FROM HUMANISM TO NATURAL LAW (AND CAPITALISM)

PART 10: LESSONS OF LEGAL PLURALISM

This post is part of a lengthy series exploring the world of legal pluralism, particularly (though not exclusively) as it was grounded in the world of the medieval constitution. For a full index of the installments so far, see the introductory post, here.

As alluded to in the prior installment to this series, Grossi identifies the new European radically individualist anthropology with Renaissance Humanism. In this installment we’ll explore how he connects that humanism with the emergence of natural law, and how these developments underpin the emergence of capitalism. While humanism clearly arose from the Renaissance, Grossi emphasizes as well the vital, though at times conflicted, role played by the Reformation in its spread and popularity. He also emphasizes, as we also saw in earlier installments, a driving force in the authority of humanism was its understandable condemnation of the earlier scholastics’ temperate and flexible reading and adoption of Roman law. The humanists were to have no part in such modesty or intellectual restraint.

From this context emerges the conditions for the positing of natural law, which effectively completes the shift away from the reicentricism and factuality of law under the medieval constitution. This abstraction of law, into the realm of a kind of pure reason, becomes an effective theoretical instrument for detaching people from their sociality as well as the corporations and institutions which had historically served that sociality, while simultaneously sheltering them from the risk of centralized sovereignty and power. Such radical individualism is rolled out in such a way as to marry the concept of ownership to the individual, while promoting the idea that this core individuality, expressed through the equal capacity to possess property, is a condition of fundamental equality. Though, of course, such a notion is purely the function of abstract reason, and thus detached from the inescapable factuality of real human life.

So, we’ll start allowing Grossi to stake out the territory of this new humanism’s emergence:

…humanism represented a new anthropological perspective predicated on an attitude of complete trust in the idea of the individual subject as the sovereign element in both society and nature.

Humanism…fostered a mindset that proudly celebrated self-sufficiency, and sought to eradicate once and for all the detested humility of medieval man.

Protestantism soon became the religious arm of humanism, although later on Luther himself would take issue with Erasmus and with humanistic positions, and several other leaders of the Reformation also had second thoughts.

The compendious Corpus iuris canonici testified to this claim to legal authority, which represented, in the great reformer’s [i.e., Luther’s] eyes, the betrayal of the Roman Church and the proof of what he called its captivitas babylonica (its ‘Babylonian captivity’, i.e. its enslavement to the things of this world).

In addition to its rigid condemnation of any form of canon law, the Reformation also made a significant contribution to the more general decline in the prestige of the law and of lawyers, who were now seen as wielders of abstruse quackery who thought nothing of hoodwinking the unsuspecting citizen.

…the message of legal humanism can be reduced to a polemical attack on the perceived methodological deficiencies and consequent lack of rigour of medieval glossators and commentators and the brazen manner in which these figures were seen to have manipulated Roman law.

The humanists thus integrated other fields of learning as cultural props to their study of law. This contribution was fundamental to the structural reform which allowed Renaissance jurists to bring order to the chaos of Roman law.

This new order established by the humanists, Grossi captures in the elegant phrase “ratio scripta”: i.e., the written manifestation of pure rationality. Or, at least, so the humanist pretention posited. It was in this turn to a presumed capacity for pure rationality that we discover the emergence of the modern idea of natural law. While its first appearance possesses a dialectical dimension, eventually natural law takes on this quality of ratio scripta.   

…the seventeenth and eighteenth centuries see the whole of the continent in the grip of a new movement: the doctrine of natural law.

The doctrine of natural law’s defining feature is an internal dialectic between the assorted positive historical forms of law produced by various political bodies and a higher form of law – natural law itself – which is not produced by those political bodies but exists above them in a superior, universal reality, which, for now, I shall call nature.

…in seventeenth-century Europe…a completely new meaning is attributed to the generic phrase ‘natural law’, which has been variously understood at different points in history.

For Grossi, right from the start this rationalist natural law was tied up with not merely the materialist ambitions of the scientific revolution, but with the self-interest of the emerging new capitalism.

Humanism, proto-capitalism and the scientific revolution are seminal events which all combine to overturn the previous view of the natural and cultural worlds as oppressive. These revolutions are the intellectual prerequisites to the seventeenth-century doctrine of natural law and they lend it its novel and epochal qualities.

In the same way as someone who discovers a universal physical law that governs the way things naturally behave, jurists seek to establish universal rules of human conduct as defined by the nature of mankind – something which should be visible to anyone who has the correct outlook.

While it is perfectly valid to point out the naturalistic fallacy operating in such an analogy: Scientific laws aim to address what is; rationalist law aims to address what is considered that which ought to be. Still, Grossi’s point is not a defense of the analogy, but a recognition of the cultural and political power it wielded at this time. And, as noted, it was through this powerful analogy and the abstract power of natural law that humanism was able to perpetuate the axiom of methodological individualism.

Humanism’s anthropocentrism here transmutes into the most rigid form of individualism: in the natural state, the individual is not bound by any social or collective ties – these are later impositions when groups of many individuals, each motivated by self-interest, choose freely to create a civil society.

Here we can see for the first time a concern with evidence, a term which will be a consistent refrain of the seventeenth century. The emphasis on evidence makes clear that we are dealing with a cultural context that has undergone a complete sea change since the Middle Ages: what before was seen as a gift from God, human reason, is here isolated from its natural and cultural surroundings, and evidence serves as the fulcrum that allows the subject to pivot towards the heights. Evidence does not require divine intervention, but functions as its own justification. The new doctrine of natural law is rigorously secular.

Before long, legal scholars were talking of a mos geometricus (‘geometrical rule’), a type of law which is precisely opposite to the chaotic sedimentation of laws that characterized the medieval legal order.

…van Groot [Dutch humanist, also known as Hugo Grotius] denies the factuality of the law that had been the central tenet of medieval legal thought, even in its scholastic phase. Instead, following the ‘true’ science of mathematics, van Groot opts for an abstract form of knowledge. Nature is merely a laboratory in which the jurist may experiment and even fantasize.

A central aspect of these historical events, for Grossi, was the necessity for the emerging new capitalism to break the concept of property held under the medieval constitution. As we saw in earlier installments, law of the medieval constitution, closely tied to the factuality necessary for survival of an agrarian society, recognized that effective conditions of production could entail a complex set of relationships to property, with distinctive and diverse modes of obligation and privilege. For the new capitalists, this conception of property was inadequate for their purposes. It may well have been incompatible with objective functional needs, but it was certainly antithetical to their preferred conditions of personal profit. The severing of property from such communal needs, and its wedding to individual possession, became a central pillar of this new law of ratio scripta, laying the foundations for capitalist accumulation.

Property has an enormous capability to expand and project itself onto external things, which it then brands with the mark of exclusivity, tying them to an individual subject as if ‘me’ and ‘mine’ were interchangeable.

And this is the ambiguous aspect of the early modern interpretation of natural law: from one point of view it is an intellectual venture undertaken according to the objective rules of scientific research, and yet it is deployed very subtly by thinkers whose needs and interests align with those of proto-capitalism, already a thriving reality in colonial powers such as England.

The journey which would find expression and fulfilment in the second of Locke’s Treatises was thus embarked on in the by now remote fourteenth century.

…the ownership of goods is seen as natural since it emanates from the ownership of oneself and the instinct for self-preservation, which is instilled by the deity to safeguard the self and is therefore indisputably natural.

The new society can rightly be termed bourgeois: the ascendant class is the bourgeoisie, which is motivated by profit and the accumulation of wealth.

While I don’t think Grossi goes quite as far as depicting natural law and this symbiosis with capitalism as an ideology, he is unqualified in observing how it served the interests of the emerging new capitalist class, while creating a legal fiction about the equality of individuals based upon their equal capacity to possess property. (Or, for that matter, to enter a contract.)

Personal property, in fact, becomes identified with an individual’s selfhood and inhabits the most intimate recesses of the subject, becoming the most significant contributor to a person’s individuality.

In theory the lowliest beggar ought to benefit by being held legally equal to a well-fed burgher, but in reality the equality is only nominal and does little to stop the richer party crushing the poorer. Abstraction thus principally serves those who own property, since the rights it grants remain virtual, and the economic and social disadvantages of the weaker party are left unaffected.

And this transition to the new capitalist economy and society, with its legal fictions of individual equality based upon intrinsic capacity to possess property, Grossi reminds us, was made possible by the sundering of the medieval constitution, with its factuality of customary law, and legal pluralism.

The privilege and exclusion which attached to social class were eradicated and over-bearing corporative structures were torn down (or at least attempts were made to accomplish this). The individual now stood alone in front of political power, or rather a populace of individuals did so.

Here, Grossi is invoking the emergence of the social order that I proposed in the last post with the model of “mass society.” Furthermore, in the language I’ve developed for the phenotype wars model of social analysis, Grossi here is observing the completed triumph of the spatials. The gemeinschaft world of the temporals, with their corporate bodies and intermediary institutions, their customary law and legal pluralism, had to be destroyed for the new gesellschaft capitalist world, with its mass society, possessive individualism and increasingly unconstrained markets, to come into being.

And central to all of this was the role of the natural law, as an abstraction or pure rationality, ratio scripta, in which law was no longer founded in the hard, natural thingness of the world, but rather derived from the beautiful minds of deep thinkers, who supposedly hovered like detached intellectuals above the messiness and chaos of the world, to determine in their great rational minds the true axioms of law. Notwithstanding the obvious risk of self-serving, self-delusion implicit in such a pretense, the very appeal to abstraction grounded the justification for the abstraction of law and those living under it. Out of such axioms it was easy and perhaps obvious to cast a mass of abstracted individuals, detached from their historical communities, traditions, and institutions.

In the end, as Grossi observed, we find that mass of individuals, liberated from the corporate and pluralist institutions and practices of the medieval constitution, collectively bound by their shared nakedness before the political power of legal monism and centralist sovereignty. We find mass society.

In the next installment, Grossi takes us deeper still, in the movement from “legal Enlightenment” to the age of “legal absolutism.” And, I believe, in the process, introduces the nascent managerial class into his story. So, if you want to be sure to see that installment once it’s hot off the presses, and haven’t yet, please…

And if you know someone else who you think would enjoy joining our little community of scholarly exploration, please…

Meanwhile: Be seeing you!