Theory & Event

It has been a tough few centuries for the idea and practice of law, according to Roger Berkowitz. While once we had an immediate insight to the transcendent justice that enlivens true law, now law merely reflects a set of costs and benefits to be gamed by persons as best as they can in the name of or under the cover of fairness or social justice. While the demise of law may have begun with the rise of skepticism in the early modern period, it has oddly been abetted by those who wanted to reinvest law with its special meaning through science. This core observation of Berkowitz’s account is glimpsed in his title, The Gift of Science: Leibniz and Modern Legal Tradition. According to Berkowitz, Leibniz offers science as a gift in substitute for the lost connection between our daily experience of law and justice as transcendent, ethical practice. Unfortunately, while a well-intended gift, science turns out to be the cause of a newer and greater set of problems than that which it was intended to solve.

Berkowitz argues that in the modern era, as first articulated by Leibniz, science offered a new ground for law’s authority, replacing the lost insight of justice in the customary practices of law that preceded the rise of modern skepticism. The new ground of scientific jurisprudence serves either to supplement or to replace the traditional understanding and experience of natural law. It supplements through a scientific codification that improves upon the “singularity and opacity” of even the best of classical jurists’s intuitive application of natural law (25). Scientific jurisprudence also eventually replaces the natural law itself as rational codification becomes its own justification, rejecting any connection to natural justice. Leibniz is the pivotal figure here because even though he places God at the center of his idea of natural justice (ius) and natural law, he advocates a “scientific approach to ius [which] transforms its object so that a natural law (physis), that which was previously known only through free and active insight into an incalculable but manifest sense of divine and human justice, increasingly assumes the character of an instrument of scientifically knowable will (divine and human) in the service of human happiness” (24).

Berkowitz characterizes this approach as “Leibniz’s insistence on law’s double nature”; that is, law has a “double source”: one in God’s will and justice and the other in human apprehension and creation through reason (110). Berkowitz follows the trajectory of Leibniz’s approach through the following three centuries of German jurisprudence, both theoretical and applied. It is this double character, and the encroachment of scientific knowing that reduces the character of former element and raises the significance and import of the later that troubles Berkowitz. For Leibniz the double character involved first God, for the natural, eternal, transcendent source of law (the higher law of justice that he refers to as the Latin ius or German Recht), and then scientific reason which can produce systematic legal codes which we know as positive law (lex or Gesetz).

While succeeding Prussian and German theorists and codes invoke a similar dual character, the content of the first element continues to change, and in Berkowitz’s eyes, diminish. Thus in the late 18^th century for Carl Gottlieb Svarez, “the scientific approach to the rule of law discovers Recht to be posited in the rational will of the King” (155–6). Further, in the early 19^th century Friedrich Carl von Savigny looks to history and advocates a “scientific penetration into the ‘Ur’ laws of nature”; yet not in the heavens, rather “the origin of law [is] in the historical Volkgeist” and “thus law’s existence is always a historical existence” (122). Each of these has a conception of a higher transcendent or primary law; however, each also reduces the character of what was God’s justice for Leibniz, by subjecting it to...