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.
---------------------------
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.
-----------------------------
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.