Tuesday, March 16, 2021

Law in the Raw


When the human mind conceives notions of law, what we conjure up is more complex than first realized. In a kind of chronological order there is God’s law, natural law, common law, scientific law, nation-state law, and international law; there is also tradition, practice, and custom (originary and acculturated) all of which carry their own innate sense of “law” as rightful forms of conduct.

There are even “laws” in the magic and mythical realms of number and geometry that relate to our metaphysical and occult sensibilities, and supernatural or transcendent spiritual laws bring us back to God in a kind of full circle. (Anti-law, e.g., the black magic of Luciferian evil-doers, is excluded from our notional purview of law in its proper sense.)

Humans make these categories and distinctions in order to organize them into practical, usable purposes; through our mental faculties we separate them out so that they might be fitted into an overall logical form comprising an over-arching reality within which we dwell. We operate, we conduct ourselves in this sphere of law, dubbing it the rule of law, which defines rational, just behavior designed for the benefit of all and the detriment of none.

However, humans have been plagued by law breakers from time immemorial, or at least since the time of Babylon. (Christians trace our woes back further to the Garden of Eden.) This state of affairs  has complicated the rule of law because it had to deal with the recognition that not all who benefit are worthy, so that some should suffer its detriments for the breaking of laws.

And so the rule of law has been contending with lawlessness since its inception. Disrespect of the rule of law, and disputations as to the lawfulness of the law under various stewards of the rule of law at any one time — these epitomize the never-ending struggle in the history of humanity ever since law has been with us.

As a student of the Western law tradition who has researched its odyssey, my mind is often drawn to the formulations of the Roman jurisconsult, Gaius. He seemed to have organized certain guiding principles that can be seen as foundational for a strong country and a stable family (with God's handiwork shining through its fine moral underpinning and commitment to individual liberty). These have come to exemplify the ideal for the rule of law as embraced by our original American constitutional republic. Here is an overview:      

ROME (c. 170 A.D.)

Gaius is most responsible for a systematization of the civil law into ‘scientific form,’ supporting a sense of nomos, as ‘the ruler of all things divine and human’.

The Gaian formulation is:

1) an historical approach drawn from Roman social experience and legal wisdom;

2) the dialectical method with divisions, distinctions and methods of interpretation; and, most importantly,

3) the classical ‘juridical trinity’ (or ‘trichotomy’ that all law pertains to persons, to things or to actions)

This third formulation entails not only moral priorities and a means of ordering reality, but also a characteristic mode of perceiving, of construing, and potentially of controlling the social field.

There is an analogy between the ‘juridical trinity’ and the structure of language (to Latin or perhaps Indo-European grammar itself), i.e., the relationship between subject and predicate, including object and verb.

For Gaius, Roman jurisprudence is anthropocentric or perhaps anthropomorphic: the conscious ‘personality’ (coming not from cosmos, but the psyche) as the essential focus for perceiving the world of ‘reality,’ with an emphasis on individual ‘liberty’ (derived from ‘free will’, in effect, the defining characteristic of ‘personality’, or perhaps, considering the overt recognition of social ranking in Roman law, ‘liberty’ is better interpreted as ‘status’) — as an extended self, ‘property’ and the law of possession are now seen to be natural extensions of liberty and personality.

‘Prescription,’ acquisition through continued use or possession, introduces the factor of time into the legitimization of possession or property; public and private law begin in ‘action’ that provide legal remedies and legal norms (and counter-actions that create legal ‘exceptions’); an ‘action’ corresponds to a particular ‘obligation’ by which individuals, as agents, exercise not only their liberties but their wills, so long as they have legal ‘cause’ and good faith.

The Institutes of the Civil Law was an elementary student’s textbook written by Gaius in the second century A.D. The Institutes distinguishes the ius civile (civil law), peculiar to a particular state, from the ius gentium (law of nations), or law that is common to all states.

The ius gentium, in the sense meant by Gaius, is a body of Roman rules, considered to be in approximate conformity with the common sense and practice of neighboring peoples, which is suitable for application to foreigners on Roman territory, e.g., the transference of most movable property by the act of merely handing it over, the loan of money and creating contracts of sale, hire, mandate, and partnership by simple, formless agreement, etc.

In other words, ‘Lex is what the Populus orders and determines.’ For Gaius it is psyche, human consciousness as will, giving rise to rights, that forms the center of a sort of rudimentary sociology of knowledge. By establishing that field of vision, horizons can be expanded to encompass other individuals and natural objects, potentially property, and finally, the social field can be completed by observing and judging human actions and interactions.

The Gaian system is aimed not just at causal explanations but also at human problems: the rendering of practical and normative judgments and the determination of remedies and larger principles. As such, Roman social thought can be organized in concentric circles:

·        the person occupies the center

·        the family or household occupies the first circumference

·        the next is the interfamilial link to a more public space

·        and the outermost circle of personality is citizenship, embedded in Roman society

Yet, by making larger claims for the role of legal science, the private is subordinated to the public sphere. Roman jurisprudence is centrally concerned with strengthening the governing class, the community of paterfamilias, symbolized, if not represented by, the Senate. At the same time, the foundations of Roman law continue to be grounded in the practical force of acculturated custom (consuetudo, ‘second nature’) and this too is interpreted in terms of the individual person, his force of will, and his responsible actions.

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Gaius was heir to a thousand years of Greek learning and its synthesis of law. But writing in the late second century A.D., Gaius was very likely influenced by the early Christians as well. That is, Gaius was a Roman indebted to the past whose thinking (we might speculate) was also drawing on a consciousness of the new logos being spread about in the noosphere by Christ’s apostles and disciples.

Before going any further forward, perhaps a look back to highlights from the Greek legal heritage would be contributive and grounding. Here is a synopsis:   

 

THE GREEKS (c. 900 B.C. TO 100 B.C.)

Hesiod

Acculturated custom or the ‘unwritten, proto-legal elements in Greek theogony (the ‘divine character of law’) are the earliest connotations of “nomos” (definitions of terms are fleshed out below).

The Lawgivers: Dracon/ Solon/ Gorton (incl. the perhaps mythical): Lycurgus (Sparta); Charondas (Catana); Zaleucus (Locri); Minos (Crete)

Thesmoi (specific legislation and practical procedure of the sovereign, memorialized in written codes publicly displayed on tablets) give institutional expression to the public will, while insisting on the primacy of public authority. Nomos as ‘positive’ (posited) or ‘statute law,’ transcending, though still including, vestiges of acculturated custom: first stirrings of a ‘(proto)state’ (as opposed to traditional blood feuds) having the exclusive role in punishing persons accused of crimes and meting out harsh corporal punishments.

Heraclitus

‘Social thought’ emerges: ‘soul’ included in a cosmological program; the primordial ‘self’ defined in relation to ‘other,’ i.e., society or culture; nomos serves to designate particular rites, human rules, solutions, and, eventually, ‘positive law’ (convention)

Pythagoras

The ‘soul’ is morally significant.

Lysias/ Isocrates/ Isaeus/ Xenophon/ Thucydides/ Pericles

Oration and democratic legislation; citizens perceive objectified laws to which they have internalized an owed obedience; dawning of ‘the rule of law,’ with a predisposition toward the stability and permanence (as opposed to any alteration) of enacted laws; law as command and prohibition by political authority; laws declare ‘what must be done’ — and yet a multiplicity of laws is identified with bad government; ‘intent’ of wrongdoer recognized as being relevant

Aeschylus/ Sophocles/ Euripides/ Aristophanes

Dramatic portrayals, e.g., eternal laws of supernatural origin are ‘fundamental rights’ (like ‘natural rights’ emanating from family relationships) which trump man-made laws conflicting with them; law as a progressive achievement, tending to equalize the ground of rich and poor; an emphasis on the importance of hearing both sides of an argument, more as a precept of wisdom, rather than of justice; demoralization and lack of respect for the laws also portrayed

The Sophists

The first ‘humanists,’ language experts, and practitioners of civil science, using logos, or a convergence of rhetoric and law, wherein nomos (positive law) is characterized as relative and physis (the natural physical universe and the instinctual nature of its human inhabitants) as immutable; typically argue both sides of an issue with verbal dexterity and persuasion; for Sophists, human judgment replaces myth and anthropology, though anthropology (finding its ultimate meaning in the political act) transcends metaphysics; for Sophists, ‘custom’ is  nominally ‘unwritten law’

Protagoras

Logos’ (as some dubbed him) is perhaps the first rhetorician of ‘linguistic philosophy’; reportedly credited with the principal modes of speech (narration, question, answer, command, report, entreaty, and invitation); considered to be the first to maintain that in every experience there are two logoi opposed to each other; committed to the defense of convention (nomos) over nature (physis)

Socrates/ Plato

Through logos, as philosophical analysis embedded in dialogue, the sophistic position is challenged. Laws are imagined as personified and citizens have a duty to obey the laws, resting on a deep and weighty ‘convention,’ implied as a binding contract; laws are for the benefit of all and there should be a deliberate training of society in the law. Magistrates are seen as ‘servants’ of the law; hermeneutics (figurative, allegorical, grammatical, historical, and dialectical criticism) is applied to find reality behind the letter of a text. According such distinctions helped effect a severing of the instincts from the polis — a more complex ‘state’ is inaugurated. Philosophers are seen as the true and sovereign ‘law-givers’ of society and so superior to the orators (rhetoricians). Law as mutual agreement and the notion of private property begin to be recognized. 

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There is much more to the Greek contribution of course. But the above gives an adequate baseline. In fact, one can almost see the entire odyssey of law and jurisprudence within the evolution of Greek society and culture. Indeed, law and jurisprudence are creatures of mental consciousness and written language. (We’re speaking here of a perception of reality stressing the bivalent nature of an undifferentiated, psychically-stressed unity (familiar to the early Greeks, as evidenced by the meanings of some of their primal words) — and that of the mental structure, typified by the dualism of antonyms or conceptual opposites (strengthened by the less ambiguous, more directive language of Latin, and which is fully fostered and further developed in modern language)). 

It was left to the civilization of Rome to further systematize law beyond philosophic rhetoric and oratory; with the Roman Empire came its imperial administration, and law would be administered by a corps of legal specialists the likes of which were unknown in ancient Greece. Roman law had to manage cases and controversies among its own citizens as well as those among the foreigners within its vast territory.

And, among other places, the Roman Empire stretched into Judea, where it had to contend with controlling Jews whose allegiance was to their rabbis, first and foremost. And as Pharisaic Talmudism pitted its letter of the law against the spirit of the law as taught by Jesus of Nazareth, the Roman authorities were caught in the middle of this bitter controversy.  

Those who accepted Jesus as the Christ, the promised Messiah, managed to establish their Church across the Middle East and beyond. In fact, Rome itself was being colonized by these early Christians. At the time of Gaius (mid- to late second century, A.D.), Rome was persecuting Christians. Yet, just over a hundred years later, Rome would adopt Christianity as its state religion.

Therefore, it is not too much of a leap to suppose that Christian precepts were already “flavoring” the Western legal tradition by 170 A.D. What was always driving law and jurisprudence was mental consciousness as embodied in written language (grants, decrees, edicts and sanctions). As Christianity spread and found favor, the state found that the religion could also be useful, in its most banal sense, as a tool of control and manipulation.

But in this interval between non-acceptance and acceptance of Christianity by the Roman authorities, the formulations of Gaius in his Institutes can be seen as an early and pure florescence of law just coming into a more focused mental articulation though yet to become all that sullied by over-zealous, self-aggrandizing state accretions.      

As someone who regards himself as a generalist-doing-big-picturism I could, of course, be all wrong about this. But then, the ideas and thinking of Gaius struck me this way when I first came upon them. Surely his thesis can be further developed and embellished with more of a theo-cosmological sensibility. But it is precisely his simplicity that attracts me. His Ptolemaic propensity, in contrast to a future Copernican order-of-things, is just as satisfying as the primal act of watching the sun “set”— and I am as unconcerned about the Earth rotating on its axis and revolving around the sun as I could ever be, while simply finding solace in God’s creational beauty. 

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The Author is indebted to the following in preparing my synopses herein:

Kelley, D. L. (1990). The human measure: Social thought in the Western legal tradition. Cambridge, MA: Harvard University Press.

Kelly, J.M. (1992). A short history of Western legal theory. Oxford: Clarendon Press.

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