Early Eastern Origins of Western Law and Western Civilization by Robin Bradley Kar

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THURSDAY, APRIL 19, 2012

Kar on the Early Eastern Origins of Western Law and Western Civilization
Posted by Mary L. Dudziak
Robin Bradley Kar, University of Illinois College of Law, has posted on SSRN a three-part study:  On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Legal and Cultural Origins.   Here’s the abstract:
Western law and Western civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East” and explains many of their special capacities and characteristics. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western civilization finds its origins in ancient Greek, Roman, and Hebrew culture is, however, so familiar and so pervasive that it has rarely — until recently — been questioned in the West.

This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. If we are genuinely interested in understanding our origins in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western law and Western civilization are not just the outgrowths of three particularly creative cultures, which straddled the transition from human prehistory into human history and developed in either Southeastern Europe or the Near East. Rather, the West appears to be descended from a much deeper cultural tradition, which extends all the way back to some of our first human forays out of hunter-gatherer modes of subsistence and into settled agricultural living. The tradition in question began not in Greece, Rome, or Israel, however, but rather in and around the Indus Valley — which is a region that spans the Northwestern portions of the Indian subcontinent.

From approximately 4500 BC until approximately 1900 BC — and hence long before the rise of ancient Greece, Rome or Israel — the Indus Valley region gave rise to one of the very first large scale civilizations in our natural history as a species: the so-called “Harappan” Civilization. This civilization was also part of a much larger and highly integrated social complex, with strong ties to ancient Bactria and the eastern parts of modern day Iran. (Because this region does not correspond to contemporary political boundaries, I call it the “Eastern-Iran-Bactria-Indus-Valley” Region.) In this Article, I argue that this ancient socio-cultural complex is most likely the actual source of a range of important Western traditions. Through an unbroken chain of cultural transmission that has operated through an immense number of generations, we have likely inherited an important set of traditions from this ancient socio-cultural complex, which have specially equipped us to produce and sustain large-scale civilizations with the rule of law. If this is true, then our failure to understand our deep genealogical relationship to this ancient socio-cultural complex has limited our self-understanding in critical respects. It has also prevented us from realizing useful aspects of our traditions — including, in some cases, those aspects that make our current traditions in the West so capable of supporting large-scale human civilizations with the rule of law.

We live in an era in which it is, moreover, especially important to decipher the deepest origins of Western law and civilization. Scholars within the emerging “legal origins” tradition (e.g., Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny) have now produced an impressive body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates.

The present Article argues that this literature may nevertheless be working with legal origin variables that fail to track our deepest and most genuine lines of relevant descent. After developing a special methodology to discern the relevant genealogical facts, I use this methodology to propose a new (and fundamentally changed) account of the most plausible phylogenetic structure of the Indo-European legal family (including the socio-cultural traditions needed to support legal systems, along with the special psychological attitudes that animate these traditions). This novel account traces many of the most important developments of this family of traditions deep into human prehistory. A proper understanding of this new family tree should have important empirical implications: this work can, for example, be used to help explain why certain exportations of Western-style legal institutions have worked so well while others have not. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward westernization that are being felt around the globe.

The origins story that I develop in this Article should, however, also have broader implications for a much wider range of cognate fields, which have typically presumed a primarily Greco-Roman or Judeo-Christian origin for key developments in the West. The revised origins story that I will be telling should therefore be of more general human concern.

You can download part 1, part 2, and part 3.
http://legalhistoryblog.blogspot.com/2012/04/kar-on-early-eastern-origins-of-western.html

Religion, Science, and Economics in the Contemporary World.

Matt Banever suggested we take a look at this discussion with an astrophysicist, Neil Degrasse Tyson, who advocates for the need to continue space exploration. Isaac Kramnick, in The Portable Enlightenment Reader  wrote, “If religion was the principle villain of the Enlightenment, science was its hero.”

Fareed Zakaria GPS: Neil Degrasse Tyson makes case for space

Dr. Tyson uses an economic argument to advocate for the necessity of scientific exploration and discovery. The philosophes of the Enlightenment needed no such justification, but they didn’t reject the economic motive either. Rene Descartes, the great mathematician wrote,

“I knew that the languages which one learns there are necessary to understand the works of the ancients; and that the delicacy of fiction enlivens the mind; that famous deeds of history ennoble it and, if read with understanding, aid in maturing one’s judgment; that the reading of all the great books is like conversing with the best people of earlier times; it is even studied conversation in which the authors show us only the best of their thoughts; that eloquence has incomparable powers and beauties; that poetry has enchanting delicacy and sweetness; that mathematics has very subtle processes which can serve as much to satisfy the inquiring mind as to aid all the arts and diminish man’s labor; that treatises on morals contain very useful teachings and exhortations to virtue; that theology teaches us how to go to heaven; that philosophy teaches us to talk with appearance of truth about things, and to make ourselves admired by the less learned; that law, medicine, and the other sciences bring honors and wealth to those who pursue them; and finally, that it is desirable to have examined all of them, even to the most superstitious and false in order to recognize their real worth and avoid being deceived thereby”
René Descartes, Discours de la Methode pour Bien Conduire sa Raison & Chercher la Verité dans les Sciences plus La Dioptrique et Les Meteores qui Sont des Essais de Cete Methode

 

Was religion the enemy of science during the Enlightenment? Descartes also provides us with his own observations:

“Before examining this more carefully and investigating its consequences, I want to dwell for a moment in the contemplation of God, to ponder His attributes in me, to see, admire, and adore the beauty of His boundless light, insofar as my clouded insight allows. Believing that the supreme happiness of the other life consists wholly of the contemplation of divine greatness, I now find that through less perfect contemplation of the same sort I can gain the greatest joy available in this life.”
René Descartes, Meditations on First Philosophy

 

Thomas Jay Oord offered a long and thoughtful commentary on the current relationship between American evangelical Christians and science. You can read it in its entirety on his blog. But Oord admits, “I’m optimistic about the future of the Evangelical theology and science dialogue. But I’m not naïve to think that the dialogue will flow with ease into every Evangelical nook and cranny. Plenty of warfare has occurred and will occur.”

Will America revert to a position that science cannot be reconciled to Christianity?

Guest Blog: Michael Biral: Do religious institutions have the right to shape public policy?

Blog post:

Law is taught as something that comes from a concrete set of ideals. In America, we are taught that the Constitution and Bill of Rights were heavily influenced by the enlightenment. Our system of government was influenced by the ancient Greeks and Romans. What seems to be missing is the explanation of the myths behind our laws. I believe the big idea of this course so far has been to point out that our system of law has been influenced not only by the things we can see (prior laws, thinkers, etc) but also by the things we cannot see such as religion and mythology, without these we would not have our laws. Without Myths, we would not have laws.

I feel that the Robert Cover article expands on this idea. Cover argues that the courts should take the perspective of Roger Williams when dealing with issues of religion. The state should stay out of religious matters to protect religion. This contrasts with the Jeffersonian model of religious freedom, that enacts a wall of separation between church and state. While Cover makes a compelling argument for the freedom of religion from state intrusion. it does raise some questions. Do “Antinomians” have to accept state law if they are receiving funding from the state? No one should dispute religious orders to abide by their own laws when they are living in separate communities; however, does this give religious groups the right to ignore civil rights legislation such as was the case with Bob Jones University? Cover was writing this piece at a time before social issues such as gay marriage and gay rights became hot button issues, but the article raises the question to me that, do religious organizations whom believe these acts to be immoral have the right to shape policy that will in essence make their laws, laws of the land? Is one thing for a religious group to be asked to live out their religious beliefs, but what would Cover say to those groups that try to impose their religious law on others that do not share their religious beliefs? Would those groups argue that the laws they disagree with are not valid because they ignore the nomos and narrative of religion and myth?

Guest Blog: The Epiphany of Civilization by Michael DeLude

Michael J. DeLude

Hist 413-01 Blog Post

The foundation of law is the epiphany of civilization.  A civilization which aims to achieve a major force on the world stage must construct a codified system of laws that will allow society to flourish while limiting the amount of restraint placed upon the populace.  The formation of law in society is often an enigma wrapped in a mystery.  Often a law has mythical origins and a culture will use often use a deity or a collection of deities who “give” the laws to the people.  The most well known receiving of laws is the Ten Commandments.  All religious persons can retell the story of Moses on Mount Sinai.  Early civilizations used this mythical origin of laws to create fear in the populace and to provide a credible basis on which to found the laws.  The laws coming from a common, mortal human would most likely be disregarded and mocked.  Even secular laws can often find their origins within the paradigm of myth.  The Iroquois constitution and great law of peace is often credited with a major contribution to the American constitution.  The founding and creation of America has also become deified as George Washington assumes the role of the mythical lawmaker surrounded by a supporting cast of deities such as Thomas Jefferson and Benjamin Franklin.  This gives the American Constitution the credibility needed to allow it to flourish.  The credibility of a set of laws is one of the major questions that I wish to have answered following the conclusion of this course.  What makes one follow a law; what gives law it’s power to control?  Another question that I would like to have answered is how a system of laws is actually created as opposed to the mythic origins?  And finally what is the connection between all systems of laws (is there even a connection)?  These are the three “big ideas” of questions that I would like to explore in this course.  We are all effected by laws and each in our own different way.

Guest Blog: The Nomos and Narrative of the Dark Knight by Matt Banever

Matt Banever, February 10, 2012

What has struck me the most in this course so far is how the material we have covered relates a great deal to the characters of Batman, in particular, Batman and The Joker. When reading Cover’s article about nomos and narratives he mentions on page 32, “the social precondition for a nomos.” He goes on to explain that in order for a community to generate a form of narratives they need to have “some social boundary; otherwise, it would make no sense to think of them as distinct entities.” (Cover, 34).

Now the primary quote indicates that there is an origin for all social norms, and the narratives grow from that origin. This relates to Batman because he is an individual who understands that there is an inherent need for justice and order. Yet there are instances when one must remove oneself to enforce those norms. Communities and individuals gauge their specific norms by using other’s narratives to adjust their own. What struck me was this idea of a, “precondition for nomos”, that there is something that comes before the rules and laws. The precondition may be a void of order, the absence of law. And it is in that absence of structure that The Joker operates. The presence of his random injustice proves that there is no inherent justice–that communities, and individuals within those communities, have attempted to make sense of this chaos by creating and enforcing rules.

In  the film, The Dark Knight, The Joker acknowledges the use of narratives in a scene with Harvey Dent, telling him that “The cops have plans, Gordon’s got plans, they’re schemers, schemers trying to control their little worlds,” and he mocks their pathetic attempts to do so. He embraces that chaos is the big picture of the universe and when people adopt narratives that is when rules and order are “broken”. He tells Batman in a scene that “these civilized people, they need you now, but when they don’t, they’ll cast you out.” The Joker reveals that even the norms result in panic. Both Batman and The Joker are uncompromising in their beliefs about order. Cover, in his article about narratives, drives at the question that: do the narratives originate from a base of rule and we decide what we need, and we expand from that, simultaneously gauging our norms to others, or is chaos the natural order of things?

The Ten Commandments as Scripture, Law and Scriptural Law

The Judeo-Christian scripture known popularly as The Ten Commandments appear in two books of the Bible: Exodus 20-1-17 and Deuteronomy 5:4–21. [The links are to several different translations of the same text.]

Jews and various Christian denominations use one of three historical divisions of Exodus 20:1–17:

  • Phi. The Philonic division is the oldest, from the writings of Philo and Josephus, Jewish writers of the first century C.E., who labeled verse 3 as number 1, verses 4–6 as number 2, and so on. Denominations of Jews and Christians that generally follow this scheme include Hellenistic Jews, Greek Orthodox and Protestants except Lutherans. Most representations of the commandments include the prologue of verse 2 as either part of the first commandment or as a preface.
  • Tal. The Talmudic division, from the third-century Jewish Talmud, makes verses 1–2 as the first declaration, and combines verses 3–6 as the second commandment. Orthodox, Conservative, and Reform Jews
  • Aug. The Augustinian division (fifth century) begins the first commandment with number 2 of the Talmudic division, and makes an extra commandment by dividing the prohibition on coveting into two. Both Roman Catholics and Lutherans adopted the Augustinian method. Roman Catholics use Deuteronomy by default when quoting the Ten Commandments whereas Luther used the Exodus version.
The Ten Commandments
Phi Tal Aug Exodus 20:1-17 Deuteronomy 5:4-21
1 1 And God spake all these words, saying, 4–5 The Lord talked with you face to face in the mount out of the midst of the fire … saying,
Pre 1 2 I am the Lord thy God, which have brought thee out of the land of Egypt, out of the house of bondage. 6 I am the Lord thy God, which brought thee out of the land of Egypt, from the house of bondage.
1 2 1 3 Thou shalt have no other gods before me. 7 Thou shalt have none other gods before me.
2 2 1 4 Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth: 8 Thou shalt not make thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the waters beneath the earth:
2 2 1 5 Thou shalt not bow down thyself to them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourthgeneration of them that hate me; 9 Thou shalt not bow down thyself unto them, nor serve them: for I the Lord thy God am a jealous God, visiting the iniquity of the fathers upon the children unto the third and fourthgeneration of them that hate me,
2 2 1 6 And shewing mercy unto thousands of them that love me, and keep my commandments. 10 And shewing mercy unto thousands of them that love me and keep my commandments.
3 3 2 7 Thou shalt not take the name of the Lord thy God in vain; for the Lord will not hold him guiltless that taketh his name in vain. 11 Thou shalt not take the name of the Lord thy God in vain: for the Lord will not hold himguiltless that taketh his name in vain.
4 4 3 8 Remember the sabbath day, to keep it holy. 12 Keep the sabbath day to sanctify it, as the Lord thy God hath commanded thee.
4 4 3 9 Six days shalt thou labour, and do all thy work: 13 Six days thou shalt labour, and do all thy work:
4 4 3 10 But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, thy manservant, nor thy maidservant, nor thy cattle, nor thy stranger that is within thy gates: 14 But the seventh day is the sabbath of the Lord thy God: in it thou shalt not do any work, thou, nor thy son, nor thy daughter, nor thy manservant, nor thy maidservant, nor thine ox, nor thine ass, nor any of thy cattle, nor thy stranger that is within thy gates; that thy manservant and thy maidservant may rest as well as thou.
4 4 3 11 For in six days the Lord made heaven and earth, the sea, and all that in them is, and rested the seventh day: wherefore the LORD blessed the sabbath day, and hallowed it. 15 And remember that thou wast a servant in the land of Egypt, and that the Lord thy God brought thee out thence through a mighty hand and by a stretched out arm: therefore theLord thy God commanded thee to keep the sabbath day.
5 5 4 12 Honour thy father and thy mother: that thy days may be long upon the land which theLord thy God giveth thee. 16 Honour thy father and thy mother, as the LORD thy God hath commanded thee; that thy days may be prolonged, and that it may go well with thee, in the land which the Lord thy God giveth thee.
6 6 5 13 Thou shalt not kill. 17 Thou shalt not kill.
7 7 6 14 Thou shalt not commit adultery. 18 Neither shalt thou commit adultery.
8 8 7 15 Thou shalt not steal. 19 Neither shalt thou steal.
9 9 8 16 Thou shalt not bear false witness against thy neighbour. 20 Neither shalt thou bear false witness against thy neighbour.
10 10 9 17 Thou shalt not covet thy neighbour’s house, 21 Neither shalt thou desire thy neighbour’s wife,
10 10 10 thou shalt not covet thy neighbour’s wife, nor his manservant, nor his maidservant, nor his ox, nor his ass, nor any thing that is thy neighbour’s. neither shalt thou covet thy neighbour’s house, his field, or his manservant, or his maidservant, his ox, or his ass, or any thing that is thy neighbour’s.

* All scripture quotes above are from the Authorized Version. See also the New Revised Standard Version.