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The Gift of Science: Leibniz and the Modern Legal Tradition

by Roger Berkowitz

Harvard University Press, 2005
Cloth: 978-0-674-01873-0 | eISBN: 978-0-674-02079-5
Library of Congress Classification K457.L4B47 2005
Dewey Decimal Classification 344.095

ABOUT THIS BOOK | REVIEWS | TOC

ABOUT THIS BOOK

The front pages of our newspapers and the lead stories on the evening news bear witness to the divorce of law from justice. The rich and famous get away with murder; Fortune 500 corporations operate sweatshops with impunity; blue-chip energy companies that spoil the environment and sicken communities face mere fines that don't dent profits. In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz looks beyond these headlines to explore the historical and philosophical roots of our current legal and ethical crisis.

Moving from the scientific revolution to the nineteenth-century rise of legal codes, Berkowitz tells the story of how lawyers and philosophers invented legal science to preserve law's claim to moral authority. The "gift" of science, however, proved bittersweet. Instead of strengthening the bond between law and justice, the subordination of law to science transformed law from an ethical order into a tool for social and economic ends. Drawing on major figures from the traditions of law, philosophy, and history, The Gift of Science is not only a mesmerizing and original intellectual history of law; it shows how modern law remains imprisoned by a failed scientific metaphysics.

REVIEWS

This is a remarkably courageous book because it unwaveringly stays with fundamental questions about the nature of justice, without allowing issues of law, fairness, efficiency or legitimacy to serve as adequate substitutes for pursuing such questions. Berkowitz's intellectual courage is supported by a superb intelligence and a wide-ranging erudition.
-- Uday Singh Mehta, Amherst College

Berkowitz has written a brilliant and original book that reframes both the history and conceptualization of positive law. By showing how positive law has its origins in the scientific revolution he forces philosophers to rethink the very essence of modern law. His historical account of how positive law develops out of Leibniz's philosophy as a scientific legal system based on legitimating rules and procedures is elegantly written and analytically precise. The Gift of Science is a book that bridges the gap between analytic and continental philosophies of law. No one interested in the intersection of law, philosophy, sociology, and history can afford to ignore this book.
-- Drucilla Cornell, Rutgers University

A readable and challenging account of the modern German legal tradition, focusing in particular on the attempts of jurists from Leibniz onwards to establish rational and scientific grounds for understanding and justifying law.
-- Lindsay Farmer, University of Glasgow School of Law

Berkowitz's analysis of the ultimate failure of the Leibnizian project, and the pitfalls of the codification movement in the 19th Century, is rich with lessons for modern American liberal jurisprudential theory.
-- Anthony Sebok, Brooklyn Law School

Roger Berkowitz presents a provocative intellectual history of the idea of legal science in Germany from Leibnitz to the great codification of German private law. Arguing that law in the modern era has undergone a momentous transformation, he suggestively ties together Leibniz's hitherto almost ignored legal writings, the rise of the notion of positive law grounded in will, the controversy about codification, and the reconceptualization of law as the product of a special kind of science. Berkowitz's account will fascinate both those interested in law's past and those concerned about law's present.
-- Ernest J. Weinrib, University of Toronto

Roger Berkowitz, in his The Gift of Science, argues that Leibniz gave us the gift of modern legal science...Readers interested in philosophy, political theory, and legal theory will find in The Gift of Science a provocative and stimulating account of the nitty-gritty dynamics by which modern legal science became what it is. The book is written with clarity and rigor, it is erudite and forcefully argued, and provides a powerful defense of the importance of the metaphysical conceptions at work in what look to be the more mundane aspects of our lives.
-- Dan Silver Foundations of Political Theory

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...The range and difficulty of the material that Berkowitz examines in his account of codification is extraordinary...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.
-- Keith J. Bybee Law & Politics Book Review

Animating Berkowitz's book is his profound concern that law has abandoned justice as its fundamental aspiration. Once the embodiment of humanity's highest moral ideals, the law has become a mere tool for the pursuit of social and economic interests. This insightful and provocative history of modern legal science aims to explain how this fundamental change in the nature of law occurred. Berkowitz argues that this transformation was ultimately the result of Leibniz's attempt to save law from a crisis of authority by bringing it within the scope of his scientific metaphysics...Berkowitz's narrative encourages a new understanding of the nature of modern legal positivism. Having lost its traditional foundations in natural law, religion, and custom, the essence of modern positive law is its need for scientific justification. Berkowitz's account of the transformation of law from a moral entity into a technical object explains why contemporary jurists tend to disregard the ontological question of law--what is law?--and, at the same time, provides an urgent reminder that this question cannot be ignored.
-- Michael B. Mathias Review of Metaphysics

What Berkowitz has done is to contribute to a fuller appreciation of Leibniz' astounding genius by illuminating this other unknown area of his endeavour: the philosophy of law...I recommend it highly.
-- Eike-Henner W. Kluge Philosophy in Review

TABLE OF CONTENTS

Contents

Preface

Note on Terminology

Introduction: Legal Codification, Positive Law, and the Question of Science

From Insight to Science: Leibniz’s Scientific Foundation of Justice

1 Beyond Geometry: Leibniz and the Science of Law

2 The Force of Law: Will

3 Leibniz’s Systema Iuris

II The Allgemeines Landrecht: From Recht to Gesetz

4 From the Gesetzbuch to the Landrecht: The ALR and the Triumph of Legality

5 The Rule of Law: The Crown Prince Lectures and the Grounding of Legality in Order and Security

III From Science to Technique: Friedrich Carl von Savigny, the BGB, and the Self-Overcoming of Legal Science

6 From Reason to History: Savigny’s System and the Rise of Social Legal Science

7 The Burgerliches Gesetzbuch (BGB) of 1900: Positive Legal Science and the End of Justice

Conclusion

Note on Sources

Notes

Index

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