fact became a major resource of the Age of Rediscovery that started in the first century of the second millennium.
The Millennial Bust led the leaders of Western Christendom to give up on waiting for the Kingdom of God; instead, they set out to "re-make" it. The revolution they started focused on turning back (the original meaning of "revolution") to re-create a bygone era, the mythical Age of Christian Empire, the era of Emperor Justinian (527-565). In their efforts to re-make that Golden Age, the leaders of the Papal Revolution — most notably Hildebrand, who became Pope Gregory VII in 1073 — kindled a spark that, fueled by "historical deadwood" and the tangled underbrush of a genuine Dark Age, became an intellectual and spiritual furnace in which something wholly new was forged: the "modern" Idea of Progress. [See Note on the Idea of Progress.]
I submit that this modern Idea of Progress was inextricably tied to the birth of the Western Legal Tradition. The two are almost a unity.
Let us proceed gingerly. As Justice Holmes of the U.S. Supreme Court said, the life of the law is not abstract logic but practical experience. That is one of the reasons why "law" is largely contained in "cases" — in reports of specific conflicts, and how they were resolved, and why ... and whether, over time, such resolutions turned out to have been wise, reasonable, fair. We live and learn, and must report our lessons with fidelity, with reasoned explanations, so that others may surpass our wisdoms and evolve beyond our limited capacities.
To understand the Rule of Law, to illuminate that seamless web which composes the fundamentals of a constitutional democracy as well as the interdependent details of local, provincial, central, federal, transnational, international, and global law — including legislation, administration, adjudication, and related "law-like" activities, customs and usages — one must understand the law's historical foundations. One must understand those foundations within the context of a goal that is even more basic than the Rule of Law, namely, the Rule of Reason.
What is the relationship between reasoning and law-making? The ponderings thereon of ancient Greece, more than 2,300 years ago, lie as relics in our modern languages and thoughts, and we cannot escape them — and should not try. They are only words, true; but behind these words lie powerful insights. Socrates, Plato, Aristotle, were wrong on many particulars, but to the extent that their ideas made our world what it is today, we need to pay them heed; and to the extent that their greatest wisdoms made, and continue to make, our world admirable — as I firmly believe they do — these earliest "grammarians of global discourse" deserve the very deepest respect of every successive generation.
Law is what those ancient Greek philosophers classified as an art, techne — not what we know, as such, but what we make out of our knowledge. But, unlike cities and moon landings, this "technology" is composed almost entirely of mind-stuff, a special kind of art — the art of the helmsman, the kybernetes or, as we now say in English, the governor. [See The Cybernetics of Society.]
Specifically, law and governance are a cybernetic art, transcending logic, transcending empirical description, focused on modifying personal and societal behavior, improving human institutions, creating the conditions for further evolution — prescribing, proscribing, guiding conduct, and molding the rules of commerce and industry and community most broadly defined. This cybernetic art uses knowledge of the "changeless" (Socrates' analogy, stars) and of the "naturally changing" (winds and waves) to inform and guide that which is "humanly changeable" (the trim of the sails, the angle of the rudder, the work of the kybernetes), and ... if I may say so ... after years of trying to fathom this subject, I do not believe that this metaphor can be improved upon.
I submit that the central theme of classical Greek philosophy, forming the unarticulated major premise of Western civilization and, increasingly, of global civilization, has to do with how knowledge of the changeless, the naturally changing, and the humanly changeable can be integrated to inform action, to guide individual and group behavior, to make and build and "grow" an art form which is its own best metaphor — not a machine, not an organism, not anything like anything else we know of. What is it?
It is less a noun than a verb. It is evolving human experience transformed into choice, conscious will, wise governance. It is our world, but it is a different kind of world — by order and dimension — from that which can be "explained" by physics, chemistry, biology, genetics. It is a seeking world.
Each of us, at birth, is a result of its search, but as we grow up we become "search engines" ourselves — organs of this strange and wondrous learning organism. Our institutions, our cities and universities, our Internet, are likewise organs of global discovery, self-discovery, self-governance.
We would know ourselves better that we might govern ourselves — our planetary "self" — more wisely.
Ours is a cybernetic world, a self-organizing and self-correcting "thing" whose tentacles now touch — and might even change — the moon, the planets, the changeless stars. Ours is a seedling planet, potentially young beyond our comprehension.
We seek, not "government under science" (as precious as all good science is), nor even "government under political science" (as crucial to law and governance as this field has become), but "government under law"; and, as science swallows logic whole, then moves beyond, so cybernetics swallows science whole, then moves beyond. By order and dimension, law and governance is not logic, and — unless by "science" we mean a sort of slow-motion controlled experiment which we humans, generation after generation, are conducting upon ourselves — we should not consider law as one of the sciences. Law is art.
Law is the quintessentially cybernetic calling by which humanity — now awakening to the vaster implications of conscious evolution — is remaking itself, reconstructing the "genetic code" of Metaman: the Corpus Juris. As genes are "about" bodies, so the Corpus Juris is about the creation and self-governance of what John of Salisbury almost a millennium ago called Policraticus, and Hobbes called Leviathan. We may rightly continue calling it the body politic. Yet it has no adequate name, it is not a noun, it is a work of art — art in progress.
This cybernetic concept of law and of a legal system — as distinct from a mere collection of laws, edicts, and administrative institutions — had its genetic origins in ancient Greek philosophy, but it emerged from the societal womb less than a thousand years ago, in Bologna, Italy. Oh, one can find earlier evidences, one can hear suggestive gurgles now and then, but I believe that the Western Legal Tradition started during the decade following January 1077, when King Henry — soon to become Holy Roman Emperor Henry IV, 1084-1105 — knelt in the snow before Pope Gregory VII at Canossa.
Gregory's host at Canossa was Duchess Matilda, in whose city of Bologna was an ancient "museum" of Justinian law. At this museum, Gregory and Matilda founded a law school dedicated to upholding papal authority — "Christian law" — over all secular princes, kings, emperors. As we shall see, what they intended was not exactly what resulted. The revolution they started took on a life of its own, due largely to the interplay of two related developments — "Justinian rediscovery" and, close on its heals, "Aristotelian rediscovery" — and the intellectual revolution that these triggered was one of the most profound of human history: the modern Idea of Progress.
Before that era, "progress" implied a revolution backwards to a Golden Age from which humanity was thought to have fallen. The idea that the Kingdom of God would return with the dawn of the second millennium had been popular among the leaders of Western Christendom; but after the Millennial Marker had come and gone without evidence of any Return, the Western Church essentially abandoned the Idea of Return and, using law and philosophy as vehicles, headed off in what we now see was an entirely new direction: the Rule of Law based on the Rule of Reason.
This "Reason" was made possible by "new learning" — as it was called — imported from Islamic Spain (Aristotelian rediscovery), while this "Law" was based on ancient Roman law (Justinian rediscovery). Each created the need for the other, but, just as important, "something was in the air" — as the saying goes — and the spirit of discovery and rediscovery was part of a larger dynamic sweeping Western Europe. How much it had to do with Millennial Fever is a matter of some controversy. Suffice it to say that when people anticipate an important occurrence — for example, the Return — then that fact itself can lead to occurrences, including ripple effects that grow into tidal waves, which might turn out to be as important as the anticipated events. The old Golden Age never returned; what came, instead, was arguably more momentous.
The new learning, possibly first referred to by that name around 1050 A.D. by Damiani (who hated it), was essentially what we now call Nominalism. It was rooted in teachings by Aristotle that were unknown to Western Christendom until their importation from Spain during the eleventh and twelfth centuries. In essence, Nominalism taught that the name is not the thing or relationship named, the map is not the territory, and the words of ancient texts were — are — mere words, mere names (nomina, pointers) that must be weighed in light of other texts and interpreted in light of logic and experience. One cannot overstate the liberating effect upon Western Christendom of this new learning — although, in many ways, as already noted, what it caused was a societal mental collapse.
The breakdown and resulting breakthrough arising from the synthesis of Athens, Jerusalem, and Rome formed the basis, during the next two centuries, of the Great Synthesis of Synergism: that "Man" participates with "God" in the work of "Creation" and that, to use modern terminology, we humans have no choice but to "play God" — and should therefore focus on getting better at it.
The first evidence of this idea, I believe, was the "birth pangs" of the Western Legal Tradition. As for Synergism, it will become the fodder for another millennial feeding frenzy — a new Age of Millennial Madness from which, however, we humans will doubtless learn. Let us look back a thousand years, if only to obtain solace in bygone stupidities.
In essence, the Great Synthesis not only viewed civilization as a constructed thing that can be improved upon, but actually impelled society to go forth and improve. This revolution was largely the work of a new priesthood — lawyers — whose initial focus was upon Canon Law, Christian law, including the law they found in the rediscovered "sacred texts" of Justinian. To them, this rediscovered law was Christian law — the sword and shield of the Papal Revolution started by Pope Gregory VII. They sought to re-establish the Kingdom of God on Earth, not only in the Papal States but throughout Christendom.
The method these clerics used to interpret and understand the Justinian Corpus was based on penitential-law "casuistry" (putting cases); this method was itself based on "Aristotelian dialectic" as it had been handed down from the Church Fathers. But this dialectical method of analysis and synthesis was becoming increasingly slippery, because the "old" Aristotle — the intellectual backbone of Christendom, of all education in the West during the prior seven centuries — was at that very time dissolving under waves of "new" writings which, it was becoming ever clearer, were far better renditions of Aristotle's actual teachings, including his methods of interpreting texts and reconciling contradictory truths. The "new" Aristotle subjected the "new" Justinian to more than deductive logic; Aristotle championed inductive science, empiricism, and — of even greater importance — he classified "governance" ... specifically, law ... as art.
In my view, the most significant result of this medieval synthesis of Athens, Jerusalem, and Rome was Magna Carta (1215 A.D.) — the idea, forced upon a ruler by his subjects, that, inasmuch as all humans stand equal before God, so too all stand equal before "the law of the land" ... a phrase authoritatively restated during the next few centuries as "Due Process of Law"! It is thus phrased, in English, in the Constitution of the United States. "Due Process" is not just any kind of law, and it involves more than mere "procedures"; it is the Rule of Reason, based on logic, experience, and — above all — "fundamental fairness": justice balanced by mercy.
Magna Carta, the Great Charter — "idea made law" — "Word made Flesh" — is not a "finished" idea. It is still evolving.
Magna Carta ordained that no person may be deprived of life, liberty, or property without that fundamental fairness which the evolving concept of Due Process denotes, points towards, maps and discovers and invents.
The modern state evolved from that medieval synthesis of Athens, Jerusalem, and Rome. Islamic and Jewish scholars in Spain and elsewhere played a crucial role, building upon the works of others in far-flung civilizations. The result transcends all nationalities, philosophies, and theologies. It is a fascinating story, told well by Prof. Harold J. Berman in his book, Law and Revolution — The Formation of the Western Legal Tradition, Cambridge, Massachusetts, Harvard University Press, 1983, viii, 657 pp. [See Note on Professor Berman.]
(Prof. Berman's book has been published in German translation by Suhrkamp Verlag, 1991; in Chinese translation by China Encyclopedia Publishers, 1993; in Italian translation by Il Mulino, 1994; in Russian translation by Moscow University Press, with a new introduction, "An Introduction for the Russian Reader," 1994; in Polish translation by PWN, Polish Scientific Publishers, 1996; and in Spanish translation by Fondo de Cultura Economica, 1996.)
Now a new global civilization — based on Due Process as that concept has evolved since Magna Charta — is struggling towards self-consciousness, self-governance, self-transformation. But how do Russia and the countries of the former Soviet Union fit into this picture? Not easily.
Roman law was not a "system" of law but a collection of rules of pragmatic administration. It recognized many kinds of contracts, for example, including contracts to buy a house, a horse, a wife, a slave, whether involving an agreement between two aristocrats, an aristocrat and a commoner, or a citizen and a non-citizen. But Roman lawyers showed little if any interest in developing the "idea" of a contract, as such, let alone the "concept" of a legal system embracing all humans and, indeed, governing horses and houses and lands and countries. Only in Western Christendom, partly because of its backwardness, did the "need" for a synthesis of reason, morality, justice, mercy, and pragmatism arise — and only in the battles among secular and ecclesiastical princes of Western Europe did the need for a legal system based on that synthesis emerge ... until the modern age, of course, when all countries have been forced to pay heed to a world made "modern" by that very synthesis.
Russia obtained its law primarily from Byzantium, in "pure" form, "unadulterated" by the scholars of Bologna. This city, as noted, was the site of an ancient museum containing that same "pure" Justinian law. But, as an integral part of the Papal Revolution, the Church turned this museum into a law school. Within half a century of its founding, this first "university" (for that is where this use of that word originated) apparently had almost 10,000 students! Their purpose, we know, was to revive Roman law — that is, Christian law, the foundation of Gregory's response to the failure of the Return. But events took on a life of their own. In due course, these students went into the service of secular as well as ecclesiastical princes. The result was utterly new: the beginnings of the idea of the secular state governed by law.
Synergism — disguised, typically, as "the law of unintended consequences" — was alive and well then, as it is today. Synergism "causes" nothing but "allows" much, and the Western Legal Tradition has been its beneficiary, if only because modern law institutionalizes processes by which the "permissible" can be channeled in feedback-sustaining, self-correcting, evolution-affirming directions. Science is a creature of the Age of Causality. Cybernetics is a child of the Age of Synergism. The child is parent to the adult it might become. [See Synergetics.]
The benefits of those "unintended consequences" did not accrue to Byzantium. Accordingly, Russia received its law in "pure" form, not synthesized in the furnaces of Aristotelian Nominalism and the vibrant "Scholasticism" that flowered in Bologna, and then Paris and Oxford and the other new universities of Western Christendom.
Russian law was especially untouched by the "case method" of instruction — medieval casuistry — as it developed in those universities, and by the ways in which the pedagogical method of putting cases evolved, over time, into the idea, and eventually the reality, that law "resides" in cases — in recorded experience, in history told with fidelity.
The development of such case-based law is beyond the scope of this essay. [See Why Publish Judicial Decisions?] Suffice it to note that Bracton, the thirteenth-century English lawyer, contributed significantly to this development. He apparently used made-up cases as a pedagogical tool to educate British yokels on the finer points of Roman law, that is, the "adulterated" Greco-Roman-Bolognese-Synergistic synthesis — although nobody in those days thought of it as anything other than the "real thing": Roman law, the law of Justinian's Christian empire.
Having become accustomed — through Bracton — to learning their law from cases, English lawyers carried "case law" far beyond its cradle in the universities. They carried it to a point where, eventually, law was "found" as much in cases as in legislation and governmental edicts — and where, according to Edward Coke, Shakespeare's contemporary and arguably England's greatest jurist, the fundamentals of case law (including evolving Due Process jurisprudence) could not be contradicted by any law, not even by parliamentary legislation or royal decree.
Coke lost that argument in England, but in crucial respects won it in America. Today, the United States of America — and especially its "independent" judicial system built upon its "autonomous" (self-governing) legal profession, of which the Chief Justice of the U.S. Supreme Court is the head — constitutes a remarkable object lesson in the power of case-law, judge-made law, experience-based jurisprudence. Here, the Rule of Reason and the Rule of Law means "published reasons" which, as every judge knows, will be torn apart unless they are lawful.
With very few significant exceptions, every judicial decision in the United States is subject to scrutiny by law students, lawyers, judges, legislators, everybody! Each year thousands of volumes of "law reviews" analyze, synthesize, prioritize, hierarchicalize, and often pulverize the reasoned opinions of thousands of federal and state judges. What on earth are these people up to?
In a word, cybernetics.
They are growing a legal system, an evolving genetic code for a living, learning, self-transforming body politic. The legislative and administrative processes of society are no less crucial, but they can only work properly in triune partnership with a well-functioning judiciary. [See Triangulation.] What this tells us about the cybernetics of society bodes well for the future of law, the Rule of Law, and global constitutional democracy.
One cannot overemphasize the problems associated with Russia's failure to develop or adopt the idea of a legal system.
Over the centuries, Russian law has suffocated in a vast tangle of inconsistent decrees — a "collection" at best — and much of this law was not even "collectible" because it was secret. Alexander I (1801-1825) commissioned the first great jurist of Russia, Michael Speransky, to codify this law, but Alexander's successor, Nicholas I (1825-1855), would not allow Speransky to "change" that law. As the students of Bologna discovered long ago, however, one cannot turn a collection of decrees into a system of law without "changing" something. What medieval Western lawyers changed was not merely the law, but the very structure and concept of governance.
True, Speransky and his successors did make significant strides in modernizing Russian law. But, in my opinion, Russian law — and Soviet law thereafter — remained essentially a "collection" rather than a "system"; and, most important, Russian law and Soviet law never developed the cybernetic feedback processes so essential to a healthy legal system. The people of the former Soviet Bloc should take great pride in the courageous souls who sought to "speak truth to power" and sought, thereby, to reform Soviet concepts of law and governance. But courage and truth-seeking are not enough. Deeply-rooted understanding is essential.
Our task is to illuminate the theory and advance the reality of something which is not self-defining: law. We shall define it not as logic, not even as science, but as an essential aspect of a "learning society" — a civilization that can learn from the past, build for the future, and grow as a seedling planet grows.
The principal purpose of this essay is to anchor the Constitution of Jurlandia, a model constitution intended to address the problems and potentials of countries currently turning away from Soviet totalitarianism and turning towards constitutional democracy based on the Rule of Law.
End of Inaugural Essay,
now significantly superseded.
2005 Note on the Idea of Progress: Since writing this essay in 1998, I have modified my thinking about the Idea of Progress. Specifically, whenever one seeks "starting points" one tends to find ever-earlier ones, disappearing into the mists of time. So it is with the Idea of Progress, which seems to have roots in ancient Greek philosophy. A superb work on this subject is Robert A. Nisbet's book, The Idea of Progress, which is available here. Consider the following passage from the subsection entitled "Roman Philosophers on Progress":
"Perhaps the greatest description (in the sense of a systematic and developed awareness) of human progress to be found in all of ancient thought is the Roman Lucretius' On the Nature of Things written in the first century B.C. It is an Epicurean account of complete sciences — astronomy, physics, chemistry, anthropology, psychology. In very modern fashion, Lucretius explains the beginnings of the world through atoms in the void forming clusters which then become tangible matter, and the eventual development of the world with all that grows and lives on it. Book V of this general evolutionary treatise is concerned solely with mankind's social and cultural progress. It commences with primitive man living naked and shelterless, dependent upon his cunning and ability to join forces with other men in order to find safety from larger and more predatory beasts, in constant fear of the elements. To assuage this fear mankind generally formed religions for mental protection, and step by step (pedetemtim progredientes) advanced to huts, then to houses and ships, diverse languages, the arts and sciences, medicine, navigation, improvements in technology, making for an ever richer existence. And, Lucretius is careful to tell us, despite the grandeur of all that man has achieved on earth through his own efforts, the human race is still in its infancy, and even greater wonders may be expected." (Go back)
Note on Professor Berman: I was privileged not only to take law courses from Harold J. Berman (including his course on Soviet law) while a student at Harvard Law School, 1967-70, but also to be his research assistant in 1976, where I focused on the philosophical origins of the Western Legal Tradition, especially the earliest Greek origins. (Go back)
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