In his new book The Gift of Science, Roger Berkowitz illustrates the pernicious and deleterious effects of “science” on the universal application of justice in society.

The Gift of Science; Leibniz and the Modern Legal Tradition
By Roger Berkowitz
Harvard University Press, 2005
Hdbk, notes, index, 214 pgs.,
ISBN: 0-674-01873-7

LAW: AN ORDINANCE OF REASON FOR THE COMMON GOOD, MADE BY HIM WHO HAS CARE OF THE COMMUNITY.
– St. Thomas Aquinas, Summa Theologica, 1273.� � �

Twenty-five years ago my wife and I were among a group of citizens who came together to resist the then-proposed construction of a very large hazardous waste incinerator in East Liverpool, Ohio. Armed with what we considered a legitimate demand for “justice,” we earnestly believed that somewhere in the “process” some bureaucrat, politician, or judge would see the righteousness of our position and rule accordingly. After going through two EPA permitting processes, several lawsuits, and a number of demonstrations at the site, the state capitol in Columbus, EPA headquarters in Washington, D.C., and Bill Clinton’s White House (and serving the assigned number of days in the “county facilities”), it became apparent that “justice” was nowhere on the agenda.

We understood philosopher Max Weber, when he said “the impersonal rationality of bureaucratic legal science presents the greatest threat imaginable to individualism and the possibility of individual human freedom.” Although we didn’t know it then, we were experiencing the breakdown of the American legal system.

In his new book The Gift of Science; Leibniz and the Modern Legal Tradition, Dr. Roger Berkowitz, currently a Visiting Assistant Professor of Political Studies and Human Rights at Bard College, presents a unique and seminal disquisition on the philosophical history of German jurisprudence that brings into question the utility of the universal application of positive law (law as a product of rules). The beginning of Berkowitz’s exegetical exercise is, as one might expect, buried deep in the Enlightenment — the late seventeenth century to be precise — where German philosopher and mathematician Gottfried Wilhelm Leibniz grappled with the birth pangs of modernity and the resultant social and spiritual crisis that arose when man sought to displace God through knowledge and science.

Leibniz’s solution, Berkowitz tells us, was a thirty year effort to codify natural law through a “science of justice,” to transform law into a “product of science.” Leibniz’s work did not reflect a desire to abandon God, rather to discover, in his age when scientific knowledge was quickly increasing, the knowable, technical elements of law that would, he hoped, foster a new trust in the state and the church. But, the result, which was to manifest itself in the future, was that natural law “loses its traditional and natural connection to justice and comes instead to be a mere technical means to bring about whatever grounds and reasons are set for it.” Leibniz, then, laid the ground work for the “scientifically decipherable rationality of ius (natural law) as well that, in the course of the following centuries, proved to be the seed from which positive law would sprout.”

Dr. Berkowitz has developed a brilliant thesis. With a depth of erudition not often expressed in contemporary letters he has illustrated another example in the conflict between modernity’s eldest child, scientism, and the traditional order. Leibniz labored to unite the rational world with a philosophical insight (moral consciousness) that reflected the revealed truth, that “God is…an actual being that is the first and formal cause of the system of the actual world.” His failure was found in his definition of scientific law established on reason and justification, which denied natural law’s proclivity to conflate custom and what Berkowitz refers to as “insight.”

In the ensuing chapters the author examines the efforts of Friedrich Carl von Savigny and his continuation of Leibniz’s “scientific demand — founded upon the principle of sufficient reason — for a total and universal expression of Recht (natural law).” It was at this time, as Berkowitz eloquently and penetratingly describes, that positive law began to take precedence over natural law.

Berkowitz illustrates another transitional leap from natural law to positive law with his examination of the juridical thinking of Carl Gottlieb Svarez. Svarez redefined human happiness (the goal of the state) not as a product of justice but rather a function of security. Man, Svarez argued, in order to prevent a “Hobbesian war of all against all (anarchy and chaos)” establishes a civilization predicated on the “rule of law.” And, the “rule of law” was “the enterprise of subjecting human conduct to the governance of rules.” The much ballyhooed “rule of law” is merely the codified expression of positive law.

Berkowitz also shows that Svarez broadened his definition of the purpose of the state as the provider of security and order to include the individual “fulfillment of its citizens (a Pandora’s box if ever there was one)” while rejecting the notion of a “divinely guaranteed natural Recht (law).” Ultimately the juridical thinking of Leibniz, and Savigny, whom Berkowitz describes as defenders “of the spiritual sanctuary of the law,” and Svarez who seems not to have shared the same faith, develop the basis for the “amoral social-scientific positivism” that would come to Germany (and to the West) at the beginning of the twentieth century.

The Burgerliches Gesetzbuch (BGB), the German codification of law, was established, after a quarter of a century of study and debate, in 1900. The influence of “one of Savigny’s greatest disciples,” one Rudolf von Jhering, was profound. Jhering finalizes the separation of law from the revealed truth of God’s law, reduces natural law to “nothing but a means to an end,” and in a moment of myopic hubris declares that, “the practical aim of justice is equality.” As a result, Berkowitz shows how the BGB was not the will of God, the people, or the sovereign but “is the general, vague, and ultimately contested idea of fairness: the legitimate balancing of social and economic interests.” Power, then, was removed from its traditional entities by the technique of subverting the original intentions of natural law into merely being a vehicle for the nomenklatura that dominate the new “technical legality.” Ominously and quite accurately, Berkowitz writes, “..there is no actual master to whom one can protest on ethical grounds.”

Berkowitz has provided a thesis that will challenge anyone interested in the philosophical history of contemporary jurisprudence. His writing is clear, concise, and to the point; there is no philosophical meandering. In his conclusion, Berkowitz exhibits a decided moral imagination in his clarion call for a return of justice to the law, yet that goal can hardly be obtained without an acceptance of God’s law; a willful, sublime, obedience; a redemption of modern man.

As the “Age of the Bourgeoisie” comes to a close it is evident that the ennui and chaos instituted long ago during the Enlightenment has not receded. Berkowitz has illustrated the pernicious and deleterious effects of “science” on the universal application of justice in society. And, an unfettered science and technology, aided and abetted by technique, have achieved a remarkable disharmony and discordance among the civilized societies of the West, to the point where we are becoming divorced from reality. The issue has long passed the point of being merely an intellectual/philosophical conflict; indeed, it has always been spiritual and any righting of society will require a renunciation of the “world” and an effort to seek God’s will. Like the Israelites in the desert it is best that we turn our collective face to God, for he who sups with the Devil needs a long spoon.