“Roman law” by Eugene Yurevich. CC BY-NC-ND 2.0.

It is a law-school maxim today that the United States is a common-law country, while most of Europe uses civil law: English-derived common law has as its most basic tenet the binding nature of judicial precedent, while Roman-derived civil law privileges statutes. But the more I investigate the history and details of each, the more clear it becomes to me that the United States, at least, owes (almost?) as much of its legal system to civil law as it does to “pure” common law (see, e.g., Civil law and courts of equity: the common law is hybrid law and Civil law’s influence on American common law: the appeal).

Another interesting story of the influence of civil law involves a push early on in the history of the United States to bring in civil law approaches, in part as a means to distinguish American law from English law, as well as to help unify the laws of disparate states. Then as now, too, civil law–which emphasizes statutory rules over judicial lawmaking–was seen to reduce the potentially arbitrary power of an unelected judiciary.

In “The Attraction of the Civil Law in Post-Revolutionary America,” Peter Stein quotes Sir Henry Maine as saying in 1856 that the Unites States was not part of “the common-law camp,” but instead had ceased to adhere to the single English (or New English) common-law model by 1825 (403). Instead, claimed Maine, Roman law was “fast becoming the lingua franca of universal jurisprudence” as many newer American states were looking to it for their “substratum” instead of English common law (404).

Early legal education, both in America and in England, contained civil-law materials, including Justinian’s Digests and Institutes, along with treatises (in English translation) on international and natural law by Grotius and Pufendorf, among others (405). Also, many early American legal educators were Scots, and Scotland is a civil-law country (405). James Madison, John Adams, and Thomas Jefferson all engaged with the civil-law tradition in their educations (405–06).

Unlike the perceive chaos of the common law, “[i]n eighteenth century eyes the civil law was associated with order, clarity and coherence” (406). After the Revolution, there was a sense that the United States needed its own legal approach based on the best the world had to offer:

efforts should be made to develop a particular American jurisprudence, which would not be a slavish imitator of the English common law, but would be eclectic–selecting the best principles and methods from whatever system they might be found in (407).

Additionally, although the common law had been seen as a check to the King’s power, it was also viewed with “considerable distrust … as an English product and a corresponding sympathy for things French” (410). Is it any wonder, then, with this desire to create a new nation, along with the positive perception of civil law, that civil law influenced early American jurists?

In the early part of the nineteenth century, American judges cited approvingly to both English legal precedent and to civil law treatises: “in New York, at least, they adopted a policy of eclecticism, considering the common-law and civil-law authorities respectively and then choosing one or the other” (409).

Especially in the areas of commercial law, maritime law, and international law, the civil law was particularly influential. English commercial law was revolutionized by Lord Mansfield in the period just before and after the Revolution, but his influence had little impact initially on the new nation (412). Instead, jurists turned to well-developed mercantile principles in civil law. In maritime and international law, Roman law–since so many European nations based their system on it–had especially force, and continue to do so today (421).

Although English precedent and English cases were used extensively in early America, early nineteenth century jurists lacked today’s judges antipathy to foreign precedent and approaches. Caleb Cushing wrote in the early 1800s:

The common, civil, and customary law of Europe have each precisely the same force with us in this branch; that is, our courts study them all, and adopt from them whatever is most applicable to our situation, and whatever is on the whole just and expedient, without considering either of course obligatory (422).

But by 1850, writes Stein, civil law had faded from American consciousness. Why?

1. The most zealous champions of the civil law held high office, but their ideas “never permeated down to the humdrum practitioner of the law.”
2. Codifiers of American law continued to turn to civil law statutes as models, but not to its general unifying principles; they looked instead to its practical implementations (like the Code Napoleon), and drew on English thinkers like Jeremy Bentham instead of Justinian.
3. Historians of Roman law then took over, emphasizing “questions of learned jurisprudence” and not “point[s] of great practical import.” (432)

Nonetheless, even though Stein sees the 1840s as the decline of civil law’s influence in America, I see point 2, above, as indicative that it continued to play a role in the development of American statutes–but one that is less obvious and more subtle than direct cites to civil-law authorities by American judges.

“Corpus Iuris Civilis 1663″ from Yale Law Library, used under a Creative Commons license

In “Salamanders and Sons of God,” an article in The Many Legalities of Early America, Mary Sarah Bilder writes about the “Culture of Appeal in Early New England,” and situatesthe embrace of the right to appeal by New Englanders within the larger English and Roman legal tradition. English law in the sixteenth and seventeenth centuries was based on common law, a system that relied not on statute but rather on custom, and

in which pleas to the judiciary required addressing “reason”–“the faculty acquired by training that extracted some workable rules from a formless body of immemorial knowledge”–rather than appealing on the basis of what any ordinary person could claim was justice, equity or mercy (Bilder 51).

In the traditional common-law system, there were no appeals. There were various “writs”: the “writ of false judgment,” the “writ of attaint,” and the “writ of error,” but each of them involved horizontal appeals, not appeals to a higher authority. The common law was what judges, ruling on the basis of reason, thought it was, not what a king or higher authority said it was, so appealing to a higher authority made no sense. No new evidence or hearing was permitted on these writs, but only a review of the complex rules and procedures of the common law:

A party who felt that “manifest injustice” had occurred had to find justice by “proof of a technical error (verbal or procedural) in the previous trial” (52).

Alongside the common-law courts in England, another system of of equitable courts existed as well. This system grew out of the ecclesiastical courts, themselves developed in the tradition of the Justinian code–in other words, civil law. In this system, which handled cases  “involving marriage and separation, probate and intestate estates, and slander and defamation,” among others, the goal was justice, and the procedures were more flexible (55). This system conducted appeals “in English, with depositions and interrogatories” and “was understood as a rehearing of both law and fact” (55). It drew on “an equitable theory of justice arising from medieval Roman canon law” (55). When Henry VIII replaced the Pope in England, he took on the Pope’s role as the ultimate appellate judge for courts of equity.

The appeal also took root in the corporate bodies of trading organizations. Formed by royal charter or patent, these trading corporations were authorized to maintain their own court systems, but with the right to appeal to the Crown guaranteed. Thus, Massachusetts and Virginia, both formed as corporations, were established with the right to appeal embedded into their systems. But the appeal remained even as the corporate structure disappeared, and was used as a means to establish and maintain a central authority.

Justice was important to Puritans. Thus, despite the historical connections to the hated Papacy, the Puritans embraced the “appeal to God” and its more secular variants as checks on injustice. Many “colonists thought equity was the point of the justice system,” and “colonial court systems did not separate equate courts like chancery from common-law courts” (68). (Interestingly, the combination of equity and common law meant that, for example, juries were required for appeals as well as for initial trials when the appeal involved matters of fact. )

In short then, the appeal represents the strong influence that the civil law has had on the common-law system. Today I often hear civil and common law described as opposite, distinctive, almost incommensurable systems, when in fact it appears that in actuality the modern American (and English, Australian, etc.) common law system is deeply indebted to the civil law tradition.

I had several goals for my time in Vienna:

1. I wanted to make international connections with colleagues around the world;
2. I wished to develop my thinking on the relation of history with evidence–preferably with a bit of legal context;
3. since my philosophical background in regards to science needs work, I wanted to find new ways to approach the philosophy of science that would help me to develop my understanding and appreciation of the field.

How well did this summer’s VISU help me to achieve these goals? Quite well!

First, I met many wonderful people from universities around the world. Most, perhaps unsurprisingly, were from Europe or the United States, and they represented a wide variety of disciplinary approaches to science and evidence. For example, I was able to connect with graduate students working on similar questions as I am from a civil law context, providing a useful comparative potential to add to my own work.

Second, I was thrilled that the focus on the legal context was much deeper than I expected. David Lagnado of UCL provided an especially new and intriguing look at the ways in which juries evaluate evidence in the common-law courtroom, and introduced me to the use of Bayesian analysis in evidentiary analysis.

Third, the 10 or so graduate students coming from the discipline of the philosophy of science helped me to appreciate the philosophical debates more fully. I may still not fully embrace what feels to me like a de-contextualized approach to theory, but I can better appreciate the goal and reasons for trying to describe and explain scientific theories.

Some more highlights of the two weeks:

• Bayesian networks as representations of real-world evidential reasoning. Do people really reason this way? Or is this the ideal way we should do probabilistic reasoning? David Lagnado suggests that people may really use this approach–at least as a qualitative matter–but that we don’t do so well when it comes to quantitative weighing of probabilities.
• The distinctions between a civil law approach to scientific experts (generally appointed by the court) vs. the common law one (represent the parties). The civil law approach appears cleaner, but may well bury the issue a bit further underground–and the need to validate the science still exists, it may just not play out in the courtroom.
• Tal Golan asserts that the statistical expert’s growing role as gatekeeper of “true causes” is co-related with the trial judge’s new role as the gatekeeper of “true science.”

All in all, the two weeks was an excellent experience, and I would recommend it to any other graduate students working in related fields.

Related articles

• Initial reflections on the nature of scientific evidence (inpropriapersona.com)

I think analogy reflects a desire to economize on thought. Thus, if we construct evidential reasoning on the basis of, say, Bayesian networks, then–instead of creating a whole new network to reflect a new situation–we simply build on an old network, and replace nodes with new facts, build a few nodes, and generally spiff things up.

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For the last week I’ve been a part of the Vienna Institute Summer University (VISU) at the University of Vienna, at a two-week conference on “The Nature of Scientific Evidence.” The program brings together graduate students from a variety of disciplines from around the world to discuss science-related topics. Key lecturers this year include Hasok Chang (Philosophy of Science/Cambridge), David Lagnado (Cognitive Psychology/UCL) and Tal Golan (History of Science/UCSD). Interestingly for my interest in law and science, both Lagnado and Golan have focused on the legal sphere as a powerful “theater” for investigating the (ab)use of scientific evidence.

We can characterize the approaches quickly as follows: Chang discusses the theoretical underpinnings of science, including the logical reasoning process; Golan looks at the historical growth of science in the public imagination and the development of scientific experts; and Lagnado investigates the use of Bayesian networking to understand a cognitive approach to weighing evidence, both normatively and descriptively.

Given that I am an historian of law and technology, and a lawyer, what kinds of takeaways have I gotten so far?

First, that Bayesian networking could be highly beneficial to lawyers, especially in criminal defense. The approach has problems, but is a powerful way to avoid common pitfalls in evidential reasoning.

Second, that scientific evidence is not radically different from other evidence, and that the fallacies that scientists encounter internally are not radically different than when they present externally (this is more controversial, perhaps).

Third, that context is key to evidence, to the acceptance of evidence, and to the use of evidence. One cannot consider all variables, nor all potential outcomes or possibilities, so all decisions made from evidence are bound up in both one’s own context and from the context the evidence came from. (This doesn’t mean that all decisions are necessarily totally subjective and arbitrary, however).

Fourth, that many disciplines can come together and discuss common questions in a useful and powerful way, but that it isn’t always easy to speak a mutually intelligible common language (and I’m not talking about English vs. German).

I will have more to say later.

One key point of Siegel is that comparative histories tend to be “international” and not “transnational,” and that this is a core problem. Instead of escaping the “boundaries of nationalist historiography” (to quote Siegel quoting Ian Tyrrell, 65), traditional comparative approaches posit two (or more) distinct units (nations) that the historian then contrasts. This tends to ignore themes, narratives, concepts, etc. which act “unconfined by national borders” (65). Such studies can “shape or even create its own data” (65).

Siegel’s points are quite valid, I think, especially for certain kinds of history, especially histories that target people or groups who cross artificial national boundaries (immigrants, for example). I am struggling, though, to integrate her critique into my work, which does not quite imagine national distinctions, but rather exists because of these national distinctions. However artificial it may be, law is bound by national boundaries, and investigating changes in law necessitates a recognition of nations.

More fruitful for me, though, is to consider how ideas, concepts, and notions within the law may escape, cross, or transcend the legal boundaries into which they are inscribed. Thus, if I am investigating a concept like the “expectation of privacy,” I should consider the transnational character of this sense, and not simple say that, for example, the French have a different sense of it without examining what that means and what the cross-national connections may be. However, I do believe that comparing and contrasting the French and American legal structures is valid and fruitful–these boundaries and domains exist independent of my analysis. I am not creating them (even if, as I said, they may be artificial). But even as I do so, I should be careful not to attribute the differences strictly to some kind of national character, or to assume they the grew that way independent of influences from beyond the nation-state. But doing that, I think, is simply doing effective history; failing to take into account supra-national influences does a disservice to the history, quite apart from Siegel’s critique.

Siegel proposes that comparative methods considered as “subjects” or historical study instead of “methods.” I think perhaps this proposal is useful in a field where comparative approaches have reigned for years (race in the U.S. vs. Brazil, for example), but its usefulness as a methodology remains vital in areas where it has been less used. Legal scholars have tended to remain parochial in their focus, and I think legal comparative approaches have yet to make inroads to such an extend that it is time to turn away from them.

Related articles

• Going beyond national legal histories (inpropriapersona.com)
• John Palfrey: The Path of Legal Information (ethanzuckerman.com)

So far, my legal research tends to focus on a national narrative, and is an attempt to capture a sense of the national consciousness (“expectations of privacy,” for example) of various times. Ideally, though, while I still intend to pretend I can capture some sense of this national sense (if only for appearances sake), I would like to narrow into just a few of stories within the “plenitude of narratives,” and give the stories of the people involved in the actual cases that helped set the national legal landscape (which will serve as stand-in, albeit a distorted one, for the national consciousness). And although American law is framed as a national standard, I nonetheless am aware that “we are part of abroad.”

I mean this in numerous senses. First, the impact of law does not end at a political border, even if its technical jurisdiction might. Other countries receive the influence of American lawmaking and, in turn (and despite itself, in some cases), American law is influenced by foreign law. This influence could be relatively direct (judges borrowing logic and decisions from abroad, an especially common occurrence in early American law, when English decisions were still often looked to regularly). It could also be more indirect: plaintiffs or defendants could be immigrants, technologies could have been developed elsewhere, or “foreign agents” (i.e., spies!) may be involved. Regardless of the reason, American law is never entirely American–although here as much as anywhere this fiction is maintained, both within the legal community and, as Bender suggests, in American historiography. As he points out, though, its critical to rethink this “bifurcation” between the “international” and the United States, for without that undoing, “one has only the most distorted notion of the national history of the United States and very little historical foundation for understanding the contemporary relationship of the Unites States to transnational and global developments” (see Bender again, on page 6).

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Saying this, though, is often easier that doing it, especially when looking at legal history–American jurists are often (with some exceptions, especially in regards to early English law) careful to excise outside influences or matters from their written decisions, and often decisions are, in effect, “sanitized” versions of the case or controversy. Focusing on the “micro-history” of a case and on the individual players may be one method of access–at the very least because so many Americans are immigrants–or somehow otherwise distinct from the unitary fiction of “American.” (Kelly’s point on p. 125 about the citizenship status of African Americans pre–14th Amendment speaks clearly to this in terms of one group within the United States).

Another approach that may be fruitful would be to compare and contrast at least one other nation with a different legal tradition to the United States to see how law was developed and applied in that context, and to use that to expand beyond a purely nationalistic discourse. A variation on this approach would be to look at England or Canada, nations with very similar legal systems to the Unites States, and see how they dealt with similar issues.

But with intellectual property, even more than with traditional goods, one encounters dissimilar products that are not substitutable. Shubha Ghosh, in The Fable of the Commons: Exclusivity and the Construction of Intellectual Property Markets, uses songs to illustrate this: one song is both the same as and different from another song, but they are not perfectly interchangeable. The same may be said for some chemical and industrial processes. As a result, the intellectual property market cannot allocate goods based on price alone, but also on other characteristics (like quality or type of product). This does not lead to efficient trades or distributional balance.

In addition, intellectual property markets are deeply concerned with the licensing of rights, such as royalties and similar pricing arrangements. The complexity–with dimensions going beyond simple price–means often there is an asymmetry in information and strategic behavior by creators and users. The result is inefficient and undesirable distribution.

As a final example, most analyses of ideal markets suggest that buyers and sellers will reach agreement, but such analyses typically ignore situations in which a customer’s life is at stake–leading to a tendency to pay any price to get a product. There is, notes Ghosh, “something troubling” about this situation. But it is not necessarily easy to select a better alternative to these market-oriented models–somehow justice needs to factor into the model, but how?

The main point of his article is to combat the denigrating myth that credits the Greeks for “all that was noteworthy in Arabic science” (note that the term “science” itself is potentially controversial, but I will keep it for the sake of its utility). In contrast, Haq argues that the Arabic translations of Greek texts, begun in earnest in the ninth century and heavily relied upon by European scholars beginning in the twelfth, were far more than simple restatements of Greek texts in the Arabic language. Haq says, instead, that the process was a creative act, and that is should be no surprise as such that Christian European scholars preferred the Arabic texts, even when the original Greek ones were available, because of the Arabic clarifications, improvements, and recasting.

Haq also takes issue with the claim that Islam’s scientific scholars were marginalized by mainstream Muslim society, and that opposition by “orthodox” religious leaders like Abu Hamid al-Ghazali in the 12th century effectively ended scientific pursuits in the Islamic world. Instead, says Haq, Islamic science continued to flourish in an “open marketplace” of ideas until fading by the time of “the so-called scientific revolution in western Europe.”

Absent from Haq’s article is much of an explanation of why Islamic translators sought to recast ancient Greek texts into Arabic, or why this pursuit was supported by the Abbasid elites.

Similarly, although Haq rejects the idea that Islamic theological and philosophical orthodoxy eventually led to the setting of Islam’s “scientific star,” he does not provide a robust alternative explanation, other than to point to “several severe reversals” experienced by political Islam, including the Christian reconquista in Spain and Hulagu Khan’s sacking of Baghdad and capture of Damascus in the thirteenth century.

So if medieval Islamic culture was so conducive to scientific pursuits, why didn’t it last? And why shouldn’t contemporary Islamic society be equally supportive of science?

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• Sultan Sooud Al-Qassemi: “1001 Inventions”: How Islamic Scientific History Can Combat Today’s Extremists (huffingtonpost.com)
• Modern Islam and science: an article by Seyyed Hossein Nasr (inpropriapersona.com)

In “Islam and Science,” an article written for the Oxford Handbook of Religion and Science, Nasr attempts to give a broad overview of the relationship of Islam to modern science and technology.

First, he criticizes the approach of viewing Western science as a continuation of Islamic science, and therefore accepting it uncritically as fitting in well with Islamic thought. Nasr points out, however, that this perspective ignores the “agnostic science of nature” in the Western tradition, along with the “shift of paradigm” during the European Scientific Revolution that sharply distinguishes modern Western science from Islamic science.

Second, in a related manner, he criticizes the acceptance of Western science as “value-free,” as opposed to contemporary perspectives of science — even in the West — of science as based “on a particular value system and a specific world-view.” The implicit value system of Western science, he suggests, needs instead to be criticized “from the Islamic point of view.”

Importantly for Nasr is the question of the values and especially the ethics of science. He believes that “knowledge and its implications cannot evade ethical implications.” Modern science attempts to relegate alternative claims to knowledge, especially ethical claims and most especially knowledge based on religion, to “poetry, myth, or, even worse, superstition.”

He suggests that Islam needs to realize that modern science is but “a science of nature,” not the science of nature. He posits a “positive Islamic critique of modern science” that “maintain[s] the traditional Islamic intellectual space … to which Islamic ethics corresponds, withing denying the legitimacy of modern sciences within their own confines.”

Most importantly for Nasr, Muslims should not look to science to confirm metaphysical beliefs, but rather leave to science claims only about the natural world, not the supernatural one. He asks Muslims to be wary of “the prevalent view … from which God is simply absent, no matter how many modern scientists believe individually in him.” Modern Islamic scholars, he argues, unlike their traditional counterparts in the past, are “particularly bereft of responses” to the question of Transcendent Cause and the role of God. For him, older Islamic though had better answers to such questions, and this is why so many scholars are more interested in older relations between Islam and science than in contemporary ones.

So what should be done? First, he wants Muslims to stop seeing themselves as inferior to Western science and technology, and to instead approach it as at least an equal. Again, he especially suggests that Islam and its ethics has a powerful rejoinder to Western science, which while it may put a man on the Moon still cannot stop teenagers from killing each other.

Second, he recommends there be an in-depth study of traditional Islamic sources, from the Qur’an to the traditional works on the sciences and philosophy. The goal, he argues, is to create an “Islamic world-view and especially [an] Islamic concept of nature and the sciences of nature.” He wants scholars to do this within the framework of Islamic tradition, not through simple readings of decontextualized Qur’anic verses. Third, he suggests that more Muslim students should study “pure” sciences and not technology. He believes the Muslim world already has sufficient numbers of engineers, but that what it really needs are more scientists who can see beyond immediate utility.

Fundamentally, Nasr believes that “[o]nly a science that issues from the source of all knowledge, from the Knower … and cultivated in an intellectual universe in which the spiritual and the ethical are not mere subjectivisms but fundamental features … can save humanity.” He suggests that Islamic science has the potential to not only create a “veritable Islamic science” that would help the Muslim world, but also to create a science for “those all over the globe who seek a science of nature and a technology which could help men and women to live at peace with themselves, with the natural environment, and above all, with that Divine Reality Who is the ontological source of both man and the cosmos.”

A few questions to close up this synopsis of Nasr’s article:

• Which Islam and whose Islamic ethics does Nasr mean? (It’s not like Islam is one thing to all people.) Who decides?
• Does the distinction between “pure” science and technology hold up? Is it a useful distinction?
• Is there a whiff in Nasr’s writing of the “inferiority complex” he wants Islamic science to rid itself of?
• There is a certain resemblance in Nasr’s article to positions of some evangelical Christians — he is, for example, critical of Darwinian evolution (an “hypothesis parading as scientific fact”) and aligns himself with the Pope in regards to “protecting the unborn” — is this resemblance more than simply on the surface?

These are questions I may pursue further in future reading and research, but if anyone has any thoughts, please share them.

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• Sultan Sooud Al-Qassemi: “1001 Inventions”: How Islamic Scientific History Can Combat Today’s Extremists (huffingtonpost.com)