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: 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?