Inquiry and Proposal on the Goals
Of Law Reform and Legal-Education Reform
Within the Countries of the Former Communist Bloc
Copyright © 2000 Barnabas D. Johnson [1]
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2012 Note: This essay is reproduced here so that readers of the essay that supersedes it, Post-Soviet Law Reform and Legal-Education Reform, may peruse it for whatever historical value it might have. For several years this essay was a key component of the Jurlandia website, a “rough draft” for many of the ideas now explored in greater depth elsewhere in this website. This essay itself superseded a 1998 essay, The Origins of the Western Legal Tradition and the Foundations of Constitutional Democracy. My purpose in providing links to these initial essays is mainly to provide a record of the “steps” leading to the present Jurlandia website; granted, not all those steps (seen in retrospect) were on target; yet preserving them has merit, in context. Indeed, they constitute context. And nothing makes sense without context.
The Moving Finger writes; and, having writ,
Moves on: nor all your Piety nor Wit
Shall lure it back to cancel half a Line,
Nor all your Tears wash out a Word of it.
— Omar Khayyam, The Rubaiyat, LXXI (1120)Gregory Bateson’s book, Steps to an Ecology of Mind (1972), was essentially a record of his own steps over previous years; reading them, we observe a mind at work, an exploration inviting our own further explorations. In that spirit, these pre-2006 essays are not being updated. This 2000 essay owed its existence to my students at the American University of Armenia. To them, now alumni, I shall always owe my deepest gratitude.
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The American University of Armenia (AUA) was founded in 1991. AUA’s Department of Law was founded in 1996. It formulated its goals as follows: To provide an American-style graduate education in comparative and international law, with special emphasis on the unique rule-of-law challenges facing Armenia, the Caucasus, and the former Communist Bloc (FCB) [2].
“American-style graduate education in comparative and international law” is a potentially-misleading phrase, however. This essay delves into what that phrase ought to mean for this and similar educational enterprises — with a view to illuminating deeper issues of post-Soviet law reform and legal-education reform.
This essay draws on over two thousand years of history, on ancient and modern philosophy, on science and cybernetics, and on the author’s personal experience during 12 years as a “change agent” in this region. Its purpose is to foster feedback from students, alumni, faculty, and others who are interested in exploring the fundamentals of law, legal education, constitutional democracy, and law-based governance in the FCB.
A. In the United States, all “law education” is “graduate education” in the sense that no U.S. students commence respectable “legal studies” in America prior to obtaining an undergraduate degree in something other than law. Work towards that undergraduate degree usually takes four years, and is usually referred to as “college” even when ensconced within a university. Accordingly, the typical American law student is at least 22 years old, and many are older, before commencing “law school” — that is, three years of coursework leading to a “first law degree”; this “first degree” in law is now universally referred to as a Juris Doctorate (J.D.) degree. In America, this first degree is typically also the last degree.
Some American law students start “law school” after obtaining a “graduate degree” in another field — business, medicine, public administration, or an “academic discipline” leading to a masters degree or doctorate (in mathematics, physics, chemistry, biology, linguistics, political science, and so forth). Relatively few holders of an American J.D. degree go on to get an American LL.M. degree; if they do, it is an LL.M. in a fairly narrow field such as “tax” (essentially, U.S. tax law) or “international tax” (essentially, comparative public finance systems).
As suggested, the J.D. degree is essentially the “terminal degree” — on the strength of which one may take state bar exams, represent clients, teach in a law school, and become a trial or appellate judge — including the Chief Justice of the United States, who is the “head” of the American “legal profession” (a concept, by the way, that does not translate well into some other languages and cultures).
B. In the U.S., the LL.M. degree is sought primarily by foreigners (mostly young European lawyers) seeking to “round out” their (truly) undergraduate legal education, as offered in their home countries’ undergraduate law programs. Some of those foreign students enter the one-year [3] American LL.M. program at the same age, 22, as is typical of American students entering the three-year American J.D. program. Most of those foreign students, however, are somewhat older, having spent several years as lawyers, etc., in their home countries.
C. Most of these foreigners come to the United States to study United States law, not comparative and international law. True, there are important exceptions, such as the “international tax” programs already mentioned. And, true, some holders of the American J.D. enter such specialized LL.M. programs also — and this is becoming somewhat more common, as “legal specialization” becomes more typical among American lawyers.
But the basic point holds: “American-style graduate education in … law” — the typical American LL.M. program — focuses on U.S. law and is aimed at foreigners, not U.S. citizens.
D. At AUA, an “American-style graduate education in comparative and international law” examines comparative and international law, not U.S. law, but its focus is “domestic” and, above all, is by order and dimension remedial: to illuminate and develop a path leading towards domestic law reform in Armenia and the FCB.
We seek to help establish something that really does not yet exist in this region — the Rule of Law based on the Rule of Reason — a special kind of reasoning that lawyers and judges must develop together, which transcends science as science transcends logic, and which thereby becomes (as first stated by Aristotle) art: the art of converting rigorously organized empirical knowledge into choice, choice into action, and action into “feedback enriched” further knowledge, choice, action.
Institutionalized feedback is the key to such legal reasoning. We shall return to this theme again and again; it is crucial to understanding how our approach to law and law-teaching differs from that of the FCB. Of course, this kind of legal reasoning is common in the United States and Western Europe; but establishing it in the FCB is a special challenge. Arguably, it is our greatest challenge.
E. With reference to the comparative law components of AUA’s curriculum, while U.S. law is an important component, it is no more important — indeed, is arguably less important — than other components. The emerging law of the European Union and its leading members, and the emerging law (or, too often, “non-law”) in the FCB, are in many respects more important to our curriculum than is U.S. law.
With reference to international law components, our focus is arguably unique: using international law as a beacon, a pedagogical tool, for illuminating the need for, and advancing the cause of, domestic law reform.
For example, our students expend considerable effort studying the U.N. Convention on Contracts for the International Sale of Goods (CISG). Our focus is not on helping Armenian businesses trade goods with Paraguay, or even with Georgia. Our focus is on something much more fundamental, without which Armenia, Georgia, and Paraguay will have no “economic life” of significance: “world-class” law governing the formation, interpretation, implementation, and enforcement of contracts — whether “private” or “commercial”, whether for “goods” or for “services”, whether involving “domestic” or “international” parties.
F. But more: studying CISG and similar “real law” naturally draws attention to something even more fundamental than the fundamentals of contract law, namely, the “stuff” from which all good law must grow, by which it must be nourished, and with which it must be renewed.
We have already alluded to the art of law, and to the special characteristics of legal reasoning that unite logic and empiricism, converting wisdom into choice, then action, then “feedback-harvesting” for further wisdom, etc. CISG provides a superb “window” not only into world-class commercial law, as such, but also into its evolution — indeed, into the Ecology of Law — a “conversation” between past and present, between “natural” and “made” environments, that institutionalizes not merely feedback-harvesting but … something deeper: “feedback-cultivation” — a culture of living and learning, whether within each individual human, or within groups and societies and civilizations. Good law, including good constitutional law, grows out of and contributes towards further development of this culture. In a word, this culture is “cybernetic” — constituted for the purpose of refining choice, improving action, becoming … a learning organism, a (self) governing culture.
G. Feedback is the key. Cybernetics — the “art of (self) governance” — is the door. It opens to a house of many mansions: Civilization, the Advancement of Learning, the Rule of Reason.
As science transcends logic, law transcends science. Law is by order and dimension a cybernetic art. Its focus is not knowledge as such (as precious as that is), but choice and action.
The word “cybernetics” comes from the ancient Greek verb “kybernan” (to steer) and noun “kybernetes” (steersman, helmsman). This is also, of course, where we obtain the words “governor”, “governance”, and “government”.
The key idea — the foundational metaphor — was first proposed by Socrates: The steersman (kybernetes) of a sailing vessel must integrate knowledge of the changeless (logic [4], “the stars” … fundamental objectives) with knowledge of the naturally changing (science, “the winds and waves” … transitory reality) in order to choose and act: to continuously change the trim of the sail, the angle of the rudder — which each affect the other through complex feedback relationships.
It is only a metaphor. And, indeed, even “fundamental objectives” can, through cybernetic processes, be altered — as many have, through that “slow-motion controlled experiment” which humanity is conducting on itself, and through which some arguably-abiding values (feudal kingdoms, the identity of Church and State) have been replaced by others (constitutional democracies, the separation of Church and State). In constitutional theory, however, the “fundamental objectives” ought not to be changed without weighty reflection, lengthy circumspection, and perhaps parliamentary super-majority endorsement followed by a referendum.
Socrates’ metaphor remains a powerful “organizing principle” for the art of governance, the art of law, the art of government under law — the art of building and maintaining and “growing” a global constitutional democracy. Freedom of inquiry, expression, and association, coupled with periodic free and fair elections, all undergirded by “due process of law” (fundamental rationality and fairness) — and all enforced by a competent and independent judicial system — are obvious elements of the “cybernetics of society”; others are less obvious, but no less crucial to maintaining the Rule of Law based on the Rule of Reason. Legal education in this region must focus on illuminating these interdependent elements.
H. Studying world-class law, such as contained in CISG, draws the mind to a growing appreciation of how the Rule of Law has coevolved with the Rule of Reason. But, as suggested, such real law requires real courts: a judicial system whose decisions are based on law-filled reasoning … based, most crucially, on the efforts and commitments of real lawyers who can make persuasive arguments that sway courts with lawful reasons — reasons other than bribes, bullying, and blandishments that utterly corrupt the Rule of Law and make a mockery of the Rule of Reason.
It would be good for Armenia to accede to CISG; but, whether it does so or not, studying CISG has inestimable educational value for our students with reference to our Law Department’s special focus: reforming the “life of the law” — the mindscape of governance — in Armenia and the FCB.
CISG provides a superb pedagogical tool for introducing our students to a body of evolving law that was not “made” by parliaments or, indeed, by CISG; it was “made” — starting more than a thousand years ago among Mediterranean merchants and European sea captains from London and Amsterdam, etc. — by time-tested experience, by innovative and feedback-enriched processes that nourished, and were nourished by, the Advancement of Learning.
I. The Advancement of Learning and the Advancement of Law are closely related to the origins of the modern Idea of Progress. These three were “products” of a revolutionary synthesis, almost a millenium ago, of Athenian philosophy and Roman law — initiated (to the extent that finding “starting points” is ever possible, or useful) at the University of Bologna in the eleventh century. This synthesis arguably started as a “revolution” in what is often misnamed “legal science”; that revolution “is” (is still becoming?) the Western Legal Tradition, increasingly more cybernetics than science. Whatever it was and is, it has played a decisive role in the so-called Rise of the West; it has provided crucial elements fueling Western Europe, the United States, and the Free World; and it is the driving force behind what many call “globalization” — the process by which our biosphere is becoming transformed into a potentially self-conscious, self-governing, self-transforming, cybernetic “Child” for which no metaphor suffices. It is somewhat like a hologram, and can be viewed from an infinity of perspectives. CISG provides a superb perspective upon an indispensable aspect of this Being’s “genetic code”: the Rule of Law based on the Rule of Cybernetic Reasoning.
Our Law Department seeks to illuminate emerging “global law” based on the Western Legal Tradition that was born at the University of Bologna, in order to inspire legal, economic, educational, and “mindscape” reforms in the FCB which, in turn, will allow this region to participate creatively and constructively in transforming our planet. Before this region can become thus engaged, it requires a sea-change in thinking.
For example, as suggested, innovative and feedback-enriched processes lie behind Western law and Western prosperity; “law” and “economics” are co-causal, coevolving, like rivers and their banks. Whether rivers define their banks, or vice versa, is a uniquely arid Soviet inquiry; Marx asserted, and this became a theological postulate of Communist dogma, that economics is the causal “infrastructure” of civilization and that law is mere “superstructure”: something formed by an “internal logic” governing economics. This is sheer lunacy. It must not be coddled. The life of free markets, as of law, does not arise from, and cannot be sustained by, abstract doctrines and “logical inevitabilities” based on false or misleading dichotomies that distort far more than they clarify.
Ours is less an either/or world than a both/and world; our linguistic mappings are (or ought to be) tools for illuminating territories that (if splendidly open-ended and hence evolutionarily viable) defy linguistic verisimilitude. We must help our students, we must inspire this region, to focus not on maps but on territories. The life of the law is not abstract logic but pragmatic experience. And ongoing feedback. Cybernetics.
Our Law Department cannot merely dwell on “law”; it must examine the evolutionary processes that shape the law in order to help our students become “change agents” who can mount a powerful challenge to deeply entrenched Soviet — and post-Soviet — absurdities. Armenia’s new Civil Code, which includes elements of “commercial law” so-called, reflects crashing ignorance of some of the most important features of modern commercial law (especially on interpreting contracts based on “prior dealings” and “business usages”); this was due to deliberate decisions by “lawyers” who apparently knew so little about genuine commercial law that they thought themselves anointed to reinvent the wheels of commerce. One wonders whether these lawyers, including law professors, had ever encountered a real commercial contract, or even a simple personal check.
It is abundantly clear that Armenia’s and this region’s “law reform agenda” must be set by a new generation of lawyers and “public servants” — innovators who understand the necessary interdependence of law, of economics, of professional education, and of so much more … including the cybernetic interdependencies of “natural” and “made” environments, of logos and nomos.
In Soviet times, “the Plan” governed almost all “business”; genuine contracts, based on free negotiations between independent parties, did not exist; coherent principles of contract interpretation and enforcement were essentially irrelevant; the judiciary was a sham. Reforms during the past decade have barely improved matters. Few local law teachers (almost all of whom were trained during Soviet times, when the best minds were attracted to less “doctrine-besotted” fields like physics and mathematics) have much if any idea what “real law” is, or of what their countries need, or of what their students require.
Legal education in this region has to be, or become, remedial. This does not mean that it should not be called “graduate”; it means that it must be uniquely tailored to the specific needs of the FCB. Keeping the FCB from imploding into a ten-time-zone Chechnya is a fundamentally remedial task.
J. Thus, “American-style graduate education in comparative and international law” hardly serves to describe what we seek to do; what we propose must be its own best metaphor. The best writer will be hard put to write an essay instructing the best and nimblest reader how to tie shoelaces, yet three-year-olds can “do” laces; it is far harder to describe, prescribe, and proscribe on the subject of “American-style graduate education in comparative and international law” at AUA’s Department of Law; what we “do” must therefore ultimately speak for itself.
What is “American style” about AUA’s law program has to do primarily with pedagogical approaches that differ markedly from the doctrinaire, pseudo-logical, feedback-starved approaches that characterized all education — most of life — within the Communist Bloc, and especially characterized “legal education”; remember, from its start the USSR “made war” on law, on the very concept of rules that could or should trump “Vanguard Party” diktat; but, in any event, pre-Soviet Russian law had benefited little from the Western Legal Tradition — as here detailed. I believe that this fact is of greatest importance to law reform and legal-education reform in the FCB.
Russian law was based on Byzantine foundations, on “pure” Justinian law that was largely “unadulterated” by the synthesis of Roman law and Greek philosophy that gave birth to the Western Legal Tradition. Russian law developed in almost complete isolation from the Western Legal Tradition, although there were sporadic efforts at “modernization” following the Napoleonic invasion [5]. To a fundamentally significant degree, Russian and Soviet and post-Soviet law have remained Byzantine, Eastern, up to the present time.
The Western Legal Tradition is “Western” precisely because it was started by Western Christendom shortly after the 1054 split between East (Byzantium) and West (Rome). As already alluded to, the West’s revolutionary reconceptualization of law predated, and arguably fostered, the “invention” of the modern Idea of Progress. Indeed, “inventiveness” of several related kinds followed the founding in 1073 of the University of Bologna. This university was arguably the first Western “university”; that, in any event, is where the word “university” apparently originated.
Bologna was followed by other universities, and in all of them “rediscovery” was either the impetus or the result. This process of “rediscovery” — a somewhat misleading term, especially as it relates to Aristotle’s writings — was “in the air”; it seems to have seeped into Western Christendom from Spain, where Islamic and Jewish scholars had access to far more complete versions of Aristotelian philosophy; but they had no interest in Justinian law.
Beyond doubt, “Justinian rediscovery” was the explicit purpose of Bologna’s founding. During the ensuing century, “Aristotelian rediscovery” became paramount in converting various “cathedral schools” into universities, such as the University of Paris. But Bologna was not just the first Western university, it was also the first place where “Justinian rediscovery” was combined with “Aristotelian rediscovery”; that is the key.
It was this combination of Justinian law and Aristotelian philosophy with already-extant Christian philosophy, theology, and (of greatest significance) “penitential law” [6] that provided the necessity for a synthesis which transformed Justinian law into something fundamentally “adulterated”: not, essentially, a “collection” of law but a “system” of law — based on a “system” of legal education.
Much has changed since then; but the “genetic code” of the Western Legal Tradition can be traced to that synthesis starting in 1073 — not before. It was fundamentally new, and fundamentally important. Whatever it was, and has become, it has hardly influenced the “reality” of law in the FCB.
The University of Bologna originated at the site of an old museum containing Justinian law; this was not “operative law” in Western Christendom. This Justinian law was a “collection” of legislation, imperial decrees, and judicial determinations, but it was essentially bereft of any “concept” of law [7]. It included various kinds of contracts, but no “concept” of a contract; kinds of property relationships — involving wives, slaves, horses, whether belonging to aristocrats or citizens or others — but no “concept” of property relationships; and kinds of lawyer-like and judge-like and other law-related actors, but no “concept” of lawyers and judges.
Now, it is a little-known fact that most of this pre-Justinian Roman law had evolved over the previous centuries in a manner somewhat similar to the way in which the English “common law” is popularly believed to have evolved, although the “actors” who were most responsible for this evolution were not judges but professional advisers of judges. A far more significant difference between the evolution of Roman law and the evolution of English law was that — to a much greater extent than is generally appreciated (even in England!) — early English law was significantly influenced by the so-called “Roman law” that emerged out of the synthesis and systematization that originated with Bologna.
Indeed, until the French Revolution, all law in the various states of Western Europe was largely developed by “common law” methods that modified the so-called “Roman law” emanating from that synthesis [8]. Understanding that synthesis is crucial.
K. Pope Gregory VII and his supporters founded the University of Bologna for the purpose of resurrecting “Christian law” and bringing “governments” (the secular emperors and kings, etc., of Western Christendom) under this “law” (and, hence, under the Pope); the Western Church deemed this to be “Christian law” because it had been promulgated by the great Christian emperor Justinian. An important element of the synthesis that started in Bologna was that all these law students were part of the “professional clergy” — “mediators” between “Man” and “God” who, in due course, invented the concept of a “professional lawyer”: a person who in a sense “mediates” between “Man” and “Law” … God’s law, before which all citizens and princes, and eventually presidents and parliaments, must bow, as equals.
Equality under law originated as a theological concept within Western Christendom[9]; it is a fundamental postulate — an abiding value — of the Western Legal Tradition. What is especially interesting here — indeed, ironic — is that the clergymen who started Western law down this road did not view themselves as “equals”; they believed that they, the Church, stood between ordinary humans and Divinity. But the revolution they set in motion brought forth (as so often happens) unintended consequences, including the eclipse of the Church by the nation state, and of the state by “constitutional standards” that all governments, all nations, must respect in order to obtain and maintain legitimacy.
We might speculate whether, as the Gutenberg Press rendered the idea of a professional clergy obsolete (at least, some have thus concluded [10]), so perhaps the new “Gutenberg revolution” of our Cybernetic Age — based on internet-mediated cybernetic meta-systems — will fundamentally alter the role of the legal profession.
L. The Western Church, following the start of the Second Millennium, did not seek to invent anything new; it certainly did not intend to invent the modern Idea of Progress; on the contrary, it sought to bring about a “revolution” — a return of humanity to the state of perfection from which humans had (it was believed) “fallen”; this “return” is what “revolution” then meant. What resulted, synthesized first at Bologna and soon in the universities that followed, was unintended: the first true revolution in world history. This revolution, as already suggested, eclipsed sacred authority by “science” and secular authority by “law” — not Roman law, but a synthesis based on “Justinian rediscovery” and “Aristotelian rediscovery”.
The Age of Rediscovery became, over time, our still-evolving Age of Synthesis, of “doing” science and of “making” — indeed, consciously re-making — ourselves, our social institutions, and our increasingly-global Cybernetic Civilization. Interestingly, about two centuries after the Age of Rediscovery started, a word was invented — “synergism” — which meant, originally, the necessary co-operation of Humanity with Divinity in order to “complete” Creation. In our own time, “synergism” denotes a fundamentally cybernetic understanding: that the behavior of whole systems is unpredicted by the behavior of their constituent subsystems, and that while — through synergism, which is “value-neutral” — much is possible (including all sorts of nightmaris scenarios!), through cybernetics — through feedback-cultivating (self) governance — only that of the possible which is also “good” shall survive, shall thrive … but only to the extent that “complementary goods” do not check such growth, thereby systematically balancing all goods.
Thus, evolution — the coevolution of humans, societies, values — becomes consciously-directed … for the good, as best we can discern and define it.
Defining that good is our principal task. We cannot escape it. The issue is not whether humans should “play God”; we have “participated in Creation” (unconsciously and consciously) for a very long time: there is no such thing as a “natural” cow. The issue is, or ought to be, how can we do this better? As President Kennedy put it, “here on Earth, God’s work must truly be our own.”
M. The distinctive feature of the Western Legal Tradition is that it conceives of “law” as a “system” rather than a “collection” … an evolving body of hierarchically-organized “rules of decision” based on evolving experience. This conception, significantly, violates Justinian’s final command: that his law must remain unchanged. Violating this principle has required discovering or inventing equally-powerful “commands” — changeless, or at least slow-changing, fundamental principles — governing how and why law may (or must) change. Developing such “highest law” has been a major preoccupation of lawyers ever since.
Both “law” and “lawyering” coevolved in the Western Legal Tradition from a revolutionary synthesis of the Greek genius for systematic thought and the Roman genius for pragmatic administration, plus various important Christian and Islamic elements that especially molded the method of education — both legal and general — during the first two centuries of the second millennium. As suggested, this “revolution” sought to turn the clock back; but what actually transpired was a revolution in the modern sense: a fundamental transformation of “the pre-existing system of political, legal, economic, religious, cultural, and other social relations, institutions, beliefs, values, and goals” [11]; this revolution transformed Byzantine law — the Justinian “collection” — into something wholly new: the first system of law in human history.
N. Russian law and Soviet law were, essentially, a Byzantine “collection” of decrees, etc. (many of which were contradictory and/or “secret”); post-Soviet law is only now beginning to move towards becoming a coherent, hierarchicalized “body” — a system — of global fundamentals governing constitutional frameworks and values, etc., which in turn govern parliamentary legislation, which in turn governs the making and implementation of administrative regulations, etc.
Understanding this is crucial to any reform efforts in the FCB that go beyond mere dabbling at the margins. To provide one example: Foolish foreign advisers to this region often assert, in effect, that if only the courts would “enforce the law on the books” everything would be fine. Well, the courts are indeed inept and corrupt. But even if they were not, that would solve little – because current law is such a vast tangle of contradictory and absurd bits and pieces from here and there (of Soviet and post-Soviet origins) that if this law were ever “enforced” things would be even worse. What is needed, starting with a coherent new constitution, is a complete overhaul: a coherent body of new law … “new” in the sense that this conception of a coherent body has never existed in the FCB. Obviously, foreign models of considerable value abound, and should be consulted. But the creative effort involved here must not be underestimated: it is vast. Yet there is no viable alternative.
Law and legal education in the Communist Bloc were profoundly flawed. Indeed, both were utterly corrupt. This hardly encouraged the best minds to enter the legal and law-teaching professions, or to become judges.
These flawed and corrupt Soviet approaches to law and legal education remain all too prevalent throughout the post-Communist world. As the first legal scholars of Bologna discovered, one cannot transform a collection of laws into a system of law without fundamentally transforming the substance and content not only of all legal relationships but also of legal education.
O. What the AUA Department of Law means by “American style” legal education goes far beyond the “case method” and “Socratic method” of illuminating issues, etc. These methods have greatly influenced European legal education, especially during the past half-century, but — more significant to everything we seek to do here — the legal systems of Europe and America, and their approaches to legal education, have coevolved, are coevolving, not only with each other but also with computer-mediated advances in information collection, processing, and “publishing” most broadly defined. We want to help Armenia and this region join in that creative, constructive, “living and learning” enterprise of global cybernetics.
The Law Department seeks to “capture” and implement the best pedagogical features emerging from these dynamic coevolutionary processes. Indeed, given our location within the FCB, we seek not merely to capture and replicate; we seek not only to model the best; we seek also, perhaps above all, to influence further developments in legal education, especially with reference to the unique needs of this time and place — thereby, perhaps, contributing to the further healthy evolution of “global” approaches which, in fact, are now the most significant aspect of what “American-style graduate education in comparative and international law” is coming to mean.
1. Barnabas D. Johnson, J.D. 1970, Harvard University, is [at the time this essay was composed] Professor of Law, Associate Dean of the Department of Law, and Director of the Legal Research Center at the American University of Armenia in Yerevan, Armenia. As Associate Dean, he is the on-site manager of this American-style, English-language law school, of which he was a principal architect. AUA is formally affiliated with the University of California, U.S.A. Back
2. The term “FCB” here refers to the Central- and East-European countries (including Armenia) and the Central-Asian countries that were within the USSR or were considered within the Soviet sphere, including Yugoslavia. Obviously some were more “Western” in legal orientation than others. Back
3. This is a one-year program if pursued full-time; it generally requires 24 units of credit, with each credit reflecting 15 hours of classroom instruction (although some credit might be earned for “guided reading” courses that involve less classroom hours). The AUA Law Department requires 18 such “regular credits” (each reflecting 15 hours), plus six credits — one each quarter — in our Writing Seminar Program, for a total of 24 credits; these are offered during six quarters — two years — of part-time study. A Masters Essay is also required for graduation. Back
4. This oversimplifies; what here are referred to as “logic” and “science” were not used by Socrates’ spokesman, Plato; “changeless” and “naturally changing” were. In this essay, “logic” and “science” are used in their more modern senses, which were first proposed (with considerable hesitation, indeed confusion) by Plato’s student, Aristotle. Back
5. It is an open question how deep or shallow the “Westernizing” of Russian law was during the nineteenth century. For purposes of this essay, it suffices to point out that — however significant — this reform process died remarkably quickly following the Bolshevik Revolution in 1917. But then, the years following the First World War were not kind to law-based governance in most of Europe. Back
6. Long before this synthesis, the method by which penitential law was learned was, essentially, case-based: casuistry, putting cases, arguing pros and cons. Indeed, penitential law had “evolved” through what we now call common-law processes. Back
7. A major exception was the distinction between “public law” and “private law”; this distinction played no part in the original compilation; it was added by Justinian at the last minute; and it has been a damned nuisance ever since. Those who claim this distinction as “central” — asserting that the state cannot be “under the law” because it is the author of all law — ought at least to know how this “concept” became part of what lawyers in the FCB continue to point to proudly as the “Roman law” on which Russian law is based. Back
8. Russian law was almost entirely cut off from this “common law” development of Western European law. Back
9. Actually, “equality under law” — isonomia — was possibly the most fundamental element of the ancient Athenian law of Solon (at least for male citizens); demokratia was its corollary, for if we are equal under law we should — arguably — be equal in the making of law; but this ideal, isonomia, though still honored by Cicero in the late Roman Republic, was forgotten by the Roman Empire, where inequality became a major element defining legal relationships. The Bolognese synthesis “reinvented” the idea of equality under law, based on theological grounds. Knowledge of Greek law played no role in that reinvention. Aristotle’s writings on Greek law were “rediscovered” much later. Back
10. The argument here is that the ready availability of books and the resulting increase in literacy allowed “ordinary people” to read the Bible for themselves and develop a personal, unmediated, relationship with Divinity. Back
11. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (1983), at p. 19. Much of this book is fairly controversial, but its main thesis is “sufficiently solid” to bear the weight of these arguments. Back
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