Vol. 1, No. 3 (May 1991) pp. 53-57

THE HUMAN MEASURE: SOCIAL THOUGHT IN THE WESTERN LEGAL TRADITION by Donald R. Kelley. Cambridge: Harvard University Press, 1990. 358 pp. Cloth $35.00

Reviewed by Kenneth Aaron Betsalel, University of North Carolina Asheville

The central thesis of this important though at times highly idiosyncratic book is that despite the many changes that law and legal thinking have undergone in the past twenty-four hundred years an underlying tension remains between Physis (or what can be understood as the Greek word for the laws that govern the physical universe) and Nomos (or the Greek word for the world of convention and man made laws) (p.xi,1). In THE HUMAN MEASURE: SOCIAL THOUGHT IN THE WESTERN LEGAL TRADITION Donald R. Kelley, Wilson Professor of History at the University of Rochester, attempts the difficult task of tracing the relationship between legal thought and social theory from the ancient Greeks to modern sociological theory. As Kelley explains his project:

Mine is not a quest for the original meaning, the pure authorial intention, of texts -- not a quest for the 'histo- rical' Gaius, in other words, or even for the historical Weber, as he lived, breathed, and thought. Rather, it is a quest for the changing expressions and interpretations of social and cultural thought -- the forms of Nomos -- through the longue duree of discourse, argument, criticism, formula- tion, and reformulation that comes down to us in largely textual terms" (pp.x-xi).

In short, Kelley attempts to understand the Western legal tradition (and the social thought it embodies) not through any systematic empirical investigation of specific laws or legal institutions and how they have developed over time, but rather through a more personal textual analysis of the legal traditions spawned by major authors. As Kelley explains, he has made "No attempt to chronicle Western legal thought in a professional or disciplinary way, nor do I intend to follow a strictly historical method in discussing legal authorities" (p.5). The method that Kelley proposes to use instead is what he refers to as "hermeneu- tical" (discussed on pp. 3-5).

Following the lead of such thinkers as Martin Heidegger and Hans-George Gadamer, Kelley's intention is to work through some of the "prejudices" and "for-structures" of social existence in search of the legal traditions deeper meanings (p.3,5). Like the French social historian and theorist Paul Ricoeur, Kelley's ultimate goal appears to be to use the hermeneutical method "To make one's own what was previously foreign" (p.13). As such, Kelley suggests that the study of western legal tradition is akin to the study of myth making (p. 6). As he writes: "My own offering can itself be only further 'work on myth,' for this is the general predicament of all historians, and in any case (as Blumenberg suggests) the 'end of

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myth' is the greatest, the most persistent, and (for historical understanding) the most illusory of all myths" (p.6). Thus, Kelley's epistemological starting point seems to be that there are no social facts independent of interpretation and the meaning we give them. Hence a recurrent theme in Kelley's book is that law can be "measured" or interpreted, evaluated and understood only in human terms.

Kelley begins his story of Nomos with a detailed discussion of the ancient Greeks. Drawing on a wealth of secondary source material he argues that such ancient Greek thinkers as Protagoras and the Sophists were the first to explain that the ultimate foundation of the law was in man's reason rather than in the wisdom of the Gods (pp. 28-29). Kelley suggests that for this insight the Sophists in particular have paid the price of being seen as moral relativists rather than as what the great German classicist Werner Jaeger has referred to as the "first humanists" who were skeptical of all forms of knowledge, including their own (p. 29).

The real accomplishment of the Greeks, Kelley argues, was their contribution to the development of human consciousness. As he writes: "The accomplishment of the Greeks were considerable. They discovered the conscious self and placed personality at the center of thought about society and culture..." (p.33). But what is the relevance of Greek thinking to the law? Kelley answers that the Greeks were the first to posit a strong notion of the individual self: the independent thinking and acting individual who would be the kind of autonomous person to become the basic building block of the Western legal tradition. But what the Greeks did not sufficiently do, Kelley argues, was "create a science of law in a normal sense" with all of its attention to such concepts as rights, duties and contractual obligations that could be set apart from religious tradition and authority (p.34).

Kelley argues that it would take a "less reflective and imaginative" understanding of man's place in the universe than the Greeks had to create a pragmatic science of law (p.34). And that more pragmatic understanding of law -- one that could balance paying homage to the gods while at the same time taking care of the details of business here on earth -- was found in Roman jurisprudence or "legal wisdom."

The Romans, Kelley persuasively argues, were able to suc- cessfully accommodate and then transform "fas" (or the Latin term signifying unwritten custom that followed what was thought to be sanctified rituals and traditions of divine and eternal law) with "ius" (or the Latin term signifying the needs of routine family life and social behavior in the city) (p.35). The result, according to Kelley, was a Roman jurisprudence that at once balanced the need for a law that addressed the universal aspira- tions of people while at the same time being deeply rooted in what amounted to everyday problem solving. This

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dual concern with universal principles and the ability to respond to a unique cultural heritage, Kelley argues, was incorporated into the writings of Gaius (c. A.D. 160) and later canonized in Justinian's CORPUS JURIS CIVILIS (pp.52-53).

Kelley suggests that it was this tension between the desire to maintain continuity with ancient traditions rooted in a concern for universal principles and the need for practical solutions that gave Roman jurisprudence its vitality and created legal distinctions and a judicial vocabulary that remains with us today (p.64).

From Roman jurisprudence, Kelley traces the story of Nomos through the Christian, German, French, Italian and English common law traditions. In an interesting twist, he argues that the early Christian tradition was in fact an attempt to negate the authority of Nomos (law based in human convention) by a direct appeal to the authority of Logos or the underlying structure of the world based on the word of God. As Kelley writes:

To the ancient dialectic of Nomos and Physis the Gospel added a third term, a theological synthesis which was the transcendent spirit, the Logos--but the Logos of religious vision, not of rational analysis or persuasive discourse" (p.67).

A problem that arose from such reformulations of law in terms of the word of God related to how church fathers would deal with conflicts arising here on earth. In simplified terms, Kelley's response is that such Christian thinkers as St. Augustine and St. Thomas Aquinas attempted to use the writings of the ancients (in the case of St. Augustine, Plato; in the case of St. Aquinas, the writings of Aristotle) to bring the Logos back down to earth in order to obtain practical guidance in the affairs of man.

Kelly can be interpreted as arguing that the problem of English common law was the exact opposite of that faced by early Christian writers. That is, how to take diverse local customs and traditions and fashion them into a more universal system of common law justice. Kelley seems to argue that English common law is in large measure an act of imagination and myth making, an appeal to "general immemorial custom" -- a custom that may in fact never have existed apart from the need and will to invent it for the purposes of governing the realm (pp.165-166). Thus "immemorial custom" was in fact an act of human creation that over time, in Sir John Fortesure's phrase, became a "second nature" (p. 168).

Painting with broad strokes, Kelley argues that beginning in the seventeenth and eighteenth centuries the practical problem legal thinkers had to confront was how to reconcile "ancient legal forms"

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inherited from Roman, Common Law, and Continental Civil Law traditions with "modern social reality" that was replete with inequalities in wealth, status and power (p.232). The result of this tension was the heightened conflict between those conserva- tive legal theorists who tended to rationalize the ancien regime and the state in terms of natural law principles and the more "radical" theorists who began to fashion more revolutionary vocabularies and methodologies to explain the roots of law and the human condition.

The hero of this period and, indeed, of Kelley's book, appears to be the Italian social theorist and philosopher of history Giambattista Vico (1668-1744). As Kelley writes:

What Vico's 'new science' offered...was an original philosophical (as distinguished from jurisprudential) syn- thesis of the legacy of civil science, the modern expression of the world of Nomos, which drew, methodologically, as well as substantively, upon history, and philology as well as philosophy and legal science itself (p.234).

According to Kelley, what Vico's method revealed was that law was the creation of human language and experience based on the perceived need to exist between the antimony of the "necessi- ty of nature" and authority based on the "wills of men" (p.238). Thus Kelley argues that Vico was, in effect, one of the first great thinkers to balance the particular and the general -- the contingent and the eternal -- in man, society and the law.

It appears that Kelley is less impressed with nineteenth century sociological approaches to understanding law, which he for the most part dismisses as mechanistic and reductionist (pp. 269-270). Kelley is even more critical of "postmodern" attempts by scholars to understand law and social thought. As he writes:

[The] more recent attempts to establish ties between law and other disciplines, including economics, anthropology, rheto- ric and even literary criticism (often in their most fash- ionable forms). Yet the aim has been technical or ideologi- cal, and it has been based on a concern for the legal pro- fession rather than for human understanding in any broad sense. (p.278).

In the final analysis, the real argument of this book appears to be that attempts to understand law outside of the human construct are all bound to fail. This is because like earlier attempts to find natural law principles in the word of God or in the mechanical regularities of the universe there is no law apart from human language and discourse. Kelley, like Vico, seems to suggest that as we created the world of Nomos, of which law is a part, we ought to be able to understand it. Kelley concludes his study thus:

We continue to live anthropocentrically to judge anthropocentrically, to live within the confines of the "small bright circle of our consciousness." And in this human world, for good or for ill, however modified by demog- raphy, technology, genetics and psychotherapy, and whatever we may suppose or pretend, King Nomos still rules (p.283).

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The strength of this book is in its daring sweep of intel- lectual legal history and jurisprudence. Twenty-four centuries of it. However, despite the great erudition of the author, Kelley's writing is at times obscure and even pedantic. What is problematic about this book arises in large measure from Kelley's hermeneutical method of "experience[ing] tradition." While this highly personalized and idiosyncratic method of analysis may have contributed to his own understanding of the subject it often left this reader confused and frustrated.

Kelley's book is not recommended for beginners or for those scholars looking for a systematic introduction to the history of Western jurisprudence. For those seeking more straightforward accounts of Western legal tradition and its relation to social theory and practice I strongly recommend Harold J. Berman's LAW AND REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION, John Henry Merryman's THE CIVIL LAW TRADITION, and the second edition of Carl J. Friedrich's classic study THE PHILOSOPHY OF LAW IN HISTORICAL PERSPECTIVE. Yet despite its shortcomings in terms of accessibility THE HUMAN MEASURE: SOCIAL THOUGHT IN THE WESTERN LEGAL TRADITION is a significant and valuable work, if only because it gives the serious student of law so much to think about.


Copyright 1991