by, T.S.Midgley
European law and the idea of a new ius commune
There are some legal scholars who, down the ages, have dedicated themselves to keeping alive the sources of that civilian tradition of practical jurisprudence which was the legacy of Rome. Once it was a great and noble tradition, both learned and practical, a tradition definitive of juristic art, but the wheels of modernity have just about crushed it to death in Europe today. Even in Italy, where it originated, it struggles to survive. The reasons why these scholars might have pursued such a task, and with such dedication, are no doubt many and varied, but maybe a basic faith in law once had something to do with it, a straightforward belief that disputes and quarrels, where they might typically lead to violent discharge, could clearly find better means of settlement in juristic and legal methods. Whatever the reason, these scholars have undertaken their specialist labours in order that something precious and of inestimable value might be sustained - sources which both express and have in turn inspired countless efforts at clear (and not so clear) juristic thinking on matters as diverse as life itself. It may be the case that these scholars once saw all the more clearly what was valuable in that treasure trove called “little old Europe”, something so obvious to them yet perhaps today so difficult to see - an archaeology of juristic literature, a wealth of classical material which, if only as a model of comparison, has always figured in any European renewal or search for inspiration. But a “new” ius commune in Europe - can an idea like that be really taken seriously as Europe seeks re-invention in a proliferation of laws and regulations? There is a current movement in “pre-modern” legal scholarship which affirms that there is every reason to take such an idea seriously.
So what is this “new” ius commune? Was the enlightenment in Europe and the subsequent waves of codification and secular constitutionalism all in vain ? Has modern jurisprudence been such a pathetic failure that, as Europe seeks this re-invention through law, we must return somehow to that pre-enlightenment fusion of Roman and canon law (not to speak of feudal law), to see how we might best look at things?
Certainly the idea of a new ius commune in Europe has recently captured the imagination of a number of legal scholars. No doubt this has been prompted by the passionate enthusiasm of certain individuals - Zimmermann in Germany and Bellomo in Italy to name but two of the more outstanding current examples - but also more generally by a perceived failure and inappropriateness of codistic law as a whole, or perhaps one ought to say, “post-codistic” law, in the sense that the great age of codification in Europe is over and done. The fragmentary character of European regulatory downpour and the associated uncertainties and increased complexities which this unprecedented template of laws has occasioned as it seeks implementation and integration within member state jurisdictions is an obvious case in point.
The proliferation of laws
From the historical point of view the Enlightenment, whether it wanted to or not (its exponents were not always agreed), bequeathed two hundred years of codistic law in Europe. It was a form of law made possible for the first time on the basis of abstract individuality, an unqualified legal subject equal with all other legal subjects, and with this a corresponding system of norms appropriate to general social and private behaviour could be worked out. The model is recognised as the classical liberal model, founded upon the rights and duties of the individual. It is the model with which modernity is stuck. But the great age of codifications in Europe, beginning with Napoleonic France, in a very real sense summed up the kind of society which had already arrived. And this is one of the key arguments of the modern historians of the old ius commune - the renaissance of juristic culture in Europe had all but played itself out by the time of Savigny’s modern system of Roman law, and by the time of Windscheid and the Burgliches Gesetzbuch (1900) it was all over and done with. Savigny himself had grave reservations about codified law in any case, but the point is that a codistic view of law prevailing today no longer has the kind of society of which it was once a plausible expression. But, again, can it be seriously suggested that a “new” ius commune might provide some sort of answer to the problem here?
The problem is easy enough to see but this particular solution looks very odd indeed. The emergence of European law in recent years is clearly a momentous and unprecedented development in European legal history, but the problem of legislative downpour is not a new one. “The more easy, rapid and copious the production of law in a state, the feebler is its moral force”, wrote Jhering in his Spirit of Roman Law. And without further speculation as to what might be meant by “moral force ” here, it is plain that any tradition of legal thought which takes it as axiomatic that citizens should know the law, or that they should know when it applies to them, or that the law itself, on this account, must be accessible, consistent, coherent, non-retroactive etc. - such a tradition sits very uneasily with any proliferation of statutory mass and volume. That, in fact, was the entire enlightenment liberal idea - minimal public law.
If the European idea were ever an idea of moral force , then the appearance alone of European regulatory downpour, as it joins the flow of the many and various other national and international legal instruments, gives sufficient indication of the problem. What has happened?
The post-war idea of Europe was surely prompted by an exceedingly moral force, in the sense of being against the experiments in nationalism which had gone so hideously wrong in Europe and plunged the world into war. In that, it had a clear and self-evident moral basis. And though such a thing has fortunately not been lost sight of, once the European community began to make laws about an abstract thing called the free market, it found that it thereby had to follow through with laws for pretty much everything else besides - for who or what under the sun these days is not touched in small or greater part by the free market? The economic community had to become, and is becoming more and more, a new political community, and throughout, the whole process has expressed itself in and by means of law. Not only that, but we know the laws so contrived, must express themselves in yet further laws as they seek reconciliation and implementation within the national jurisdictions of the European member states. In short the centralised machineries of law-making, at municipal, national and international levels have never been so busy.
Instinctively one might be forgiven for feeling a little suspicious about all of this, coming as it does “from above” rather than from any popular demand “below”, though that is fertile ground for debate. Professor Zimmermann is in no uncertain terms about it. In the current drift of European law, “..we are dealing with no more than fragments of - more or less - uniform law, inserted rather unorganically into the various national systems. Rather than having gained in coherence, rationality and predictability, the law has tended to become disjointed. Its application has not been streamlined but has, instead, acquired a new dimension of complexity. Major reversals in legal policy are contemplated without profound and widespread (political and academic) discussion. Thus, we have bits and pieces of a European private law, imposed from ‘above’, without a European legal science that would inform, support and facilitate this process.” His solution to all of this is that the old Romanist ius commune would provide an “obvious”, “natural”, “organically progressive” European legal science “which we require today”, because “..a modern historical school of jurisprudence will look at the common past in order to determine whether there are European legal doctrines which can serve as a more solid foundation for a new ius commune Europaeum than an arbitrary piece of legislation emanating from Brussels.” Certainly the idea of a basic unity in Europe, of a movement inimical to shallow and retrograde nationalism, is one which its legal development should hopefully reflect, and certainly also one might legitimately ask if that is helped by, or possibly hindered by, “easy, rapid and copious” production of “bits and pieces” of law - but a “new” ius commune, is that really an appropriate idea in this connection?
Historical and Philosophical jurisprudence The compilers of the great Digest of laws in the time of Justinian brought together conceptions and devices which at the time, as Bellomo succinctly puts it , “found life everywhere impossible”. In other words, the Digest remained essentially dormant until Irnerius undertook the labour of re-compilation and reproduction in Bologna in the twelfth century. At that point the key factor in the story would appear to be the general growth of literacy, the liberal arts, and above all labour and markets. The sheer expense and labour of production of the Justinian text, and in the quantities that it was so reproduced in these very early times shows more clearly than anything else, not some sort of intellectual hankering for Roman antiquity or “Roman influence”, but a general and real growth of literacy, culture and humanism around the metropolitan centres of old Europe. Here, in the Justinian text, was something functional, something that might, if used aptly, resolve matters of dispute through law rather than by duel or force of arms, and the matter of its origin was in this respect a secondary issue.
Alongside all of this it is clear that labour was turning its hands to much more than just the soil. But it was the church in particular that got its hands on the production of textual material, and that was especially significant in terms of the evolution of the ius commune . The prevailing “scholarly” law became an admixture and synthesis of the Justinian law with the canon law of the papacy. “As is obvious,” Bellomo says, “there was a wide spectrum of activities and norms within canon law that occupied spaces typical of legal institutions already regulated by Roman and Justinian law. But if superimposed areas of jurisdiction created many practical problems, they also helped to solve some. The rigidity of a discipline more than seven centuries old gave support to the church’s laws, lending them basic, concrete legal concepts; at the same time that rigidity was corrected, tempered, and bent to contain new norms marked by the supreme authority of the church, which served to make that authority coherent within the fluid events of extraordinarily creative centuries.”
So far so good. It has been for over two hundred years the mark of European modernity that it placed itself in opposition to all of this, to what historians refer to in shorthand as the ancien regime , or more plainly, the feudal rule of prince and prelate. A prejudice against all things medieval is clearly deeply embedded within our culture, and within our legal culture in particular, though it is also clear that those earlier centuries from the twelfth onwards in which a ius commune was developed in Europe, “had their own unique, legitimate and vital experience, an experience just as legitimate and just as vital as those of later ages.” Fine. But then to take the amazing leap from the old ius commune of medieval Europe to the possibility of a “new” ius commune for the Europe which is today articulating itself though law - again, how seriously can an idea like that be taken?
Summary
Obviously the Romanist tradition is of vital importance in the evolution of European legal culture and its civilian modus vivendi has taken it all over the modern world. That tradition, the civilian tradition, is in no small part responsible for the very codistic law which has allegedly served its time; it is intrinsically bound up with the great nineteenth century French, Swiss, German etc. codifications of law, even the English Sale of Goods Act.
But equally vital is the part played by philosophical speculation in the evolution of European private law in the modern period. Indeed, so far as modern private law is concerned, certain philosophies of law have been definitive and vital, and this is overlooked, or at best elided, by the theorists of the ius commune.
There is, in the writings of Wieacker, Bellomo, and Zimmermann the pervasive idea that modern public law, statutory and codific law, is “fragmented”, multi-layered, disjointed; with the corresponding idea that private law is, in essence, “organic”, coherent, communal. Private law, these writers are all agreed, has a power all of its own. Indeed, the “power is everywhere” thesis, elaborated in recent French philosophy, is really something which juristic thought has taken for granted for centuries whilst it has struggled with the eternal problem of private law. It is to this problem we now turn.
The problem of private law
When Aristotle remarked that content was easy though form was difficult he might well have been talking about private law. The content of dogmatic law, though often notoriously complicated and shamefully obtuse, is easy enough for the practitioner or specialist to identify, but even the celebrated man on the Clapham omnibus might at a certain point ask: “In what manner and respect are we brought under laws and, so far as we are, what justice lies within it?” Needless to add, jurisprudence never manages to agree upon these matters though it has proffered innumerable answers. A picture of desperation unfolds, and the reason that fragmented and antithetical trends of opinion rage here has to be related to the fact that these questions, though simple, always persist.
The very notion of private law, the very expression of something being at the same time both private and legal, brings with it its own special “eternal” problem. On the face of it private law expresses a unity of such glaringly different and opposing spheres of thought and action. How can something be both private yet subject to law at the same time? Private space, in common idiom, is instinctively imagined as precisely that, where nothing permits entry but the individual’s say so - and the same imagination could well wonder how laws might penetrate that space of all places! Yet this is why the form of private law is particularly resilient and robust, exactly because it moves within a private sphere. For this reason, whatever that particular private space may turn out to be in this connection, it cannot, despite appearances, have the characteristic of being isolated - its resolution has to be relational, a common law in fact (though not a ius commune or a common law in the English or Scottish sense). As this paper will underline, the relation of reciprocity becomes vital in all of this, becomes indeed an archetypal feature in both the logic and experience of private law development.
In both early and modern jurisprudence the unity to which private law gives expression has been constructed, re-constructed and even de-constructed in various ways: some have ascribed such unity to the “command of a sovereign”, others to a “basic norm”, and again others to socio-cultural or economic ground-rules of one kind and another. In effect, various alternative unities have sprung up to explain the unity of private law - the spirit of a people, interests, purposes, will-power, a fundamental norm, a “group-spirit”, an economic consensus, commodity exchange, a rule of recognition, a sovereign command, a teleological principle of some kind, a principle of utility, or (recently fashionable) an autopoietic continuity.
If ideas have steadily come forward in this manner, it is reasonable to suspect that reflection of this kind is itself a special way in which private law would resolve a persistent crisis of form.
In a very important way, any crisis of form can do no other than become a battleground of ideas - form is an idea-problem, a theoretical issue. But the importance of this clearly arises because ideas are not always mere ideas, even though, what is to say much the same thing, private law doesn’t experience here any problem in everyday practice. The law gets applied, decisions and adjudications are made; the lawyer or the judge do not need to bother about questions of form in this sort of idealistic way , and more than likely they would not be carrying out their job properly if they did.
Though private law is a palpable fact of historical evolution and everyday life, the problem of the unity to which it gives concrete expression is never solved, certainly at any rate never solved in any once-and-for-all manner and absolutely never solved to everyone’s satisfaction. Some solutions are clearly more satisfactory than others, some may simply be more fashionable than others, but as the psychologist, Jung, once pointed out, it is one of humankind’s greatest illusions to imagine that anything can ever satisfy anybody. In what follows considerable emphasis is placed upon the solution offered by Kant to this problem of private law, because the philosophical expression of this problem of private law seems to be its consummate expression.
Private law as philosophy
In Kant the idea of private law, the idea that something can be both private yet also law, attains philosophical expression, and it is difficult to underestimate what this has meant for European legal culture. Basically it meant that law could come forward as philosophy, it meant that jurisprudence could continue into the modern era in an ambiguous relationship with modernity and scientific progress. It meant in a word, survival - survival in the face of scrutiny. And that really seems to be the key factor in the end: not whether a solution may be true or false, or disputable on this or that ground, but whether it might survive.
The entire Kantian system, from start to finish, is a reconciliation of the private sphere with law, though in a very special kind of way. Law here means the law of reason (upon which the positive law “arises” both logically and morally, if not actually) and that which is to be understood as the private sphere here means pretty much everything else in experience touched by subjectivity and human frailty. And, well or ill, Kant connected the two together: pure reason with the subject, law with the private individual. It is a transcendental derivation of private law. It finds a unity here by transcending the immediacy of everything we know by way of experience, where such an idea of unity might easily lack credibility.
A priori cognitions within the practical sphere of law are perfectly possible - possible and here imperative, says Kant - just as they are in any other practical sphere, so far as the law of reason permits. In other words the light of pure reason will occasionally beam down to penetrate even the rudest of mortals - and therein lies the specifically Kantian faith. It is the law of reason which gives unity to all things - law included. We are presumably then permitted to rest assured that cognitions in the practical sphere of life may well accord with pure reason and that right judgements are therefore possible.
So with respect to the basic questions of how we are subsumed under the law and, if so, how justly - the point at least is that Kant gave influential and speculative answers that have survived. I now turn to show how one or two Kantian ideas help us to understand some basic elements of modern private law.
The Private Law Archetype
One important thing to understand about the private law “archetype” is that it cannot be extinguished, not at least so long as human beings continue to enter into reciprocal relations with one another. Archetypes refuse to deconstruct and though modern legal development may be characterised by the fragmentation of private law, its humiliation even, it is misleading to pronounce its death.
From a purely formal standpoint any reciprocal relationship may be characterised as a self-referential unity. In mathematics this would find expression in the following formula: n x 1/n = 1. The reciprocal elements, though unequal (indeed, one being the inverse of the other), give the product of unity. This, as such, of course has no more to do with private law than it does with any other form of reciprocal relationship but it does help us to understand why legal theorists have made so much of the unity and coherence which finds expression in private law development.
The self-referential nature of the reciprocal relationship is illustrated perfectly in private law doctrine, in contract, in delict and indeed in large parts of criminal law, though this latter would not generally be included under private law. But first a word about property is appropriate before we look a little further into these forms of liability, because our subject-matter at the outset here is fixed as a matter of legal inter-connection of persons rather than persons and things.
Property
We are here concerned in greater part, though not entirely, with the private law of persons rather than things and in the inter-subjectivity of person and person, it is the normative character of contractual, delictual and criminal liability which becomes the salient feature. As I try to show in what follows, the ideas of reciprocity, self-referencing and so forth seem especially helpful in portraying the formal side of these relationships in law.
But so far as property is concerned - as a relationship of person to thing, as ownership - that is a different matter, because the relationship is exclusive and non-reciprocal. In the law of persons, property is considered by and large only in its free and alienable form, in its exchange or contract form. Things and the relationship of their owners to them are therefore presumed only in this exchange or free form, though it is clear that the matter of how property is used outside of this sphere is the subject of keen and persistent legal interest, whereupon property becomes in the old adage, “nine parts of the law”.
It is not at all surprising that the non-reciprocal character of (exclusive) ownership should become the continuing object of copious statutory regimen . How property is used is obviously a matter of acute social importance, but its exclusive and non-reciprocal character outside of exchange makes it fundamentally a political rather than a legal question per se, notwithstanding that laws cluster around the ownership and use of property like bees around a honeycomb.
The idea of private law, so far as it is in the main concerned with “conduct” and “others”, confronts property in its exchange form, in a contract (money or commodity) form. From this standpoint property relationships present no problem to a theory which reflects quite well upon general liability in contract, delict etc., but all this must obviously take a back seat if one is to confront statutory regimen of any kind. The point is really this, if we take the question of ownership of property as something settled, then in both civil and criminal matters, where property is at issue, the latter really only has to be considered in its exchange (commodity or money) form. Or, to put it another way, private law finds no problem at all relating to money, goods and services, but on questions of ownership, title, use of property it begs statutory regimen and could not resolve such matters without it.
Contract
Let us take, for example, a simple contract between two individuals. We know that individuality is naturally unequal with any other individuality. One individual is not quite the same, or even at all the same, as another. Their reciprocal action in a contract, however, discards this difference and the opposite arises. From the standpoint of the subject matter of the contract the parties are rendered equal. Put bluntly, each sees “himself” in the other and that is sufficient for private law to posit the undifferentiated party to a contract. The essential thing in a contract is the agreement and the substance of that agreement. So far as the parties making that agreement are concerned, all that is required is their contractual capacity. The individuality of the parties concerned is otherwise irrelevant, unless of course such individuality figures within the substance of the agreement, which of course it may well do, for example, in contracts of employment or contracts for services.
A contract, being thoroughly self-referential, will in general, discharge itself on its own account. Only as a matter of last resort will a contract seek discharge by way of active legal process, but even here its self-referencing is by no means extinguished. Legal scrutiny of a contract which has broken down for one reason or another is its consummate self-reference. Contract cases of this type receive, so to speak, the legal “apres coup”, which means effectively that the legal construction is more than a match for the facts of any given contract dispute, which may well have long passed to ashes and dust. The “fiction” that a contract may subsist in law when contending parties have ended up in litigation is no chimera. In this way the legal discharge of a contract, that is to say, discharge that has required active legal pronouncement, is the ultimate self-referencing of its substance.
To illustrate the point another way, one may take the example of a straightforward sale of goods. The subject matter of such a contract is the transfer, or the agreement to transfer, goods for money. It is the kind of contract which takes place countless millions of times every day, and most of the time these contracts discharge themselves without problem. Once this self-referencing mechanism breaks down for some reason or another the juristic aspect is awoken and becomes engaged like an automatic reflex. Thereupon everything about the transaction may be reconstituted down to the finest of details - details of which the contracting parties themselves might never have had the slightest inkling. But the centrepiece of the legal gaze remains still the transaction intended by the parties. In other words legal process here may be seen as the further development of the self-referential substance of private agreement.
Delict
How, then, does this private law archetype express itself in tort law? Again the principle of reciprocity - restitution for damage done - asserts itself. The conceptual structure of delict is strikingly simple, so simple in fact that the French civil code manages to contain it in its entirety in a couple of paragraphs. If someone by positive or negative act causes another to incur loss or damage then they shall be obliged to make amends. Formally speaking, there is a cause (the delictual act or omission) and an effect (loss or damage) - but the effect has not had chance to react back upon the cause. Cause and effect, action and reaction, have not been brought into unity. The reciprocal relationship, the “full picture”, is still left begging, and that is precisely what adjudication in a tort action seeks to rectify. The law of delict is effectively a mode through which reciprocity completes itself.
Of course none of this should be taken to imply that judicial decisions made in delict or contract are anything more than the completion of a given dispute. The decisions themselves may be good or bad, coherent or incoherent. Englard in his book on the philosophy of tort law, looking back upon the accumulation of negligence cases in English law, finds coherence and consistency in judicial decisions only in the sense that they appear to have been made upon a sliding-scale of individualistic/socialistic considerations. Quite naturally there is little predictability in all of this, sometimes the decision may favour the individual as against “society” or vice versa, which is about as revealing as saying that sometimes a judgement might favour the plaintiff and sometimes the defendant. Englard concludes: “The analysis of the practice of tort law has demonstrated that many substantive rules of liability are the product of contrasting purposes: a blend of corrective justice and distributive justice, of private law and public law...Hence (and here follows the non sequitur) there is no substance to those theories which pretend to ground the actual tort rules on a comprehensive, uniform foundation. Any attempt to establish a monistic, positive-descriptive theory of tort liability must fail, be it based on Kantian moral premises, or on instrumentalist assumptions. The reality of tort law is pluralistic, not only in the rhetorics of courts but in the very essence of a multitude of its rules.” Englard is right about the reality of delict, wrong about theory. Life is varied, so any “uniform foundation” won’t fit - as if it were the aim of a theory to provide some kind of tailored suit in which to clothe a lumpy, amorphous and unwieldy reality. Besides, what is Englard himself suggesting here if not a “uniform” theory of plurality?
The relationship of doing and harm is the clear and obvious basis of delict or tort construction, and again this is as logical a reciprocal as the action of a hammer upon a nail. Any inconsistency or “plurality” in judicial decision-making can have no effect whatsoever on this. In any case inconsistency and dissent in high judicial decision-making is about as customary as custom can get - one would naturally expect a low “predictability” score here. More mundanely, the resolution of delictual material in reality, notably by way of contracts of insurance, is a widespread and highly “predictable” matter, where the mass and velocity of daily claims are fiercely calculated and thoroughly rationalised, systematised and (like pretty much everything else these days) computerised.
The self-referencing of reciprocal relationships delivers up the substance of construction in both delict and contract, with this difference: in contract the relationship is voluntary and in a continuum of exchange, whereas in delict the relationship is involuntary and in a continuum of doing and suffering. The involuntary nature of delictual liability is of course in practice not an all-inclusive distinction, just as intentional harm would by no means characterise all criminal acts. The delict/criminal boundary, or what is generally speaking the boundary of unintentional/intentional wrongdoing blurs in practice, e.g. with intentional torts like slander and defamation, or unintended crimes like manslaughter. The relationship between intent and wrongdoing is, to say the least, “difficult”. But the question here concerns the extent to which the private law form takes effect in criminal law.
Crime
For all kinds of reasons the criminal law is controversial. Simply to ask: “What is punishment?” is a grim and profound question, and once for practical purposes that has been decided upon, it remains a matter of deep uncertainty as to what, precisely, it is supposed to achieve. The criminal law is not unrelated within the parameters of private law construction, though much of it arguably lies outside. Still, English criminal law, for example, despite showing a terrible lack of consistency in fundamental areas, seems at least to be loosely based around the idea that the wrongdoer is blameworthy to the extent that he might have done otherwise than he did - the idea of free will in other words, followed of course with the idea of “appropriate” punishment. Indeed, this idea of the individual with free will might well be seen as the “moral” centrepiece of modern private law construction, though unlike the private law archetype as such, this conception is of relatively late appearance on the historical side of things. Wrongs done and reactions to them have very little to do with this sort of individualism in earlier times or indeed in many parts of the world today where punishment may be by no means limited to the individual effecting the crime (if it ever can be so limited).
Indeed it is interesting that, in earlier times, crimes are not considered differently from delicts. This is so, Maine tells us, of all the ancient codes, Hellenic, Teutonic and Roman. “Now let us pass to obligations arising from delict,” says Gaius, “ where theft or robbery is committed, or damage done to property, or injury to the person.” The idea of intent here is insufficient to warrant separate classification of criminal wrongdoing. Robbery and theft, injury to the person, intended or unintended, these are all tortious acts in the ancient view. Accordingly much of what we would recognise today as criminal; thefts, assaults, even murder - none of this would be construed in ancient times in any way like the way we look upon such acts today. Obviously acts of this sort would occasion some kind of public process of adjudication, but the ancient rules in this area are all worked out in terms of remedies available to those suffering such offences. In short, crime was a private law matter and the idea that criminal acts in general would constitute offences against the state as such is undoubtedly a creation of modernity. With this in mind it might well be asked whether or not the ancients had a more appropriate notion of criminality than we do today, at least in the sense that the offender and those directly offended would be brought into a more sharply focussed relationship of restitution.
Summary
To summarise at this point, there is something to which we may refer as the private law archetype. Formally, it may be condensed into a “logic of the reciprocal”, though once articulated as private law it becomes at the same time (and just as logically) more than merely formal. It takes effect not as logic but as law - as what is required of conduct in relation to others. The debate going back to Jhering and taken up by Holmes about experience and life rather than logic being the stuff of law is ill-conceived - that cannot be an either/or question. The archetype, in this way a methodological device, reflects both the experience and logic of law.
Universally the relations of “doing and suffering” or, of “doing and getting something in return”, will imply community of sorts. But these relations will not automatically or necessarily develop as private law. The cave man would assuredly be accustomed to “doing and suffering”, and maybe even exchanging things in a limited kind of way, but it would be somewhat surprising if he then proceeded to sit down and write a systematic classification of contracts and delicts.
Clearly the evolution of private law in Europe is a matter of historical inquiry. There, any logic we might have supposed in private law turns out, itself, to be historical. To see that precisely with the critical reason of the Enlightenment private law became articulated for the first time as a philosophy - and what that has meant! If, in European history, the Roman jurists of the Justinian Digest stood for positive law and little else, and the Scholastics later on for natural law, it is the critical reason which comes to stand for legal philosophy in the modern sense. The fact of a strong tradition in English jurisprudence, for example, on both the formal and the historical side, ignoring Kant completely, is of course factual counter-argument, though it is clear that this tradition only in part meets up with the challenges dealt with in the critical reason.
Many have shown in various ways how the critical philosophy has had its day (though they still keep referring to it), how it has evolved this way and that, maybe with historical admixture or, bloodlessly into empty formalism. Accused as the “justification” of positivism, even degenerate positivism, hailed as transcendental enlightenment - the fact is it persists. It persists because in Kant private law found its own philosophy. Private law found in Kant the garments with which it might parade as the moral law (never mind that Kant distinguished moral from merely legal action). And really that “event”, the coupling of Kantianism with jurisprudence, formed and still remains the high-point in modern European legal culture. The theory of private law within European legal culture cannot escape this territory any more than a tree can escape its shadow at the approach of sunset.
Transcendent Speculation
In his book on private law, Weinrib says, “The claim that private law is autonomous rests on the immanence of this (formal) rationality both in private law and in itself. The rationality is immanent in private law because, as a coherent justificatory phenomenon, private law presupposes both the structure of corrective justice and its grounding in Kantian right. The rationality is immanent in itself...First, its moral force derives not from any ulterior good but from the inherently normative dimension of free and purposive action. Furthermore, the elaboration in private law of this inherent normativeness involves reference not to any external value but to the sheer correlativity of doing and suffering. Finally because formalism construes the relationship as an intrinsic unity, the relationship as a whole is crucial to the intelligibility and normative significance of any of its parts.” This “sheer correlativity” of doing and suffering is nothing other than the reciprocal by another name and Weinrib shows that he understands the self-referential character of this relationship: it “involves reference not to any external value”. Still, the fact that reciprocal relations might be supposed universally, in any sort of community, is no ground for supposing also an immanent “in itself” of formal rationality. This is the Kantian construction of the matter and quite obviously that only came about with Kant. Private law, before Kant, cannot possibly “presuppose the structure of corrective justice and its grounding in Kantian right” unless of course one argues that this structure and grounding has always been around regardless of any official acknowledgement. When formalism ventures into history it always commits the error characteristic of historicism itself, that is, of supposing its constructs to have meaning in areas where they cannot possibly have had any meaning. The Roman jurists knew all about pacts and delicts, and even “corrective” justice (as they saw it), but would know nothing of the grounding of their science in Kantian right.
Of course a pure formalist would be quite unconcerned by this. Kant himself said: “By the science of law is meant the systematic knowledge of the principles of the law of nature (from which positive law takes its rise), which is forever the same, and carries its sure and unchanging obligations over all nations and throughout all ages.” If others are unaware of their logic, what of it? Ignorance is no test of its validity! The trouble is, knowledge doesn’t test it either. If something is postulated as immanent, “in-itself”, self-determinate, in the manner in which Kant figured the law of reason, then nothing in the world can touch it so as to disturb or upset it in any way. Like the figure of Christ, one either accepts it or one doesn’t - no amount of historical scholarship and biblical exegesis can prove Christ one way or another as an incarnation of God. The same is true of the Kantian idea which gives us the Moral law and for this reason Kant’s philosophy as a whole has often been understood and appropriately described as transcendental subjectivism. For this reason also it is not accidental that many Indian scholars have found in Kant someone unusually close to home.
Kant hammered away at the same old wedge as the natural lawyers had earlier, a wedge dividing the positive from the ethical - and then he tried to join them back together again. Indeed a transcendental metaphysics announces in that very description that its concerns are tantalisingly above and unhelpfully beyond positivity. So how could (positive) private law find itself even remotely, let alone absolutely and completely, in this philosophy?
Faith in Reason
The Kantian system has been subject to so much affirmation and denial generally, and not just within legal culture, so much that it becomes, to say the least, puzzling to see what all the fuss has been about over the critical philosophy. Kant invented an epistemology, a theory of how we come to know things, or as he put it, how we might know things a priori , independently of experience - and, suffice to say, he found a “faculty” within the human make-up enabling us to make judgements of this type. The question to be asked in relation to the development of private law is: why was this so important? Why did private law need an epistemology, of all things, and not only that, but the peculiar one which Kant invented? Other philosophers might have taken on such a role. Hegel, for example, furnished universal grounds for legal provision and judgement and, on the face of it, makes a better claim than Kant to have provided a science of right, in the sense that he broke free of the Kantian epistemology whilst retaining the same ethic.
To picture the matter another way: over two hundred years ago in a northern German city, a city which he apparently never left, a thinker tormented by the thought of scepticism asked himself the question: “How are synthetic judgements a priori possible?” And he answered (and other have repeated it countless times) by saying that there is a universal law of reason which allows us, through our faculties, to make judgements of this sort. It might well have been the sort of discursive event that would lay buried, along with countless others, in some scholarly archive, never to be seen again except perhaps as part of some specialist pursuit or esoteric interest. Instead, it became the philosophy of modern legal culture to the extent that even the most uninterested student of law will not escape some kind of contact with it.
Perhaps to ask why the Kantian ethic took hold of European legal culture in the way that it did is the wrong way of putting the question at issue here. One might get further by asking why legal culture took hold of Kant, why legal culture made the Kantian ethic its own. Looked at from this point of view the answer is not too difficult to see. In Kant the private law archetype found a grounding and basis upon which it might thrive in the modern world, upon which it might continue to appear as a unity though bereft: bereft of its earlier ethical foundation in theology and natural law, bereft of even any actual or at least immediately recognisable unity. If theology could no longer ground the unity of law, then philosophy could possibly resolve this crisis of legal form - if not by reason of God, then by reason of Reason itself.
In very general terms, something called the “individual”, hitherto unknown, emerges with the European Reformation, and when Luther suggested that this creature with his Bible might be all that is ever really required, that a book can contain all the answers to our highest and deepest concerns - then who needs any authority outside of that? This was the challenge to which the subsequent Enlightenment in Europe sought answers, because the theological problem here was also at the same time a secular one - given a society of “individuals”, how could the authority and unity of any law be grounded?
If the unity of law in earlier times had been happy with the idea of divine right, then with the dawn of the age of reason this emphasis had to shift. Though the European societies remained nominally Christian, as they still do today, the traditional articulation of that ethic by way of dogma and theology, and juridically by way of ius commune, ius propria, utrumque ius, became, for one reason and another, no longer socially appropriate. The Christian ethic did not go away. In effect what happened is that Kant managed to give expression to it formally, philosophically.
Humanum est errare
Private law found a home in the Kantian ethic because Kant made an ideal home there for it. Reason in its universality, according to Kant, would work her ways even through the “vulgar and unlettered” - whereupon, even philosophy itself may be shamed in the practical spheres of life - yet, at the other end of this spectrum of intelligence, this same philosophy would permit inlet to the highest wisdom and deepest sagacity. Kant pictures in his writing a hierarchy of human life, equipped for the most part with its practical reasoning a posteriori , which is, to put it another way, selfish reasoning - and within this range of human intelligence, from higher to lower, mobilising in effect the unity of this entire arrangement, runs the elixir of pure reason. This latter, as is well-known, Kant termed reason a priori.
Reason comes forward all the more clearly and robustly the more it is purged of a posteriori determination, which is to say, anything to do with experience, appetite, purpose, in short - life as practical existence. The problem, then, in Kant (if it is to be made a problem) is a problem of dualism: this world and that world, the phenomenal and the noumenal, of the world of experience and that of the celebrated “thing-in-itself”.
The transcendental reason, reason a priori, diamond-like, will radiate its light and come forward here and there in a priori cognitions of various kinds. No more typically are these cognitions practically expressed than in the sphere of law, which in Kant means both the positive and moral law in this regard. In short, the laws as they stand will by no means necessarily reflect , indeed in all likelihood will approximate only very shabbily to, right reason so-defined. The latter is nevertheless universal and always “there” regardless - humanum est errare. It is difficult to find fault in Kant’s personal faith that an a priori rational/moral force is always with us, always “there” in some sort of way. Kant’s magnificent style from time to time is fully resplendent with the most heartening good-will and unshakeable faith in humanity’s ability to take hold of reason - not least because reason willy-nilly will assuredly take a hold upon it. It is a faith, in the end, that human foolishness will always at some stage or another negate itself - notwithstanding that further negation here may return us to foolhardiness.
Legal Positivity and Ethical Neutrality
At this point an old chestnut appears on the roasting-tray - the distinction of facts and values as a dualism, as a logical antithesis. In turn this dualism comes out in many guises, as dualism of reality and idea, of positivity and the ethical, of what is and what ought to be, and so forth. Positive law and morality have been counterpoised in countless volumes on the basis of this dualism - and, of course, once morality is cosily placed outside of the law in this manner anything can pass as the criticism of law. Finnis expresses the old fact/value dualism in relation to law with this, for example : “Though human law is artefact and artifice, and not a conclusion from moral premises, both its positing and the recognition of its positivity (by judges, professionals, citizens, and thence (?) by descriptive and critical scholars) cannot be understood without reference to the moral principles that ground and confirm its authority or challenge its pretension.” He seems to be saying here that, laws are not determined by a moral standard but cannot be understood without one - which sounds reasonable until we ask how the positive laws might exist independently of understanding in the first place. Any legal positivity is itself an “understanding”, and a very special one at that, since its particular understanding has the power to assert itself above all others.
Legal positivity, institutionally, has courts of law and courts of justice, so any thought about this positivity in an instant knows that a distinction is already made between the two within the positivity itself. Under such circumstances it becomes clear that reality has more of an idea of things than the idea itself insofar as the latter would, on whatever grounds, discount justice within the positivity. Still, that is what frequently happens when conceptions of justice recoil from the positivity of dogmatic law. The idea of law is thereby debilitated and justice is unhinged from the positivity which alone can give it general practical value.
To view the positivity of laws as ethically neutral is a dangerous thing to advance for the simple reason that, legal positivity is emphatically not value-neutral. There is a distinction in logic between facts and values - indeed legal positivity perpetually deploys precisely this sort of distinction, between “fact” and “opinion”, in judicial process - but in life the distinction collapses all the time. The legal positivity is the fact of legal value. Or, to put the matter another way, what is a civil judgement or a criminal judgement if it is not an evaluation, if it is not “practical ethics”? If the legal positivity is all fact and fact alone then there can only ever be justice outside of it and never any justice in law itself.
Faith in Law
According to Wieacker, in his book on the history of private law in Europe, this view of law as a positivity, as factual “raw material” which might be subject to manipulation from one standpoint or another, has a lot to answer for in terms of the historic failure in European legal culture. Somewhat confusingly he uses the terms “positivism” and “naturalism” interchangeably to describe this view of law, but the point about it is made clearly enough: it means “that law, whether past or present, is no longer recognised as the implementation of a value (as in the metaphysics of the Middle Ages or the Law of Reason) nor yet understood as part of human history (as by the historical school of law), but explained in terms of social or economic causes”. As he sees it , “the values of justice are related to social reality but they are not inferable from it” and, “(t)he only way to guard against these debilitating effects of exposure to the facts is to keep one’s faith in law alive and engaged”. “Naturalism in action,” he says, “striding from declaring reality to prescribing policy, knowing no justice but the purposes of the party in power, is perhaps the greatest threat to the idea of law in Europe in recent centuries”.
These are bold and impassioned conclusions to a book which has for too long been unavailable in English translation. Broadly speaking, faith in the ethic value of law has been corrupted, even destroyed, by a positivism prevailing throughout the entire political spectrum - right, left and centre. Reactionary positivism, liberal positivism, Marxist positivism - all have played their part. In seeking causal relationships for legality as a whole they have introduced at the very outset the error of “law-as-fact”, law-as-object, something sequentially determined, a resultant of “this” on “that”. But it cannot simply be seen as “error” to look upon juristic laws in this kind of way. Palpably, ethic material decomposes, becomes routine, becomes “fact”. Basic norms of civil behaviour (assuming we still have them !) certainly may become matter-of-fact, routine, settled and accepted, but at the touch of law this is still highly-charged ethical material, and this is a live, immanent and volatile process.
Modernity has eroded the dignity of law because, in Wieacker’s view, legal conscience is a distinct, discrete form of ethical valuation though he says of this only that it is “consciousness of what is required in one’s conduct towards other people”. This, for him, is sufficient to establish the autonomy of justice: “This distinctiveness of the experience of law is the foundation of the autonomy of justice: if we see the question of what is legally due in this light, there is no higher value into which justice can be absorbed (such as “cultural norm”, “public benefit”, or love) and there is no priority of ranking among such values. A person thinking about law as it really is must accept that justice does not directly serve any other absolute good (such as religious ardour, enjoyment of God, pity, truth, beauty, or the general welfare), and modestly acknowledge that it is beyond our powers to construct any order of priorities or even to establish a common source for these goals.”
Consciousness of conduct-requirements towards others is here turned into the special legal “in-itself”. It is, of course, an inescapably Kantian position, though Wieacker was himself a highly distinguished historical scholar and in toto no formalist . The interesting thing is how private law reflection, here so thoroughly and painstakingly historically documented, leads inevitably, inexorably back into Kantian formalism. Short of specifying a new agenda of “conduct-requirements” there is nowhere else to go.
Conclusion
There is a very real sense in which the whole affair of European legal culture with Kantianism becomes annoyingly circular. Since Kant invented formalism specifically with a view to a metaphysic of morals, any subsequent formalism in this sphere has to be Kantian. It is difficult to imagine, formally, a non-Kantian idea of legal autonomy, because autonomy automatically leads a logical “in-itself” and therewith the whole chain of dualism, transcendence and so on.
Still, rather than the idea of the autonomy of justice, it might with greater merit be argued that such a thing lies more in the deed of justice. The autonomy of justice has to find expression in the deed of justice, and if it must be formulated as right reason, that may be a fair construction but by no means the only possible view to take. Right reason, after all, is only an idea - it is the faith we are prepared to put into it which matters, and it is never really clear where that comes from.
So far as the modern form of private law is concerned, we know that the entire business of contracting and exchange, or of “doing and harm”, ends today with commercial resolution. Legal practice is itself very much a commercial enterprise, and litigants in general seek commercial settlements.
To see the principle of modern private law as based upon a form of generalised equivalence of persons and residing fundamentally in the reciprocity of market manners - that is a fair and reasonable summary of its general character and how it appears in reality. Contracts, delicts and wrongs of various kinds are all resolvable into their commercial aspect - but then the object of jurisprudence is lost once the autonomy of specifically legal value is ignored in this manner. This is the big question: does private law (and therewith law in general) dissolve in the anarchy of modern commerce? If so, what in the meanwhile becomes of the idea of justice and in particular the idea that our positive laws should be based upon it?
One thing is hopefully clear in the foregoing remarks and it is this: private law is powerful and enduring precisely because of its private and reciprocal aspect. Under the sway of European legal culture this principle has been of central importance, even though there have always been many who cannot help but see the source of laws in “sovereign command” or constitutional authority. In fact constitutionalism in Europe is itself a creation of private law and the laws of the day, as they are churned out by those so-authorised, are only generally effective to the extent that they might tap into the “electric” power of private law. Private law reflects an archetype in social relationships that in Europe has taken many hundreds of years to perfect and quite naturally any legislation of any government of the day will tend to occupy a different range of concerns.
Notes
“The last ripple of the long swell of cultural and academic power is dying out on this shore.” M.Bellomo, The Common Legal Past of Europe, 1000-1800. L.G.Cochrane (trans.) Washington (1995), p. 30. I am grateful to John Cairns for drawing my attention to Bellomo’s work and, indeed, for his help and encouragement in writing this paper.
In Scotland, for example, H.L.MacQueen (ed.), Scots Law in the 21st. Century - Essays in Honour of W.A.Wilson. Edinburgh (1996). J.Blackie and N.Whitty, Scots Law and the New Ius Commune. ibid. pps.65-81.
cited P.Stein, Legal Evolution - the story of an idea (1980) p.67.
R.Zimmermann, Roman and Comparative Law: The European Perspective. Journal of Legal History Vol.16. 1995. No.1.p.25.
ibid. p.26
The Common Legal Past, op. cit. p.77.
ibid. p.235.
See W.W.Buckland and A.D.McNair, Roman and Common Law - A comparison in outline (1936). pps. 211-221. These authors so easily compare the English Sale of Goods Act with the Roman law of sale, as if looking over the garden wall. Over one and a half thousand years intervening here warrants not the slightest indication of incredulity that such comparison might even be remotely sensible.
Metaphysica V11 1029a30-1029a32 , being the Bekker reference, customary in Aristotelian scholarship . I.Bekker (ed.) Berlin 1831. Bostock translates the passage: “Matter also is in a way evident. But we must investigate the third kind of substance, i.e. form, for this is the most puzzling.” Aristotle, Metaphysics Books Z and H. D. Bostock (trans.) 1994. p.4.. Warrington gives the following: “..matter is also not very difficult to understand. We must therefore consider essence, which is the most perplexing of all three.” Aristotle’s Metaphysics. J. Warrington (trans.) 1956. p171-172. The “second substance” is “matter and form” together. G.E.M.Anscombe, citing this passage, has Aristotle say here that, form is “frightfully difficult”. G.E.M.Anscombe, The Principle of Individuation, in Articles on Aristotle (3.Metaphysics) , J.Barnes et al. (eds.) 1979.88-96.p.92.
“ What the law in any instance is (quid sit juris), the jurisconsult can easily tell; but whether it is right and just that it should be so, is what he wants a criterion to determine.” I.Kant, The Metaphysic of Ethics. Edinburgh 1886. ( H.Calderwood (ed.) and trans., J.W.Semple.) p.176.
“But the foremost of all illusions is that anything can ever satisfy anybody.” C.G.Jung, Foreword to “Introduction to Zen Buddhism”, in Collected Works Vol.11. (1969). p.555.
The basic groundwork here being the Critique of Pure Reason. I.Kant, Critique of Pure Reason. 2nd. edn. trans. N.Kemp Smith (1929).
As, for example, G.Teubner has done recently in delivery of the annual lecture of the Centre for Law and Society, University of Edinburgh, 1997.
Article 1382 says, “Any act whatever of man which causes damage to another obliges him by whose fault it occurred to make reparation.” The French Civil Code. trans. J.H.Crabb (1995), p.252.
I.Englard, The Philosophy of Tort Law (1993). This opposition of individualism and communalism in this connection reveals what one writer has called a “crystalline” structure in legal thinking: J.M.Balkin, The Crystalline Structure of Legal Thought (Rutgers Law Review.1.1986).
Englard, op.cit., p.227.
In Sir H. Maine’s, Ancient Law (London 1972), the author ceaslessly points out that, archaic law “is full, in all its provinces, of the clearest indications that society in primitive times was not what it is assumed to be at present, a collection of individuals. In fact, and in the view of the men who composed it, it was an aggregation of families.” ibid. p.74. Under these circumstances, “crime is a corporate act, and extends in its consequences to many more persons than have shared in its actual perpetration. If...the individual is conspicuously guilty, it is his children, his kinsfolk, his tribesmen, or his fellow-citizens, who suffer with him, and sometimes for him...(T)he primitive mind is not perplexed by the questions which become troublesome as soon as the individual is conceived as altogether separate from the group.” ibid. p.75.
ibid. pps.216-234.
Gaius, Institutes. Bk.3. para.182. text and trans. F.de Zulueta (1946) p.213.
E.J.Weinrib, The Idea of Private Law (1995). p.207.
Metaphysic of Ethics, op.cit., p.176.
C.Singh, Law from Anarchy to Utopia - An exposition of the logical, epistemological and ontological foundations of the idea of law, by an inquiry into the nature of legal propositions and the basis of legal authority. (Oxford 1986) Kantian philosophy and Indian dharma-sastra (philosophy of law) are brought together in this book.
See D.N.MacCormick, The Relative Heteronomy of Law. European Journal of Philosophy, April 1995. MacCormick identifies the problem here but it difficult to see that he resolves it. esp. p.79 ibid.
“But as soon as man has, for a practical end, excluded all a posteriori motives (every mobile taken from experience and observation) from the action of the moral law, then it is that his reason, as untutored as it may be, shows itself in the greatest vigour; it becomes even subtle, and chicanes with its own conscience as to the demands of duty, or sometimes may seek for its own instruction to determine accurately the worth of actions, and, what is the point to be observed, may expect to do so as successfully as any sage - nay, may solve such practical questions better; for the philosopher can, after all, have no other principles to proceed on than what the unlettered and vulgar have; and his decision stands in hazard of being biased by a multitude of foreign considerations, and so of deflecting from the right road to truth.” Metaphysic of Ethics. ibid. p.16.
J.Finnis, The Truth in Legal Positivism, in The Autonomy of Law - Essays on Legal Positivism, R.P. George ed. (1996). p.205.
F.Wieacker, A History of Private Law in Europe - with particular reference to Germany. trans. T.Weir (1995).
ibid. p.447.
ibid. pps.450-451.
ibid. p.458.
ibid. p.477.
ibid.
Metaphysic, op.cit., generally. It has been the fashion from time to time to suggest Kant “secretly” had this project in mind, though this doesn’t really square with the fact that Kant himself made no bones about it. Indeed a scepticism in scientific inquiry might even be a healthy thing, but scepticism in the sphere of morals - that was where Kant saw the problem. The older natural law piety beckoned, and at that point formalism found a means of ushering private law into the modern sphere of trade, commerce and nationhood.
“...in spite of the fact that the distinction between jus privatum and jus publicum can already be found in Ulpian.. European legal science constituted itself first and foremost as a private law legal science. It was only around the second half of the sixteenth century that public law began to emerge as a new discipline and became the object of intellectual attention and academic study.” Foreword to Wieacker, op.cit.
c: tsm "out of the blue"
