MKK: MKK3: MKK/51-75
MC/51. MC/52. MC/53. MC/54. MC/55. MC/56. MC/57. MC/58. MC/59. MC/60. MC/61. MC/62. MC/63. MC/64. MC/65. MC/66. MC/67. MC/68. MC/69. MC/70. MC/71. MC/72. MC/73. MC/74. MC/75
|Madde 50 - Asıl sâkıt oldukda fer' dahi sâkıt olur.MC. MC/81, MC/661, MC/662, MC/1527, MC/1530|
|51||Madde 51 - Sâkıt olan şey avdet etmez. Ya'ni giden geri gelmez.|
|52||Madde 52 - Bir şey bâtıl oldukda anın zımmındaki şey dahi bâtıl olur.MC. MC/175, MC/523, MC/1566.; MA. 41.; TCK. 49, 50, 51, 60.; TBK ı, 6, 113; HUMK. 234|
|53||Madde 53 - Aslın îfâsı kâbil olmadığı halde bedeli îfâ olunur.MC. MC/488, MC/489, MC/891.; TBK. 43.|
|54||Madde 54 - Bizzat tecvîz olunmayan şey bi't-teba' tecviz olunabilir. Meselâ, müşteri mebî'i kabz için bâyi'i tevkîl etse câiz olmaz. Amma iştira eylediği zahîreyi ölçüp koymak için bâyi'a çuvalı verip dahi zahîreyi çuvala edicek zımnan ve teb'an kabz bulunur.|
|55||MC/55???mMadde Meseli, 55 hi12s:-i' - İbtidâen şâ9ylayı tecviz olunmayan şey bakâen tecviz olunabilir.
hibe etmek sahîh değildir.Amma bir mâl-ı mevhûbun bir hisse-i şâyi'asina bir müstahlik çıkıp da zabtetse hibe bâtıl olmayıp hisse-i bâkiye-i mevhûbün lehin malı olur.MC. MC/19, MC/24, MC/430, MC/858, MC/1466.; TMK. 2
|56||Madde 56 - Baka' ibtidâdan esheldir. MC/55, MC/429, MC/430.; TMK. 2|
|57||Madde 57 - Teberru' ancak kabz ile tamam olur. Meselâ, bir adam birine bir şey hibe etse kable'l-kabz hibe tamam olmaz.|
|58||Madde 58 Raiyye yani teb'a üzerine tasarruf maslahatâ menuttur.|
|59||Madde 59 Iltejelllîl-i Velâyet-i hâssa velâyet-i âmmeden akvadır. Meselâ, vakfın velâyeti kadınin velâyetinden akvadır. TMK. 262, 265, 266, 267, 272, 275, 405.; MC. MC/974, MC/975.|
|60||Madde 60- Yani bir kelâmın bir manaya hamli mümkün oldukça ihmâl yani manasız i vamamalıd MC, MC/40, MC/61, MC/1456.; TMK. ı, 2.; TBK. 18.|
|61||Madde 61 - Ma'nây-ı hakîkî mütaazzir oldukta mecaza gidilir. MC.MC/40, MC/60, MC/62, MC/1517.; TMK. ı, 2.; TBK. 18.|
|62||Madde 62 - Bir kelâmın i'mâli mümkün olmaz ise ihmâl olunur. Yani bir kelamın hakîkî ve mecâzî bir manaya hamli mümkün olmaz ise o halde mühmel yani manasız bırakılır. MC. MC/60, MC/61, MC/1577, MC/1629, MC/1697.; TMK. ı, 2.; TBK. 18.|
|63||Madde 63 - Mütecezzi olmayan bir şeyin bazını zikretmek küllünü zikr gibidir. MC. MC/60, MC/1041.; MA. 31, 36.; TBK. ı, 6.; HUMK 234.|
|64||Madde 64 - Mutlak ıtlakı üzere cârî olur. Eğer nassan yahut delâleten takyîd delîli bulunmaz ise. MC. MC/1, MC/2, MC/571, MC/572, MC/573, MC/819, MC/820, MC/1494, MC/1495, MC/1478, MC/1482, MC/1483, MC/1484.; TBK. 180.; HUMK 234.|
|65||Madde 65 - Hazırdaki vasıf lağv ve gaibdeki vasıf muteberdir. Meselâ, meclis-i hazır olan bir kır atı satacak olduğu halde şu yağız atı şu kadar bin kuruşa satdım dese icabı muteber olup yağız tabiri lağv olur amma meydanda Olmayan bir kır atı yağız deyu satsa vasıf mu'teber olmakla bey' mün'akid ol- MC. MC/107, MC/208,.; TMK ı, 2.; TBK. 18, 31.|
|66||Madde 66 - Sual cevapta iâde olunmuş addolunur. Yani tasdik, olunan bir sualde ne denilmiş ise mûcib onu söylemiş hükmündedir.|
|67||Madde 67 - Sâkit'e bir söz isnâd olunmaz. Lâkin ma'raz-ı hâcette sükût beyandır. Yani, sükût eden kimseye şu sözü söylemiş oldu denilemez, lâkin söyleyecek yer- MC. MC/281, 377]], 438]], 596]], MC/773, MC/805, MC/843, MC/847, MC/971, MC/1451, MC/1452, MC/1485, MC/1659, MC/1822.; HUMK 234.; TBK ı, 6, 31, 198-200, 221, 263, 387, 428.|
|68||Madde 68 - Bir şeyin umûr-u bâtınada delili ol şeyin makâmına kâim olur. Yani hakîkatine olan umûr-l bâtınada delîl-i zâhirîsi ile hükm olunur???. MC. MC/67, MC/183, MC/344, MC/769, MC/770, TMK 3.|
|69||Madde 69 - Mükâtebe muhâtaba gibidir.MC. MC/436, MC/1607, MC/1610, MC/1736.; TEK 5, 10.|
|70||Madde 70 - Dilsizin işaret-i malhûdesi lisan ile beyân gibidir.|
|71||Madde 71 - Tercümanın kavli her hususda kabul olunur.|
|72||Madde 72 Hatâsı zâhir olan zanna i'tibar yoktur.MC. 914, 1061, MC/1838.; TMK. ı, 2.; TBK. 18.; HUMK. 236, 254.|
|73||Madde 73 - Senede müstenid olan ihtimal ile hüccet yoktur.
Meselâ, bir kimse veresesinden birine şu kadar kuruş borcu olduğunu ikrâr hücc:ettiği takdirde eğer maraz-ı mevtinde ise diğer verese tasdik etmedikçe bu ikrârı değildir. Zira eğer vereseden mal kaçırmak ihtimali maraz-ı mevte müsteniddir. amma hal-i sıhhatda ise ikrârı mu'teber olur ve ol halde olan ihtimal mücerred bir nevi te-MC.MC/72, MC/74, MC/1568, MC/1578.; HUMK. 236, 254.
|74||Madde 74 - Tevehhüme i'tibar yokdur. MC. MC/72, MC/73, MC/75, MC/1013, MC/1161, MC/1192, MC/1741.; MA. 92.|
|75||Madde 75 - Bürhan ile sâbit olan şey ıyânen sabit gibidir.|
MKK: MKK/4 -MKK/75-100
MC/75 . MC/76 . MC/77 . MC/78 . MC/79 . MC/80 . MC/81 . MC/82 . MC/83 . MC/84 . MC/85 . MC/86 . MC/87 . MC/88 . MC/89 . MC/90 . MC/91 . MC/92 . MC/93 . MC/94 . MC/95 . MC/96 . MC/97 . MC/98 . MC/99 . MC/100
|MC/75||Madde 75 - Bürhan ile sâbit olan şey ıyânen sabit gibidir.● Article 75. A thing established by proof is equivalent to a thing established by ocular inspection.|
|MC/76||Madde 76 - Beyyine müdde'î için ve yemîn münkir üzerinedir. MC. MC/1461, MC/1463, MC/1613, MC/1817, MC/1818, MC/78, MC/79.; TMK. 6, 28, 157, 185.; TBK 42/1, 55/1, 103/11. ● Article 76. EVIDENCE IS FOR HIM WHO AFFIRMS; THE OATH FOR HIM WHO DENIES.|
|MC/77||Madde 77 — Beyyine hilâf-ı zâhiri isbât için ve yemîn aslı ibkâ içindir. MC. 8, 9, 11, 77, 81, 403, 967, 1774.● Article 77. The object of evidence is to prove what is contrary to appearance; the object of the oath is to ensure the continuance of the original state.|
|MC/78||Madde 78 - Beyyine hüccet-i müteaddiye ve ikrâr hüccet-i kâsıradır. MC. 80, 81, 1384, 1572, 1642, 1676.; HUMK. 236, 254, 299. ● Article 78. Evidence is proof affecting third person; admission is proof affecting the person making such admission only.|
|MC/79||Madde 79 - Kişi ikrârıyla muaheze olunur. MC. 79, 81, 1127, 1573, 1575, 1588, 1632, 1654. ● Article 79. A person is bound by his own admission.|
|MC/80||Madde 80 — Tenâkuz ile hüccet kalmaz, lâkin mütenâkızın aleyhine olan hükme halel gelmez.
Meselâ, şehidler şahâdetlerinden rücû' ile tenâkuz etdiklerinde şahâdetleri hüccet olmaz, lâkin evvelki şahâdetleri üzerine kâdî hükmetmiş ise bu hüküm dahi bozulmayıp mahkumunbihi şahidlerin tazmin etmesi lazım gelir. MC. 78, 90, 1729, 1730.
● Article 80. Contradiction and proof are incompatible; but this does not invalidate a judgement given against the person contradicting. Example:- Witnesses contradict themselves by going back upon the evidence they have given. Such evidence is not proof; but if the court has already given judgement based upon the original evidence, such judgement may not be set aside, but thewitnesses must pay the value of the subject matter of the judgement to the persons against whom judgement has been given.
|MC/81||Madde 81 — Asıl sâbit olmadığı halde fer'in sâbit olduğu vardır. Meselâ, bir kimse filanın filana şu kadar kuruş deyni vardır, ben dahi kefilim dese ve asil'in inkârı üzerine dâ'in iddi'â etse meblağ-ı mezburu kefilin vermesi lazım gelir. MC. 78, 1632. ● Article 81. Failure to establish the principle claim does not imply failure to establish a claim subsidiary thereto. Example:- A person states that A owes a sum of money to B and that he has the surety of A. Such person will be obliged to pay the sum in question if A repudiates the debt and B demands payment.|
|MC/82||Madde 82 — Şartin sübûtu indinde ana muallak olan şeyin sübûtu lazım olur. MC. 83, 84, 408, 494, 623, 1456, 1584.; TMK/2. ● Article 82. If the validity of a condition is established, the validity of anything dependent thereon must also be established.|
|MC/83||Madde 83 — Bi-kaderi'l-imkân şarta mürâat olunmak lâzım gelir. MC. 82, 84, 186, 187, 189, 287, 398, 468, 474, 777, 813, 884, 1073, 1166, 1420, 1337, 1402, 1561.; TMK. 2. ● Article 83. A condition must be observed as far as possible.|
|MC/84||Madde 84 - Va'dler suver-i ta'lîki iktisâ ile lazım olur. Meselâ, sen bu malı filan adama sat, eğer akçesini vermez ise ben veririm dese ve malı alan akçeyi vermese bu va'di eden kimsenin akçeyi vermesi lazım gelir. MC. 82, 83, 623. ● Article 84. Any promise dependent upon a condition is irrevocable upon such condition being fulfilled. Example:- A person tells A to sell a certain thing to B and informs A he will pay him in the event of B failing to do so, and B does in fact fail so to do. The person making the promise is obliged to pay the money.|
|MC/85||Madde 85 — Bir şeyin nefi zamânı mukâbelesindedir. Yani, bir şey telef olduğu takdirde hasârı kime âit ise anın zamanında demek olup ol kimsenin bu vechile zamanı ol şey ile intifâ'a mukâbil olur.
Meselâ, hıyar-ı ayb ile reddolunan bir hayvanı müşteri kullanmış olmasından dolayı bâyi' ücret alamaz. Zira kablen-redd telef olaydı hasarı müşteriye ait olacaktı. MC. 86, 87, 88, 236, 344, 393, 891, 903.● Article 85. The enjoyment of a thing is the compensating factor for any liability attaching thereto; that is to say, in the event of a thing being destroyed, the person to whom such thing belongs must suffer the loss and conversely may enjoy any advantages attaching thereto. Example:- An animal is returned by reason of an option for defect. The vendor may not charge any fee on account of the use of the animal, because if it had been fallen upon the purchaser.
|MC/86||Madde 86 - Ücret ile zamân müctemi' olmaz. MC. 85, 87, 88, 416, 469, 511, 536, 545, 548, 551, 596. ● Article 86. Remuneration and liability to make good loss do not run together.|
|MC/87||Madde 87 - Mazarrat menfa'at mukâbelesindedir. Yani, bir şeyin menfa'atına nâil olan anın mazarratına da mütehammil olur. MC, 85, 86, 88, 292, 1073. 1152, 1308, 1316, 1319, 1324, 1327, 1328. ● Article 87. Disadvantage is an obligation accompanying enjoyment. That is to say, a person who enjoys a thing must submit to the disadvantages attaching thereto.|
|88||Madde 88 - Külfet ni'mete ve nümet külfete göredir. MC. 85, 86, 87. ● Article 88. The burden is in proportion to the benefit and the benefit to the burden.|
|89||Madde 89 - Bir fiilin hükmü fâiline muzâf kılınır ve mücbir olmadıkça âmirine muzaaf kılınmaz. MC 90, 92, 93, 95, 9. Kizp, 293. ● Article 89. The responsibility for an act falls upon the author thereof; it does not fall upon the person ordering such act to be performed, provided that such person does not compel the commission thereof.|
|90||Madde 90 - Mübâşir yani bizzat fâil ile mütesebbib müctemi' oldukda hükm ol fâile muzaf kılınır. Meselâ. birinin tarîk-i âmmda kazmış olduğu kuyuya diğeri, birinin hayvanını ilkâ ile itlâf ezse o zâmin olup kuyuyu hafr eden kimseye zamân lâzım gelmez. MC. 89, 91. 92 193, 922, 1828; TCK 52, 6467.; TBK. 41, vd. ● Article 90. If a person performs any act personally and is implicated therein with the person who is the cause thereof, the person performing such act is responsible thereof. Example:- A digs a well in the public highway and B causes C's animal to fall therein and to be destroyed. B is responsible thereof and no liability rests with the person who dug the well.|
|91||Madde 91 - Cevâz-ı şer'i zamâna münâfi olur. Meselâ, bir adamın kendi mülkünde kazmış olduğu kuyuya birinin hayvanı düşüp telef olsa zamân lazım gelmez. MC 92, 93, 796, 798, 822, 224, 875, 924, 1075, 1192.; TCK. 52, 64-67, 78, 49-51. ● Article 91. An act allowed by law cannot be made the subject of a claim to compensation. Example:- An animal belonging to A falls into a well which B has dug on his own property held in absolute ownership and such animal is destroyed . No compensation can be claimed.|
|92||Madde 92 - Mübâşir müteammid olmasa da zâmin olur. MC. 91, 93. 912, 913. 926; 41 vd. ● Article 92. A person who performs an act, even though not intentionally, is liable to make good any loss caused thereby.|
|93||Madde 93 - Mütesebbib müteammid olmadıkça zâmin olmaz. MC. 91, 93, 913, 924; TBK 41 ● Article 93. A person who is the cause of an act being performed is not liable to make good any loss caused by such act unless he has acted intentionally.|
|94||Madde 94 -Hayvanâtın kendiliğinden olarak cinâyet ve mazarratı hederdir. MC. 81, 929, 931, 932. 933.939 ● Article 94. No liability attaches in connection with offences of or damage caused by animals of their own accord.|
|95||Madde 95 - Gayrın mülkünde tasarrufla emretmek bâtıldır. MC. 96, 97, 125, 657, 1007, 1510.: TEK. 411, 413.; 900 vd. ● Article 95. Any order given for dealing with the property of any other person held in absolute ownership is void.|
|96||Madde 96 - Bir kimsenin mülkünde anın izni olmaksızın âhar bir kimsenin tasarruf etmesi câiz değildir. MC, MC/27, MC/45, MC/95, MC/97, MC/365.MC/446*MC/799, MC/857, MC/919, MC/1075, MC/1078, MC/1079, MC/1459, MC/1546. ● Article 96. No person may deal with the property of another held in absolute ownership without suchperson's permission.|
|97||Madde 97 - Bilâ-sebeb-i meşrü' birinin malını bir kimsenin ahz eylemesi câiz olmaz. MC. 95, 96, 369, MC/891, MC/889.; TMK. 2.; TBK 61, 41 ● Article 97. No person may take another person's property without some legal reason.|
|98||Madde 98 - Bir şeyde sebeb-i temellükün tebeddülü ol şeyin tebeddülü makâmına kâimdir. MC. 255, 869.● Article 98. Any change is the cause of the ownership of a thing held in absolute ownership is equivalent to a change in that thing itself.|
|99||Madde 99 — Kim ki bir şeyi vaktinden evvel isti'câl eyler ise mahrûmiyetle mu'âteb olur. TMK. 285-286.; TCK. 343, 477.● Article 99. Any person who hastens the accomplishment of a thing before its due time, is punished by being deprived thereof.|
|100||Madde 100 — Her kim ki kendi tarafından tamam olan şeyi nakz etmeğe sa'y ederse sa'yi merduttur. MC. 19, 356, 368, 616, 898, 1658.; TMK. 3-4. ● Article 100. If any person seeks to disavow any act performed by himself, such attempt is entirely disregarded.|
Hanif . Hanif din . Hanif hukuk . Doğal hukuk. Hanif felsefe . Hukuk felsefesi
“What is jurisprudence? Edit
Is it still Justinian’s ‘science of things divine and human’? Is it still ‘the science of the just and the unjust’?”
Dawid Bunikowski, Doctor of Law, Postdoctoral Researcher, University of Eastern Finland, Law School, Joensuu campus
The paper is to answer the question what jurisprudence is. Is it still “the science of things divine and human”, as it was wonderfully stated in the Code of Justinian in 534, following Roman law (Roman jurisprudence) and great Roman jurists like Ulpian?
Is jurisprudence still “the science of the just and the unjust”, as we read in the Code?
I propose to go to Justinian’s Compilation, Book I. Of Persons, I. Justice and Law:
Justice is the constant and perpetual wish to render every one his due.
Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust.
The paper will also examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century.
The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe.
My thesis is that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was essentially redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Now axiological consistency of Western law is full of … inconsistency. Something is broken in jurisprudence. Nowadays, in the beginning of the 21st century, for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy. However, there are good exceptions (Finnis, Witte, Alexander, Doe, Bankowski). There is an axiological struggle in this science indeed.
What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state. Its practical importance in legal education and political science is remarkable.
I analyse relations between law and religion (and morality) in jurisprudence while talking about the condition of the today Western jurisprudence.
Furthermore, while going back to the origins of law in Europe, I focus on three roots: 1. Greek philosophy (Aristotle and Plato), 2. Roman law (Ulpian, Cicero, Gaius etc.) and 3. Medieval jurisprudence and theology (St. Thomas Aquinas, Medieval jurists like Accursius, Iacobus, Bartolus, Baldus, and the Salamanca school of natural law in the persons of Suarez, Molina, Lessius etc.).
Western law conceptually was rooted in Christianity.
Sadly, while answering the question from the paper sub-title, it seems to me that nowadays jurisprudence is more about human things, but almost not about divine things; God does not exist for the legislator and most of the legal scholars. God died, as Nietzsche said. Nowadays also the great idea Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) is a slogan, since moral philosophy as “a mother of law” (Baldus Commentaria to D. I.I.I.2) seems dubious. The necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Colosseum, and Golgotha, is becoming so obvious. This was and is Justinian’s heritage. Structure Introduction I. Concept. 1. The concept of jurisprudence. 2. Roman law: law and justice. 3. Justinian's jurisprudence. II. Present of the science of law. 4. Contemporary branches of legal theory. 5. John Finnis - exceptional scholar. Struggle in the science. Back to Devlin. 6. Law and morality – relations. 7. Cases: abortion, homosexual relations and euthanasia. III. Past of the law and of the science of law. 8. Thomistic Aristotelianism. 9. How we lost metaphysics in law after the Salamanca school of natural law. Europe's values now. 10. Law in religion. Religion in law. The first letter to Corinthians. Law of Love. 11. Catholic teaching: Pius IX, Pius X, Leon XIII. IV. Future: Giddens' "we do not know"? Conclusions 3
The paper is a provocative insight. This is not a finished project, so footnotes or references are not very well done, and the bibliography does not appear here. My apologies. However, the paper is based on my lecture given in Oxford (Blackfrairs Hall) on 2 February 2015. There are three parts: (the) Present, (the) Past, (the) Future. Ad rem. This paper is to answer the question what jurisprudence is. Is it still ‘the science of things divine and human’, as it was wonderfully stated in the Code of Justinian in 534, following Roman law and great Roman jurists like Ulpian? Is jurisprudence still ‘the science of the just and the unjust’, as we read in the Code? Let us go to Justinian’s Compilation (535 AD), Book I, Of Persons. I. Justice and Law: Justice is the constant and perpetual wish to render every one his due. Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. The paper will examine the historical, theoretical, and axiological foundations of the European legal culture. To understand the present day law and legal profession, it is necessary to go back to the values, theories, and thinkers important for European law from ancient times to the 19th century. The paper not only presents the theoretical and historical issues of the European legal culture but also acquaints the audience with the true foundations of our contemporary legal institutions, and the methods of legal thinking in Europe. Thesis. My thesis is that that our contemporary Western jurisprudence is rotten: we lost metaphysics in law, especially after the time of the Salamanca school of natural law. The concept of virtue based on Thomistic Aristotelianism was redefined by the Northern school of natural law (Grotius, Pufendorf, Wolff etc.). Nowadays for many legal scholars this is a shame or a lack of professionalism to combine law with theology or Christian moral philosophy. However, there are some good exceptions (Finnis, Bankowski, Doe, Witte, Alexander). 4
I. Concept. Edit
1. The concept of jurisprudence. What jurisprudence is seems a conceptual and academic problem. Say, it is a general theory of law and state (legal theory, legal philosophy, philosophy of law). Its practical importance in legal education is remarkable and really amazing. What is also important is the change of the meaning: in the past, jurisprudence was the science of law, regarded to every branch of law (in Roman times, Medieval times), related to theology (Medieval times), but in the present, it is only a general theory of law and state (philosophy of law, legal theory: so we consider what law is, what legal interpretation is etc.).
2. Roman law: law and justice. Edit
For Roman lawyers, law was justice. Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1, first Celsus!). Equity in law! Ius in more than Lex. Like later, there was made a distinction: Recht and Gesetzbuch. Iuris praecepta sunt haec: honeste vivere, alterum non ledere, suum ciuque tribuere (Ulpianus, D. 1, 1, 10). Live honestly… However, Non omne quod licet honestum est (Paulus, D. 50, 17, 144). Law is not morality in all cases. So we have three principles in Roman law: honesty, harm, and justice. This is the basis of law. Philosophical background of Roman law is here, as Honore says:
"As Cicero puts it, ‘They Stoics think it important to understand that nature creates in parents love for their children; and from this source we derive the general sociability of the humanrace…. Even among animals nature’s power can be observed; when we see the effort thatthey spend on giving birth and rearing their young, we seem to be listening to the voice ofnature itself….Hence it follows that mutual attraction among humans is also somethingnatural. The mere fact of their common humanity requires one man not to regard another asalien.’(16 This is close to Ulpian’s account of the natural law common to humans and otheranimals).
16 Cicero, On Ends 3.62, 63: Pertinereautem ad rem arbitrantur Stoici] intelleginaturafieriutliberi a parentibusamentur; a quo initio profectamcommunemhumani generis societatempersequimur….Atqueetiam in bestiisvisnaturaeperspicipotest; quarum in fetu et educationelaborem cum cernimus, naturaeipsiusvocemvidemuraudire…..Ex hoc nascitur et etiamcommunishominum inter hominesnaturalis sit commendatio, ut oporteat hominem ab homineob id ipsum quod homo sit non alienumvideri.
We know Roman law from Justinian’s Code: Edit
2) A collection of fundamental works in jurisprudence, issued from 529 to 534 by order of Justinian I, Eastern Roman Emperor,
4) The basis of Western legal tradition!!! Three parts and the fourth in the Code:
1) The Code (Codex) is a compilation, by selection and extraction, of imperial enactments to date; 529 AD,
2) The Digest or Pandects (the Latin title contains both Digesta and Pandectae – in Greek – all-containing) is an encyclopaedia composed of mostly brief extracts from the writings of Roman jurists; 533, and
3) The Institutes (Institutiones) is a student textbook, mainly introducing the Code, although it has important conceptual elements that are less developed in the Code or the Digest. 533. Based on Gaius!!!!
4) As a fourth part of the Corpus, the Novellae Constitutiones (Novels, literally New Laws), new laws that were passed after 534, later – Syntagma (during the years 572– 77).
Attention must be paid to these points also:
1) All three parts, even the textbook, were given force of law,
2) Justinian found himself having to enact further laws and today these are counted. Influence?
1) West: not in general use during the Early Middle Ages!!!
2) After that, secular and ecclesiastical authorities revived Roman law, in turn, became the foundation of law in all civil law jurisdictions,
3) Influenced the Canon Law of the church: it was said that ecclesia vivit lege romana — the church lives by Roman law,
4) Influence on the common-law systems has been much not so strong: some basic concepts from the Corpus have survived through Norman law - such as the contrast, especially in the Institutes, between "law and custom (lex et consuetudo)",
5) International public law – ius gentium!
Principles or ideas in RL (according to Joseph Kelly)?
1) Cicero (De leg., I, v) tells us "Nos ad justitiam esse natos, neque opinione sed natura constitutum esse jus" (i.e. Justice is natural, not the effect of opinion),
2) Justice was conformity with perfect laws and jurisprudence was the appreciation of things human and divine,
3) The science of the just and the unjust, but always the science of law with its just application to practical cases,
4) Law was natural or positive (man-made),
5) It was natural strictly speaking (instinctive),
6) Or it was natural under the Roman concept of the jus gentium (law of nations) — natural in itself or so universally recognized by all men that a presumption arose by reason of universality,
7) Slavery: The Romans attributed slavery to the jus gentium because it was universally practised, and therefore implied the consent of all men, yet the definition of slavery expressly states that it is contra naturam, "against nature",
8) Influence on Hobbes in the concept of covenant in Leviathan (ch.XIV): he analyzes the concept of contract or covenant in a legal sense, then he goes to political philosophy, to the social contract.
The precepts of the law were these in RL:
1) to live honestly,
2) not to injure another,
3) to give unto each one his due.
Gaius says that all law pertains:
1) to persons,
2) to things, or
3) to actions.
The classification is still valid for us.
What lacks in Roman law? Let us follow Gordley (The philosophical origins of modern contract law, p. 30-31):
1) Although „Greek philosophy influenced the development of Roman law”, „the Roman jurists did not write like Greek philosophers”,
2) They „were interested more in the particular, less in the ferreting out ultimate principles”,
3) „The Romans had no theory” of contract or „general law of contract” (Watson, Coing),
4) „They had a law of particular contracts such as sale, lease, pledge, and partnership”,
5) „Each with particular rules which they had worked out ad hoc”,
6) „They had not tried to explain in any general or systematic way why these contracts had the rules they did or what features all contracts had in common”,
7) „The organization of contract law”- Gaius (contract, delict); ex contractu, ex delictu, or on the analogy – quai ex) - voluntary and involuntary commutative justice (Aristotle, Thomas). The ideas borrowed by Gaius from Aristotle.
Roman law (RL) and European Community Law (Stein, Roman law in European history, in fine) might basically compared:
1) European law (EL) is not the first,
2) RL was a universal law (ius gentium especially),
3) Some similarities (RL-EL),
4) RL as the basis of education, „common law”, ius commune,
5) To unify the law is the aim of the law,
6) Traditions – since Justinian to the modern doctrine.
Features of RL:
1) Extreme formalism,
2) The law of the privileged classes,
3) The basis of all civilised legal systems.
, the professor of Roman Law and Jurisprudence, (Kelly,
Joseph. "Roman Law." The Catholic Encyclopedia. Vol. 9. New York: Robert Appleton Company, 1910. 3 Oct. 2014<http://www.newadvent.org/cathen/09079a.htm>.), in 1910 stated that:
1) In its maturity RL recognized a definite natural-law theory as the ultimate test of the reasonableness of positive law,
2) Repudiated the concept that justice is the creature of positive law. RL does not exist without Greece, Greek philosophy and Greek law. There is John Maxcy Zane's The Story of Law2 , a real classic. Have a look how the Greek philosophy of law
“Oedipus Rex, Sophocles returns to the thought of these higher laws-there speaks of “laws that in the highest heaven had their birth, neither did the race of mortal men create them, nor shall oblivion ever put them to sleep, for the power of God is mighty in them and never groweth old.”,
“Cicero in his speech for Milo, on this natural law: Edit
“The law which was never written and which we were never taught which we never learned by reading, but which was drawn from Nature herself, in which we have never been instructed, but for which we were made, which was never created by man’s institutions, but with which we are all imbued.”
In another place he sets forth the whole idea: “True law is right reason pervading us all, constant and eternal. This law it is impious to abrogate or to derogate from; neither senate nor people can release us from it. It did not begin to be law when it was written but when it sprang coeval with the divine mind. It is derived from that most ancient and principal nature of all things, to which all law is directed”.
1KELLY, JOSEPH I., Ph.D., LL.D., Formerly Lecturer ON Roman Law in Northwestern University and Dean of the Faculty op Law IN Louisiana State University, Chicago : Law, Roman. 2 http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=680 10
3. Justinian's jurisprudence. Edit
Justice is the constant and perpetual wish to render every one his due.
Jurisprudence is the knowledge of things divine and human; the science of the just and the unjust. Let us go to Justinian’s Compilation (535 AD), Book I, Of Persons. I. Justice and Law again.
While in this place, the aim was to:
1) discover natural laws or laws, and
2) discover God’s truths.
There is also something like a transcendental approach. There is a divine, religious, rather Christian, context of legal rules.
Let us take into account Byzantine theology. Facts or important points are like that:
1) the Western Roman Empire failed (476),
2) the Eastern Roman Empire, centred on Constantinople (remained standing until 1453),
3) Chalcedon: Definition of Chalcedon (451 AD) of how the divine and human relate in the person of Jesus Christ,
4) even bakers in Constantinople discussed whether “the humanity and divinity are exemplified as two natures and that the one hypostasis of the Logos perfectly subsists in these two natures” (Chalcedon),
5) Oriental Orthodoxy (e.g. Coptic, Ethiopian, Syrian): that in the one person of Jesus Christ, divinity and humanity are united in one nature, the two being united without separation, without confusion, and without alteration,
6) the home of a wide range of theological activity that was seen as standing in strong continuity with the theology of the Patristic period,
7) theology the most important part of science,
8) religion the most important part of life,
9) domination over law and philosophy,
10) philosophy to justify religion,
11) law to apply religion,
12) mystical theology: Pseudo-Dionysius the Areopagite (working c. 500), Symeon the New Theologian (949-1022), Gregory Palamas (1296-1359),
13) iconophiles: Patriarch Germanus I of Constantinople (patriarch 715-730), John of Damascus (676-749), Theodore the Studite (c. 758-c.826),
14) theological differences: "The static conception of God as actus purus having no potentiality and completely self-sufficient is a philosophical, Aristotelian, and not a Biblical conception”, as it was said by Nikolai Berdyaev.
This is John Meyendorff ("Byzantine Theology"3): Edit
Conservative in form and intent, Byzantine theology in the age of Justinian continually referred to tradition as its main source. In particular, the Christological debates of the period consisted chiefly of a battle between exegetes of Scripture about philosophical terms adopted by Christian theology in the third and fourth centuries and about patristic texts making use of these terms. Liturgical hymnology, which began to flourish at this time, incorporated the results of the controversies and often became a form of credal confession. The various elements of Byzantine theological traditionalism dominated in the fifth and sixth centuries, constituted the basis of further creativity in the later periods, and required very special attention. In the description4 , it stands as the following: Although the art, monasticism, and spirituality of Byzantium have come to be recognized as inspirational and influential in the shaping of Eastern European civilization, and of the Middle Ages and the Renaissance as well, the West has been in the main ignorant of the historical evolution and the doctrinal significance of Byzantine theology.
By the way, my experience from my teaching in Belarus and Russia is that Western civilisation is far away from the Eastern-European one, the Byzantine one, the Russian one. Conceptually, ideologically etc. Too many words should be said here.
II. Present of the science of law Edit
4. Contemporary branches of legal theory. Edit
I will try to analyse relations between law and religion and morality in contemporary jurisprudence. There are many subjects of this discipline: from strictly legal topics like rules of interpretation to law and legal or constitutional principles to moral considerations about the substance and essence of law or about legal regulation of immoral behaviour.
There are also many theories of law now: from legal positivism (Austin, Hart, Raz) to natural law (Fuller, Finnis) to psychology of law (Uppsala) or legal realism (Pound, Holmes, Frank), integrative theory (Dworkin), or even now to feminist theory of law or biological, evolutionary or postmodernist theory of laws or theories based on Rawls (theory of justice!). I should tell what they are about. But is it a place for a narrative about Justice there? Or are they interested in other issues such as legal interpretation, techniques of legislation, equality?
In natural law theories there is a spot for such things.
There are many new topics now in jurisprudence such as globalisation, the Internet, and new technologies concerning human fertilisation. But general theories of justice are still important. There are scholars like Finnis, Nussbaum, Rawls still interested in Justice (and in Equality! and in what Equality means?!). There were and are scholars like Hart, Raz, Gardner, Green, Dworkin, and Finnis still interested in relations between law and morality. But let us go to the legal-positivistic tradition that has dominated the Oxford jurisprudence and the Western jurisprudence for years.
The classic John Austin says in the “Province of Jurisprudence Determined” (London 1832), in the Preface that “positive law” is “the appropriate matter of jurisprudence”. He uses the concept of “general and abstract jurisprudence” (p. v). He distinguished this from other “various objects”. However, he says also that: “The divine law, positive law, and positive morality are mutually related in various ways (p. xvi)”. Laws proper are commands. The divine laws are the laws of God, given by him to human creatures (vii). Positive laws are or form “the matter of general or particular jurisprudence”. But Austin flashes on human law, positive law. He is one of the first positivist in jurisprudence, who says that there are the God’s laws, and the last positivist, who mentions the laws of God in jurisprudence on the other hand. Anyway, he adds that “in the way of resemblance”, positive laws “are related to” both “the laws of God” and “positive morality” (p. viii). Austin is the hero for the continental jurisprudence and the whole legal positivism movement, which way of thinking and concepts, methods, etc., have been dominating indeed. We, in the old continent, know Austin's paradigms and dogmas very well.
So from his time on, jurisprudence is about general jurisprudence and particular jurisprudences. There is a legal theory, called also in many countries legal philosophy, philosophy of law or just jurisprudence. Besides this general theory of law and state (as it is called in Germany, but also similarly in Spain, Italy, Portugal, Brazil), we enjoy particular legal sciences e.g. the science of criminal law, the science of civil law etc. Moreover, the science came to be a practice - and to be business-oriented. Some lawyers in Europe or the US are now like experts or specialists to serve business sectors for money: they use their knowledge to be paid by corporations. They are like corporate lawyers. The position at the university is only to make good impression on clients, gives a lot of reputation of being a scholar and honest man, full of credibility, but what else? If you want money, just go to business, to put it bluntly. Where is the academic ethos? Where are academic feelings and emotions? Traditionally, a scholar was to discover the Truth (on the world, relations, laws, not only human, but also of nature, the universe etc.). He was full of scientific emotions5
. Let us avoid this bewailing the state of mind of many academics.
The aim of jurisprudence is of three kinds to make three things on law or legal system:
The general jurisprudence makes these things at a meta-level. The concrete sciences of law make that at particular levels, in given areas like civil law, criminal law or environmental law.
Every branch has own language, traditions, jurisprudence, heroes, and, say, "code of language and understanding"…
In every country, so is it. But also at the international level, there are some common shared values like recognised scholars, their opinions, or books, or ideas, or concepts. For example, in the science of international law it is very much visible. But we also speak about international theory of law or international legal interpretation. (I belong to such a group in ESIL, i.e. European Society of International Law, too).
Nowadays, the Anglo-Saxon theory of law is very influential. Such names as Hart or Dworkin mean heroes for many scholars around the world, which is generally influenced by the Anglo-Saxon culture and language.
Petrazycki said: scholars are masters with feelings on discovering the truth: they are like priests, with a special attitude to pupils, and a university or the academia are like a church of the science.
== What is the place of religion and morality there? Only bioethics? Only regulation of religious activities? ==
Law is changing, but must be based on common values (Lord Patrick Devlin). Law must be socially acceptable. The concepts of morality and ethics are important. Law regulates moral matters such as abortion etc.
Actually, I think that morality or ethics appears at many levels of our human considerations, what is a proof of the importance of moral issues:
1) in ordinary life (we are still talking: “This is wrong”, “He is good”),
2) in all communities (even in the Dominican order!),
3) in state and law,
4) in the world, in international relations, where law is as a morality
(J. Austin) or global ethics, more than a law in a sense of hard law. There is an axiological struggle in this science we are talking about. Like everywhere, there are two factors of: the evil and the good. And there is the struggle of values between the factors. We say that there is conservatism or communitarianism versus liberalism, for example. Due to the fact that the dominant paradigm is political correctness, for many academics, a Catholic-scholar is not a serious guy. Even the rather conservative thinker Michael Sandel says in the style: "Hung your opinions while you are a judge in the court, and follow the Constitution". Some add: incorporation of values or morality to law does not mean an incorporation of their ontological justifications (like the Bible). So are these empty? Yes, they are euphemisms, says the secular scholar Peczenik (in our private correspondence we had in 2004-2005), when talks about a lack of Invocatio Dei in the project of the Constitution for Europe. Instead of that, we have used slogans like "spiritual heritage" or others. Is Christianity not the spiritual heritage of Europe? What is then? Islam? Or the French Revolution only? My experience is that recognition of myself as the axiology scholar, made by some academics, is funny in Poland. When some scholars say about me: this axiology guy, it makes them laugh, I guess. In Finland, nobody cares of what axiology is. So I use the term “Value Theory” from now on. But let’s go back in time then.
Four examples will be used.
Hobbes in his “Leviathan” (London, 1651, in Latin and later English) made some references to God but he was not a religious man and did it, because of necessity of being polite and correct. Grotius made many such references in his De jure belli ac pacis (On the Law of War and Peace), Paris, 1625 (2nd ed. Amsterdam 1631).
Mill, two centuries later, is a secular hero, fighting Puritanism and moral perfectionism or hypocrisy in his “On Liberty” (1859) or celebrating some theistic-naturalistic belief and appreciating the utility of religion in “Three Essays on Religion” (1874). We do not need a religion to live happily, he seems to say (p. 120-122).
Look at the happy Greeks and Buddhists, he adds.
On the other hand, the best European 17th century lawyer Jean Domat (1625-1696), in his essay On Social Order and Absolute Monarchy, says: " The first and most essential of all the duties of those whom God raises to sovereign government is to acknowledge this truth: that it is from God that they hold all their power [[[sic]]], that it is His place they take, that it is through Him they should reign, and that it is to Him they should look for the knowledge and wisdom needed to master the art of governing. And it is these truths they should make the principle of all their conduct and the foundation of all their duties"
But even Pufendorf, the founding father of the modern natural law theory, who criticized the utility of theology in jurisprudence or\and tried to separate moral philosophy form natural law, used the name of God in his jurisprudence, considering the problem of freedom of religion, "the Unity of the Faith", impossible reconciliation of Protestants and "Papists", possible "the reunification of Protestants in Europe" (Introduction from the On line Library of Liberty)! However, this same Samuel von Pufendorf, in The Divine Feudal Law: Or, Covenants with Mankind, Represented [1695, London 1703], which was " reaction to the revocation of the Edict of Nantes in 1685 (the introduction)", ends up with the sentence: "§94 All these things being weighed it seems to me that this Dissention cannot be taken away at once, or in the twinkling of an Eye. But the Remedy must be expected from time: The
6 The same was said by Suarez in the Salamanca school of natural law in "The Reason for, and an Outline of, the Work as a Whole": " In the present work I am doing philosophy in such a way as to keep always in mind that our philosophy should be Christian and a servant to divine theology. I have kept this goal in view, not only in discussing the questions but even more in choosing my views or opinions, inclining toward those which seem to comport better with piety and revealed doctrine. For the same reason, I occasionally interrupt a philosophical discussion and turn to certain theological matters, not so much in order to take the time to examine and explain them in detail (which would fall outside the subject matter I am dealing with here) as in order to indicate explicitly to the reader the way in which the principles of metaphysics should be invoked and adapted in confirming theological truths. I admit that in treating those divine perfections that are called attributes I have gone on at greater length than, it might seem to some, my present purpose demands. But I was forced to do this, first of all, by the sublimity and profundity of the subject matter and, secondly, by the fact that it never seemed to me that I was going beyond the limits of natural reason or, consequently, of metaphysics. Since I have always believed that a tremendous power to understand and penetrate things resides in examining and judging them by means of an appropriate method--a power that I could scarcely maintain if, in the manner of the commentators, I discussed all the questions in the arbitrary and, as it were, casual order in which they occur in the Philosopher's text [the Metaphysics]--I decided that it would be more expedient and useful if I were to preserve the order of teaching in examining and putting before the eyes of the reader all the things that can be investigated and expected in regard to the object of this wisdom as a whole.(...)". 16 process of which may produce much for the Reconciling the Minds of both sides. In the mean while this would very much promote the Affair: If not only the Protestant Princes, notwithstanding these Controversies, would set themselves to defend the common Cause against the Papists who are equally Enemies to both, but also the Divines of both Parties would industriously oppose the common Enemy . If these would mildly and modestly handle the Controversies which are among them, abstain from inhumane Hatred, Cavils, Calumnies, and damning one another , and not omit the Duties of Christian and Brotherly Charity towards each other for their disagreeing Opinions. Lastly , If they would not contend, or strive which shall overcome the other by disputing, so much as which of them shall with greater endeavour conform their Lives to the Precepts of Christ: So it might be hoped that the Spirit of Peace would heal by degrees the exasperated Minds of Men, so as that casting away what is Vain and Erroneous, they might conspire in the Unity of the Faith. If any thing in this W ork is fallen from me, disagreeing with the Genuine Sense of Holy Scripture, beside my Intention, let it be as not said. S. D. G .". Could you imagine such an introduction in the book of 1703: " The Works of this Excellent Author need no Man’s Recommendation, nor can I think fit to pretend to give them any Advantage by mine (...) Now this is done, I pray God it may be serviceable to all those good Purposes mention’d, to whom be Glory for ever .Amen." Could you imagine that? Could you imagine such words now? 5. John Finnis - exceptional scholar. Struggle in the science. Back to Devlin. Now I will shortly present some ideas of John Finnis (and the Catholic teaching on moral issues). I do not want to make any congratulatory scroll. I know that you know him, and I know that I know him. He is a really exceptional scholar, who is consistent in his public actions. Based on Aristotelian-Thomistic doctrine, he is trying to understand jurisprudence in these categories in his publications. In the categories of reason, social peace, and virtue. His publications on values, law and morality, marriage or sexual orientation, are the conceptualisation of his Thomistic belief in social peace and common sense, and reason, that is deeply rooted in a transcendental approach to human existence in God. His theory is related to practice: he bravely disagreed to depenelisation of homosexual acts in a campaign in the 17 US, in Texas in the beginning of the new millennium. Who of us, the contemporary scholars in jurisprudence, is able not only wonderfully talk about values, but also fight for the values he or she believes in, and do that in a civilised way by propaganda, discussions, talk, lectures etc. etc.? Even if one may think of Finnis' ideas as too conservative..., we should pay tribute to him. However, the Australian philosopher Brain Tamanaha points out while talking about Finnis7 at own blog: “Natural law philosopher John Finnis, of Oxford and Notre Dame Law School, thinks Western societies are quickly going to pot, and he lays some of the blame for this on sexual permissiveness (including homosexuality) and on loose immigration policies. These claims can be found in his recent essay on the political philosophy of H.L.A. Hart: European states in the early twenty-first century move ever more clearly out of the social and political conditions of the 1960s into a trajectory of demographic and cultural decay, circumscription of political, religious and educational speech and associated freedoms; pervasive untruthfulness about equality and diversity; population transfer and replacement by a kind of reverse colonization; and resultant international fissiparation foreshadowing, it seems, ethnic and religious inter-communal miseries of hatred, bloodshed and political paralysis reminiscent of late twentieth century Yugoslavia’s or the Levant’s. That is a dire prognosis. Much of Finnis’s essay is taken up with a critique of Hart’s Law, Liberty, and Morality (1963), which argued against the criminalization of private, consensual, sexual behavior— homosexual behavior in particular.”. Tamanaha also adds with irony: “Said many times by doomsayers in the past, and frequently repeated by cultural-nationalist populists today, Finnis shrilly warns about the imminent demise of (European, AngloAmerican) civilization posed by the aliens at the gates, the yellow peril, the Muslim hordes, the Mexican laborers…a collapse facilitated by the internal rot of moral decay and sexual debauchery.”.
7 B. Tamanaha, John Finnis on Hart, Homosexuality, Immigration, and the Decline of Western Civilization, http://balkin.blogspot.fi/2009/09/john-finnis-on-hart-homosexuality.html 18 But Finnis’ philosophy is based on appreciation of practical reason, not on God only. And this is a big misunderstanding of this in Tamanaha's critique. Another good example is Professor Bankowski’s ideas on law and theology and love in law. By the way, the good example is, for sure, also Law and Religion Scholars Network, headed by Professor Norman Doe. In the past, the great example was Lord Patrick Devlin, for sure. But go back to the meritum. First, Bankowski is a philosopher interested in theology and ethics, but he is not very conservative indeed. Rather liberally thinking and open quasiChristian philosopher of law, who finds out the God in the second man and ethical institutions of law or in conceptualisation of the idea of the Good Samaritan. For Bankowski8 , the New Message and the Christian Heritage mean that Europe should be open for the other e.g. especially Muslims. Inclusion is the clue. It is about the love of your neighbour. Bankowski says: do not be afraid of the inclusion. Also Jesus was open, and that was the faith of the founder of the religion. He was not to exclude the others. Of course, we should also change ourselves in this process of the meeting of cultures, he adds. Anyway, Bankowski uses many references to the God and Christ in his jurisprudence: his philosophy is somewhere or something on the borders of moral, political and legal philosophy9 . The Good Samaritan is a hero or, better to say, a pattern of how to treat other people, for him10 . Bankowski was brave to say: yes, I had had the crisis of faith, and I was a left wing academic (Bankowski was against state law, as law was like an order, so Law was like God), but on the other hand, he was still seeking God (maybe in the other, in ethics, in relationships, in law) while doing legal philosophy11, while writing on living lawfully or on the ethical institution that is in law. Exceptional scholar also. In the old style. Lord Devlin is worthy even more attention. What was his idea? It’s interesting. While in the second half of the 20th century, especially since the 50thies and 60thies, Herbert Hart and Ronald Dworkin, both the Oxford professors in jurisprudence (respectively, 1952-1969 and 1969-1998; by the way, one has to know that the Oxford jurisprudence as well as the Cambridge one, like in the person of Kramer today, were and are dominated by legal
8 His papers : 1. a post-conference book from the IVR 2007 congress, 2. Beyond Text, 3. The Farewell lecture in Edinburgh, the last two sent me by the author himself. 9 Bankowski, IVR. 10 Bankowski, Beyond Text. 11 BankowSKI, The Farewell. 19 positivists who do not love natural law theories), presented the idea of law as a minimum of morality, law as a liberal and progressive law, suggesting the liberalisation of abortion law, pornography law, laws concerning homosexual acts and laws on prostitution, Lord Devlin presented the idea of a more conservative law. Hart was the defender of personal freedom and liberties and a minimal state in moral life. The liberal moral, political and legal philosopher Ronald Dworkin, Hart's pupil, was the most influential legal thinker among politicians, and judges in the West. In the Telegraph12, we read Feb 15th, 2013: “He was widely regarded as one of the most influential philosophers of law of the post-war era. To his admirers Dworkin was a standard-bearer for liberty and equality against the partisanship of pork-barrel politicians and the tyranny of the majority; to his detractors on the Right, he was the ideologist-in-chief of today’s enterprise-sapping “Rights Culture” and the rise of an anti-democratic judicial activism. ”. Not only liberal but also conservative issues of the law are still important for the lawmakers. We should go back to Lord Patrick Devlin’s theory of law. Is not it better when a given law is rather based on so called a shared morality than e.g. only on the harm principle? This morality that would be the basis of the law requires from people much more than the harm principle. The problem sounds: how to make people morally better, how to preserve the traditional morality, shared morality, the morality of majority of one society? That is right that Lord Patrick Devlin13 was a conservative English philosopher of law. But it should be said that it is necessary to use many quotations to analyze his philosophy of law. Devlin asked: “What is the connection between crime and sin and to what extent, if at all, should the criminal law of England concern itself with the enforcement of morals and punish sin or immorality as such?” (Devlin 1971, Morals and the Criminal Law: 25). He attacked liberalisation of the law, which did not forbid homosexual acts. According to Devlin, homosexual acts must be forbidden and punished14 . Institution of marriage as a “part of the structure of our society” and “the basis of moral code which condemns fornication and adultery” must be protected by the law, even by violence. Morality is a foundation of society and its existence (Devlin 1971: 24-48). Without social common morality there is no society. Everybody knows what is moral and immoral – people have moral feelings and feel
12 (http://www.telegraph.co.uk/news/obituaries/law-obituaries/9873847/Professor-Ronald-Dworkin.html ) 13 See DEVLIN, P. (1971) Morals and The Criminal Law IN WASSERSTROM, R. A. (Ed.) Morality and the Law. Belmont, Wadsworth. 14
Famous was the Turing case in the 50s.
20 immorality of behaviour in conscience: “Immorality then, for the purpose of the law, is what every right-minded person is presumed to consider to be immoral”. This is about the "Clapham omnibus" standard (the "right-thinking", "average" man and his feelings, opinions, beliefs on morality). If society takes aim at being alive and exists not only by the generation time, morality must be respected and the law must be based on the society's morality. If you break down morality, you must be punished, because your immoral act may influence on members of society and you yourself. Immoral acts such as abortion, prostitution, fornication or homosexual acts must be forbidden by the law. Integration of society and its uniformity seem to be a central point of Devlin’s thought: “There is disintegration when no common morality is observed and history shows that the loosening of moral bonds is often the first stage of disintegration, so that society is justified in taking the same steps to preserve its moral code as it does to preserve its government and other essential institutions”. There is no private and public morality, says Devlin. ”I do not think that one can talk sensibly of a public and private morality any more than one can of a public or private highway”, Devlin highlights. Why is there no difference between them? Devlin adds that “Morality is a sphere in which there is a public interest and a private interest, often in conflict, and the problem is to reconcile the two”. He believes that “most people would agree upon the chief of these elastic principles. There must be toleration of the maximum individual freedom that is consistent with the integrity of society” (Devlin 1971: 36-40). In Devlin’s thought the morality is correlated with religion: “Morals and religion are inextricably joined – the moral standards generally accepted in Western civilization being those belonging to Christianity”. Religious norms such as Christian or Muslim rules may be a foundation of the law in Devlin’s theory. Devlin concludes: “No society has yet solved the problem of how teach morality without religion. So the law must base itself on Christian morals and to the limit of its ability enforce them (…) without the help of Christian teaching the law will fail”. Responding to Hart’s critique, in which we can read that Devlin thinks that morality can never be changed without the destruction of society, Lord Patrick thinks that “If morality is changed, the law can be changed” (Devlin 1971: 28, 37, 48). Thus, what follows for this analysis of Devlin's ideas? First, even in conservative philosophy of law we can find some aspects which make the law liberalisation in socially and morally controversial cases possible. Second, the conservative philosophers of law have serious difficulty in proving that the society's morality is never changed. Third, in spite of Devlin’s critique the idea that society must be based on fundamental principles and rules, and 21 there must be necessary connections between making legal prohibitions and real danger to the society existence (if a law liberalisation would be), seems to be still alive and inspiring for lawyers, philosophers, politicians. These theses on one hand are important for the liberals, but on the other hand, these mean that Devlin was not such a silly man as he is now too often presented. He followed the reason and the way of thinking of average member of one traditional society (the Clapham omnibus, which was a moral-legal concept of a rational man of the post-Victorian moral era, I would say). Devlin really supported the idea of morally conservative law as a measure to preserve one society. Even if his theses are a little exaggerated, we cannot avoid the questions what is better for the society's morality in law-making process, what a shared morality means, what to do with opinions of the average citizens, and whether politicians really know better than the citizens how to make the law better, and where is their (politicians’) legitimacy when politicians’ actions are obviously contrary to the society's majority15. These issues are still open. 6. Law and morality – relations. In our contemporary jurisprudence, we say that there are three fundamental kinds of relations between law and morality. One is about content, the second is on validity, and the last one is about functions. Both law and morality are to control a society: morality to make a man better, and law to keep the order. Here is the presentation of the relations of the field of the contents.
15 E.g. if 70 % of one society's population has supported a capital punishment for 30 recent years, and the politicians say: it is impossible to come back to this measure, because it is not humanitarian and seems to be legally doubted in the light of international obligations, then my question sounds: where is a democracy and a voice of the nation? Vox populi non est vox Dei in a democratic state? On the other hand, as Mill teaches us, the majority may be wrong, because most of the people are stupid at all. It does not mean that it is good to disdain moral feelings of the people who are the majority in one society. 22 The relations of the contents. Model I.16 There is a common part, regulated by both systems. Model II There is no a common regulated area. (What is wrong, of course, as there is such a part, in fact!)17 . It seems we can also talk about model III. This is a model, in which law is always a part of morality. Law is a minimum of morality. What is regulated by law is always regulated also by morality. Of course, morality is wider. Law incorporates the most important moral rules only. Justification of law is, axiologically, always deeply rooted in morality. "Do not kill" is such a rule. Many other legal rules seem out of morality... But on the other hand, more deeply axiologically going, even legal norms concerning road law are to protect the moral value of life and health, and social order. So in this sense, it is the minimum of morality. Generally, what we see as a general trend and the global one is the liberalisation of law in a way that law allows more freedom in sexual or moral life. More on law and morality relations theses I said in my doctor's thesis published in 2010.
16 Do not kill. Do not steal etc. These norms are transformed by incorporation (direct), axiological terms, terms referred to morality. 17 Also called the model of separation. 23 Here are the relations of the validities. Model 118 – inclusion (moral justification or axiological explanation of validity of each legal rule; immoral rules are not rules - Radbruch). Law as a minimum of morality. L<M. Model 2 – separation thesis (Hart and the Bamberg (Court of Appeal) case): law is law if meets formal requirements of passing it as a law19). L--M. The relations of the functions of law and morality. For what are both? To regulate human behaviour. To control a society. Or to make humans better? To live the good life? Or to bear in mind a transcendental character of human life and its final end? It is clear that social morality or moral-political ideology (like Nazism) had or has an obvious impact on a given law, but also a law like a human rights law certainly has an impact on morality, conscience etc. 7. Cases: abortion, homosexual relations and euthanasia. I should show also some contemporary legally, morally and socially controversial problems such as abortion, euthanasia, homosexual marriages. Here come public debates, new laws, and emerging trends. Let us take the example of homosexual rights: the development of homosexual right in the US since the Baehr v. Miike (originally Baehr v. Lewin, 1993) to same-sex marriages. The long way to the marriage equality. Let us take the example of abortion on demand: since Roe v. Wade (1973) and The Abortion Act of 1967 in England. Let us take the example of the use of pornography. How is pornography regulated in the US and Europe? Is it really so liberal? Freedom of speech (in the US)v. social order and demoralisation or protection of children etc. All the cases show a moral struggle in law.
18 In the field of validity, we have a model of separation and a model of inclusion. Here we have some references to St. Thomas also. 19 Law and morality are different normative systems in terms of validity. Hart explained that in chapter IX of his "Concept of law" in 1961. 24 III. Past of the law and of the science of law. 8. Thomistic Aristotelianism. First, about virtue. I analyse the concepts of virtue in Aristotle's (b. I-VI, NE, but also in Plato's, b. 4, Republic) and St. Thomas Aquinas' (ST, II-II) philosophies. The concepts of promise, contract and justice are strictly related to the concept of virtue, as we will see. Virtue is important also in theory of action (voluntariness v. involuntariness). The Aristotelian methods, appreciated by St. Thomas, who developed them in his theories of justice and action, were the basis of legal science by the 18th and 19th centuries. Let us consider these things now. Virtue, promise, justice, contract: since Aristotle to the Middle Ages to the modern contract doctrine is the case. Promise-keeping – the virtue of telling the truth (in Aristotle's) looks like this: „Let us discuss… the truthful man. We are not speaking of the man who keeps faith in his agreements, i.e., in the things that pertain to justice or injustice (for this would pertain to another virtue), but the man who in matters in which nothing of this sort is at stake is true both in word and in life because his character is such. But such a man would seem to be as a matter of fact equitable. For the man who loves the truth, and is truthful where nothing is at stake, will still more be truthful where something is at stake” (NE, iv. vii. 1127a-b). Why virtue matters? So virtue is for Aristotle (NE, b. I-VI): 1) Virtue is about a moral character, 2) Everyone is responsible for making his/her moral character better or worse by repeated actions and habits, 3) Repeated actions are important, not only intention; habit is our second nature, 4) Virtue is about reason - follow the middle course, 5) Why we know how to behave? What is the good? Follow a common sense, experiences of a given community – it is natural. 25 But in Aristotle's teacher and Plato’s Republic, we see: 1) Level micro: soul or the individual, 2) The soul: reason, appetites, spirit; virtuous or vicious? 3) Level macro: society (three classes: leaders/guardians-reason, productive class - appetites, defenders/auxiliaries-spirit), 4) Four pivotal virtues of moral life: wisdom, courage, temperance, justice (the last makes all joint) – these must work at the two levels, 5) Four pivotal vices: foolishness, cowardice, self-indulgence, injustice, 6) „(…) virtue is a kind of mental health or beauty or fitness, and vice a kind of illness or deformity or weakness”, 7) „And virtue and vice are in turn the result of one’s practice, good or bad” (b. 4, p. 5). Aristotle followed it. Philosophy after Plato is like a footnote to Plato (Whitehead). This is the truth. Aquinas says about promise: „One who promises something does not lie if he has the intention to do what he promises because he does not speak contrary to what he has in mind. If, however, he does not do what he promises, then he appears to act unfaithfully because his intention changes”. Is this about lying? Great distinction! The end is the most important (ST, II-II, q. 110, a. 3, ad. 5). Justice in Aristotle's philosophy looks like this: 26 „But of justice as a part of virtue, and of that which is just in the corresponding sense, one kind is that which has to do with the distribution of honour, wealth, and the other things that are divided among the members of the body politic (for in these circumstances it is possible for one man’s share to be unfair or fair as compared with another’s); and another kind is that which has to give redress in private transactions. The latter kind is again subdivided; for private transactions are (1) voluntary, (2) involuntary. (…)” „Voluntary transactions or contracts” are such as selling, buying, lending at interest, pledging, lending without interest, depositing, hiring: these are called “voluntary contracts,” because the parties enter into them of their own will. “Involuntary transactions,” again, are of two kinds: one involving secrecy, such as theft, adultery, poisoning, procuring, corruption of slaves, assassination, false witness; the other involving open violence, such as assault, seizure of the person, murder, rape, maiming, slander, contumely”. NE, v.ii. St. Thomas’ metaphysics is how to follow the reason: “Voluntary commutations are when a man voluntarily transfers his thing to another. And if he transfer it simply so that the recipient incurs no debt, as in the case of gift (donatio), it is an act, not of justice, but of liberality”. See: ST, II-II, q. 61, a. 3. However, „When a person acts rightly, the end for which he acts is always a means to his ultimate end as a human being” (Gordley, p. 22). But „picking up a straw” or „walking in the field”… not. But even to explain marriage, property or liberality, you must describe a relationship to the ultimate end of man. What the end? Baldus takes the example of the essence: this is about the wine – when the buyer could not claim there was an error in substance. So Baldus, Commentaria to D. I8.I.9, no. 2, says: „Note as to a quality that sometimes it is substantial and sometimes it is not said to be substantial; thus, wine is not said to be wine unless it has the substance of wine and the taste of wine; vinegar is always vinegar and is not said to be wine. But if it was 27 wine in the beginning, then remnants of the wine are still left” (in the case of the wine soured into vinegar instead of being prepared as vinegar)”. For Baldus, moral philosophy (based on virtue) as a mother of law: „philosophia moralia…. est legum mater et ianua”, so that was very Aristotelian in Baldus' Commentaria to D. I.I.I.2. And similarly, Baldus says: „ius nostrum applicat sibi totam moralem philosophiam”, ibid., under rubric to D. I.I.I., no. 21. Then The Spanish natural law school came: 1) Pierre Crockaert – rejected the nominalistic philosophy of Ockham, in 1503, 2) Rejection of nominalism, and appreciation of Aristotle’s philosophy (virtue, justice, terminology) + + Thomism (natural law) + + the ius commune = = modern contract law. Lets us focus on some philosophical-religious justifications in contract law. The Christian origins of modern contract law were: 1) The Catholic background (since St. Thomas, 13th century), Based on natural law. Positive law deducted from natural law. 2) The Puritan background (John Selden, the 17th century), Idea: the worst thing you can do is to break a promise, to breach a contract. Sin, Faith, God. Man-man (contract) = man-God (relation). We can say that in Christianity we can also find another important idea: good faith (bona fides): „If Christian morality has had any influence on the shaping of modern contract law, then it is generally thought to be through the notion of good faith”. 28 To resolve the tensions between Roman law and the general Christian duty of good faith (Covarruvias), it was necessary to say that: “Good faith in the sense of sincerity is universally required in contracts, while good faith in the Roman distinction of contracts says something about the scope or lack of scope for equitable interpretation of contractual obligation by the judge” (Decock, Theologians and contract law, The moral transformation of the Ius Commune). So the school of Salamanca came (Vitoria, Suarez, Soto, Molina, Sanchez, LessiusSuarez’s pupil etc.). This was about the moral transformation of the ius commune to modern contract doctrine. They really did it! The Northern natural law school (Grotius, Pufendorf, Leibniz, Wolff etc.). replaced them in the 17th and 18th centuries. The Salamanca school and both its ideology and people: 1) The revival of Thomistic philosophy, 2) Pupil of Crockaert – Francesco de Vitoria (published nothing himself, but his lectures and pupils were influential) the handwritten notes --survived, 4) The Dominicans: the jurist Diego de Covarruvias (1512-1577) and the theologian Domingo de Soto (1494-1560), and The Jesuits: - Francisco Suarez (1548-1617), - Luis de Molina (1535-1600), - Leonard Lessius (1554-1623). Gordley (p. 70) says : Suarez was famous (but wrote about philosophy, political philosophy). Molina and Lessius were important, too: „Molina and Lessius, however, recognized Roman law in its vast detail and presented it as a commentary on the Aristotelian and Thomistic virtue of justice. The traditions of Roman law and Greek philosophy were united more closely than they ever had been before or were to be again” (p. 70). 29 Let us have a look these titles now: Molina, De iustitita et jure tractatus (Venice, 1614); Lessius, De justictia de jure (Paris, 1628). They talked about justice of law!!!!! Like Soto, De iustitia et iure libri decem (Salamanca, 1553). Law did not exist without justice, and legal science did not exist without considerations about justice ! This was such a normal and obvious thing. Now let us flash on one case. The case of the seller in Lessius is practical; both legal and ethical: 1) „The seller should disclose all hidden defects to the buyer”, otherwise, the buyer had a right of rescission – but it was not clear (Molina: the buyer who does not ask „trusts his own judgment” and receives the goods at a just price, then no remedy?), 2) „Thus, in different ways, the late scholastics accommodated their theories of the voluntary, their theories of commutative justice, their sense of the practical, and their Roman texts”. Gordley, p. 107. Lessius' solution was about how to make the law just and based on virtue. Then Grotius came: 1) „In contracts, nature requires equality”, 2) „He who makes a contract about any thing ought to make known the defects of the thing so far as he knows them, which is not only the usual rule of civil law but also agreeable to the nature of the act” (Introduction to Dutch law; citing for Gordley, p. 107). And about Pufendorf's and Barbeyrac's achievements on the just price problem: 1) Explained the rule in the same manner: the seller must disclose defects, because otherwise the parties cannot set a just price that will preserve equality (De iure naturae et gentium libri octo. 1688, Amsterdam), 30 2) On the other hand, Barbeyrac was sceptical about the doctrine of a just price (Gordley, p. 107 plus footnote 163). Problems and doctrines were like that in the those times (the Commentators, then the Salamanca school, and after that, the Northern school of natural law ): 1. Mistake, 2. Fraud, 3. Consent, 4. Just price, 5. Cause, causa. The Northern natural law school appeared in the persons of: 1) Hugo Grotius (1583-1645), 2) Samuel Pufendorf (1632-1694), 3) Jean Barbeyrac (1674-1744), 4) Jean Domat (1625-1695), 5) Robert Pothier (1699-1772), 6) Christoph Wolff (1679-1754).' The late scholastic doctrinal formulation disappeared here, but the general reformulation of contract doctrine will appear in the 19th century (Gordle, p. 71). However, neither Grotius nor Pufendorf made much change in late scholastic doctrine (Gordley, p. 107). They were still complaining (like Hobbes, Leviathan, also) that university teaching was based on Aristotle…. (in the „Christendome", Christian Europe). 31 New doctrines of Descartes, Hobbes, Locke came and discussed the doctrines of „essence” or „nature” on contracts. Pothier, the most famous 18th century French lawyer and the founding father of the Napoleonic Code, also flashed on contract and virtue: 1) Of course, it was difficult to retain Thomas’ „if one who promises under oath normally incurs two obligations: one to the promisee and the other to God”, 2) An oath to God could not obligate a person to do evil, 3) But consent given under duress was nevertheless consent (it is from Aristotle) – void from the beginning!!! (Gordley, footnote 56), 4) Coerced oaths and marriages were not binding – because of the injustice that had been done (Gordley, p. 83) – go to court even if had sworn not to!!! 5) „An action is voluntary if a person knows what he is doing even if he chooses the action as the lesser of two evils, as when a captain decides to jettison cargo in a storm” (Aristotle, NE, III, and Thomas). See: Gordley, p. 82, 6) Pothier preserved the position taken by the late scholastics who based on St. Thomas, 7) He discussed the views of Grotius, Pufendorf, and Barbeyrac and said: even if the promise were binding by natural law, the injustice committed would obligate the perpetrator to release the victim. It was expressed in Traite du contract de vente (Gordley, p. 85). What they, the naturalists, did was like Gordley says: 1) They preserved the Aristotelian terminology but what meaning they attached to it? It was „the nineteenth-century innovation”, 2) The late scholastics and the natural lawyers would disagree. The new principle was: contracts entered into by the will or consent of the parties, 32 3) Formulation of general doctrines of mistake, fraud, and duress by considering how these influences affect the will, 4) The innovation (the 19th century) - to reject other Aristotelian origin that had figured in contract doctrine (Gordley, p. 8), 5) The second (the first was by Ockham) rejection of Thomism, but terminology remains…the same. Thus, the 18th and 19th centuries are the moment we lost metaphysics in law: 1) Theologians and philosophers are not competent to talk about law (Pufendorf), 2) The will theories came etc. No virtue but only autonomous will, autonomy of parties on contracts). (But having a look at these critically, how to apply this in adhesion contracts???). 3) By the way, in criminal law there has been doctrine the domination of humanitarianism (since the 18th century). So how we lost metaphysics, to sum up? Where was the problem? The innovation? 1) Making contract was regarded simply – as an act of will, 2) Not as the exercise of a moral virtue!!!!! 3) The parties – bound simply to what they willed, 4) Not to obligations that followed from the essence of nature of their contract, 5) Of course, the jurists do their job without commitment to any philosophy: no school of jurists formulated doctrine by applying the principles of Bentham or Kant (as late scholastics had applied St. Thomas’ theory), 6) Just not to ask philosophical questions but to interpret their own positive law: the American-Anglican cases, The French Civil Code, The Roman texts that remained in 33 force in Germany (Gordley, ibid.). But there are problems still, according to Gordley: 1) Adhesion contracts, 2) Regulated contracts, 3) Monopolistic position of one of the parties (energy, communication, banking sector etc.). Our real will is a fiction. The agreement conditions are enforced by the stronger party. On the style „sign it or go away”. Marxist economic analysis from „The Capital” is paradoxically correct, isn't it? I am not Marxist, but it might be useful, even if rather not in 100%. For a contract, it is obvious that justice and virtue of justice are core ideas anyway. 9. How we lost metaphysics in law after the Salamanca school of natural law. Europe's values now. (I am giving also another paper on how we lost metaphysics in contract law at this congress, in the special workshop on natural law tradition). To sum up also considerations from the previous chapter, I propose to go back to considerations on Greek philosophical methods (Aristotle), Roman law (substantive law and jurisprudence), legal methods (Cicero’s dialectics, Ulpian’s and Gaius’s case method), Medieval and early modern natural law theories, and canon law. I mention the common law tradition (from Hobbes to Hart), the case law method, and legal positivism (Bentham and Austin) as well as the continental law tradition (Domat, Thibaut, Savigny with its background: Descartes, Kant, Hegel) and the codification era (Code Civil, ABGB, BGB, ZGB). In fact, there are three roots. Nevertheless, while going back to the origins of law in Europe, I focus on the roots: Greek philosophy (Aristotle and Plato), Roman law (Ulpian, Cicero, Gaius) and Medieval jurisprudence (St. Thomas Aquinas, Medieval jurists like Accursius, Iacobus, Bartolus, and Baldus, and the Salamanca school of natural law in the 34 persons of Suarez, Molina, Lessius etc.). The Medieval jurisprudence was blessed by a new understanding of virtue and contract, coming from Thomistic Aristotelianism, which was the basis of the modern contract doctrine. It was Baldus, who said that moral philosophy is a mother of law (Commentaria to D. I.I.I.2). This attitude was respected by many scholars for centuries. About metaphysics in law. I appreciate ideas of going back to metaphysics in law, while metaphysics is represented by ideas of natural law taken straight from Roman jurists and the Middle Ages. I notice the 18th and 19thcenturies collapse of metaphysics in contract law, referring to contemporary outstanding scholars in the field (I follow Gordley's and Decock's critical books). I claim that philosophy, theology, and law should be marching together, what is a beautiful way, crystallizing the way itself like going back to the true origins of our law in Europe, and contract law especially. We find these origins in: 1) Natural Law, i.e. the most fundamental rules flowing from human nature and its limitation (by the way, paradoxically, we use Hart’s theory, don’t we?), in 2) Roman jurists’ considerations (such as Cicero, Ulpian), and 3) Christianity (scholars such as those of Aquinas, Bartolus, Baldus, Suarez, Lessius) as well. Law is rooted in Christianity (even concepts such as sin and crime – see: Alexander's and Witte's Law and Christianity). Christian jurisprudence is rooted conceptually in Aristotelianism. Western law conceptually was rooted in Christianity. But this link was broken and overturned… The aim of this part is to highlight the necessity of metaphysics in law, especially in contract law. Law should be based on doctrines of natural law. Law without deeper moral justification is pure and lacks legitimacy. I propose to go back to some old ideas, deeply rooted in Roman times and the Middle Ages. Shortly speaking, I start with philosophical considerations, then I highlight ideas of going back to metaphysics in law, while metaphysics is represented by ideas of natural law taken straight from Roman jurists and the Middle Ages. I also explain the 18th and 19th centuries collapse of metaphysics in contract law, referring to contemporary outstanding scholars in the field. I conclude by repeating the necessity of searching the true origins of European legal culture, and then basing state law on natural law and highlighting a redefinition of the present contract law theory. Philosophically, we can ask: If nothing is after, and everything is now, "it is happening", you are Dasein (Heidegger) or what(who)ever strange but philosophically called, 35 then what do we lose and what do we win in the time "between"? Fame, money, career, recognition, prestige, pleasure, on the one hand? Family, values (in practical behaviour), loyalty, love and honesty, on the other hand? Or a good fun? Ulpian, this great Roman jurist, was right in one point: Honestum vivere! Just try to say it when a death (we are "forever young") is not a popular topic, seems out of range, something magic, unreal. Value, metaphysics, deeper considerations about life are not funny. But paradoxically, we are still going back to the origins, to natural law theories in order to understand who (how?) we are and for what. It looks that it was the best in philosophy or law we have ever done (and we are doing it). To be honest, other narratives lack a legitimacy (by the way, democracy is a Kelsenian procedure, it does not give a legitimacy well enough; it maybe an empty institution without deeper understanding and the whole legitimacy). Otherwise, all is like a church without God or like a ship without a captain. Dasein is alone, values are slogans, words have no meanings. Natural law is to bring us back to real life, to reinstate a belief in humanity. But who knows what a natural law is? What is a human nature? And what is the nature of social order and our complex cosmos? Consequently, the open questions are marching together, waiting for the answers. Answer them. Sapere aude!, said old Romans. Significantly, many people say that the European legal culture (ELC) is based on Roman law (RL). The problem is they do not know what it really means. It is a slogan, without a deeper understanding. This is true that Roman law is a basis of our continental legal orders. Greek philosophy (Aristotle’s method) and Stoicism are methodological and philosophical foundations of RL. It is like a justification. It was both a legal method, based on rhetoric, and natural law, which became the basis of RL. Christianity and Christian thinkers, both lawyers and theologians, played a great role in the transformation of a vulgar Roman law coming from the Visigothic post-Roman kingdoms to modern contract law. But we have forgotten about philosophy and theology, the great philosophers and theologians, who were lawyers. We are as blind as a bat for their role in systemizing law in order to make law a science (and it was Cicero’s dream; look at Stein’s book entitled Roman law in European history). In Medieval times, the method used by Thomas Aquinas, was very similar with the legal one! It looks like a very analytical approach. We can say the same about lawyers such as Bartolus. Of course, in St. Thomas’ theory there is contained a deep religious background. True is that our law in Europe is de-sacralised and liberalized nowadays. Law, even the secular one, needs metaphysics: something deeper to justify the law itself and its existence and application. For instance, the Enlightenment (Voltaire, Diderot, and the 36 Encyclopedists) found it in natural rights (or natural rights theories, because there are many doctrines of natural law and natural rights, and they skipped the Spanish natural law school, the school of Salamanca), in a “Reason”, in a human nature. Nowadays the international or domestic declarations on (human) rights are based on natural rights theories and natural law, that is to be positive law (look at Tierney’s articles). We use words without meanings (Bentham’s critique of the French Declaration): the law without God requires a deeper legitimacy20. We can find it in natural law, or rather, in natural law doctrines (theories). There are many, though. It is about axiology of a given law. Generally speaking, Natural Law written in large letters (in fact, Stoicism) was the same for Roman jurists, what Christianity was for Medieval lawyers. It is a deep justification of any law in these relations: Nature-Law, God-Law. Thomas followed Augustine’s lex divina, lex humana, lex naturalis, adding that we have two kinds of law: lex legalis and lex corrupta. All values such as Reason, Order, Honesty, described by Marcus Aurelius, Seneca, Cicero, Ulpian, were important in law. Then, once again, Natural Law (Rights) went back in the Enlightenment... Nowadays political correctness does not allow us to talk about the true origins and foundations of the ELC. But it is Europe. I have a freedom of speech as academic scholar; it is a part of the ELC. We have two values in Europe, which are important, too: scepticism and freedom. Ignorance is an anti-value. I can speak. I claim that in Western jurisprudence, especially in Europe, we have no philosophical, axiological background in law (Gordley), because we lost history and self-sureness (selfconfidence, better to say), and belief in our European values (Peczenik). Scepticism turned wrong way: we can only ask what a value is, what such-and-such a term means, and multiplying questions without sense in ordinary language philosophies or language-games. We can see many problems even in contract law based on the will theories. We have a theory, the Western legal theory, and we must understand why our culture is as it is. Theorists are to explain it well enough to understand own culture, the legal culture. The communities of lawyers or ordinary actors in our societies are left. All societies need identity, symbols, foundations, myths; but it is not about myths – it is about the true origins of the ELC, e.g. about that the Christian scholars transformed a vulgar Roman law, the ius commune to modern contract law (1500-1600; the moral transformation of the ius commune – W. Decock’s thesis). This is about the Spanish natural law school, which built international law
20 In the English language there is a great distinction between the term legitimacy and the term legitimization. Legitimacy is used to describe that there is necessity to justify our actions or order. The legal legitimization given by the legal order is not enough. 37 foundations (casus belli, just war, developed by Hobbes, Locke, Grotius). Aarnio (in Who we are…) stresses that four big ideas were born in the Middle Ages, one of them was natural law. He says that Umberto Eco’s lamenting thesis that the Middle Ages were backward times and full of intellectual darkness is, euphemistically speaking, a little exaggerated, and shortly saying, it was a false picture of Medieval times. Aarnio says: “Welcome, ancient ideas” (p. 145), appreciating medieval times. Ancient means medieval here. Medieval scholars such Aquinas or Gerson, or Bartolus, or Baldus, however, continued and developed many ideas of Greek philosophers (Aristotle, Stoicism, natural law theory) and Roman jurists (Ulpian and others). So we lost metaphysics in contract law in the 18th and 19th centuries. Consequently, here is no faith, no sin, no transcendence in contract law. There is no transcendence in the concept of contract (Berman, The Christian sources of general contract law). It is better to go back to the metaphysics, says Gordley (The philosophical origins of modern contract law). Doctrine of parties’ autonomy or autonomous will and intentional consent is false now – in time of adhesion contracts, regulated contracts, contracts with economically stronger parties (banks, employees) etc. We must go back to the origins, to metaphysics, religion, morality, philosophy, to justify the law. The relation with morality is even stronger in unjust enrichment or tort law nowadays than in contract law, says Berman (pp. 139-140). Decock states that this is true that we can say about the Roman legal tradition that it is the ancestor of modern contract law, but we do not know (there is disagreement as to it) how and when a general law of contract emerged. What is Decock’s the most important thesis? An important step in this evolution was taken, paradoxically, by theologians in the 16th and the 17th centuries. What did they do? They transformed the Roman legal tradition (ius commune). How? By insisting on the moral foundations of contract law. We may even it read on the book hard cover: “Theologians emphasized that the enforceability of contracts is based on voluntary consent and that a contract should not enrich one party at another’s expense” (Decock). Of course, this is true that “While their main concern was the salvation of souls, theologians played a key role in the development of a systematic contract law of which the founding principles were freedom and fairness” (also Decock). One of the famous German scholars from the 19th century, Friedrich Carl von Savigny (System of the modern Roman law, 1867), assumed: “That the general aim of all law is simply referable to the moral destination of human nature, as it exhibits itself in the Christian view of life; then Christianity is not to be regarded merely as a rule of life for us but it has also in fact 38 changed the world so that all our thoughts, however strange and even hostile they may appear to it, are nevertheless governed and penetrated by it”. Decocok repeats it, following Savigny. And he is right. Like Gordley, Decock explains the moral transformation of Roman law to modern contract law. Unlike Gordley, Decock does not explain the collapse of this modern contract law by rejecting metaphysics in law (in the 18th and 19th centuries). I have just realized that Gordley's considerations about philosophical origins of modern contract law are little similar with Decock's idea of moral transformation of the ius commune to modern contract law. The first of them states that philosophers did the transformation (p. 230; the work of jurists and Roman law were reorganized around the concepts taken from Aristotle and St. Thomas), while the second scholar suggests that it was a result of the work of theologians. Both speak about almost the same people, but there are differences: for Gordley, the heroes are Bartolus and Baldus, and then the same people, who are the heroes for Decock: Luis de Molina, Francisco Suarez, Leonard Lessius. Gordley says: the work commenced by the Dominicans was continued by the Jesuits (p. 70). However, they do not speak about the same things. Decock speaks more about the moral foundations of contract law, of which the founding principles were fairness and freedom. Theologians were more interested in the salvation of souls, but maybe contract law was a measure (one of the means) to do it. Decock's most important hero, with a high priority in the whole book given to, is the Antwerp-born Jesuit Leonard Lessius (and Tomas Sanchez, a little, too). Then, Grotius was influenced by Lessius and the Spanish natural law school, synthesising the work of moral theologians and creating own concept of natural law. But even Luther was interested in the moral foundations of the law, says Decock. And the Puritans, repeat both (with Gordley). Thus, philosophy, theology, law are marching together, what is a beautiful way, crystallizing itself like going back to the true origins of our law in Europe, and contract law especially. We find these origins in Natural Law, i.e. the most fundamental rules flowing from human nature and its limitation (paradoxically, again, we use Hart’s theory, don’t we?), in Roman jurists’ considerations (such as Cicero, Ulpian) and in Christianity (scholars such as those of Aquinas, Bartolus, Baldus, Suarez, Lessius) as well. Now there's necessity to talk more about Europe, culture, values. So have a look at the law in a wider context. The problem how we lost virtue in contract law in related to the problem how we are losing our self-confidence to European values, culture, axiology. 39 I would like to use the problem of axiology in the EU, as it seems important in this context21 . Culture of Europe is unusually opulent and sophisticated. The values which are its basis come from many different origins. Are there any cultures or civilisations - I exclude any ethnocentrism in my reasoning - which would have such beautiful and sophisticated origins? A paradox of European culture is a special phenomenon. But what is a value? I agree with an outstanding philosopher of law Aleksander Peczenik that a value is a certain ideal, i.e. a criterion of evaluation.22 We can also say that a value is a social or individual “desired state” (position, conditions).23 There are e.g. moral, religious, philosophical, cultural, political, social or individual (personal) values. In theory of cognition absolute objective values arouse serious doubts but it does not seem to be a problem of institutionalisation of the deeper European integration. The Treaty on a Constitution for Europe in a version presented by d’Estaing is not only a result of a legal and institutional aspect of deeper European integration but also a result of an axiological compromise. After the Second World War, the process of economic integration, development of peace and wide social-economic integration between states and societies of European Communities have brought the need for seeking a common foundation of the European axiology. If Europe wants to be the main and real actor in the world politics, it is necessary to understand what is the foundation of our culture and what role in the world Europe wants to play or what mission is a destiny of the European culture. An axiology understood as a complex of historically cumulated, social values seems to be a community of spirits and minds of the European citizens. It is a basis of political unity in the politics in the world and Europe. This is often said that Greek philosophy, Roman law, Roman universalism and Christianity are treated as cultural foundations of Europe. In connection with development of the culture and Western civilisation (e. g. such events as: Magna Charta of 1215, The Declaration of Independence of 1776, the French Revolution of 1789, two world wars in 20th
21 These ideas come from my book chapter: Chosen Axiological Problems Concerning the Treaty on a Constitution for Europe, (in:) European Union at the Crossroads: the Need for Constitutional and Economic Changes, ed. J. Maliszewska-Nienartowicz, Toruń 2007, Jean Monnet Centre for European Studies, Faculty of Law and Administration, Nicholas Copernicus University 22 A. Peczenik, Weighing values, International Journal for the Semiotics of Law 1992, V/14, p. 138. See also his article: A Coherence Theory of Juristic Knowledge, http://peczenik.ivr2003.net/ (Accessed 10.01.2006). 23 K. Pałecki, O aksjologicznych zmianach w prawie (w:) Zmiany społeczne a zmiany w prawie. Aksjologia. Konstytucja. Integracja Europejska, L. Leszczyński (red.), Lublin 1999, p. 16 (About Axiological Changes in the Law (in:) Social Changes and Changes in the Law. Axiology. Constitution. European Integration, L. Leszczyński (ed.), Lublin 1999). 40 century, the great development of science, arts, culture and economy) the main purpose for Europe was to maintain peace between nations, welfare, freedom, human dignity, equality, democracy, the rule of law, property, social solidarity. In the culture of Europe the great part belongs to the Enlightenment which brought ideas of tolerance and scepticism. The result of new philosophical and scientific currents was desacralisation of social life what became visible in the law. It is difficult, or even impossible, to deny the existence of universal human rights. But we can ask if it was a source of these rights which were, of course, incredibly obvious and very mainly social values. I think J. Van der Veken, the Catholic researcher and philosopher from Leiden, was right when he wrote: “(…) the so-called universal human rights are not all as universal as they may seem: they are not a-cultural or a-historical. They are the concrete form given to human possibilities which have emerged out of the only partly successful fertilization by christianity of specific culture (based on the Greek heritage, the Roman Empire, the European melting pot out of the 6th to 10th centuries, the Medieval world, the Renaissance, the Enlightenment, the French Revolution and the rise of social consciousness in the 19th century)”.24 As Van der Veken rightly added: “Even Marx recognised that his ideals could not have been possible without the influence of the Judaic-Christian heritage”.25 These Christian values which Van der Veken wrote about are the following: rationality, “real fraternity”, “true equality”, “liberating freedom”26, “love of all men and women, regardless of race, religion, or sex”.27 Now I would like to add that also the Enlightenment and doctrines of natural law and movement of the human rights after the World War II strictly and very explicitly underlines the meaning of universal human rights which were expressed in many legal acts and international conventions. For instance, archbishop J. Życinski maintains that humanism and an integral development of human person remain the foundation of the European culture and axiology. They are a community of the European values. We can not forget about the value of solidarity, which is so significant for many people like in Poland's Solidarity Movement. 28 But yes... The values are rather forms than meanings: they are historically and culturally
24 J. Van der Veken, The philosophical mediation of Christian values (in:) Memoria del X Congreso Mundial Ordinario de Filosofia del Derecho y Filosofia Social (I.V.R.), volumen III, Mexico 1981, p. 154 (The philosophical mediation of Christian values (in:) The Memory of the 10th Congress of Association of Philosophy of Law and Social Philosophy, volume III, Mexico 1981). 25 Ibidem. 26 Ibidem, pp. 156-157. 27 Ibidem, p. 158. 28 J. Życiński, Rola fundamentów aksjologicznych w procesie integracji europejskiej (The Role of Axiological Foundations in the Process of European Integration, http://msz.gov.pl, (Accessed 20.09.2005). 41 relevant and relative but their essence seems to be the achievement of discovery of freedom and human dignity in the world full of inequality and social unjustified limitations and restrictions. Human dignity which is an explicit and rational point of entrance to building the values catalogue becomes a fundamental value in the Europe axiology and culture. Peace as a social value performs similar function (like human dignity) in Europe. A peace as a value is correlated with the value of unity. By many centuries Europe was the scene of “eternal” wars and blood between nations, states and rulers. A war was a fundamental, often only, measure of the conflict solution. The unity was an idea which may have brought up the stereotype of violence and the scheme of horrible wars. What is the unity? The unity helps us to understand that peace is a correct form of social life and relations between nations and states. The unity understood as a state without wars, violence and blood accelerates social, economic and spiritual development, being the light of human being conceptualisating the values. Everybody knows that two wars in 20th century and two totalitarisms: fascism and communism have caused much evil in Europe. After the evil of the wars we must have understood the sources of evil in Europe. Is the idea of purpose to unity of Europe and peace in Europe absolutely modern? Origins of the purpose to unification of Europe emanates from its by ‘own opulence’, being the value and European idea ‘itself by itself’ (as Hegel would say). From centuries rulers and thinkers in Europe were sure that there was a necessity of the purpose to peace and creation of one European state (confederacy, union) based on the common values – on the axiological foundations, supported by pragmatic factors. The European culture is not based on one philosophical system. Following the Luijpen’s thought29, it can be maintained that different philosophical systems are not convergent but altough many contradictions of the values systems, ideas, religions Europe may live with the respect of the diversity of the styles of life and the freedom of speech. The different ideas can exist together, being an inspiration for people, researchers or governments. It does not mean that from the universalistic point of view of history and values Europe is not a community of values or may not be such an axiological community. The history is a splot of necessities and development of area of freedom.30
29 W. Luijpen, Fenomenologia egzystencjalna, Warszawa 1972, pp. 9-14 (Existential Phenomenology, Warszawa 1972). 30 See: J. Munoz Batista, Reflexiones sobre los Valores de Libertad e Igualdad (Aspecto Filosofico y Social) (in:) Memoria del X Congreso…, op. cit., p. 275 (Reflections about Values of Freedom and Equality. Philisophical and Social Aspect (in:) The Memory of the 10th Congress…). Batista writes: “La historia es resultado de una masa enorme de necesidades y fatalismos acumulados, en la que las intervenciones de la libertad tambien se hacen oir”. 42 The purpose of the Constitution for Europe, to which I want to go back because of its real significance in the European Union constitutional framework, was a creation of institutional conditions to existence and development of persons, communities and the “national states” in the spirit of freedom, democracy, pluralism, equality, the rule of law, humanism, personalism, solidarity and human rights. In the last years we can observe the discussion about axiology of the European Union law. It is the great axiological metamorphosis: the community based on economic cooperation seeks the axiological foundations – in the values, human rights and morality. The Constitution for Europe in the version presented by d’Estaing31 was an expression of axiological compromise. I suppose that a lack of the complete axiological consistency shows the diversity of the outlooks on life and the intricate origins of the European culture. The Constitution had two preambles: the first preamble is the Preamble to the whole Constitution and the second preamble is the Preamble to the Charter of Fundamental Rights (the Charter is a Part II of the Constitution). In the Preamble to the Constitution it is easy to find many terms with strongly axiological meaning. These are slogans: “the cultural, religious and humanist inheritance of Europe”, “the universal values of the inviolable and inalienable rights of the human person, freedom, democracy, equality and the rule of law”, “the path of civilisation, progress and prosperity, for the good of all its inhabitants, including the weakest and most deprived”, “continent open to culture, learning and social progress”, “democratic and transparent nature of its public life”, “peace, justice and solidarity throughout the world”, “proud of their own national identities and history”, “common destiny”, “united in diversity”32, “the best chance of pursuing, with due regard for the rights of each individual”, “awareness of their responsibilities towards future generations and the Earth”, “special area of human hope”.33 There are some common European constitutional values. The axiology of the European Union law and the Union have formed for many years. I do not agree with an
31 The English version of the text of the Treaty on Constitution for Europe: http://europa.eu/constitution/en/lstoc3_en.htm. 32 See art. I-8. „United in diversity” is the motto of the Union. 33 We can also analyse the axiological terms in the Preamble to the Charter of Fundamental Rights. These are: “peaceful future based on common values”, “spiritual and moral heritage”, “founded on the indivisible, universal values of human dignity, freedom, equality and solidarity”, “based on the principles of democracy and the rule of law”, “individual at the heart of its activities”, “area of freedom, security and justice”, “the development of these common values while respecting the diversity of the cultures and traditions of the peoples of Europe”, “national identities of the Memeber States”, “balanced and sustainable development”, “free movement of persons, services, goods and capital”, “the protection of fundamental rights in the light of changes in society, social progress and scientific and technological developments”, “the principle of subsidiarity”, “the constitutional traditions and international obligations common to the Member States”, “responsibilities and duties with regard to other persons, to the human community and to future generations”. 43 opinion that there are only “liberal” values in the Constitution.34 In the Constitution we can find both the “liberal” values: - intellect, freedom, democracy, tolerance, as the “communitarian” values: - human dignity, peace and public security, anti-discrimination, solidarity and social security, the legal state based on democracy, justice and social dialogue. Welfare and “freedom from war” are supported by “the cultural, religious and humanistic inheritance” (the Constitution Preamble ) or “spiritual or moral heritage” (the Preamble of the Charter). The truth is that an omission of invocatio Dei aroused controversies.35 But it was the result of the axiological compromise and social changes determining the legal provisions. A secularisation of modern states influences law making. Every constitution as the main act seems to be a symbol of changing social values. I think that the President of the European Parliament Hans Gert Poettering was right when he said that the Constitution was full of the Christian values de facto (as peace, solidarity, justice or freedom). It is obvious that the Constitution must be founded on the values which are a basis of our culture and tradition (Greek philosophy, Roman law and universalism, Christianity, the Enlightenment and some moral or philosophical doctrines). Let me add that an incorporation of the values into the Constitution does not mean an incorporation of their ontological justifications. People may justify the constitutional values by very different ways, referring to many philosophical-moral systems of values (but the European tradition may be very inspiring). The European constitutional law based on moral neutrality of the law and state (the concept of moral neutrality of the law respects ethical pluralism in society)36 can be “supported” by an
34 W. Sadurski, Czy istnieją wspólne europejskie wartości konstytucyjne? (w:) Idea Europy, H. Machińska (red.), Biuro Informacji Rady Europy 2004, p. 175. (Are There Any Common European Constitutional Values? (in:) Idea of Europe, H. Machińska (ed.), Bureau of Information of the Europe Council 2004). 35 In 2005 I wrote to many outstanding philosophers or researchers (e. g. Les Moran, Dean of the Law Faculty, The Birkbeck University, London; Massimo La Torre, University of Hull; James Crawford, Dean of the Law Faculty, University of Cambridge; John Finnis, University of Oxford; Aleksander Peczenik, universities in Lund and Szczecin; Vaclav Pavlicek, Karl’s University in Prague) in context of religious values in the Constitution. (The question: What do you think about the European Constitution without the Christian values as a direct reference to a person of God and the truth of history?). They answered that the Union must have been a secular state (“a complete division of religion and the state”, as Crawford wrote). But Peczenik wrote me that “moral, religious and cultural heritage of Europe” is an euphemism: it is necessary to mention Greek philosophy, Roman tradition, Christianity, the Enlightenment and secular systems of morality or values. Without this mentioning the concept of “heritage” seems to be an empty notion. It may be that Peczenik was right but we must remember that the Preamble of the Constitution is a result of morally and axiologically difficult consensus. 36 W. Sadurski, Neutralność moralna prawa. Przyczynek do teorii prawa liberalnego (Moral Neutrality of the Law. Contribution to the Theory of Liberal Law), Państwo i Prawo 1990, No. 7, pp. 28-41. 44 interpretation of humanistic values formulated in the Constitution.37 Humanistic values as well as human dignity, freedom, solidarity, justice, tolerance, intellect, peace still remain the foundation of deeper integration of the Union. What is the most important in the European polity we must also understand some distinctions between the Union’s objectives, the Union’s values and the values in the European culture. The European Union is a new type of cooperation between of the states, governments and societies. There is no place for legal moralism (legal paternalism may also be a problem if the idea of law deregulation falls flat in the EU). The axiology of the Constitution expressed in many provisions of this act is an emanation of this cooperation founded on a compromise, welfare and peace. Deeper political cooperation in the system of the EU requires stronger reference to the axiological foundations of the European culture and sudden understanding the values community. This is a sine qua non, fundamental condition of growth of the Europe role in the world. How to do that? this is a Shakespearean question. 10. Law in religion. Religion in law. The first letter to Corinthians. Law of Love. Let us consider relations between law and religion now. The place of law in religion: 1) God’s law (go to J. Austin: law is also a religion, God's law; it is one of the sorts of law, but it is not a law in a strict sense), 2) Legalistic religion (what religion says about law - give Caesar what belongs to him and give God what belongs to God; yes, it is good to follow a state law). The place of religion in law (regulation): 1) freedoms like religious freedom, and regulations of organisations, or religious activities, forms, in democracy, But also the case interesting: In Finland, the culturally Lutheran country, the law prohibits a behaviour that mocks the Gad (however, it is not called
37 See more about humanistic values: M. Nowaczyk, Karol Wojtyła’s Social Thought, Dialectics and Humanism 1979, no. 4, pp. 81-92; M. Fritzhand, What Is the Meaning of Tolerance at a Time of Cultural Diversity?, Dialectics and Humanism 1979, no. 4, p. 14. 45 blasphemy now) and violates religious feelings. It is penalised by the Criminal Code. In context of freedom of speech and the Charlie Hebdon case, it is seeming dubious now. Some say: we are a backward region of Europe with such a regulation. Are we such a backward country really? The same is in many countries, as freedom of speech is not absolute. There are limits. Good manners, professional ethics, social morality, the public and public indecency, national security, calumny or using vulgar words, dudgeon, insult, offense, affront etc. 2) religious law - religions omnipresent in social life and legal order like Islam. The clue is that nowadays Europe is based on the regulation of religious freedom. But... Now just imagine that we have such principles as the basis of our law. It is Paul's First Letter to the Corinthians38
1:20 Where is the wise? Where is the scribe? Where is the lawyer of this world? Hasn’t God made foolish the wisdom of this world? 1:21 For seeing that in the wisdom of God, the world through its wisdom didn’t know God, it was God’s good pleasure through the foolishness of the preaching to save those who believe. 1:22 For Jews ask for signs, Greeks seek after wisdom, 1:23 but we preach Christ crucified; a stumbling block to Jews, and foolishness to Greeks, 1:24 but to those who are called, both Jews and Greeks, Christ is the power of God and the wisdom of God. 1:25 Because the foolishness of God is wiser than men, and the weakness of God is stronger than men. 1:26 For you see your calling, brothers, that not many are wise according to the flesh, not many mighty, and not many noble; 1:27 but God chose the foolish things of the world that he might put to shame those who are wise. God chose the weak things of the world, that he might put to shame the things that are strong; 1:28 and God chose the lowly things of the world, and the things that are despised, and the things that are not, that he might bring to nothing the things that are: 1:29 that no flesh should boast before God. 1:30 But of him, you are in Christ Jesus, who was made to us wisdom from God, and righteousness and sanctification, and redemption: 1:31 that, according as it is written, “He
38 World English Bible, http://ebible.org/web/1Cor.htm 46 who boasts, let him boast in the Lord.”* Then in the Song of the Songs, we may find some inspirations for making good law, one can say so, too: 13:1 If I speak with the languages of men and of angels, but don’t have love, I have become sounding brass, or a clanging cymbal. 13:2 If I have the gift of prophecy, and know all mysteries and all knowledge; and if I have all faith, so as to remove mountains, but don’t have love, I am nothing. 13:3 If I dole out all my goods to feed the poor, and if I give my body to be burned, but don’t have love, it profits me nothing.13:4 Love is patient and is kind; love doesn’t envy. Love doesn’t brag, is not proud, 13:5 doesn’t behave itself inappropriately, doesn’t seek its own way, is not provoked, takes no account of evil; 13:6doesn’t rejoice in unrighteousness, but rejoices with the truth; 13:7 bears all things, believes all things, hopes all things, endures all things. 13:8 Love never fails. But where there are prophecies, they will be done away with. Where there are various languages, they will cease. Where there is knowledge, it will be done away with. 13:9 For we know in part, and we prophesy in part; 13:10 but when that which is complete has come, then that which is partial will be done away with. 13:11 When I was a child, I spoke as a child, I felt as a child, I thought as a child. Now that I have become a man, I have put away childish things. 13:12 For now we see in a mirror, dimly, but then face to face. Now I know in part, but then I will know fully, even as I was also fully known. 13:13 But now faith, hope, and love remain—these three. The greatest of these is love. And this would be as the most important: But when the Pharisees heard that He had silenced the Sadducees, they gathered together. 35Then one of them, a lawyer, asked Him a question, testing Him, and saying, 36"Teacher, which is the great commandment in the law?" 37Jesus said to him, "'You shall love the LORD your God with all your heart, with all your soul, and with all your mind.' 38This is the first and great commandment. 39And the second is like it: 'You shall love your neighbor as yourself.' 40On these two commandments hang all the Law and the Prophets." Matt. 22:34- 40 (http://www.bible.ca/ef/expository-matthew-22-34-40.htm). Could you imagine such inspirations nowadays? 47 11. Catholic teaching: Pius IX, Pius X, Leon XIII. Imagine also that this teaching is still important. The problem of removing Religion out civil society appeared in the 19th century. Leon XIII, in a Papal encyclical, in 1884, Humanum Genus, par. 22, says: "Then come their doctrines of politics, in which the naturalists lay down that all men have the same right, and are in every respect of equal and like condition; that each one is naturally free; that no one has the right to command another; that it is an act of violence to require men to obey any authority other than that which is obtained from themselves" and "It is held also that the State should be without God; that in the various forms of religion there is no reason why one should have precedence of another; and that they are all to occupy the same place". (My highlighting in this chapter). This was against freemasonry, popular sovereignty as the source of rights, and in favour of the total separation of law, state and religion, Pius IX, in Quanta Cura, encyclical, 1864, points out: "4. And, since where religion has been removed from civil society, and the doctrine and authority of divine revelation repudiated, the genuine notion itself of justice and human right is darkened and lost, and the place of true justice and legitimate right is supplied by material force, thence it appears why it is that some, utterly neglecting and disregarding the surest principles of sound reason, dare to proclaim that "the people's will, manifested by what is called public opinion or in some other way, constitutes a supreme law, free from all divine and human control; and that in the political order accomplished facts, from the very circumstance that they are accomplished, have the force of right." But who, does not see and clearly perceive that human society, when set loose from the bonds of religion and true justice, can have, in truth, no other end than the purpose of obtaining and amassing wealth, and that (society under such circumstances) follows no other law in its actions, except the unchastened desire of ministering to its own pleasure and interests? For this reason, men of the kind pursue with bitter hatred the Religious Orders, although these have deserved extremely well of Christendom, civilization and literature, and cry out that the same have no legitimate reason for being permitted to exist; and thus (these evil men) applaud the calumnies of heretics. For, as Pius VI, Our Predecessor, taught most wisely, "the abolition of 48 regulars is injurious to that state in which the Evangelical counsels are openly professed; it is injurious to a method of life praised in the Church as agreeable to Apostolic doctrine; it is injurious to the illustrious founders, themselves, whom we venerate on our altars, who did not establish these societies but by God's inspiration."5 And (these wretches) also impiously declare that permission should be refused to citizens and to the Church, "whereby they may openly give alms for the sake of Christian charity"; and that the law should be abrogated "whereby on certain fixed days servile works are prohibited because of God's worship;" and on the most deceptive pretext that the said permission and law are opposed to the principles of the best public economy. Moreover, not content with removing religion from public society, they wish to banish it also from private families. For, teaching and professing the most fatal error of "Communism and Socialism," they assert that "domestic society or the family derives the whole principle of its existence from the civil law alone; and, consequently, that on civil law alone depend all rights of parents over their children, and especially that of providing for education." By which impious opinions and machinations these most deceitful men chiefly aim at this result, viz., that the salutary teaching and influence of the Catholic Church may be entirely banished from the instruction and education of youth, and that the tender and flexible minds of young men may be infected and depraved by every most pernicious error and vice. For all who have endeavored to throw into confusion things both sacred and secular, and to subvert the right order of society, and to abolish all rights, human and divine, have always (as we above hinted) devoted all their nefarious schemes, devices and efforts, to deceiving and depraving incautious youth and have placed all their hope in its corruption. For which reason they never cease by every wicked method to assail the clergy, both secular and regular, from whom (as the surest monuments of history conspicuously attest), so many great advantages have abundantly flowed to Christianity, civilization and literature, and to proclaim that "the clergy, as being hostile to the true and beneficial advance of science and civilization, should be removed from the whole charge and duty of instructing and educating youth.". Pius X, in Pascendi dominici gregis ("Feeding the Lord's Flock") was a Papal encyclical promulgated in 1907. The pope condemned modernism to cleanse the clergy of theologians. Pius XI, in Quadragesimo anno (Latin for “In the 40th Year”) is an encyclical issued in 1931, points out that justice is against laws of economics, and social justice like workers’ 49 rights is the value and the real order: "4. Quite agreeable, of course, was this state of things to those who thought it in their abundant riches the result of inevitable economic laws and accordingly, as if it were for charity to veil the violation of justice which lawmakers not only tolerated but at times sanctioned, wanted the whole care of supporting the poor committed to charity alone. The workers, on the other hand, crushed by their hard lot, were barely enduring it and were refusing longer to bend their necks beneath so galling a yoke; and some of them, carried away by the heat of evil counsel, were seeking the overturn of everything, while others, whom Christian training restrained from such evil designs, stood firm in the judgment that much in this had to be wholly and speedily changed". And: "28. A new branch of law, wholly unknown to the earlier time, has arisen from this continuous and unwearied laborto protect vigorously the sacred rights of the workers that flow from their dignity as men and as Christians. These laws undertake the protection of life, health, strength, family, homes, workshops, wages and labor hazards, in fine, everything which pertains to the condition of wage workers, with special concern for women and children. Even though these laws do not conform exactly everywhere and in all respects to Leo's recommendations, still it is undeniable that much in them savors of the Encyclical, On the Condition of Workers, to which great credit must be given for whatever improvement has been achieved in the workers' condition.".Then: "43. But it is only the moral law which, just as it commands us to seek our supreme and last end in the whole scheme of our activity, so likewise commands us to seek directly in each kind of activity those purposes which we know that nature, or rather God the Author of nature, established for that kind of action, and in orderly relationship to subordinate such immediate purposes to our supreme and last end. If we faithfully observe this law, then it will follow that the particular purposes, both individual and social, that are sought in the economic field will fall in their proper place in the universal order of purposes, and We, in ascending through them, as it were by steps, shall attain the final end of all things, that is God, to Himself and to us, the supreme and inexhaustible Good.". And 53: "And in the application of natural resources to human use the law of nature, or rather God's will promulgated by it, demands that right order be observed. This order consists in this: that each thing have its proper owner. Hence it follows that unless a man is expending labor on his own property, the labor of one person and the property of another must be associated, for neither can produce anything without the other. Leo XIII certainly had this in mind when he wrote: "Neither capital can do without labor, norlabor without capital." Wherefore it is 50 wholly false to ascribe to property alone or to labor alone whatever has been obtained through the combined effort of both, and it is wholly unjust for either, denying the efficacy of the other, to arrogate to itself whatever has been produced.".57. But not every distribution among human beings of property and wealth is of a character to attain either completely or to a satisfactory degree of perfection the end which God intends. Therefore, the riches that economic-social developments constantly increase ought to be so distributed among individual persons and classes that the common advantage of all, which Leo XIII had praised, will be safeguarded; in other words, that the common good of all society will be kept inviolate. By this law of social justice, one class is forbidden to exclude the other from sharing in the benefits. Hence the class of the wealthy violates this law no less, when, as if free from care on account of its wealth, it thinks it the right order of things for it to get everything and the worker nothing, than does the non-owning working class when, angered deeply at outraged justice and too ready to assert wrongly the one right it is conscious of, it demands for itself everything as if produced by its own hands, and attacks and seeks to abolish, therefore, all property and returns or incomes, of whatever kind they are or whatever the function they perform in human society, that have not been obtained by labor, and for no other reason save that they are of such a nature. And in this connection We must not pass over the unwarranted and unmerited appeal made by some to the Apostle when he said: "If any man will not work neither let him eat." For the Apostle is passing judgment on those who are unwilling to work, although they can and ought to, and he admonishes us that we ought diligently to use our time and energies of body, and mind and not be a burden to others when we can provide for ourselves. But the Apostle in no wise teaches that labor is the sole title to a living or an income.58. To each, therefore, must be given his own share of goods, and the distribution of created goods, which, as every discerning person knows, is laboring today under the gravest evils due to the huge disparity between the few exceedingly rich and the unnumbered propertyless, must be effectively called back to and brought into conformity with the norms of the common good, that is, social justice.59. The redemption of the non-owning workers - this is the goal that Our Predecessor declared must necessarily be sought. And the point is the more emphatically to be asserted and more insistently repeated because the commands of the Pontiff, salutary as they are, have not infrequently been consigned to oblivion either because they were deliberately suppressed by silence or thought impracticable although they both can and ought to be put into effect. After Vatican II, since the 60s, the process of such ways of thinking about God- 51 human relation has been changed. Not the Church or God is the way of life of the man, but a man is the way of life of the Church. More attention paid to the man has been necessary. More freedom appeared. Less authority and orders came. The new spirit occurred to many minds. Law is secular (actually the secularisation happened earlier, in the 19th century). Law has no a spirit in a transcendental or religious sense. And this is openly and commonly recognised as good, since societies are too diverse nowadays. However, this might be also a problem (social legitimacy, focus on human development, making moral law etc.) IV. Future: Giddens' "we do not know"? The future. However, we do not know the future of law as we do not know in what kind of systems we will live in (Giddens in his "Sociology"). The future is open. Conservative revolution might be also bloody as a Hegelian response to the ideology of moral liberalism, permissive way of life, consumerism, hedonism, nihilism, and existential lack of sense of life. Some think that social peace is forever, but nothing human is forever. And social peace is a human thing. Cultural war on values is visible in many countries. I wrote these words few days before the Paris terrorist attack in January. But I still agree to the statement: there is a clash of values, there are two spheres: secular and divine, there are radical interpretations that bring some of us to violence, which is not to be socially accepted. If God is Love, then we must not kill someone in the name of God. Some historical references come here, for sure. The crusades appeared one thousand years ago, and only ignoramuses or sophists do not remember the historical and religious context of the fight for the Holy Land, the place Jesus Christ was born. Pope Urban II called for crusades almost 1000 years ago. But... We know nothing about the future. The future is uncertain. Bauman in his essay “Ethics after Certainty” gives two examples of the scholars. One is Shestov. For him, danger is everywhere. There is no trust. The opposite is the Danish theologian and philosopher: we trust each other naturally39. Their
39Bauman, p. 1: "The great Danish theologian and moral philosopher, Knud Logstrup, mused: ‘It is a characteristic of human life that we mutually trust each other… Only because of some special circumstance do we ever distrust a stranger in advance… Initially we believe one another’s word; initially we trust one another’. Not so another religious philosopher, Leon Shestov, a Russian refugee and professor at the Sorbonne: ‘Homo homini lupus is one of the most steadfast maxims of eternal morality. In each of our neighbours we fear a wolf… We are so poor, so weak, so easily ruined and destroyed! How can we help being afraid!… We see danger, danger only… ’. Then, p.1-2: "Surely, Logstrup and Shestov cannot both be right. Or can they? True, they contradict each other, but don’t we all get contradictory signals from the experience of our own lives? 52 life experiences were also different, Bauman surely adds: "The two wise men reported two stridently different experiences. Their generalizations contradicted each other, but so did the lives they generalized from. And this seems to apply to all of us. We generalize from what we see. Whenever we say ‘people are what they are’, what we mean is the people we meet; people shaped and moved and guided by the world we together happen to inhabit. " (p. 2). When I look at the contemporary world, I as a scholar in jurisprudence feel the danger much more than trust. When I see some global processes, I feel the danger. On the other hand, I would like to trust at micro-levels, in relations with humans, at the grass-roots level. The future of Western jurisprudence is unknown. Everything is possible. I do not want to, say metaphorically, augur from coffee grounds. I do not know what an idiom is in English to express what I am thinking now. What I see is that the contemporary understanding of justice by Western jurisprudence is limited to some areas such as freedoms (private life, fair trial, social-economic rights etc.) or equality (sexual minorities’ rights, social benefits, redistribution of good by taxation and social policy). The transcendental approach is nowhere. Conclusions. Sadly, in these parts of conclusions, while going back to the question from the sub-title, it seems to me that nowadays jurisprudence is more about human things, but almost not about divine things; God does not exist for the legislator and most of scholars. God died, as Nietzsche said. However, we, the jurists, are still to regulate the problem of life and death, and we still talk about divine things, but we treat them as human things only. When we talk about “the just” it means only distributive justice (Welfare state), equal opportunities (job market and education) and criminal justice. In jurisprudence, we see the clash of two values:
Sometimes we trust, sometimes we fear. More often than not, we are not sure whether to trust and disarm, or to sniff danger and be on guard – and then we are confused and unsure what to do. Of which has there been more in our lives, of trust or of fear? The answer seems to depend on the kind of life we have lived. Logstrup was born and died in tranquil, serene, peaceful Copenhagen, where the royals bicycled the streets together with their subjects. . When they finished their rides they were able to leave their bicycles on the pavement knowing that, in the absence of thieves. they would be there when they needed them again. Shestov was hunted down and refused university posts by the tsarist regime for being born in the wrong faith, then hunted down and exiled by the anti-tsarist revolution for professing the wrong faith, then drank his fill from the bitter chalice of exile in a foreign country". 53 Justice and Equality. The second one, in some radical (secular, anti-religious, or extremely progressive) or specific interpretation, prevails. On the other hand, ordinary people very often have the feeling of injustice because of not understanding how legal systems work and how far they are from ordinary understanding of values, morality and Justice. I think that we lost the traditional meanings of the most fundamental concepts such as human things, divine things, the just, the unjust. And this is why we, jurisprudence scholars, do not understand Justice well enough nowadays. Moral philosophy is not a mother of law anymore. AntiBaldus or Anti-Thomas is winning. The necessity of going back to the three roots and the true origins of jurisprudence seems so obvious. Nowadays Ius est ars boni et aequi (Ulpianus, D. 1, 1, 1) is a slogan, since moral philosophy as a mother of law (Baldus, Commentaria to D. I.I.I.2) seems dubious. Moral sensitivity is ostensible and seeming nowadays. We appreciate animal rights and human freedom, but do not want to talk about penalisation of abortion on demand or IVR. If this is not about morals and the just, then nothing is about morals and the just and the unjust. Axiological consistency of the (Western) current law in many countries in Europe and West is full of inconsistency. Something is rotten in jurisprudence, paraphrasing Shakespeare. The necessity of going back to the three roots and the true origins of jurisprudence, i.e. to the heritage of Areopagus, Coliseum, and Golgotha, is becoming so obvious. This was and is Justinian’s heritage. Jurisprudence is secular, modern, technical, post-Pufendorfian, “scientific”, terminologically advanced, positivistic (legal), or on the other hand, is casuistic, very specific (scholars in so many branches of law!), or analytic, language-oriented, but both jurisprudence and Western law might be understood still as a struggle of different moral factors, schools etc. This is a real fight of the ideologies. The struggle is visible or has been at least. But even Human Rights, such a lovely achievement of the 20th century theorists, who looked at the horrible practice of the wars, are natural Laws! Yes, Human Rights are Natural Law. Why? There is no other way! Radbruch knew that after WW II. Look what also Habermas said: human rights are positive natural law now and written rules coming from unwritten natural laws. Now they are manipulated or redefined by feminist ideologies or sexual libertinism ideology also, but let us skip that anyway. When the European Convention on Human Rights was passed in 1950, no one of the founding fathers of the European Community like Adenauer or Monnet or de Gasperi, the Christian democrats, could have even imagined that 54 25 years later some new process of redefinition of the concepts will start: the process in which the right to private life (art. 7) includes the right to abortion on demand, but the right to life (art. 2) does not include the right to life of the unborn child. It would have been impossible for them. But the world is changing, and we are following the world in our imaginations, opinions, styles of life. So: 1) we are taking the old concepts of Justice, 2) but we do not want to take the old meanings. How obscure time it must be! We want to be just, but the question is: Are we really just? Is jurisprudence about Justice? Is Western law just? Unfortunately, the answers are not always positive. By the way, how to change the current state of things was described here well enough, at least some inspirations are to be found out: the three roots are the basis. There is no West or Western civilisation without Areopagus, Colloseum, and Golgotha. This is not a shame to mention these, as this is not a shame to mention the French Revolution as the real beginning of the new modern egalitarian nation state. Law is only a part of our civilisation. If law and the science of law (jurisprudence) are too far away from the roots of the civilisation, it means that we are lost. Law is a great power even in the hands of bad people. However, even bad people must remember that revolutions have own sources: there is no effect without reason. Maybe it’s time for the moral revolution in jurisprudence right now: jurisprudence is about divine things and human things; jurisprudence is about Justice: everyone due to his or her share. This is what I wanted to say. But I used too many words to express such simple ideas. The revolution is a metaphor. You must not make a decree on revolution. So on the other hand, nothing will be changed for better. Our civilisation is dying. Our self-sureness or self-confidence is lost. Our values are empty. Our heritage is gone. But is it so really? Is our jurisprudence not European? Maybe it has been changing, and new problems like globalisation, poverty, terrorism, new technology, life issues come. Maybe it is not as bad as I said. Maybe we really believe in some values like tolerance, freedom, and dignity or welfare and peace. The problem is that there is a big misunderstanding of the meanings of the concepts we called values. Deeper metaphysical approach or deeper cosmologic approach is not necessary for many people now. The lack of this transcendental dimension of our jurisprudence is a sign of these times we live in: the time of secularisation. We are as the world is. Let us not be naïve. Almost everybody believes in a better future. What means “better”? For different people, it means different things. But is it so really? Instead of talking 55 about differences in our jurisprudence I would like to talk about what is common: there are some values that are important, some topics that are crucial, that means that we are different than other legal cultures and jurisprudences. I do not want to say that we are better, but as somebody educated in the continent in a traditional way I can say: we are better in our institutions, organisation of social life, and jurisprudence. However, we are not better as far as we are losing our “religion”, or heritage, or self-sureness of who we were, who we are, where we are going to. Jared Diamond says that all the civilisations die but what is the worst in such collapses (it is the title of his book) they do so because of their deliberate stupid decisions, the decisions full of risk. He gave one example: a town built near a dam on the river. Our jurisprudence, keeping this analogy or being still in the wider aspect of our civilisation, is going to be this town built near the dam on the river. Are we still serious in our jurisprudence? I think we talk about important things like legal interpretation, argumentation, globalisation, sexual morality and penalisation. The clue is that the optics was changed. If you are not in the army of freedom and secularisation, then it equals your stupidity. I think we need still the two factors: those who represent human things, and those who represent divine things. These two ways of thinking are important. Who is able to build a comprehensive theory of human and divine things, nobody knows. But it will come one day as both theories taking separately are wrong and extreme, missing some important aspects of the universe, social life, the life of the individual; some important dimensions are lost. There are many challenges before us: we would like to be the kings of the cosmos, to explore the universe, however, we have still the problems on earth with ourselves. We can have a look at many processes from the Hegelian point of view: it is nice, but it is only a theory, or one of the theories, sometimes it worked or works anyway. Sometimes, not. Our jurisprudence without Justinian would have been impossible, or concepts would have been different. I believe in our jurisprudence. Of course, there is a lot of, I must say that, bullshit and repetitions on nothing. It is not THE science sometimes. But I think that in the long run term and in the historical perspective we made the life of the people in Europe or in the US better. But our faith in our civilisation and jurisprudence is not so sure now. "Progression" 40 (progress?) pushes identity and history; narratives on deliberating freedoms destroy transcendence and metaphysics. In one of the parts of the Game of Thrones, you may
40 By the way, I remember the words of Leszek Kolakowski about too progressive abortion law practice in England. The private talk was held in January 2008 in Oxford in his house. 56 listen to a speech given by the queen Lisa deliberating slaves and killing their masters while responding to her teacher's words about her unjust treatment of the masters: “I will answer: injustice with justice”. She puts the accent on justice that is mixed with injustice, but justice is to replace injustice. How is it in our jurisprudence? Is the theory of John Rawls all we can propose? Is the Catholic teaching and its impacts in the forms of theories of Aquinas, Finnis etc. all we can propose? Could we combine both? Could we find out the comprehensive theory? For some ontological, epistemological, axiological reasons, it seems difficult. What lacks in the first is a transcendental approach of our social life that is regulated by law. What prevails in the second is just highlighting a religious dimension. Give Cesar’s what belongs to him, and give the people what belong to them. And give the God what belongs to him. Thank you. (My lecture has been quite a provocative one, and this is also my aim to provoke you to discussion, the discussion about Europe's self-confidence and values, the true origins and pride of being a European legal scholar).