In concentrating on current forms of human thought and activity,moreover, it appears antithetical to whatever normativity may be derived from the past.
can there be instant traditions?
Eliot again instructs us that 'Tradition cannot be inherited, and if you want it, you must obtain it by great labour.'
Written communication is also independent of memory. That which is written down can be simply looked up: there is no necessity of internalization. Writing is also the principal means of communication of science, and law which aspires to the scientific will find it equally essential.
someone else's tradition
Absent historical continuity, reaching down to present adherents, all traditions appear as strange ones and all adherents to them appear as different people.
at the people involved were no longer the same people
disappear forever if they are not translated into unicable information
Physical things translative of information may be rigidly controlled. The means of printing or copying may be monopolized. Speech may be qualified as heretical and the sanction of death invoked
The reporting of current cases is an example of this
V not appear to be convincing, when examined critically
Old teaching simply does not correspond to new circumstances
Opposition to a particular tradition will inevitably_be oposition to what the tradition has claimed, and therefore be defined by the tradition even while opposing it.
rationality, then it itself can be explained ,in terms of tradition. So, as Karl Popper maintained, rationality is only one of many traditions, characterized by a more explicit recognition of human rationality and by the greater explicit place accorded tOit.60
Each of us can argue internally, with ourselves, and most people leave plenty of room r internal argumenf, not taking definitive and life-time personalpositions on major issues.
.Tne amount ofargument which a tradition generates may depend on the extent to which it purports to constrain human conduct; the amount of conversation it generates may depend on its ambiguityin delineating optional forms of behaviour*. Verbalresistance may be valorized in some traditions, actively discouraged in others.
. The informationalexchange of tradition is in principle horizon-tal; deviations towards the vertical will be the product of particular traditions and the reasons which have prevailed in that tradition. 'I
The undefmed or incomplete nature of all traditiOns6S
Fundamentalism, and violence in pursuit of it, is thus not inherent in tradition, but represents a departure from its most important characteristic.
y becomes less obvious and less defensible. '. Tradition becomes rathe
'Ihe return to the sources, the process of rolling back or re-volving;n may pro-vide grounds both for radical disruption of existing structures and hierarchies and a sense of perpetration of the true, original character of the tradition.
'different traditions which do not all share a constant vision of time, or of the past.
TRADITION AND CORRUPTION
aimed at the good or well-being of entire communities,
All of these great traditions generate opposition within themselves
other traditions, however, which do not seek to play a major role for an entire community! and do not seekits good or well-being.'
vVv y antithetical
' pastness to be accumulated.
traditions of crim
the task will never be completed.
the crime of corruption, which may destroylarger traditions from within.'fhere are also other forms of corruption, institutional or intellectual corruption,
} ~# ~
a secretive form of inequality. It invariably does great damage to the credibility and effectiveness of traditions of good or right,
n. Institutions play_
. Their role will be defined by tradition,
the 'logic of mission'is replaced by . , the 'logic of maintenance:9
, A tradition which encourages the construction of , institutions and dites will need to develop second-order means of control..It willneed to develop an ethic of institutional or elite life,
._Authority would replace justification,invocation of heresy or treason would replace exchange. Yet muc
n, relying on force or violence as the principal means of response to contrary views, even those from hin the tradition itself Here those accused of heresy may represent a truer version of the tradition than those who make the accusation..
BET WEEN TRADIT,IONS:
IDENTITY, PERSUASION AND SURVIVAL
to live out its own existence, untroubled, absent external reflection or challenge
by existential questions.
. Concern with identity arises from external contact; identity is then constructed by explicit or implicit opposition. The other becomes essentialin the process of self-understanding. At the same time the other is an ongoing menace to internal cohesion.
it has been said that even violent debate contains within it the possibility of toleration, since by implication the otheris worth arguing
,'Intercultural communication and the language
e diffusionary y (relying on externalinfluence),
. 'Ihe imprecise character of the tradition implies imprecision ofits nembers. The other may be (slightly) a part of ourselves. Separateness may be (partly)overcome
'The identities of traditions are therefore inter-related, in greater or less measure.
jln:bothcas:s t is nemory which is constitutive of identity. Persons who have lost their memory no longer know who they are. '.'The thesis goes back at least to Locke,9 and has been taken over by social theorists as well.lo 'lhus East Germans, on the fall of the Berlin Wall, lost their sense of identity, since they no longer existed in harmony with their own life history," 1
', J. Tully, Strange Multiplicity: Constitutionalism in an age of diversity (Cambridge
Jt is possible to see a present society, or minority within a society, as constituted by people of a given colour, or race, or state, or geographical place. This gives rise to the P.L.U. syndrome ('People Like Us').
. This information is traditional information-the information developed over time which says that some, particular, present char-acteristics are fundamental in defining social identity. Where does such traditional information exist? It exists in its strongest form in traditions which valorize contin-gent and historical time, change and rationality, to the point where the traditional character of this teaching is forgotten. In all cases, however, the value accorded present features of life is derived from tradition. It is tradition which trumps; it's been around longer.
see fit to call upon a concept of race
see fit to call upon硼
J in granting apodictic authority to an entire version of a tradition, such that challenge is heretical, and not only challenge to underlying elements, but to any questioning of any of the elements of the chosen version. 'Ihis we currently know F as fundamentalism, and the growth of violence in pursuit of fundamentalism (in
i. Why fundamentalisrn exists is a basic question going to the notion of tradition, its relation to other notions such as systems or states, and the exte
Fundamentalism mayinvolve the old problem oflosing one's identity through pro-tecting it too much.
. Creating an identity is an instrumental func-tion,
PERSUASIVE AUTHORITY: CREATING NEW (AND OLD) EPISTEMIC COMMUNITIES
If tradition is information, then the tradition which attracts the most adherence will be the one whose information is the most persuasive. '
evenifthey decide to do their own thing, since here they rely on massive amounts of information justifying this conduct. The information of traditions thus represents authority, but it is not necessarily authoritative. Absent instruments of authority, or of dominance or of repression, the authority of tradition is persuasive only.lt does not bind,in the sense of somehow automatically ensuring adherence.²9 The great and powerful traditions are those which offer great and powerful, even eternal and ultimately true, reasons for adherence.If there are a number of great traditions, choice amongst them may be very difficuk, and habit or inertia may corne to play a major part in adherence. 'I
i. Chthonic peoples³4 now present their tradition to the entire world, , with immediacy, andin a way which allows theimmediacy to be preserved for future distribution.
Modern means of communication are therefore powerful aids to distribution of persuasive authority, and and powerful aids to expansion or reinforcement of traditions.
. States now find that information is a largely uncontrollable c ccmmodity.
, state monopolies on many forms of communication succeeded in camouflaging this for some time.
been great resonance of this idea in the west, notably in western legal theory, we can set aside all of the encumbering, existing variations of western and other thought, and constructively, rationally, create a just society.4l
e inammensurability argument, however, the untranslatability argument exaggerates the difficulties in human communication.lt also exaggerates the import-ance of the text.
It appears to be very easy for a tradition to become a universalizing force. Again, however, it should be recalled that a tradition is information, and information itself (as distinct from how it is used) is not dominating. It may give advice, but we always have to decide what to do.
. A tradition which teaches self-effacement appears innocent enough, but then we have to ask whether it teaches that everyone has to be self-effacing. I
In dealing with societal domination, however,we are more frequently dealing with corruption which cannot be (relatively easily) categorized as crimin al, or even institutional.it is the much more elusive notion of intellectual corruption of a tradition. It is the process of closing down the dynamic ition, such that it speaks with onJy one voice and all others are stifled. Since there is only one voice to be heard, silence must be created for it and the zone of silence must be constantly enlarged.'I e quieter it isin a room the more you hear the noise outside, which can be very disturbing for clear understanding of a single voice. Traditions which are great and large have of course become great and large because they provide an overarching means of reconciling different views. So their dynamic
. There are subtler forms of fundamentalism, and some may be irresistible to even the majority of members of a tradition. Fundamentalism, and ensuing efforts of domination, emerge not as corruption of particular traditions-they faithfully reflect major elements of teaching of their particular tradition-but as corruption of what we understand as tradition, the gathering together of diverse elements into a larger, but stil! coherent, identity.
The toleration of the pluralist is therefore very demanding. On the one hand it means resisting the tendency to authority, always being willing to see one's advice turned down,
3 A tradition of toleration may be the most dif-ficult of all to understand, since it has to operate over other traditions, and in terms of their respective relations.
. While globalization has been going on above, islam has been expanding on the ground, though it is now also going electronic (the 'virtual Umma' or islamic community).s7 It is persuad-ing more people than it did in the past. There is- also a process of easternization, said in management circles to be replacing an exhausted process of westerniza-tion, as western techniques of management and organization are replaced by those Of Asia.58 There may stiIJ be further forms of world domination ahead, presently unperceived.
if you are more vigorous than the others. The reactions are just particular ones. We may, however, be reaching the limits of expansion of traditions. They may all have to develop explicit teaching of their own as to the terms of co-existence with other tra-s. Some have already done so, though refinement may be, as always, required.
recent review of world history concluded that 'initiatives' towards global supremacy t will be of briefer and briefer duration, suggesting some form of international equi-librium.6o Thisinformation should be made known. 1t might do something to the arms trade.61
. Traditions do not ultimately triumph over one another; there are almost always adherents hanging on, , waiting for the moment of rejuvenation.
'ayersuasion is ultimately all that is worthwhile and persuasion involves the meeting, and mutual respect, of traditions. If the traditions are going to survive, there is no justification for efforts to destroy them, and particularly by force.
THE STATE AND THE NEW DIASPORAS
The resistance was that of people we now think of as having belonged to the same political community (the state extended backwards into time, the present
institutionalized recognition of the ascendancy of a particuJar tradition at a p
. Yet the word diaspora is now coming to have, not another mean-ing entirely, but another sense. It is dispersion from the other end of it-a looking back to the coherent point of departure, an effort to resist the entropy which has already occurred, an effort to deny the outward journey. Itis a vie
This too is part of the tradition. Gender or sexual preference thus become fundamental; their particular tradition must be sought; the pastislooked to for support and explanation. There are therefore reasons for the historical work now being done in these fields.72 It has to be done. Otherwise one may be locked into a pre-sent identity, or be only a passing preference. As usual, the past is a great ally here as well, even if its teaching had become faint, once youlearn how to read it.
A CHTHONIC LEGAL TRADITION: TO RECYCLE THE WORLD
A TALMUDIC LEGAL TRADITION: THE PERFECT AUTHOR,
Others which did so, perhaps even earlier, have since lost their grip.z
separate itself, in a definitive and lasting way, from chthonic law.
, some 1800 years BCE. Hammurabi's code suffered the fate of Babylon itself,lost to Persians (tod
Is there a starting point
. It is composed of three rabbis, who may have particular competence for the type of dispute, exercising a strong moral authority and having as one of their major objectives the restoration of harmony between the parties . The procedure is expeditious, and judgment may be given in a matter of weeks after only two or three appearances of the parties. Representation by lawyers is not cluded, though has never been encouraged.² s The parties agree to abide by the deci-sion
. The law they apply covers the entire field of western private law,
, to indicate a person having authority to decide though not occupying an ofl=cial position.²8
absence of courts of appeal
is to ask the court to correct it. ,
y,the notion of res judicata (has little or no place in the thinking, and the truthfulsolution is of greater value than decisional efficiency and stability.³0
res judicata, what place could there be for precedent or stare decisjs?3'
is open, as in the chthonic
. It is probably inaccurate, for reasons to be seen, to think of it as defining their rights.
copyright and corpora-tions e absent from the original texts.
diet, hygiene and ritual. Ir
. The particularity of talmudic Jaw is not so much in its substance, but in its methods.
1 children born out of wedlock
' Polygamyis authorized
now generally ObsOlete.³5
Divorce law is ') is granted by the husband; t
Property eventually comes to be privately owned, urban development overcoming
r, gifts, and gifts in contemplation
.It doesn't (for example) have the same role as western law,it doesn't read like western law, it isn't studied like west-ern law and ultimately it is not structured like western law.
'HE TALMIJD AND REVELATION
r, the separation oflaw and morals as is known in the west;
since the same sourceinspires them both anditis unlikely theycan be seen as conflict-ing. We have already seen the idea of natural obligation in talmudic law=4s this may be seen as a recognition of the limits of formalinstitutions and formal sanctions,
v to cover almost all ofljfe,47 in a way that western law can prob-ably never reach.
athatlawis almost everywhere,b
ing is new; all is discovery. 'Of course every interpretation that ever will be was kno wn at Sinai,
no explicitinternal argument,
described as targumentative'
rather relaxed and ongoing
, but many texts and many authors, and they do not speak serially
hypertext.s' Moreover, the sages often speakin the present tense, as though they're still here. And nobody tells you what the rule really is. It's just in there somewhere (that's why you're allowed to ask for a responsum)
since you could then there is no reason why you can't now. .
ig the talmudic tradition,
lways talking, someone always questioning, the texts coming alive as they get support, or
.. It follows that its language is not intimidating, that its categories and concepts are those of everyday life, that it appears deliberately to avoid abstraction in expression. If all of life is to be ruled bylaw, for alladherents to the tradition, the law must beimmediately accessible.
there are opinions in favour of each ofthese. So here we all deliberate.
discover very intricate forms of reasoning.
.Alltheopinionshavetobe dealt with;
Unlike the chthonic tradition, however, the talmudic tradition leaves clear track ks
l gifts of recall and analysis.
.s with personal accomplishment
particular style of rationality which emerges within the tradition. It is not a systematic type of rationality. '
. There is discipline of thought in all of this but it is multivalent, tolerating contradiction.
criticized for arrogance;
; his code is now viewed as one of a number, dependent on its predeces-sors and on the comments it hasitself attractecj.s
'Ihe chthonic tradition is one which resists individual powers or entitlements, in the form of rights, because of the higher form of obligation owed to the cosmos.
the age of obligation)
. In performing one's obligations, one shows one's love of God.
It does place the human person in a privileged position in the universe, so you can argue that the value of the person,
notion of rights does exist somewhere
the chthonic tradition doesn't really have a concept of change, since the changes the tradition tolerates don't really matter-
,compatible with the tradition.
. If historical time does exist, moreover, it exists within 'a special, timeless sphere of revelation, in which all generations were, as it were, gathered together'.
little interest in either scientific speculation or what we know as philosophy, and it has been said that this was so because of the 'correlation between the world and Torah
marry 300 times
'[Tlhese and these [both] are the words ofth
t reform jews nearly without the tradition, orthodox jews are criticized for monolithic and static views, repudiating the nature of talmudic dialogue.9
. Reform jews do not appear to represent so much a corruption of the tradition as,in some individual cases, its near abandonment, and we will see that the tradition (at least presently)provides no specific means to prevent this. The discussion of corruption of the trad-ition appears more acute with respect to certain ultra-orthodox,
f all traditions being affectedin their ongoing exist-ence by meta- or second-order traditions of tolerance or intolerance. I
of institutional cor-ruption,
living within salaries
a major defining element ofjewishidentity
, the text itself became a homeland.
if you agree to make the Talmud your law, you may become jewish, assuming jewish identity.'06 And you may also leave the jewish community, through no longer adher-ing to itslaw, though at this point the boundaries of personalidentity are not sharply defined.,o
ions of excommunication and shunning
; they give example to those who would remain within u nity.'09
Jewish people also came to live in 'compulsory communities', those formedin response to 'organized pressure' of states or other communities.in
a riot of opinion
\3 Christianity proposed the end oflaw
for them it was the end of talmudic law.
, the written Torah,was preserved by christian-ity itselft
. Yet how could the Talmud be made to disappearifits foundation, the written Torah,was pr
f both commonality and diversity and mutual continuing existence,ll4
the rabbinate has been formally incorporated into state structures, though talmudic law is applied directly only in matters of personal status and familylawus 'Ihe state emerges, as elsewhere, as the guarantor of religious freedom and the ultimate arbiter of secular-religious relations, '
, talmudic law canincorporateinto itself norms which are not formally derived from its own sources. This has occurred, for example,in areas such as housing or rent control, copyright and corporations;
Talmudic law is aware of the concept of rights, as an element on the periphery of its base of information. 'Ihe traditionitself did not enunciate a doctrine ofindividual entitlement but rather a doctrine of individual obligation, or mitzvah. Yet, the argu-ment goes,if youlook at obligation from the perspective of the person to whom it is owed, you have rights and, moreover, the analysis of obligatio:n terms of rights is preferable, since it accords due place to individual interest, or power, and constitutes a unique instrument for ensuring both equality and progress
'singularly weak in providing for the material guarantees of life and dignity'.'zs 'Ihey can also be waived, which is not the case for obligations. Rights also are accompanied by a propensity to violence and are enforced by the state, a a 'monstrous and powerful
'. If there is a right to education, we still have to look for someone to provide it. If there is an obligation to educate, as there is in the nud, we needlook no further. So we have here an argument which does not accept the usual rhetoric of rights, nor their self-evident character,
f an obligation to preserve the world, we owe obligations to do justice and help the oppressed.
. Large dilfer-ences do not yield incommensurabilitY.
,but the state of Israelis not coterminous with jewish religion or
33 \f the Talmud is to be used to justify aggression,
If they were to have a particular legaltradition theycould not adhere to the talmudic one, nor ain chthonic. A tradition would have to be constructed. The process, and struggle, lasted more than two millennia, and isn't over yet. A CIVIL LAW TRADITION:
that no interest attaches to certain centuries except their position in time .
, there has been a major, and ongoing, discussion (maybe argument would here be more appropriate) as to whatlawin Europe should be. '
, its ability to convince people
, work, over cen-turies, and no prospect of overall consensus.
you could not simply create sources of law,
The law of the people had to grow rather out of institutions in which people somehow participated themselves, confer-ring legitimacy
S. They didn't create a (potentially disruptive) group of professionaljudges; they simplylet one oftheir nobles or patricians (the iudex) decide an individual case,in a kind of benevolently amateur way. By the late empire this led to many (ju y (justified) charges of corruption; an
the writ system,
. Just getting in front of a judge, directly and with no official screening, took a thousand years.
.. Lia'oility exists when the conditions of liability are met,
So roman law became an object of admiration, because the jurisconsults were able, so convincingly, to state conditions for governance of complex personal relationships,
alaw of citationswas passed (to create order): Papinian, Paul, Gaius, Ulpian and Modestinus were to be treated as authoritative; in case of con-flict the majority would prevail;
. There was inclusion, and also much exclusiOn.²3 When it was finished,it was very finished. Justinian prohibited all further comrnent on it;Z4 } lit was a very different book from the Talmud.
but it was the law of the conqueror and
Romans were eventually driven out they e
t didn't say much about contracts or obligations;its family and succession law kept large families together, since many members were necessary for many tasks; its propertylawlooked mostly to communaluse ratherthan any formal or individual concept of ownership.²
allowed elites to develop
, universities '
) Both traditions therefore had notions of what could be called substantive law; whether written or unwritten it addressed substantive obli-gations, and perhaps even rights. .
s a certain underlying harmony in continental Europe i e in the eleventh century.
century it had been developing its own form of legality within the church (later known as canon law)³2
t had a peculiarly Roman look, requiring recasting for the
.'Ihey were more interested in questions (quaestiones) than answers; more inter-estedin accumulating opinions than choosing among them; moreinterested in debate than action.'
,in the different parts of Europe.³8 Tv christian church played a major, unify-ing role in the process.³9 -Ihis process of reception,like that of the concept of the state later in the world, varied according to the locale. It was most influentialin germanic countries,
, Luther also attacked the lawyers. 'Tne real reason you want to belawyers', he said,'is money. You want to be rich.42
Louis XIV in the seventeenth century were the firstindica-tions of a centrally directed, national law on the continent. The notion of teaching French law, as French law, had emerged already in the sixteenth century,43 and in the same tenturylegislation was used to create French as a nationallanguage in France, , even though it was then spoken by only a minority of the population. France's codifi. cation of private law, under Napoleon in 1804, was the world's first national, systemic and rationaJ codification oflaw.44
writtenlaw. Since it exists it must be enforced,and judges have to actively establish the facts which justify its application.
.The judge is presumed to know the law (jura novit curia) and has to apply it, where it should be applied.48 'Ihe judges also have to be resident judges;
. The opposition to the rational tradition in law is today found in opposition to its further expansion, to the European level.
some of it is quite recent (
500 years or so following the fall of Rome, when chthonic law re-asserted itself '
became substantively adequate to deal with an entire range of societal problems,
too restrictive f
. It did so from its established positions in universities and in central political authority. Part of its suc-cess came from co-opting chthonic law. The so-called customs of the regions (notably the Custom of Paris) were written down; their content could then be foundin writing;if the writing was changed,the content was changed.s2
s article 1382 of the French civil code, which simply says that any-one causing damage to another by their fault must compensate for the damage. Gone are the particular wrongs of roman law, gone the notions of objective liability born out of particular cases of damage. In their place is a principle of stoic philosophy, of enormous explanatory power and capable of reaching to all features of sociallife.In Germany thelaw of delict under the 1900 civil code was more particularized, notably in refusingliability for so-called moralor non-patrimonialdamage. Savigny probably had somethingto do with this,arguing thatlaw should not be extended to human sen-timent. Yet case law has subsequently recognized a right to privacy, and Deliktsrecht has as much potential reach in Germany now as in France.5'
social cohesion, or glue.
; the small,local ways oflife-of community, work and play-
. In the absence of institutional barriers (formulary pro-cedure)
law can go essentially where it wants to go, so the texts multiply.'Ihere are not only civil codes; there are penal codes, commercial codes, urban codes, codes of alninistration, of forestry, of taxation, of sport, and they all have theirimplementing regulation, spiralling deductively down and down and down.
declare itself the only source oflaw,
For the allegedly regressive character of modern civil law, abandoning general norms in favour of regulation of particular classes, groups and int
. Questions are more important than answers (which may change); understandingis more important than coherence; social contactis moreimportant than precision. Y
capacity,consent or declarations of will,
reasons for overcoming the chthonic tradition, in Europe.
. Traditions don't have any grip in and of themselves; they persuade or don't,
'Ihe social fabric was one which people wanted to tear up.
corruptionin the single, great church.6
.Ihese reasons were found,not only negativelyin the charges of corruption,but positively,in human nature and thedivine recognition ofit given bythejudaeo-christian tradition.
.. Law becomes subjective andin becoming subjective it generates rights.
an exclusive form of ownership, so communal forms of ownership were prohibited and the trust was essentially rendered impossible in continentallaw (though some limited forms persist in germanic jurisdictions).'9
.The trustis re-appearing
. Crininallaw too is individualized, moving from objective definition of a crime to subjective responsibility,'2 w
; law controls the conditions of their exercise and the manner of their exercise.
regard to birth or origin or wealth (which were the things which then most concerned people),
the power, in rights, to resist opression, there is also a guarantee of human liberty. So all the great concepts of western civilization come together in a kind of package, and at the base is the cen-
trality of the person,
There had to be rights,
precision, since you have a notion of consistency, and consistencyis what allows you to build, as opposed to simply wandering around amongst the differences.
1 further conclusions which
), in a consistent manner. ,
and the chthonic traditionis able to tolerate alot of different ways of life. So we seem to have come back to a notion of toleration again, and its relation to different ways of thinking about the world. Western logic does not appear to be the only way of thinking about it,
'State of law' rather than the rule of law, since law is inextricably linked with the modern state:it created the state; it depends on it for its enforcement; it guarantees, as best it can, its continuing efficacy and integ-rity. T he formal construction of the state is very important for the ongoing develop-ment oflegalinstitutions. As states develop, and develop into democratic institutions, functions of legislation and execution develop, and separate themselves from the more rudimentary form of government which is dispute settlement. So we now have a (highly variable) notion of separation of church and state, and the separation of dis-tinct powers within the state.8s
7 Rights brought people out of the ancien regime; the problem nowis where to go with them, and finding a vehicle to do it with.
its greatest moments may now be over (those of the great codifica-tions). There are now a lot of problems dose to the ground, which the great theory does not specifically address. There are evident points of vulnerability in the civilian tradi-tion, which are attracting criticism from within (those standing in line in the courts)and from without. Some speak, a little dramatically, of the end of the state.88 '
, however, the Roman lawyers turned away from changing the world
These changes exhausted everyone for cen-turies.
contingent t time
the limited purposes oflaw)
dead fact at that, with the notion that roman law wasn't really normative for Europe but wa
.'Ihere are no restraints any more, noth. ingbeyond human law which can limit its development, or limit its growth.It is simply the product of human creativity, a fact of human invention. S
law as limit (allthose gifts of silver
they say that when the world comes to an end, there'll be a lawyer at the closing.
lby just looking at facts, with no normative base. We have here the ideas thatlaw needn't have anything to do withlife,and thatlife needn't have anything to do withlaw (or norma-tivity). We have moved some way from the chthonic and talmudic worlds,io8 thou9h there has never been a moment of total rupture or transition, only ongoing shifts in perspective, each building on the earlier. Nor has the newer tradition succeeded in minating the older ones, which keep watch on the new ways, always ready to pro-vide advice,if any problems crop up. They can provide advice since communication is assured, by the incremental, dialogical character of the development of one tradition from others.
positive objects or construction
the world since it's just a fact, with no normative significance,
as the instrument of human rationality.
mately grounded in a presumed basic norrn,ur authorizing present insti-ions
social acceptance, itself a fact,
Yet here law comes from fact, it has lost its inherent norma-tivity, from nature or divinity.
The phenomenon of <failed states' in the world has some disturbing implications for law as simple fact.n One response to this is to create more law, and thereis much evidence today of an acceleration in legal production.ns We do not know what the eventual elfect of this will be.
French law, as a major con-tributor to the tradition, has also given to the world the notion of revolution, now not as a revolving to an earlier, presently disruptive tradition, as it was originally thought to be,but as a (perceived) sharp and creative break with the past.
.it is probably impossible to think of a radically new departure in law,n7
. the phenomenon of a state in which the basic institutions have completely ceased to function is of f recent origin').
tells us already that the notion of system, as a unity of presently interacting elements,is undergoing strain.
appears as a particularly western construction
which in no way advances anyidea of normativity.i;z
3 Interpretation could then become subjective
Ihis would explain the enduring quality of much of the civil law. It is difficult to improve on it, and all its implica-tions have yet to be discovered.i27 So if the civillaw retains a large interpretative, as opposed to creative, dimension, what is the effect of this on its relations with other legal traditions?
convincing people that they have more than one identity, but Europe may be (again) leading the world in this.It may be alittle confusing, but it's way ahead of ethnic cleansing.
Treason and sedition are still with us, however,
, 'The state as middle ground,
French law. Soon the 'custom-ary'Iaw of France also came to be mined, as an alternative to roman 1aw (the notion of a common law of France emerges
the idea that the civillaw tradition is somehow asso-ciated with dominance.
. Yet today there is a relative decline in influence, as other traditions criticize, and re-generate themselves.
AN ISLAMIC LEGAL TRADITION: THE LAW OF A LATER REVELATION
, about 35 years after the completion of Justinian's Digest a
the Babylonian Talmud. '
cmmonality, or con-sensus,
Consensus can be established only through debate and discussion, and there appears to be widespread agreement that for at least a century after the Prophet the process of debate andindividual reasoning (ra'y) was intense,leading to long-standing divisions within the islamic world.
Agreement, once reached within some level of the islamic commu-nity,is sanctioned by the highest of authority, , and itslegitimacy as a source of law can be surpassed only by the Koran itself /and by the Sunn
iyas,or analogical reasoning (from the verb gaya, to compare).³' 'Ihis will appear surprising to western lawyers, who are not used to seeing forms of reasoning or logic categorized as sources of law. They may inspire or facilitate the functioning of forms of law, but cannot themselves be seen as sources.
excludesindividual reasoning) while islamic sources are not positive or formal, though they are mainly written. It is therefore necessary to state the type of ning which can be used to complement existing sources, r
to allhorize individual reason, in the form of analogy, but to exclude more affirmative forms of reasoning.
individual reasoning is a source of law, but only in analogical form.
prospect of a var-ied consensus;
('Kadi-justice knows no rational "rules of decision" ... whatever'); a statement seen as 'burlesque', in