Vol. 16 No.8 (August, 2006) pp.608-611


THE GIFT OF SCIENCE: LEIBNIZ AND THE MODERN LEGAL TRADITION, by Roger Berkowitz.  Cambridge: Harvard University Press, 2005.  234pp. Hardcover. $49.95/£32.95/€46.10.  ISBN: 0-674-01873-7.


Reviewed by Keith J. Bybee, Department of Political Science, The Maxwell School of Citizenship and Public Affairs, Syracuse University.  Email: kjbybee [at] maxwell.syr.edu


In his highly erudite new book, Roger Berkowitz identifies a fundamental problem at the heart of the modern legal order:  we no longer connect law with justice in a meaningful way.  Berkowitz argues that justice, historically understood as “an individual’s moving beyond himself to a higher realm” (p.x), has been almost entirely divorced from law.  Rather than seeing law as linked to “an ethical project larger than themselves” (p.xii), modern individuals generally understand law to be a kind of game where rules are used to advance a wide variety of interests.  In the context of this legal game, “justice” has been reduced to a matter of ensuring that the interests pursued by different individuals are balanced in a fair and efficient manner.  Berkowitz devotes his argument to accounting for how the disjuncture between law and transcendent justice arose and to explaining what this disjuncture means.


Berkowitz’s book is a blend of law, history, and philosophy. This interdisciplinary approach makes for a complex book — but there are additional sources of complexity present as well. 


Berkowitz notes that the separation between law and transcendent justice is largely unacknowledged.  “We are not shocked,” he writes, “because we are in denial.  We have not yet stared in the face the hard truth that the pale word ‘justice’ has lost its fire” (p.ix).  As a result, Berkowitz must argue that the problems associated with the separation between law and transcendent justice have been hiding in plain view (this kind of argument is especially difficult to make given the voluminous body of writing on law and justice in the scholarly literature).  Berkowitz’s argument is also complex because he finds that the English language lacks the necessary terms to capture law’s turn away from transcendent justice.  He thus relies on Latin, German, and French equivalents throughout the book in an effort to express the difference between “law as justice, where justice is understood as an insight into a transcendent unity” and “law as justice, where justice has come under the sway of science [and] therefore [is understood as] the calculated outcome of a rule” (p.xviii).  Finally, Berkowitz’s argument is complex because he claims that the fundamental-yet-unacknowledged estrangement between law and justice is the unanticipated result of work by Leibniz, Savigny, and others.  As consequence, Berkowitz must explain the difference between what such figures intended their work to accomplish and what their work actually accomplished.  It is a testament to the strength of Berkowitz’s book that he manages to [*609] produce a persuasive argument in spite of such complexities. 


Berkowitz traces the origin of the disjuncture between law and transcendent justice to the European legal codification movement — a movement that established an understanding of law as a set of willed rules in need of reasoned justification.  According to Berkowitz, it is because this view of law has largely replaced views connected to insight and tradition that we now conceptualize law without bothering about higher realms.


His discussion of legal codification begins with an analysis of Leibniz.  Over the course of three chapters, Berkowitz tracks Leibniz’s efforts to develop an absolutely certain understanding of law based on what Leibniz took to be the first principle of science:  “nothing is without a reason” (p.15).  Following Leibniz as he applies this principle of “sufficient reason,” Berkowitz engages in a careful reading that frequently places him at odds with leading interpreters of Leibniz.  Berkowitz argues that many commentators have misconstrued Leibniz’s commitment to legal science and, as a result, have mistakenly taken Leibniz to be an apostle of natural law or a theorist of justice.  Berkowitz concedes that Leibniz thought “man exists for the sake of the best of all possible worlds willed by God” (p.53).  But it is also true, Berkowitz argues, that Leibniz’s scientific jurisprudence placed an emphasis on reason that led law away from God in a way that Leibniz did not foresee.  “Since nothing exists without a reason, nothing exists unless reasons are given for it,” Berkowitz writes.  “All things, therefore, only exist insofar as they have a reason.  Similarly, law must have a reason posited for it to exist. . . .  As law retreats behind reasons and grounds, it loses its natural connection to any ideas of truth and justice except those that are given as its justification.  Law threatens to become a means to any rational ends that legislators posit” (pp.51-52).


In the next four chapters, Berkowitz painstakingly demonstrates how subsequent codifiers advanced Leibniz’s scientific jurisprudence further down the road toward reasoned justification and away from insight, tradition, and God.  For Svarez, the architect of the Prussian code of 1794, the justification for law’s authority was to be found in the fully rationalized will of the king.  Savigny (a figure that Berkowitz connects with the German Civil Code of 1900) subsequently left behind the rational will of the sovereign and located the justification for law’s authority in a science of history.  In turn, Savigny’s work prepared the ground on which the potential at the heart of Leibnizian legal science was fully realized by Jhering:  “Divorced from any and all connection to an ethical reason or deeper ground, law emerges in its modern form as positive law; namely, as pure technical means for the pursuit of social, economic, and ultimately political ends” (p.141).   Thus law eventually came to be “nothing in itself” (p.160).


The range and difficulty of the material that Berkowitz examines in his account of codification is extraordinary.  He engages a large body of secondary [*610] literature.  He provides careful readings of primary texts both famous and obscure, supporting his conclusions with his own translations from the original Latin, German, and French texts.  The display of learning and the detailed analyses make for an impressive package.


Even so, there are several points in his argument where Berkowitz appears to pull up short.  Early in the book, for example, Berkowitz enunciates one of his central claims:  “Once law seeks to reassert its rightful authority through scientific guarantees of its certainty, the technique of law comes to overwhelm its morality.  As a product of science, law is severed from its natural authority so that law itself ceases to make a claim on us; instead, law’s authority comes to depend on the purposes and ends for which it exists” (pp.6-7).  Berkowitz reiterates this claim many times.  Yet, in the end, he states the claim cannot be fully grasped “without a prolonged meditation on Heidegger’s texts from which it flows” (p.167; see also p.171, footnote 16).  In my view, Berkowitz’s argument would be stronger if he attempted to explain himself in full, rather than assuring readers that understanding will emerge from what sounds like a mystical encounter with Heidegger’s work.


Berkowitz also could have devoted more time to examining the transcendent justice which modern law has left behind.  Greater attention to the all-but-lost ideal of justice is warranted in part because it would help justify Berkowitz’s overall sense of loss.  Berkowitz does not wish to return to a pre-modern time, but he clearly laments the position in which we find ourselves where law is pervaded by instrumentalism.  Berkowitz’s lament should be weighed directly against the inaccessible nature of insight-based law.  Many of the codifiers were, as Berkowitz notes, motivated to systematize not only by a desire to give the law scientific authority, but also by a desire to make the law more readily understandable to a larger group of people. The codifiers often failed, but their efforts to make the law more democratically accessible would seem to be worthy of praise.  Yet Berkowitz appears to have doubts about democratic accessibility.  He writes with regret that “the human will to clarify and to know has very nearly succeeded in severing law from its traditional and necessary connection to the ineffable” (p.xvi).  It would have been helpful if Berkowitz had directly confronted the codifiers’ desire to open law to the citizenry and explained why it is necessary that law remain beyond the grasp of the individuals who comprise our heterogenous modern societies.


More attention to the vanishing ideal of justice also seems warranted because Berkowitz’s one extended discussion of transcendent justice seems to be in tension with his general description of the idea.  As I have noted, Berkowitz links transcendent justice to the inexpressible and the unknowable.  Yet, when Berkowitz tries to give a more specific sense of what justice looks like beyond realm of legal science, he points to sportsmanship and neighborliness.  This is a curious comparison since what it means to be either a good sport or an upright neighbor does not appear to be [*611] beyond knowing or saying.  It would have helped to clarify his argument had Berkowitz worked through his analogies in greater detail.


My critical remarks should not, of course, be allowed to detract from Berkowitz’s achievement.  He has written a very fine book.  Legal historians and legal theorists alike will find much of interest and value in his work.


© Copyright 2006 by the author, Keith J. Bybee.