Since antiquity, philosophers have sought to understand the theoretical foundations of the law. A new book edited by Dr. Fred Miller Jr., executive director of BGSU's Social Philosophy and Policy Center, traces the historical development of legal thought, elucidating the origins of the modern philosophy of law in ancient and medieval philosophy.
"Western legal philosophy, like a stream flowing over three millennia, was fed by far-flung tributaries," Miller writes in the introduction to A History of the Philosophy of Law from the Ancient Greeks to the Scholastics. Recently published by Springer, the book traces those tributaries in a collection of original essays by a group of eminent international philosophers, classicists, historians and legal theorists. Assisting Miller in editing the compilation was his former doctoral student, Dr. Carrie-Ann Biondi, now teaching at Marymount College in New York City. The essays were originally presented at two international conferences organized by the Social Philosophy and Policy Center in conjunction with the Liberty Fund of Indianapolis, Ind.
The book is the sixth volume of a 12-volume series under preparation by an international team of renowned legal scholars. Titled "A Treatise of Legal Philosophy and General Jurisprudence," the definitive encyclopedia is edited by Enrico Pattaro of the School of Law at the University of Bologna, Italy, and includes five volumes on legal theory and seven on the history of legal philosophy. Bologna is the site of the world's first law school, founded in the 12th century.
Miller, a specialist in Greek philosophy and the author of Nature, Justice and Rights in Aristotle's Politics (Oxford University Press, 1995), and co-editor of A Companion to Aristotle's Politics (Blackwell, 1995), was invited to edit the volume. "I wanted to do it for two reasons," Miller said. "First, I was interested in how ideas of natural law, legal normativity and human rights evolved, and second, there was no book like this that showed how early philosophers laid the foundation for modern legal thought. Modern legal concepts were ‘baked in the cake,' so to speak. They were pre-formed and ready to develop."
Miller wrote the prologue on legal thought in the ancient Middle East and the chapters on Aristotle's philosophy of law and early Jewish and Christian legal thought. He co-wrote the chapter on law in Roman philosophy.
The concepts of legal normativity, the rule of law, the theory of constitutionalism, the idea of natural law and the theory of individual rights all have ancient and medieval roots. The issues raised by the philosophers of that time are still being debated today. For example, the question of legal normativity is still very much a live issue, as we question whether "simply because something is the law, is it right, and ought one to follow it?" Miller said.
Ideas about the source of the law play an important part in philosophical thinking, he pointed out. "The dominant idea of the ancients was that nature is the basis of the authority of law," he said, noting evidence of this as far back as the Egyptians. Philosophers have distinguished between rules based upon natural law and those based in conventional law. Aristotle wrote of the preeminence of natural law, or those precepts that are common among humans worldwide—such as the duty of parents to care for their children—over conventional, or agreed upon, law, of which a modern example might be driving on the right in the United States and on the left in England, Miller explained.
Catholic philosopher Thomas Aquinas, writing in the 12th century, attempted to synthesize Christian, natural and conventional law. "He wrote that even an atheist could discover natural law," Miller noted.
God is the source of authority in early Jewish legal thinking, beginning with the traditional Mosaic code and culminating in the Talmud. "Christianity soon became a separate branch and a distinct and powerful . . . influence on Western European legal philosophies," writes Miller in the prologue. But though viewed as the source of religious law, divine authority was not immune to questioning on the part of philosophers, he said. "A major controversy was going on in the Middle Ages over the question: Does the fact that God commands something make it right?" he said.
"You would never have a question like that" in Sharia, or Islamic law, he noted. The chapter by Dr. Charles Butterworth of the University of Maryland, one of the foremost scholars of Islamic societies, discusses the concept of "revealed law" given by Allah to Mohammed, which was expounded but never questioned. Conversely, other chapters discuss the Christian scholastics and their attempts to apply reason to matters of faith, an example of the sharp division between East and West.
"Another wellspring of Western legal philosophy was Roman jurisprudence, presented in a systematic manner by legions of Roman jurists," Miller writes. Though their system was temporarily lost in the barbarian invasions of Europe, which led to the rise of feudalism, it was rediscovered after the 12th century. "It began to be studied and law schools sprang up all over the world," Miller said.
The ancient philosophers were often prescient in their thinking. As if foreseeing the modern experiment with communism, Aristotle was critical of Plato's utopian ideal of a collectivized society in which all citizens would share ownership and responsibility for everything from children to property, saying that it was "contrary to human nature," Miller said. "Aristotle felt that if you try to construct a legal system that doesn't fit with human psychology, you're in for trouble."
And though "now widely forgotten," Miller pointed out, a group of early modern Spanish scholastic philosophers who were also Catholic priests spoke vehemently against the exploitation of the New World by the conquistadors. Writing against the subjugation of native peoples, Bartolomeo de Las Casas asserted that "men were not born slaves," that "God created rational men, not slaves," and that "all men and all lands were created free."
Although these words were unheeded when written, they proved to be influential on later philosophers such as John Locke, whose theory of natural rights in turn influenced the American founders. The Declaration of Independence, drafted by Thomas Jefferson, exemplifies this natural rights tradition.
As it has throughout history, the philosophy of law continues to evolve and will ever remain "a work in progress," Miller stated.