Western legal culture is united in the systematic use of legal constructs. These constructs include corporations, contracts, estates, rights and powers, to name a few. Not only are these terms absent from primitive or traditional legal systems, but they cannot be expressed in the linguistic systems [neutrality is disputed] that form the basis of these legal cultures. [4] Once one begins to reflect on the origins of modern man, it is not difficult to find a science that discusses our connection to ancient society on a particular topic – including law. The law library has a large collection of books and articles to satisfy the curious mind. In recent weeks, I have fallen down a rabbit hole filled with captivating literature on the origins of Western law and civilization. Highlights include an article by Robin Bradley Kar, a law professor at the University of Illinois, titled “Western Legal Prehistory: Reconstructing the Hidden Origins of Western Law and Civilization.” In this long but very attractive article, Kar argues that we should look beyond ancient Rome, Greece, and Israel to find the origins of Western legal traditions. Instead, he postulates that the roots of Western law go back much further in time and further east – specifically, around 4500 BC. AD in the eastern Iran-Bactria-Indus Valley region.
Kar discusses some of the same archaeological evidence that Graeber and Wengrow cover in their book. As someone who had more than a passing interest in linguistics, I appreciated Kar`s interdisciplinary approach to how we can trace the roots of modern Western legal traditions. Although I am unable to judge the correctness of Kar`s hypothesis, I can attest to the impressive amount of science he cites to build his case. Moreover, I am convinced by his argument that we should be so much looking at the differences between general and civil law traditions, but rather at their common and ancient ancestry and what that ancestry might have in common with non-Western legal traditions. Sacco, R. 1991. Legal forms: a dynamic approach to comparative law. American Journal of Comparative Law 39: 1-34, 343-402. The study of canon law, the legal system of the Catholic Church,[2][3] merged with Roman law and formed the basis for the re-establishment of Western jurisprudence. Its principles of civil rights, equality before the law, equality of women, procedural justice, and democracy as an ideal form of society formed the basis of modern Western culture. [ref. needed] A few months ago, I read an absolutely fascinating book about early human societies, “The Dawn of Everything.” This book, co-authored by David Graeber and David Wengrow, offers a critique of popular views on Western civilization and traditional narratives of humanity`s linear evolution from primitivism to civilization.
It`s a long book, but I found it quite easy to read, especially if you`re someone who is interested in anthropology and archaeology. Since I finished it, I have been thinking more and more about the origins of society as we know it today. How similar are we to our prehistoric ancestors? Did they think of the same things we did? Maybe they weren`t worried about car payments or student loans, but it`s not completely out of the question to imagine that they were wondering and worrying about what they should eat for their next meal or where they would end up in five years. This chapter provides an overview of seven fundamental categories of thought in Western social and legal theory on the relationship between law and society: classical legal theory, the natural law tradition, the legal positivist tradition, the habitual culture tradition, the law and social organization tradition, the selective mirror tradition, and the instrumentalist tradition. It seems that the Greeks devised a positive (or “written”) law similar to what we did regarding authoritative state statements (considering that their state was primarily a city-state, not today`s nation-state). Their views are precursors to the theory of the right of command, as it was finally formulated by John Austin in the early 19th century. Both Plato and Aristotle believed that the fundamental function of law is the maintenance of social order. Western law embraces the legal traditions of Western culture with roots in Roman law and canon law. Just as Western culture shares classical Greco-Roman and Renaissance cultural influence, so do its legal systems. Die Wiederentdeckung des Justinianischen Kodex im frühen 10.
In the nineteenth century, a passion for the discipline of law was first shared across many emerging boundaries between East and West. [1] It was only in the Catholic or Frankish West that Roman law eventually became the basis of all legal concepts and systems. Their influence can still be traced today in all Western legal systems, although in the type and extent between common (Anglo-American) and civil (continental European) legal traditions. In general, the notion of legal culture depends on language and symbols, and any attempt to analyze non-Western legal systems in terms of categories of modern Western law can lead to distortions due to language differences. [4] Thus, while legal constructs are unique to classical Roman cultures, modern civil and customary law cultures derive their meaning from primitive and archaic legal concepts or laws based on fact-based perceived experiences as opposed to theory or abstraction. Legal culture is thus influenced in the first group by academics, academics and historically by philosophers. The culture of the latter group is used by beliefs, values and religion at a fundamental level. Compared to the study of legal systems of the 5th millennium BC, looking at ancient Greek, Roman, and Israeli law may seem positively simple given the abundance of primary sources we have of these later legal systems. Much has been written about the attachment of modern legal systems to these three civilizations. I would like to highlight some books proposed by the Library of Congress that deal with the legal systems of ancient Greece, Rome, and Israel. At first, one of my first experiences with Greek law was in a classical course I took as a student.
One of the assigned readings for this course was “Lawyers and Litigators in Ancient Athens: The Emergence of the Legal Profession” by Robert J. Bonner. It`s a relatively short job and my favorite part is the last chapter on the famous trials of ancient Athens. For a concise but comprehensive overview of Roman law, I recommend “An Introduction to Roman Law” by Barry Nicholas. To better understand the law in ancient Israel, I recommend “An Introduction to the History and Sources of Jewish Law.” Finally, I would like to recommend some general works on ancient legal systems: “The Anthropology of Law” by Fernanda Pirie and “Ancient Law” by Henry Sumner Maine. The term “Western legal tradition” refers to the common law and civil law legal traditions taken together. “Savage Anxieties: The Invention of Western Civilization” by Robert A. Williams, Jr. is a great addition to this list. Watson, A.
1981. The emergence of civil law. Cambridge, MA: Harvard University Press. Zweigert, K. and Kötz, H. 1987. Eine Einführung in die Rechtsvergleichung. T. Weir, Oxford: Clarendon Press. Acropolis, Parthenon, east side, Athens, Greece. Between 1890 and 1930.
hdl.loc.gov/loc.pnp/cph.3b40340 Merryman, J.H. 1969. The tradition of civil law. An introduction to the legal systems of Western Europe and Latin America. Stanford: Stanford University Press; 2nd edition, 1985. Barton, J.H., Gibbs, J.L., Li, V.H., and Merryman, Jh. 1983. Law in radically different cultures.