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
Page 59 follows:
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
Page 60 follows:
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"
Page 61 follows:
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).
Page 62 follows:
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