LAW AND CONSCIOUSNESS PRIMER

The Co-Evolution of Mental Consciousness and The Western Legal Tradition: Symbiotic Stimuli toward the Mental/Rational

                                                                          12/99 

(Inspired by attending Richard Tarnas’ Western World View course at the California Institute of Integral Studies in San Francisco)
 

Roman legal thought, containing a new sense of objective rationality and natural law derived from the Greek concept of the universal Logos, introduced systematic clarity into commercial and legal interactions throughout the empire, cutting through the welter of divergent local customs and evolving principles of contract law and property ownership crucial for the West’s later development. (Richard Tarnas, The Passion of the Western Mind (NY: Ballantine Books, 1991: 87)

 

Human knowledge is the historically contingent product of linguistic and social practices of particular local communities of interpreters, with no assured “ever-closer” relation to an independent ahistorical reality.  Because human experience is linguistically pre-structured, yet the various structures of language possess no demonstrable connection with an independent reality, the human mind can never claim access to any reality other than that determined by its local form of life.  Language is a “cage” (Wittgenstein).  (Tarnas 1991: 399)

 

The Judaic influence on Christianity in the West -- the sense of a divinely mandated historical mission, the stress on obedience to the will of God, the moral rigor, the doctrinal conformity and exclusiveness -- was further amplified and modulated by the influence of Rome.  The Church’s conception of humanity’s relationship to God as a judicial one strictly defined by moral law was partly derived from Roman law, which the Catholic Church, based in Rome, inherited and integrated. ...More fundamentally, Roman legal theory and practice were founded on the idea of justification; transposed to the religious sphere, sin was a criminal violation of a legal relationship established by God between himself and man.  The doctrine of justification -- of sin, guilt repentance, grace, and restitution -- was set forth by Paul in his Letter to the Romans [footnote omitted], and was taken up again by Augustine as the foundation of man’s relationship to God.  Similarly, the Judaic imperative of subordinating the highly developed but refractory human will to that of divine authority found supporting cultural patterns in the political subordination demanded by the immense authoritarian structure of the Roman Empire. (Tarnas 1991: 158)

 

Because induction can never render certain general laws, and because scientific knowledge is a product of human interpretive structures that are themselves relative, variable, and creatively employed, and finally because the act of observation in some sense produces the objective reality science attempts to explicate, the truths of science are neither absolute nor unequivocally objective. (Tarnas 1991: 359)

 

The Cartesian-Kantian paradigm both expresses and ratifies a state of consciousness in which experience of the unitive numinous depths of reality has been systematically extinguished, leaving the world disenchanted and the human ego isolated. (Tarnas 1991: 431)

 

What man knows is a world permeated by his knowledge, and causality and the necessary laws of science are built into the framework of his cognition.  Observations alone do not give man certain laws; rather, those laws reflect the laws of man’s mental organization. (Tarnas 1991: 343, paraphrasing Kant)

Overview: The Birth of Law and Consciousness

The history of the Western legal tradition is the history of how a portion of humanity has struggled to peaceably govern itself; of how theology, philosophy and psychology have expressed themselves through the politics of statecraft and the rights of citizens; and how liberty has ebbed and flowed according to the rule of law.  The Western legal tradition developed a jurisprudence which is inextricably bound up with the ideas of “democracy”[1] and “justice,”[2] ideas which have been discussed and debated since the dawn of  humanity’s awakening to Western legal thought, traditionally traced to ancient Greece (c.1,000 BCE)[3].  Yet law and justice are more than philosophical and theoretical ideas because they define, promote and preserve, through enforcement in the courts, the interrelational web of societal existence.   Law and the administration of justice are actional processes reflecting the underlying moral values that support the way we perceive the world and ourselves as ordered, interacting players in that world; and, I contend, law and justice are very much rooted in and reflective of the socio-cultural norms, assumptions and beliefs that are embedded in and derive from the contemporary state of consciousness, viz., the mental/rational. 

According to what I will call the Neumann/Gebser[4] model, mental consciousness has fully emerged only over the last c. 3,000 years.  The time frame of this emergence coincides with the advent of law.  Hence, my underlying thesis suggests that law arose in response to the emergence of mental consciousness and was a catalyst for its continued development as it ramified into mental/rational consciousness.  The modern Western legal tradition, therefore, can be seen as a phenomenon peculiar to (the now) mental/rational consciousness, which can be described as follows: 

perspectival (eye/brain) outer-relating to space, characterized by a directed dual oppositionality in cerebral functions of reflection, abstraction, will and volition, emphasizing a causal and directed rationality that conceptualizes and reflects, sees and measures using thought and ideation to perceive a materialistic reality from an egocentric [ego-enthroned self/other, inflated subject/object] representation-conception of the world, through projective speculation toward a predominately future orientation to time (in purpose and goal) and within a patriarchal social system that is generally bonded through religion [or a secular-scientific faith], characterized by believing-knowing-deducing.[5] 

Theories about the origins and evolution of consciousness seek to inform us of how and why we perceive our own being and becoming.  A proto-consciousness presaged the mythic and the mental consciousness.  Called the magic structure of mind, it is typified by an undifferentiated unity in which we might imagine that primitive notions of legal thought may have first expressed themselves as primal religious urges toward wonder and adoration.[6]  The Neumann/Gebser model would place this magic era within the Paleolithic to early Neolithic time frame (c.200,000 BCE - 10,000 BCE).  Hunting and gathering had gradually been supplanted by horticulture.  Human village collectives within this period are believed to have formed themselves along matri-centric lines (persisting even as late as c.5,000 BCE in Catal Huyuk).[7]  This magic mind-frame (wherein we spent over 90% of our ancestral life as homo sapiens) was a kind of interpenetrating dream-time, devoid of the walled city and the warrior class (which would typify the patri-centric, mythic era to come).[8]

The predominating structure of mind that followed the magic was the mythic (or emerging consciousness), beginning perhaps as far back as 10,000 BCE and extending forward into classical Greek civilization.  The story of an emerging consciousness is a story told in terms of the world’s universal, cross-cultural archetypal myths of the hero’s journey.[9]   It was during the mythic period that a theo-philosophical impulse began to stir.  This was the age of the Old Testament prophets in the Abrahamic (Judaic) tradition of Moses, David, and Solomon.  We can be fairly confident that Western law, as with the Western tradition generally, arose primarily from a confluence of the Judaic and Greek streams, and through a distinctly Western people[10] in a localized area roughly centered around the Mediterranean basin.   

If we consider the prophets as archetypal lawgivers, we must conclude that each was quite ahead of his time, i.e., although creatures of the mythic era, their minds had gone mental to some degree. Or, as Jean Gebser puts it:  “Wherever the lawgiver appears, he upsets the old equilibrium (mythical polarity), and in order to re-establish it, laws must be fixed and established.  Only a mental world requires laws; the mythical world, secure in the polarity, neither knows nor needs them.”[11] 

Yet laws “came unto them.”  However, these laws (as with the Babylonian laws) were laws forcefully put into place by a few strong-willed leaders so as to impose order.  The “law,” as it is traditionally contemplated in the Western tradition, was instead borne of a society such as that of ancient Greece, “among whom thought and argument became a habit of educated men...extending to man himself, his nature, and his place in the order of things, the character of human society, and the best way of governing it...  It is therefore with the Greeks that the history of reflective jurisprudence in the West, or European legal theory, must begin.”[12] 

The Greek Coagulation

One notices in reading the works of the ancients that the texts are full of poetic imagery and references to mythological gods and goddesses (and long lists,[13] which to the modern mind may seem as excruciatingly dull as a recitation of legal “boilerplate” language).  To embrace the mental is a kind of “falling from time into space.”[14]  Legal thought first coalesced according to civilization -- first the Greek, then the Roman and the “physio-noospheric spaces” occupied by each.  The Greek civilization arose during the waning of the mythic era.  They were still very much rooted in a mythic mind-set, albeit one that was rapidly going mental.  Ancient Greece emerged from its magico-mythic world to begin reflecting upon life, calling such reflection “philosophy,” or what might now be called “consciousness studies.”  The transition of the mythic to the mental is placed by Gebser at the turn of the sixth to the fifth century BCE, mirrored in the image of Athena’s springing forth from the head of Zeus.[15]  According to Gebser, Parmenides (c.480 BCE), like others whose minds were advanced beyond the common structure of the general populace,[16] announced the arrival of the mental in a fragmentary didactic poem, when he wrote: “For thinking and being is one and the same.”[17]   

Along with Parmenides, the Sophists were developing the art of vigorously arguing the pros and cons of every issue with equal force and competence.  By demonstrating this cogni-dualist skill they were already establishing themselves as prototypical lawyers (who must thoroughly consider the arguments that the opposing party is likely to raise and be prepared to counter them).  The Sophists were fond of saying that law was made “to make the weaker cause the stronger” to submit to the notion of a society of equals.[18]

In the early Greek world, laws were at first collectively stored in the memories of aristocracies which ruled in most cities and who were the repositories of whatever justice there was.[19]  “The earliest European appearance of something which obviously corresponds with our ‘law’ in the positive, statutory sense is with the famous lawgivers Dracon (late seventh) and Solon (early sixth BC).  Undoubtedly this was related to their recent development of the art of writing. The efforts of these rulers, among the first by the Greeks, were attempts to inscribe in permanent and public form rules which formerly had the vaguer status of custom.”[20]  “The dramatist Euripides, writing in the late fifth century, presents the emergence of written laws as a progressive achievement, tending to equalize the ground of rich and poor...”[21]   “Even then, liberty was defined for [the Greeks] as obedience to the laws.”[22] 

“...[I]n the classical era a unified Greek legal system never existed because no unified Greek state existed[23]...[T]hey never produced a practical legal science... What laws the people of Greece lived by must be gathered...[from]...the physical remains of law-codes or statutes engraved on stone or bronze...scattered all over the Greek world[24]...[T]here was no Greek word for ‘law’ as an abstract concept…”[25]  What we know of Greece’s ideas of law and justice are culled mostly from philosophers (e.g., Plato and Aristotle), orators (e.g., Demosthenes), historians (e.g., Herodotus, Thucydides and Xenophon) and dramatists (e.g., Sophocles, Aristophanes and Euripides) who discuss law and justice in the course of the works that survive them.  What we discover is that the seeds of modern jurisprudence were sown in ancient Greece:[26]  natural law vs. positive or human law; law as order having a compulsive force and being the rational product of mind and consideration; the idea of the “social contract”; leaders as subordinate to the rule of law; regular and impartial judicial procedures; the recognition and prohibition of double jeopardy; punishment for crimes as corrective, deterrent and vindication of the victim’s honor; the materiality of intent to liability for punishment; apportioning punishment according to the seriousness of the offense; voluntary and involuntary transactions; affirmative defenses that included duress and self-defense, but excluded drunkenness and culpable ignorance of the law; a theoretical equity doctrine; natural familial rights; equality before the law (exception: slaves); the prohibition of usury; and (limited) notions of property law and due process. 

Litigation in ancient Greece “was conducted less in the spirit of a contest about the objective applicability of legal norm than as a rhetorical match in which no holds were barred.  Even in Athens we do not know the name of a single person who worked as a legal advisor (rather than as a court orator), or who taught law to students, nor the name of a single book on a legal subject.  We are not aware that such persons or such books existed, and we might not unreasonably conclude, since this is an era well illumined by history in most respects, that they did not.”[27]     

A Stratified Roman Clotting

Rome was a civilization built upon the bedrock of this new consciousness.  Greece laid the philosophical groundwork for the law, the font of wisdom to which Roman lawyers would return time and again to refresh law’s meaning and find compelling reasoning for their arguments.  In short, Romans excelled at administering the law.  J.M. Kelly describes this trait as “...the strictly practical, unpretentious, sober bent of the Roman legal mind.”[28]   They administered through a descending bureaucratic hierarchy of “...elected magistrates, an annually elected pair of consuls (or, in point of dignity, from the quinquennially elected censor) through the praetors, whose special responsibility was the supervision of the administration of justice, to quaestors, who were treasury officers, and lesser magistrates such as aediles, who discharged a sort of police function in public streets and markets.  The section of the population originally distinguished from the patrician aristocracy, namely the plebs, had officers of its own called tribunes.”[29]   This system extended to some extent into Rome’s outer provinces as well, governors being ex-consuls or praetors.  This system can be seen as an intensification of Gebser’s mental: a sophisticated hierarchy which “conceptualizes and reflects, sees and measures using thought and ideation to perceive a materialistic reality,”[30] i.e., the good life of the empire.

Rome’s judicial scheme provided for judges, who were not “legal experts” at all but members of the propertied class acting in an honorary capacity.  They were selected on an ad hoc, case-by-case basis, and in private litigation could be assigned only with the agreement of both parties.  Here the judge acted more like a modern arbitrator than a judge.  The praetor’s role was reformative, regulatory, and supervisory rather than judicial, the praetor having the power to determine which cases merited being heard by a judge and which did not.[31]  Rome was a class-conscious society.  There was a de facto separate justice according to one’s rank, as well as ranked specializations within the judicature, as described above.  This would be characteristic of Gebser’s mental: egocentric [ego-enthroned self/other, inflated subject/object].    

In Rome were the beginnings of a legal profession that never existed in Greece.  By the late republic period (mid-second century BCE) lay jurists were expounding rules of law, drawing up formulas for legal transactions, and advising magistrates, litigants and judges.  They also taught their science to generations of students who would follow them, publishing commentaries, opinions and textbooks.[32]  And as J.M Kelly writes:

For a period of nearly 400 years, from the last century of the republic until the turmoil of the third century AD, the science of these jurists represents -- together with the Roman genius for imperial government -- the most characteristic flower of Roman civilization, and the one least indebted to foreign models, evidently growing spontaneously from some part of the Roman national spirit without parallel elsewhere in the ancient world.[33]

For “national spirit” one might substitute “Western mental consciousness.”  These lay jurists, viz., lawyers, practiced their rhetoric, their art of persuasion, in law courts or other assemblies, addressing questions of right and wrong (a further, institutionalized development of “directed dual oppositionality in cerebral functions of reflection, abstraction, will and volition, emphasizing a causal and directed rationality” -- Gebser’s mental structure).   Stoicism (founded by the Greek Cypriot Zeno, who lived c.333-264 BCE) made an important impact on lawyers and the educated Roman classes generally (including Seneca in the first century AD and emperor Marcus Aurelias in the second).  One teaching of Stoicism was that all words had a natural meaning which their etymology will elucidate.  As a result, lawyers often presented the derivation of words to explain their legal force[34] (and languaging, especially the written word, can be seen as comporting with the mental structure -- a “representation-conception of the world”[35]). Rome’s greatest and most eloquent jurist, Cicero, followed the Stoic teaching.  In his De legibus,[36] among other great works, he expounds on the law with a philosophical flourish that far exceeded the terse approach of his contemporaries.  Leaving almost no area of the law untouched, Cicero is especially remembered for a passage on God’s law that a later Christian writer, Lactantius (c.250-317) described as “almost divine.”[37]  (And Gebser’s mental consciousness irrupts once more in religious overtones of “believing-knowing-deducing.”[38])

Finally, emperor Justinian, briefly wresting a debilitated Roman Empire from German control in the mid-sixth century AD, managed to produce a brilliant compilation of the Roman laws up until the classical jurists of the third century AD.  It was to be known as Justinian’s Digest, and ultimately became the basis for the whole civil law of continental Europe.[39]  In the turmoil of a degenerating Holy Roman Empire, Justinian’s Digest as well as the works of Aristotle were lost to the West.  Not recovered until the late eleventh century, the Digest would become for Western law what the reintroduction of Aristotle (c.1150) would signify for a dynamic mentalizing of Western thought thereafter. 

Scabrous Projection:  The Co-Conspiracy of the Rule of Law

Beginning around the 6th century AD a parochial, xenophobic regression seemed to have set in; an insulated, relatively isolated Europe, self-protected by an increasingly entrenched Christian dogma of belief, propped up by doctrinaire, self-referential thinking,  stratified by a conformism of conduct along class lines, and led by alternating, competing  currents of localized Frankish, Germanic, Lombard, Visigoth and Anglo-Saxon domination, ebbed into centuries of miasmic drift referred to as “the Dark Ages.”  Law foundered amid the chaotic inertia.  But the Germanic idea “that the king reigns within the limits of the people’s inherited laws and is bound by them”[40] survived.  And this democratic ideal was nurtured along by Christian ecclesiastics.     

Most legal theory throughout the Middle Ages came from churchmen rather than lawyers. The late twelfth century saw the founding of the University of Paris, and the age of Scholasticism (known for its “hairsplitting dialectics,” not unlike the ancient Sophists) was soon to follow.  With St. Thomas Aquinas[41] and other scholars in the thirteenth century, law was systematized into an exposition of a rational ordering of things aimed at furthering the common good.

The common use of gunpowder in cannons is first seen in the fourteenth century.  This signals the beginning of a trend toward the removing of personal courage from the martial arts of battle; a further distancing of the soldier from the adversary, allowing for a more facile “othering” of the “enemy.”  With the coming of the movable type printing press in the mid-fifteenth century, books would soon be affordable and available to the ordinary person.  Ideas had never had a more fertile instrument of conveyance since the invention of writing itself.  No longer was specialized knowledge to be confined to the wealthy or priests of the Church.  The knowledge monopoly was broken.  Martin Luther preached that humanity could have direct access to God with simply the Bible in hand (and without the mediation of a priest).  Christianity fractured.  At about this time the mechanical clock started to come into common use, an invention that has done more to remove us from our natural psychic attunement than perhaps any other invention until the television.  The clock sectored time and action with a new mental-rational precision.      

With ideas more available to everyone in the form of books, the law, as it had done in the time of Dracon and Solon, became all the more democratized.  It further developed and diverged on the European continent and in the British Isles.[42]  In Italy, Noccolo  Machiavelli set forth in The Prince (1513) an “open elevation of the state and its interests and effective government to a plane where they are the only values in sight...a form of government in which the rulers are subject to the laws,” but wherein “the state’s interest may legitimately require their violation.”[43] In England, lawyer Sir Francis Bacon would soon release his book, Novum organum scientiarum (1620) where he introduced “the inductive method of reasoning whereby the observation of a number of individual instances is used in order to discover a general principle.”[44] At the dawn of the modern age, Western law was becoming somewhat diffuse, reflecting the regional characters of the individual nation-states that came to comprise modern Europe.  But despite the variations there was a common Indo-European, Greco-Roman linguistic heritage and common bonds of culture that acted as a unifying thread -- and one that has wended its way through a distinctly Western mental consciousness. 

Starting in the sixteenth century in the West and intensifying ever since, the mental began further refining itself.  In this historical period was born the mental/rational consciousness -- a new perspectival orientation, a ratio-sectoring of knowledge, drifting ever closer toward a materialist, cogni-centric meaning perspective (or as Gebser would say “deficient mental,” characterized by “divisive, immoderate hairsplitting.”[45])  These are the accretions that slowly but surely annexed themselves into the way our minds worked.  Within this century Copernicus informed the world that the universe did not actually revolve around the Earth after all, and the revolution had begun.[46]  It was a short epistemological hop, skip and a jump from here -- through Descartes, Locke, Berkeley, Hume, Kant, Nietzsche -- to showing that the world revolved around the individual observer. But in the meantime...    

As the Americas opened up to European migration, fertile new possibilities presented themselves for an enriched legal tradition.  Expansion into an unbounded virgin land fueled imaginations and souls already astir with a sense of self-liberation from a metaphysical death to the Old World.   What Columbus had really discovered was an object, the American land mass, representing seemingly unlimited resources to feed the devouring God of the mental/rational.  Enlightenment principles, further forged in the rugged individualism of a young nation coming into violent contact with its indigenous culture, would eventually bring forth a new Roman-like republic infused with an Ancient Greek-like democratic zeal.  This new American temperament -- idealistic, reckless, utilitarian, full of hope, dreams, visions of building a new Promised Land -- furiously set about establishing law and order[47] under an unstoppable ethno-centric Manifest Destiny.  But if history is the judge, its future is suspect.[48]   

And the law conspired in the intensification of this rational-way-of-knowing; it  conspired with science, the Enlightenment, modernism and a mongrelized humanism that has resulted in a contemporary Western world composed of angst-ridden, psychically crippled, techno-illiterates who none-the-less blithely accept and use environmentally-unfriendly techno-wizardry in never-ending consumption cycles.  Cynics might describe them as automatized consumers who are largely devoid of any higher cultural ecology beyond Beavis and Butthead, whose holy mantra -- “’burgers, fries and a Coke”! -- can be heard ringing and echoing worldwide from the franchises of arched temples.  Certainly it cannot be as bad as all that!  Well, whatever the case may be, please note: this has all been permitted, or at least not prohibited, by law.

Appendix  A

This memorable quotation is from Sir Alex Fraser Tytler (1747-1813), Scottish jurist and historian.  He was widely known in his time and was Professor of Universal History at Edinburgh University in the late eighteenth century.  The quotation is from the 1801 Collection of his Lectures:

“A democracy cannot exist as a permanent form of government.  It can only exist until the voters discover that they can vote themselves largesse from the public treasury.

“From that moment on, the majority always votes for the candidates promising the most benefits from the public treasury, with the result that a democracy always collapses over loose fiscal policy, always followed by a dictatorship.

“The average age of the world’s great civilizations has been 200 years.  These nations have progressed through this sequence:  from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependency; from dependency back again into bondage.”

 

APPENDIX  C         

The Neumann/Jungian story begins in the uroboros, symbolized by the snake eating its own tail, and which perceives itself as feminine.  In this undifferentiated state of unconscious unity -- similar to Jean Gebser’s unperspectival archaic and early magical structures, the human mind would have been in a state of complete interpenetration with its environment, like the fetus floating in the pleroma of the uterus.  The classic Jungian archetype for this stage in the uroboric is the Great (and ‘good’) Mother, also symbolized by “[a]nything deep -- abyss, valley, ground, sea, fountains, lakes, pools, the earth...the underworld, the cave, the house, the city... Anything big and embracing which contains, surrounds, enwraps, shelters, preserves, and nourishes anything small belongs to the primordial matriarchal realm.” (Erich Neumann, The Origins and History of Consciousness, 1954:14).

The process of differentiation toward and through Gebser’s magical structure proceeded slowly over most of our 1.7 million years.  In this tenuous state of magical consciousness humans went from loosely organized hunting bands to settled Neolithic horticultural villages, all the while remaining in a matri-centric culture.  A subtle boundary of mind was beginning to be felt between humans of this magic structure and their environment, typified by ‘emotions’.  Whereas before there was a pleromatic unity, an interconnectedness was now developing wherein the mind began to distinguish a sense of multiplicity -- yet a multiplicity that seemed to center and emanate from the individual.  There was still no subject/object split, but rather a restiveness in the uroboric mindset.  We can see this in the infant who shows a vague familiarity with its surroundings and in the child who thinks it makes the sun go down by wishing it so.  Gebser would represent this ‘one-dimensional proto-ego’ that is projected outward and dispersed as an ‘interchangeable point’.

Not surprisingly, Neumann spends a great deal of time describing the archetypal energies that were stewing within this Great Mother culture and nudging a struggling human mind in its evolution toward a separate identity (ego or consciousness).  I say ‘not surprising’ because the mythic, primordial imagery that comprise Jungian archetypes rose into consciousness (and therefore ‘into being’) not only from generation after generation of participation with the natural world; these archetypes were also burned into consciousness as they were magnified in the outward mirroring of petroglyphs, in so-called goddess figurines (Cf., William Irwin Thompson’s discussion of these figurines and pre-history in general in his Coming Into Being (1996)), in paintings on clay vessels, and finally in the cultural avalanche of myth, art, literature and music that was soon following, as consciousness began to fully emerge toward differentiation into Gebser’s mythical structure.

The struggle to break free from the Great Mother -- i.e., into this ego or consciousness that was arising out of the uroboros -- is characterized by the archetypal hero’s journey.  The Evil Mother archetype (later to be replaced by/mingled with the symbol of a bear or boar, representing the unsuccessful, castrated son) resists the efforts of the once incestuous but now rebellious hero-son.  (Consciousness perceives itself in a masculine dialectic, i.e., Prometheus vs. Saturn, son vs. father, wherein the Terrible Father archetype aids and abets the evil mom, i.e., unconsciousness.) Jungian archetypes of the battling twins and ‘the hero with a thousand faces’ (a la another Jungian, Joseph Campbell) enter now and the tale is filled with blood, death and dismemberment.  To free itself, the hero must slay the Great/Terrible Mother; he must embark on a journey of self-discovery. Gebser would represent this two-dimensional mythical structure of consciousness as a circle on which a polarization (cf. the twins archetype) has now formed.  This polarity is typified by the notion of ‘dreams’.  Temporality or ‘a new sense of time’ (and to a fair extent ‘space’) is the terrain of the mythic.  As the mythic coalesces, Neumann’s ‘primordial parents’ become fully formed as mother and father archetypes.  Behold the adolescent who has declared independence from the nest!  Behold the warring towns who hold fast to their grain stores while scaling the walled fortresses of others for the bounty held within!  Enter the warrior, patri-centric culture with its architecture rising upward in phallic, transcendent, vertical monuments to a hard-won ego.  Jungian archetypes abound in the sun myths, the symbol of the human head, the moon myths, glorification, deification and divinity myths. (Cf. Neumann’s interpretation of the myth of Osiris with William Irwin Thompson’s in The Time Falling Bodies Take To Light (1985))

Neumann uses the term ‘centroversion’ (similar to Teilhard de Chardin’s ‘granulation’) to describe this self-formative individuating; it is a subjective projection of the libido onto itself -- when a sufficient amount of this raw psychic energy inheres, then consciousness can shift, i.e., a phase change can occur -- and this is what has prompted the ego to enter into relation or union with the self.  In Jungian archetypal imagery -- the journeying hero has gained the treasure/ rescued the captive, which means he has discovered his own creativity as an autopoietic agent in a newly discovered reality of the psyche.

What is left is for consciousness to differentiate once again into three-dimensionality.  Gebser represents this new structuration with a triangle.  Subject/object, self/other duality as discerned by thought, has arrived; we have become ‘space conscious.’  This is Gebser’s perspectival mental structure, which can be traced to ancient Greece and which evolved further into the mental/rational at about the time of the Renaissance (when perspective was discovered in art).  (For Gebser the “rational” is “the deficient mental.”)  It has been proceeding, intensifying ever since.  The adolescent has become a teenager and is all the closer to adulthood.

Elements of the archaic and magical linger on within our consciousness in this modern era of the mythic/mental/rational.  Even as some of us grasp at the next emerging structure -- the integral/aperspectival, which Gebser represents as a ‘sphere’ -- we remain, for the most part, tangled in these consciousness holons that are more fundamental to those that are more complex.  Regressions are not uncommon in our day -- from magical thinking in New Age groups to mythic membership playing out in ultra-nationalism, ‘Balkanizations’ or within the unchecked zeal of fundamentalist religious groups.

Gebser’s thesis is here presented, taken from his chapter on The Irruption of Time, under the subtitle, The Awakening of Consciousness of Freedom from Time.  In it is his projection of where consciousness is headed -- out of an “already obsolete three-dimensional dualistic-materialistic world conception” (288) to an aperspectival integrated structure (“[t]he whole [that] can be perceived only aperspectivally”) (289) in which we plumb the fourth-dimensional depths of time; an understanding which I interpret as a ‘conscious’ reimmersion in the Essence -- our genetic heritage and our future:

“It is from origin, which is not bound to time, that all time forms constituting us have mutated.  Origin lies “before” all timelessness, temporicity, and time.  Wherever man becomes conscious of the pre-given, pre-conscious, originary pre-timelessness, he is in the time-freedom, consciously recovering its presence.  Where this is accomplished, origin and the present are integrated by the intensified consciousness.  The irruption of time into our consciousness is the first indication, the initial motif of the consciousness mutation that is today acute.  This mutation will bear its fruits of transforming the world if we succeed in superseding the irruption of time; but that is tantamount to what we have called the presentiation of origin, which can be achieved only by the successful achievement of the main task posed by the new mutation: the coming of consciousness of time-freedom, the achronon.”  (289)

Unconsciousness (magic pre-consciousness to mythic emerging consciousness) to (mental) consciousness to pathological (rational) consciousness -- this has been our human trajectory so far as I understand it.

 

APPENDIX  D:  A Short Parody of American Law...      by Jack Suss

Constitutional law -- a valiant attempt to give a voice to the populace by institutionalizing rights and giving notice of the respective powers of a three-branch government; set up for an agrarian, small town mentality; with the coming of the modern industrial state the structure became unstable and overly bureaucratized; after World War II the republic turns into a “national security” state.

Treaties -- a way to buy-off and plunder the land of indigenous populants

Property: the notion of private real property, as inherited from England, is a privatized space wherein real property could be claimed, sectored off and depleted by legal entities through legal ownership; personal property became accretions to the person -- from the style of dress and accessories that ornament the body of the self, to one’s inviolate TV and the automobile as an extension of the ego shell with its vehicle laws of ownership, rights of way, do’s and don’ts...road rage.

Corporation -- a fictional body; a new, collective corpus for transacting business, with its insular protections of personal wealth and fictional accountability

Tort law -- “reasonable man” standard; proximate cause; assigning legal fault, responsibility; a binary, separating out of persons and groups.

Maritime law -- tort law of the sea giving birth to the insurance industry and its marvels.

Contract law -- the replacement of personal honor and trust; a written memorialization between “legal entities” with the threat of enforcement by the courts if breached.

_____________________________________

...and Order

School:  a device to keep the crime rate down 

Marriage:  a device to keep the economy going

Job:  a device to keep the population from going crazy from being idle

Sports, Business and Entertainment: devices to keep the population so continually distracted that “know thyself” becomes an incoherence, impossibly vague

_________________

From the wild autonomous, to social contrivance and laws, to the informed autonomous -- could this be the human trajectory of mind detectable throughout history, past and yet-to-come?

---

[1]  See Appendix A

[2]  See Appendix B

[3]  J.M. Kelly, A Short History of Western Legal Theory (Clarendon Press: Oxford, England, 1992); also see Max Hamburger, The Awakening of Western Legal Thought (New York: Biblo and Tannen, 1969, orig. pub. 1942); in the mythic age of an emerging consciousness, law as apprehended by the earliest known Greeks was described as “coming from the gods.”  From Homer (who memorialized events in c.800-700 BCE from an oral tradition that came down from c.1300-1100 BCE) the earliest Greek notion of law was referred to as themis, understood as meaning “god-inspired” or “law of the heavens.” (Kelly 1992:7); but compare, e.g., Martin Bernal, Black Athena: The Afroasiatic Roots of Classical Civilization (Rutgers University Press, 1991), who argues that Greece was a kind of mulatto culture that had been created from a hybridization of black African Egypt and the Semitic Phoenicians; also, consider Babylonia’s laws of Eshuna and King Hamurabbi’s code (2000 BCE and 1800 BCE respectively), which preceded the early formative period of law in ancient Greece by a millennium.  Thus, one might say that written laws of man were already in existence in Mesopotamia when the Greeks were still fidgeting around with their themis.  Also, if we only stop to consider what Homer’s Iliad and the Odyssey are about, we might note in passing the high likelihood of foreign influences -- the Iliad is all about military conquest, always a “forcing together” of the cultures of conqueror and conquered; and the Odyssey is all about Odysseus, doomed to wander for years in foreign lands where exotic cultural influences await; the Judaic contribution is discussed below. 

    

 

[4]  See Appendix C for an elaboration of this model, used as a framework as I trace the Western legal tradition.

[5]  I am presenting the above paraphrase of Jean Gebser’s mental/rational consciousness from the table appended to the back of The Ever-Present Origin (Ohio University Press: Athens, Ohio, Eng. trans. 1985, orig. 1949 and 1953)).  Gebser describes the “mental” as “directive, discursive thought.”  He refers to the “rational” as the “deficient mental,” characterized by “divisive, immoderate hairsplitting.”  It is my own contention that mental/rational consciousness, while universally “available” to populations and cultures of all nations, is adopted and “retrofitted” in part or in whole, according to the prevailing lifestyle and cultural norms, values, assumptions and beliefs in “non-Western-ized” areas -- or rejected altogether in pockets of relative changelessness, i.e., in populations wherein mental/rational consciousness barely comports with traditional ways of being and knowing, such as with various indigenous peoples worldwide.  It might also be argued that certain populations are selectively accepting the mental, while rejecting rational (referred to by Gebser as “the deficient mental”) consciousness.  By “Western” I am referring to a particular ethno-cognicentric (albeit cross-cultural) mental/rational consciousness that has so intensified as to dominate, suppress and ignore to varying degrees the more embodied magic (unity) and mythic (polar complementarity) structures of mind, which can be associated more with emotions, feelings, nature, archetypes, imagination, the feminine, a sense of unity and cosmic wonder.  As a result, “non-Western” areas, e.g., in Asia and the Southern Hemisphere, have developed  quite different models of jurisprudence.

[6]  See, E. Adamson Hoebel, The Law of Primitive Man: A Study in Comparative Legal Dynamics (Atheneum: NY, 1968: 258)

[7] See generally, William Irwin Thompson, The Time Falling Bodies Take To Light (New York: St. Martin’s Griffin, 1981, 1996)

[8]  Ibid.

[9]  Erich Neumann, The Origins and History of Consciousness (Mythos, 1995, orig. pub., Rascher Verlag: Zurich, 1949; 1st Eng. trans., Bollingen Series XLII, Princeton University Press, 1954); also see Appendix C

[10]  Of course, how “distinctly Western” were we in the first millennium, BCE?  Seafaring and overland trade routes were fairly well-established during this period.  This exposed the West to an ongoing cultural intercourse as commerce intensified with the Middle East, the Far East and Africa.  With Alexander the Great’s conquests eastward, extraordinary social upheaval forced further multi-cultural interaction.  Out of this continual blending came the cosmopolitan melange that proceeded through the centuries of the Hellenistic period.

[11] (Gebser 1985:76)(Emphasis added)  Gebser explains that unlike in the duality of the mental/rational, “in polarity, correspondences are valid.  Every correspondence is a complement, a completion of the whole.  Whatever is spoken is corroborated by the invisible and latent unspoken to which it corresponds; in the polar, unperspectival world of the mythical structure both the voice (die Stimme) and the muteness (das Stumme), appropriate to myth -- what is spoken and what is left unsaid -- are correspondences and complements to each other.  They suspend and supersede the polarity, returning it to near-integrality, to an identity that nonetheless remains diminished, since its archaic authenticity seems to be irrecoverable; it is a recompleted, not a complete identity.”  (1985: 85-86); Cf., Plato’s Protagoras, 677ff. (322 BCE), speaking of our post-diluvial condition: “They had no need of formal laws, but lived by custom and patriarchal rules...” (paraphrased by Kelly 1992: 12)

[12]  Kelly 1992:1; See note 3: Some may view such a starting point as ethno-centric bias.  Cultural forms stubbornly reinforce their separatist developmental structures, and the Western legal tradition can be seen in its own provincial light.  The Greek notion of the city-state -- as in the “city” being the locus of both individual and communal identity -- foreshadowed a mental provincialism that would persist wherever Western thought got a foothold to reflect, centuries later, hegemonic Western imperialist notions of colonialism.  And the law was always  there.

[13]  See, William Irwin Thompson, Coming Into Being: Artifacts and Texts in the Evolution of Consciousness (New York: St. Martin’s Griffin, 1996,1998:129)

[14]  Gebser 1985: 77  The space-time relationship in the mythic is emphasized in a spaceless, natural temporicity, in the mental it is spatial and abstractly temporal.  (See Gebser’s appended table.)

[15]  Ibid.

[16]  While sages and artists are on the vanguard of this evolutionary consciousness shift, general populations (who may or may not follow them) tend to lag behind.  Thus, as with the excerpt from Parmenides above, the lives and the works produced by those who are ahead of their time act as benchmarks -- artifacts to be studied and from which humanity might learn the teachings of these exemplars in the centuries that follow.  And so we might imagine that cultures impose themselves on this advancing, ever-shifting “consciousness template,” fostering a diversity of interpretive socio-cultural forms.  (Accordingly, legal traditions will vary too.) Consciousness -- the self, the ego, the individual, separate from an objectified world of others and things -- was fully emerging and the avant garde of the times were announcing it.  During the axial period (c.600-300 BCE) there was a dramatic flowering of self-realization through what may be described as a worldwide “incarnation of the logos” (the almost simultaneous appearance of a host of sages, including in the East the likes of Lao Tze, Gautama Buddha, and Confucius).  The West was riveted on its own avatars of that same axial period -- Pythagoras, Heraclitus, Socrates, Plato and Aristotle.  

[17]  Gebser 1985: 77 (citing Diels-Kranz, Die Fragmente der Vorsokratiker (Berlin: Weidemann, 1934: 231), i; fragment 28 B 3)

[18]  Hamburger 1969: 42-43 (quoting Plato, the Sophist Kallikles speaking: “...the makers of laws are the majority who are weak; and they make laws and distribute praises and censures with a view to themselves and to their own interests; and they terrify the stronger sort of men, and those who are able to get the better of them; and they say that dishonesty is shameful and unjust; meaning by the word injustice, the desire of a man to have more than his neighbors; for knowing their own inferiority, I suspect that they are too glad of equality.” (from Plato’s Gorgias, 483b-484a, Jowett trans.); But cf. the opposite view (in true Sophist fashion), as expressed by Thrasymachus in Plato’s Republic I 338c, “I proclaim that justice is nothing but the interest of the stronger.”;  but in general the Sophists argue that human law goes against natural law: the survival of the fittest, i.e., the “strongest” [that which adapts to its environment in optimal symbiotic accord is ‘selected’ by nature to survive and pass its genetic attributes for strong survivability to its progeny].  Therefore, it is not in accordance with nature that the stronger should be held in check by the weaker. (Ibid. 36)

[19]  Kelly 1992: 9

[20]  Ibid.; But cf. what Socrates relates in Plato’s Phaedrus (274 C-276 A): “ ‘...the Egyptian god Theuth (i.e., Thoth), the inventor of writing, commended his discovery to King Thamus: it would make the Egyptians wiser and increase their capacity to remember.  But the King would have none of it: ‘For this will create forgetfulness in the souls of those who learn it because they will neglect to use their memories...You offer but the semblance of wisdom to your pupils, not its true self.’  Written records are, according to Socrates, only a mnemonic aid for him who already knows that with which the writing is concerned.  They can never impart wisdom.  That can be done only with speech ‘written in the pupil’s soul with knowledge.” (Ernst Robert Curtius European Literature and the Latin Middle Ages [Princeton, New Jersey: Bollingen Series XXXVI, 1953: 304)]

[21]  “...laws, once publicly written up on stone or bronze, were equally knowable and accessible to all, and so no longer subject to the arbitrary statement or interpretation of a closed and privileged class.” (Ibid.)

[22]  Ibid. 10 (quoting de Romilly, La Loi dans la pensee greque, 23, commenting on the Greek mind of the fifth and fourth centuries)

[23]  Ibid. 4; also see, A.R.W. Harrison, The Law of Athens: The Family and Property (Oxford: Clarendon Press, 1968)

[24]  Ibid. 5

[25]  Ibid. 6

[26]  For original sources, see Kelly: 1992: 1-38

[27]  Ibid. 49

[28]  Ibid. 69

[29]  Ibid. 42

[30]   See infra, p. 2

[31]  Kelly: 1992

[32]  Ibid. 48

[33]  Ibid.

[34]  Ibid. 51

[35]   See infra p.2

[36]  “For Justice is one; it binds all human society, and is based on one Law, which is right reason applied to command and prohibition...” Ibid. 59 (quoting De legibus 1.15.42.) 

[37]  “True law is right reason in agreement with nature, diffused among all men; constant and unchanging, it should call men to their duties by its precepts, and deter them from wrongdoing by its prohibitions; and it never commands or forbids upright men in vain, while its rules and restraints are lost upon the wicked.  To curtail this law is unholy, to amend it illicit, to repeal it impossible; nor can we be dispensed from it by the order either of senate or of popular assembly; nor need we look for anyone to clarify or interpret it; nor will it be one law at Rome and a different one at Athens, nor otherwise tomorrow than it is today; but one and the same Law, eternal and unchangeable, will bind all people and all ages; and God, its designer, expounder and enacter, will be as it were the sole and universal ruler and governor of all things; and whoever disobeys it, because by this act he will have turned his back on himself and on man’s very nature, will pay the heaviest penalty, even if he avoids the other punishments which are adjudged fit for his conduct.”  Ibid. 58 (Quoting Cicero, De republ.3.22.33.) 

[38]   See infra, p.2

[39]  Kelly 1992:82

[40]  Ibid. 99

[41]  St. Thomas Aquinas is considered to be the patron saint of lawyers. 

[42]  “These were the centuries in which the character of Europe’s later legal systems was determined, above all in which the great division of the civilized legal world into the two families of ‘civil law’ and ‘common law’ began to emerge.  The essential basis of the division was the permeation of continental Europe’s jurisdictions [footnote omitted] by Roman law, the ius civile in the Roman’s own language; and, by contrast, the failure of Roman law permanently to penetrate the English legal profession, which persisted in the native traditional rules; these, uniformly applied throughout the kingdom by a single body of judges, were for this reason called the ‘common law.’  Ibid. 179 

[43]  Ibid. 172

[44]  Ibid. 207  In a footnote on this same page Kelly notes that Bacon was a “corrupt judge: in 1621 he was convicted of taking bribes and removed from his office of lord chancellor, fined, and imprisoned.”  Perhaps his many observations of corruption did not lead him to the proper “general principle.”

[45]   See infra, note 5.

[46]  “ The Copernican shift of perspective can be seen as a fundamental metaphor for the entire modern world view: the profound deconstruction of naive understanding, the critical recognition that the apparent condition of the objective world was unconsciously determined by the condition of the subject, the consequent liberation from the ancient and medieval cosmic womb, the radical displacement of the human being to a relative and peripheral position in a vast and impersonal universe, the ensuing disenchantment of the natural world.  In this broadest sense -- as an event that took place not only in astronomy and the sciences but in philosophy and religion and in the collective human psyche -- the Copernican revolution can be seen as constituting the epochal shift of the modern age.  It was a primordial event, world-destroying and world-constituting.”  Tarnas 1991: 416

[47]  See Appendix D

[48]  See Appendix A

Bibliography

Aristotle, See Ethics

               -- Nichomachean Ethics

                 -- Politics

                 -- Rhetoric

 

Francis Bacon, Novum organum scientiarum (1620)

 

Martin Bernal, Black Athena: The Afroasiatic Roots of Classical Civilization (Rutgers University Press, 1991)

 

Cicero, De legibus

         -- De republica

 

Ernst Robert Curtius European Literature and the Latin Middle Ages (Princeton, New Jersey: Bollingen Series XXXVI, 1953)

 

Demosthenes, See Against Meidias

                         -- Against Timocrates

                         -- De corona

 

de Romilly, La Loi dans la pensee greque

 

Diels-Kranz, Die Fragmente der Vorsokratiker (Berlin: Weidemann, 1934)

 

Euripides, Medea

            -- Orestes

            -- Suppliants

 

Jean Gebser, The Ever-Present Origin (Ohio University Press: Athens, Ohio, Eng. trans. 1985, orig. 1949 and 1953) 

 

Max Hamburger, The Awakening of Western Legal Thought (New York: Biblo and Tannen, 1969, orig. pub. 1942)

 

A.R.W. Harrison, The Law of Athens: The Family and Property (Oxford: Clarendon Press, 1968)

 

Herodotus, Historiae

 

E. Adamson Hoebel, The Law of Primitive Man: A Study in Comparative Legal Dynamics (Atheneum: NY, 1968)

 

Homer, Iliad (c.800-700BCE)

            Odyssey (c.800-700 BCE)(possibly written by “another Homer”)

Justinian, Digest (c.540 AD)

 

J.M. Kelly, A Short History of Western Legal Theory (Clarendon Press: Oxford, England, 1992)

 

Neumann, Erich The Origins and History of Consciousness (Mythos, 1995, Orig. pub., Rascher Verlag: Zurich, 1949; 1st Eng. trans., Bollingen Series XLII, Princeton University Press, 1954)

 

Noccolo  Machiavelli, The Prince (1513)

 

Plato, Gorgias

      -- Phaedrus     

      -- Protagoras

      -- Also see, Crito

                         Laws

                         The Republic

           

Sophocles, Antigone

 

Richard Tarnas, The Passion of the Western Mind (NY: Ballantine Books, 1991: 87)

 

William Irwin Thompson, The Time Falling Bodies Take To Light (New York: St.                             Martin’s Griffin, 1981, 1996

                                  --  Coming Into Being: Artifacts and Texts in the Evolution of                             Consciousness (New York: St. Martin’s Griffin, 1996,1998:129)

 

Xenophon, Memorabilia