Law and Science

Toby E. Huff

Liberty lies in the hearts of men and women;

when it dies there, no constitution, no law, no court can save it;

no constitution, no law, no court can even do much to help it.

While it lies there it needs no constitution, no law, no court to save it.

—Judge Learned Hand, The Spirit of Liberty

As the “Arab Revolt” of the first half of 2011 unfolded, many observers were cheered by the prospect of removing tyrants and installing constitutional democracies. Other observers have noted that at this very moment there may be an “Arab Counterrevolution” underway.1 This is because transforming popular uprisings into democratic and constitutionally secured regimes is far more complicated than unseating unpopular tyrants. Furthermore, many Middle Eastern countries experienced popular revolts in the 1950s. Nothing was more spectacular than Gamal Abdel Nasser’s military coup in 1952 that gained huge popular acclaim across the Arab world, and gave rise to the illusionary vision of a “United Arab League” comprised of several Arab states. But as we know, Egypt fell back under the spell of autocracy and military dictatorship, as was practiced for three decades by President Hosni Mubarak.

Likewise, under the leadership of Habib Bourgiba, Tunisia was led out of colonial rule in 1957 and into a greater measure of freedom, albeit still dominated by Bourgiba’s heavy hand. Iraq was “liberated” from foreign rule in 1932, Syria in 1946, Morocco in 1955, and Algeria in 1963—but the future did not turn out bright. Bourgiba did indeed modernize and liberate Tunisians from many onerous aspects of traditional Islamic law and Arab culture, including the repressive treatment of women. Yet Bourgiba’s Tunisia was not exactly a democracy, and things worsened under Zine El Abidine Ben Ali. After having Bourgiba declared incompetent, Ben Ali seized power in 1987 and strove to become president for life in 2009 by engineering the winning of a fraudulent fourth term in office with an alleged 89 percent of the vote. The unconscionably repressive nature of so many Middle Eastern countries, now being protested more than ever, need not be detailed further here.

What is the proper perspective in which to view this cycle of autocracies and dictatorships in the Middle East? If we consider the history of Western civilization, we can see that self-government did not arise all at once; rather, we see major milestones on the way to constitutional democracy, freedom of speech, popular elections, and the rule of law. Furthermore, specific legal developments of the past led to the promotion of political stability and economic growth as well as to the rise of modern science. Surely it is significant that these breakthroughs occurred only in the West, and that they laid the foundation for the scientific, technological, and economic ascendency of the West for the last three and a half centuries.

In terms of political liberation and constitutional democracy, Americans cannot help but think back to 1776 and the Declaration of Independence. For the English, the mind reaches back to the English Declaration of Rights of 1689, and for those with somewhat longer historical memories, to Magna Carta of 1215. But the true origin of political freedom has its roots in the Papal Revolution of 1075–1122. For it was during this period that wrangles between prince and pope resulted in a revolutionary recasting of the design of Western civilization. Some have called it the great “Axial Shift” of Western civilization and it has no counterpart outside of Western Europe.

During this era Europeans achieved an enormous set of breakthroughs regarding the structure of law, legality, and self-governance that have proven indispensable for the history of the West and, indeed, the world. To understand the makings of the modern world, the origin of its legal principles, and its commitment to constitutional democracy and modern science, we need to give that era far more attention. The very roots of international law and order, now often put under the tag of globalization, are found in those years.

The Axial Shift and the Triple Revolution

As many scholars have pointed out, the unparalleled legal revolution in Europe of the twelfth and thirteenth centuries resulted in the creation of numerous innovative conditions in three major spheres of societal development: the emergence of representative democratic politics, the creation of new economic rights and actors (corporate entities of many sorts), and scientific development. Behind all of this was the Papal Revolution of the late twelfth and early thirteenth centuries, which set off a legal reconstruction that radically altered the foundations of virtually all social, political, and economic relationships. In thinking about this, one should not make comparisons with current democratic institutions and their practice, nor contemporary science and its ideals, but with contemporaneous institutions and practices of the early modern era of the three other civilizations: China, Mughal India, and the fledgling Ottoman Empire. A true appreciation of Western civilization needs to be complemented by comparative studies; without a proper grounding in Western studies, false comparisons will arise.

Too few scholars have devoted attention to comparative legal history. If they did, they would be very pleasantly surprised to find that although we moderns like to castigate lawyers and litigiousness, medieval legal scholars actually laid the foundations for a vast historical expansion of self-governance, human rights, and political representation.

The germs of all this go back to Roman Civil Law and the modifications of that corpus worked out by the Canonists and Romanists of the twelfth and thirteenth centuries. In their wisdom they recognized the importance of creating legally autonomous entities, namely corporations or “whole bodies” that could be treated as self-willed agents capable of making their own rules and regulations, and hence of governing themselves. This meant making decisions according to the principle of “what touches all should be considered and decided by all,” or by the greater and sounder part.

This status was granted to a variety of corporate entities—cities and towns, charitable organizations, merchant guilds, as well as professional groups represented by surgeons and physicians. Not least of all, corporate status granted legal autonomy to universities, a distinction unique to the Western world.

Petitions and the Public Sphere

All of these entities were thus enabled to create their own rules and regulations, and in the case of cities and towns to mint their own currency and to establish their own courts of law. Nothing like this kind of legal autonomy existed in Islamic or Chinese or Hindu law of the era.2 Because corporate entities could elect their own representatives, they were able to authorize agents to act on their behalf before the king and before parliaments. This kind of representation is the origin of democratic representation in parliamentary bodies that emerged across Europe, in England, and eventually the United States. An equally dramatic innovation was the recognition that any accused person ought to be granted due process that entailed appearing in court and testifying on his own behalf. Likewise defendants were granted the right to legal counsel who could if requested appear on behalf of the defendant, all of this using written records. These innovations would have a major impact on legal proceedings across the world in the future.

When thinking of the restrictions now being established across so many parts of the developing world that are designed to restrict access to the Internet and surveil every communication—especially those that might have a political content or simply carry critical comments on Chinese (or Middle Eastern) official authorities—one can only marvel at the boldness of Europeans of the early modern era who managed to carve out a public sphere.

Moreover, within the universities there was a longstanding tradition centered on sessions called “ask what you like” (quodlibeta), which had no counterpart outside the Western world. This tradition was so deeply entrenched in the culture of Western Europe that when Martin Luther set out to challenge the highest religious authorities of Europe, he simply nailed his Ninety-Five Theses on the cathedral door in Wittenberg. His post also contained a request “that those whoever cannot be present personally to debate the matter orally will do so in absence in writing.”3 It is difficult to imagine a similar challenge and debate regarding the Confucian legacy, the “mandate of Heaven,” or the mandarinate in China posted on the door of a great temple in Beijing in any previous era. Heads would literally have rolled.4 Likewise, it is extremely difficult to imagine a sixteenth or seventeenth century Islamic scholar posting such a challenge on the door of the Great Mosque in Damascus (or in Istanbul), inviting scholars and others to publicly debate the fundamentals of Islam, the meaning of the Koran, and what its sources might be.5

But it was not just the most accomplished scholars who could engage in the petitioning process. Indeed, when Parliament convened, the first order of business was to appoint the receivers and “trier of petitions.” These documents had legal status and as such had to be acted upon. In them, petitioners complained of the “miscarriage of justice or requested relief from taxes, forest laws, and other regulations.”6 Both individuals and collectives had the right to petition, and by the 1640s we find 15,000 or more signatories to a single petition presented to Parliament.7 It was a commonly expressed view that petitioning was “the indisputable right of the meanest subject.”8 Here again we encounter legal structures and rights unknown elsewhere.

The Printing Press and Newspapers

Much of this depended on the advent of the printing press in the fifteenth century. The major transformation of pamphlets into newsbooks and then newspapers occurred in the 1640s in England. Newsbooks as modified pamphlets appeared in the 1640s following the tradition of corantos (“currents of news”) that had appeared earlier in Holland and on the Continent. Pamphlets as a source of information supplied the primary means for creating and influencing public opinion, a social invention of the seventeenth century. The pamphlets were cheap publications that conjoined the flow of information with commercial benefit.

With the transformation of pamphlets into newsbooks—a quarto publication consisting of sixteen pages folded in fours and bound together on the left margin to make a little book—a new genre of news publication was invented. Such books reported on a variety of topics, but especially domestic issues. The newspaper appeared in 1666 (the first being the London Gazette). It was larger, and printed on half-sheets in two columns on both sides. The newspaper press emerged in the mid-seventeenth century and has not stopped since. As the historian of English newspapers, Joad Raymond, puts it, the arrival of the newsbook set in motion an “avalanche, which, with no more than a few weeks of interruption,” continues rolling “right up to this morning.”9 There is hardly a more visible symbol of the intellectual freedom of the public sphere than the daily press. This, too, is something students of Western civilization might discover is unique to the West. Newspapers as we understand them did not emerge in China or the Muslim world until the early or late nineteenth century, and were a pale version of their European exemplars.

Here we see how the theory of corporate existence worked out uniquely by the twelfth and thirteenth century Western European legalists created a new bundle of rights whose extension across a broad spectrum of human activities greatly expanded the public sphere and legitimate public discourse. In the first instance, the legal revolution of the twelfth and thirteenth centuries created the idea of legally autonomous entities that enjoyed the right to make their own rules and regulations, to buy and sell property, to sue and be sued, and to be acknowledged according to the principle of “what concerns all should be considered and approved by all.” Furthermore, there was a right of individuals and collectives to be heard before the king and counsel in Parliament, as in the petitioning process described above.

But let us also consider how this creation of legally autonomous discourse within the universities promoted the study of science from that day forward.

Universities and the Rise of Modern Science

In the twelfth century a major translation movement began that reconnected Western Europe with the Greek scientific and philosophical legacy that had been lost when the western portion of the Roman Empire collapsed in the fifth century AD. Proceeding mainly through Spain, scholars from across Europe recovered large portions of the writings of Aristotle and others, especially in medicine, mathematics, logic, and natural philosophy. Major commentaries and original works by Arab writers were also translated. Unlike their Muslim counterparts south of the Mediterranean, however, European medievals quickly placed this treasure of natural philosophy and epistemological speculation at the center of their university curriculum.

The Europeans refocused this curriculum around the three philosophies—natural philosophy, moral philosophy, and metaphysics—and then placed at its center the natural books of Aristotle. These included Aristotle’s Physics, On the Heavens, On Generation and Corruption, On the Soul, Meteorology, and The Small Works on Natural Things, as well as biological works such as The History of Animals, The Parts of Animals, and The Generation of Animals. It is with these books and new textbooks based on them that students of the Middle Ages began to have a learning experience that was essentially scientific. Put differently, the Europeans institutionalized the study of the natural world by making it the core of the university curriculum.

Moreover, the universities developed a method for taking up and disputing all sorts of naturalistic questions. A product of the lectures of the university teachers, this method was based on compilations of the summaries of major physical questions as well as original treatises. This literature and its use resulted in a concerted form of skeptical probing of a large set of questions in the natural sciences—physics, astronomy, meteorology, mechanics, and so forth. These probings included questions about the ultimate constitution of nature and the conditions of its transformation. Questions were asked about whether the world is singular or plural, whether the earth is stationary or turns on its axis, “whether every effecting thing is the cause of that which it is effecting,” whether things can happen by chance, whether a vacuum is possible, whether the natural state of an object is stationary or in motion, whether luminous celestial bodies are hot, whether the sea has tides, and so on, for virtually every known field of inquiry.10 What’s more, only the European universities possessed Aristotle’s canon of logical argumentation, which was unknown in China. It is hard to imagine a more concentrated diet of scientific questions about the natural world and how it works.

In short, European intellectual inquiry was on an altogether different path than that found in the Islamic world or China. By digesting the corpus of the “new Aristotle” and its methods of argumentation and inquiry, the intellectual elite of medieval Europe established an impersonal intellectual agenda designed to describe and explain the natural world in its entirety in terms of causal processes and mechanisms. This disinterested agenda was no longer a private, personal, or idiosyncratic preoccupation, but a publicly shared set of texts, questions, commentaries, and in some cases centuries-old expositions of unsolved physical and metaphysical questions.

These inquiries set the highest standards of intellectual investigation. Institutionalized as a course of study, this curriculum remained in place for the next four hundred years in the European universities. It thereby laid the foundation for the breakthrough to modern science. It did so by instilling a profound skepticism about the sources of knowledge and a deep curiosity about the workings of nature. And it inculcated a spirit of scientific curiosity unmatched anywhere in the world.11

It is easy to show that scientific questions posed by these medieval scholars had a direct impact on such pioneers as Galileo, and such scientific inquiries as William Gilbert’s electrical studies and Blaise Pascal’s gauging the weight of air while showing that the apparent force of a vacuum is equivalent to the weight of air.

Literacy

There is still another distinguishing mark of the values of the West: universal literacy. Until the end of the twentieth century, literacy in other parts of the world lagged hugely behind the West. This is because general literacy in the Western world began to rise dramatically as far back as the sixteenth century and continued to grow until the late nineteenth century, when it reached more than 90 percent of the population of Europe. The teaching of Martin Luther and other religious reformers greatly spurred this movement, so that it spread across Europe and beyond denominational boundaries. Students of comparative civilizations might want to consider in greater detail why this fundamental landmark of human development and agency progressed so mightily in the Western world but lagged for centuries elsewhere.

Universalism and the Wireless World

All of these examples suggest to me that the study of the history of the West ought to be an integral part of the education of any student and citizen. Furthermore, the West has led the way in many contemporary global developments. Perhaps the doctrine of relativism has led students and scholars to forget the forces behind the adoption of the Universal Declaration of Human Rights (1948), which was sponsored by the United Nations and heroically supported by Eleanor Roosevelt. Through an initiative of Western activists, the declaration was debated and signed by representatives of the vast majority of UN members, whose creeds and commitments cover all religious and ethical persuasions.

Similarly, students who have difficulty defining and placing the Scientific Revolution, may imagine that our wireless world was invented recently in China or Japan or in some other faraway place. If we ask, “Who invented wireless communication and what scientific discoveries made wireless communication possible?” the answer points back to the late nineteenth/early twentieth century and the German scientist Heinrich Hertz. He was working with the implications of James Maxwell’s mathematical equations when he discovered in 1888 that wireless signals are transmitted by certain electric circuits. Much more had to be done to get a practical application such as Marconi achieved in the 1890s, but that was the beginning of wireless communication.

If we return to the present and ask, “What scientific breakthrough made wireless communication possible as we now know it?” the answer would be quantum mechanics. This is the theory of elementary microparticles. What scientists in the 1920s and 1930s discovered (along with the existence of microparticles such as the electron), is that those particles travel in ways very different from ordinary-sized bits of matter such as grains of sand and planets. The paths of microparticles defy the logic of classical physics. Nevertheless, it was discovered that under certain conditions and in certain materials, electrons can be knocked free, producing a cascade of miniature communications. This was the idea behind the invention of solid state semiconductors.

In this case, the inventors of the transistor—William Shockley, John Bardeen, and Walter Brattain (1947)—had been studying the latest findings in quantum mechanics. The outcome was the invention of the solid state transistor, which would have all the functionality of a vacuum tube (used in radios, televisions, and early computers) and much more. Once this invention was perfected (ca. 1955–1957), scientists realized that these solid state devices could hold many transistors. This heralded the invention of the microchip—a computer on a thumb-size piece of silicon.12

It is due to these miniaturized circuits that we can build computers sized to fit into cell phones and many other very small devices. However, the point is that the computer revolution in its miniaturized form depended upon the discovery of quantum physics and a host of other scientific and technological breakthroughs. Vacuum tube-based computers also existed, but they took up entire rooms, needed constant “debugging,” used huge amounts of energy, and so on. In a broader sense, the electronic revolution of the twentieth century was a product of scientific discoveries with roots in the nineteenth or very early twentieth century, yet their technological applications unfolded only during the second half of the twentieth century. The lesson from this might be that neither China nor India, much less the Middle East, is likely to sponsor a similar major scientific-technological revolution in the twenty-first century. It is also probably true that the major scientific and technological breakthroughs that will shape the twenty-first century have already been made. We just do not know which they are.

The roots of constitutional democracy and justice according to law are very deeply inscribed in the history of the West, as I hope this essay shows, and this is a legacy that ought to be known by all who call themselves educated. In the history of the Middle East during the twentieth century, however, such principles have been rare and very weak. Nor are they easily transferred from one civilization to another, though the struggle to do that is imperative. A Middle Eastern country might create a new constitution such as Iran did after Khomeini’s revolution of 1979, but if liberty is not inscribed in the hearts of its citizens and leaders, as Learned Hand remarked, no constitution or set of laws can save it.

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