Cover Story

Stop! In the name of the law

After 1,000 years of painstaking legal development, relativism threatens to rip the fabric of the rule of law

Issue: "2000: The Millennium," July 31, 1999

Of all the accomplishments and marvels of Western civilization, none is greater than the commitment to the rule of law. This concept is the product over the last millennium of the cultural community commonly referred to as "the West" and its legal tradition. The irony is that it is in the last century of this millennium that this legal culture so central to our identity is seriously at risk. At the beginning of the last millennium the peoples of western Europe were emerging from the "Dark Ages." The barbarian invasions had led to the collapse of much of culture. The arts were lost, trade and commerce had virtually disappeared, the cities were empty. Illiteracy was the rule. Even a king like Theodoric found it difficult to write the first letter of his name. Gone were the forms and administration of law, which marked the Roman empire. Law was unsettled, written law almost unknown. There was no professional class of lawyers, no legal system, no schools of law. This situation changed dramatically and rapidly. Within 100 years-from 1050-1150-the beginnings of the Western legal tradition emerged. The time came to be known as the "Medieval Renaissance." The most striking development in law took place at the University of Bologna, where young jurists under the leadership of Irnerius, an almost mythical figure, were engaged in the rediscovery of the Roman law as it had been preserved and summarized by Justinian, who, in fifth-century Constantinople, had sought to capture the heritage of Roman law, and compiled seminal legal works. Europe's common law
Within a couple of centuries, this heritage of Rome, the Corpus Juris Civilis, swept across the continent and became a "common law" of Europe, a universal binding law recognized as authoritative throughout the continent. With this development came legal institutions, law as an independent discipline and a legal profession. One contemporary noted that "jurists are everywhere where there is money and power, at the king's court and in the dwelling of the pope, in civil society and in the monasteries." This Roman heritage, as adapted by Justinian and then by Irnerius, became the first pillar of Western law. Just as Irnerius revitalized the force of Roman law and gave us one pillar of Western law, it was Gratian who provided the other key pillar-Canon law-the "law" of the Western church. Around 1140 he produced a compilation of church laws and procedures that had existed from the earliest days of the church, and that had been issued by ecclesiastical councils. This compilation included the Scriptures of the Old and New Testaments, writings of church fathers, letters and decisions of patriarchs and popes, as well as Roman laws affecting the church. Canon law's impact can hardly be overstated. The universal character of the church in the Middle Ages, and its representatives from the pope down to local priests, carried these principles and laws with them. The church and its moral and legal principles provided the core moral and philosophic underpinnings for society. If the adoption of Roman law provided the legal subculture, it was Canon law that reflected the Christian moral, religious, and philosophic underpinnings of the entire culture. Gratian's Decretum along with Irnerius's collation and commentary on Roman law became the texts for European law schools, synthesizing the religious principles and norms of Christianity and the legal structures and forms of ancient Rome. The English tradition
In England a special brand of "common law" developed which differed somewhat from the "civil law" of continental Europe. However, the same influences of Roman law, Canon law, and Christian culture were at work on the continent and in England, and the results were actually quite similar. Modern English law arises from an event in the same century Europe was rediscovering Roman law-the Norman conquest in 1066. Thanks to a homogeneous society, free from invasion, the law in England was able to evolve largely independent of the events in Europe. In continental Europe's "civil law" tradition, law is based on written statutes. It is law developed by kings or legislatures, which set forth in writing the principles and rules of law. In the English context, the emphasis is not on legislation, but on the decisions of judges setting forth principles of law in specific cases which then become precedents for subsequent cases. The courts themselves "find" the principles and then apply them. The preservation of English court records, beginning in 1195, was central to this emergence of unwritten law. The study of English law is thus the study of the decisions of judges, and the way in which those decisions and principles are applied. At its best, this system gives flexibility to the legal system to adapt the law to new issues, while still applying consistent principles. At its worst, the system lacks predictability or even coherence, and reflects the political vagaries of judges. English law has also been significant for several other commitments and perspectives, such as the creation of Courts of Equity-which filled in the gaps where the law offered no effective remedy-and the principles that no man is above the law and that laws require the consent of the governed. Canon law had the principle that no law was valid unless accepted by the consent of those concerned, but it was a hard-fought principle in a day of royal authority and "divine right of kings." The Magna Carta of 1215 was significant in expressing these principles of law. Among its elements were binding the king to govern by the laws, and binding him not to deny or delay justice. The Magna Carta also significantly separated the court from the person of the king. While major elements of the Western tradition were well established by the 16th century-including development of the jury system-the "modern world" beginning with the Renaissance and Reformation, and later the Enlightenment, put new strains on and also enriched the tradition as it responded to new political and social needs. Effects of the Reformation
The Protestant Reformation helped shatter the religious unity of Europe, and it was linked with the emergence of nation-states with their own boundaries, legislatures, jurisdiction-and therefore laws. It was a time of growing national consciousness. Vernaculars began to be used in universities, replacing Latin. There was a development of interest in national rather than Roman-based law. In Europe, legal nationalism eventually took the form of written national law codes. In place of the authority of Rome or the papacy or some universal principle, the source of the law's authority now became the state. The legal codes were products not only of emerging nationalism, but also of the Enlightenment's emphasis on reason. The 16th and 17th centuries were times of new horizons. The age of discovery opened a "new world." This growing "international" shape of the world brought new legal issues of war, plunder, and culture, as well as powerful trading interests such as the East India Companies of Holland and England. In this context, the Dutchman Hugo Grotius, in the early 17th century, began to address legal issues related to these phenomena and earned the appellation "father of international law." During this period the rise of humanist, enlightenment, and democratic thought also shaped the development of Western law. Legal humanism, with its emphasis on mutability and uncertainty, challenged the authority of the "common law," weakening the certainty and universality of it. Democratic and "rights of man" instincts came from both "conservative" and radical sources-from Calvinist covenantal notions of government, and from more secular social contract conceptions. But the Enlightenment's emphasis on man and its worship of reason eventually led to undermining much of the foundation both of law and Western culture. American constitutionalism
The American experience was much more informed by Christian and biblical themes, and the Declaration of Independence in 1776 reflected those convictions in its assertions that men are "endowed by their Creator, with certain inalienable rights." A major development in the Western legal tradition, and a special legacy of the American experience, has been the concept of "constitutional" government. Grounded in the notions of social contract and Calvinist doctrines so dominant that some historians have called John Calvin the father of America, the founders of the new republic insisted on a fundamental law establishing a limited government. Subsequent civil documents in the colonies and early states reflected a strong biblical set of governing principles as well as formal religious commitments-belying any notion the American democratic development was essentially secular or committed to some fundamental "separation" of church and state. Legal proliferation
In many respects law reached a zenith in the 20th century, if measured by the dominance of law and lawyers. But a nation's real lawfulness is, in the words of G.K. Chesterton, "inversely proportional to its number of laws." When Law (big "L"-God's Law, inherent Law) is an accepted, internalized authority, the need for a multiplicity of man's laws and legal machinery is minimal, but when the consensus fails, when there is no Law, then only the threat of enforcement and the management of life by laws is effective. Again Chesterton: "When you break the big laws, you do not get liberty, you do not get anarchy, you get the small laws." The proliferation of "small" laws has been the hallmark of 20th-century jurisprudence. Rather than functioning primarily as a neutral arbiter enabling private parties to resolve disputes, the law has become an arm of the state. As the modern administrative state has expanded its functions, the law has also expanded, but also changed. Instead of setting ground rules for an individualistic society, the law now operates to prescribe vast areas of human endeavor. The law is no longer a check on the state, but an instrument of the state. Despite the vaunted independence of law, courts, and judges, much of the crisis of law is reflective of the rootlessness and confusion of contemporary culture. An age of relativism, cynicism, hedonism, secularism, and materialism has taken its toll on the content and meaning of law. A culture that rejects the notion of normative truth, good and evil, and universal principles cannot be expected to produce lawyers or legal philosophies that reflect those very elements that are ultimately the law's source of authority: truth, justice, right, good. The practical consequence of this undermines the continuity and development of law, and law is reduced to an expression of the immediate age. The notion of a continuity in law is destroyed-and law becomes mere political choice. Can law survive in a culture that denies the existence of right and wrong? The problem of judicial review
In the Western legal system, the role of the judiciary is critical, and especially in Anglo-American common law because of the substantial role of judges in "making" and applying law. One of the key principles of Anglo-American "common law" is the controversial notion of "judicial review." In 1803, the U.S. Supreme Court issued what is perhaps its most far-reaching decision in the case of Marbury vs. Madison. This decision was compelled neither by logic nor by the text of the Constitution, and is criticized by some scholars today as it was by anti-federalists like Jefferson at the time. The principle that led to the decision was monumental, for the court held that it is the duty and power of the judiciary, ultimately the Supreme Court, to hold unconstitutional any act of Congress that it deemed contrary to the Constitution. It was, Chief Justice John Marshall declared, the duty of the judiciary "to say what the law is." This "judicial review" has become so commonplace in modern American law that its controversial origins, and its rejection by English law, is often forgotten. The doctrine as it has grown and been employed has led to expanding the power of the federal courts. When the power of judicial review is combined with judicial activism, often framed as keeping the Constitution "in tune with the times," we get decisions like Roe vs. Wade, which held abortion prohibitions unconstitutional. Roe vividly showcases the power of judicial review and an activist court "finding" hitherto unknown constitutional rights of "privacy." The forgotten foundation
Only in the 20th century have the Christian foundations of Western law been almost totally forgotten or ignored. When the religious roots are cut off, law loses the major source of its vitality and authority. The issue of the place of God in a culture and in law is, ultimately, the fundamental question. The stakes are enormous. George Orwell, disillusioned in later life with his earlier trust in human reason, observed: "I thought of a cruel trick I once played on a wasp. He was sucking jam on my plate, and I cut him in half. He paid no attention, merely went on with his meal, while a tiny stream of jam trickled out his esophagus. Only when he tried to fly away did he grasp the dreadful thing that had happened to him. It was the same with modern man. The thing that has been cut away is his soul." There is a "soul" in the Western legal tradition-the energizing, nourishing source of the law's vitality, coherence, and continuity. That source was slowly built on ancient foundations, adapting to new sensitivities and consciousness. But now, in the name of supposed freedom, pluralism, and objectivity, the law threatens to abandon that foundation. The thing that is being cut away so cavalierly is the soul.

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