The Gift of Science
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 19th 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.
This provocative, wide-ranging book combines rigorous scholarship with interdisciplinary scope. As a work of intellectual history, it traces modern thinking about law as "positive law" back to its original impulse in Gottfried Wilhelm Leibniz's scientific metaphysics. In doing so, "The Gift of Science" presents an original discussion of the importance of Leibniz's largely unknown legal writings. As a work of legal history, the book tells the story of the rise of legal science and legal codes in Germany, giving special attention to the first modern legal code, the Prussian code of 1794, and the great jurist Friedrich Carl von Savigny. As a contribution to the history of science, "The Gift of Science" shows how Leibniz's scientific philosophy influences - and is influenced by - his legal thinking. And as a work of jurisprudence, "The Gift of Science" engages contemporary debates about positive law, arguing that the essential characteristic of positive law is its need for scientific justification.
Finally, the book makes manifest the danger that the transformation of law itself into a product of science poses for the possibility of law, justice, and freedom in the modern age. An article-length engagement with "The Gift of Science" is available in: "Judgment in Law and the Humanities," by Desmond Manderson, in Law and The Humanities, ed. by Austin Sarat, et al. (Cambridge, 2010).
REVIEWS
"Provides a radical critique of legal positivism from the perspective of intellectual history. Focusing on little known work by Liebniz, Berkowitz traces the complex history and the multiple meanings of science and positivity."
--Peter Goodrich, Cardozo School of Law
"The Gift of Science is the most searing critique of legal positivism that we have available to us."
--Drucilla Cornell, University of Capetown
"Roger Berkowitz's book is one of the richest guides available in English to German legal thought from the mid-17th to the early 19th century, a crucial period in the origins of modern law, not least because of the powerful radiance of the German example elsewhere. A model of philosophically inspired intellectual history, Berkowitz's book is sure to inspire continuing debate."
--Samuel Moyn, Columbia University
"In The Gift of Science, Roger Berkowitz provides a genealogy of positive law.... This book does an impressive job of constructing a compelling argument from a wide range of complex material, both historical and philosophical. It is a very good example of how to think deeply and originally about the ideas that shape the history of law, while at the same time paying attention to the details of the texts. The general question that Berkowitz raises--how, with science, one could ever hope to attain justice--is an important one.... His aim is to show us the origin of the current instrumental view of the law. His account of this is quite fascinating."
--Melissa Zinkin, Political Theory (v.35 #4)
"The Gift of Science, by Roger Berkowitz, offers legal history refracted through Heidegger, and stands I think for one way in which the challenge which law and the humanities poses to the question of legal and institutional judgment might be met. Berkowitz draws on approaches to the relationship of law and justice which, as I noted earlier, have been developing amongst a number of writers in recent years. Nevertheless I choose in this essay to focus on Berkowitz because he directly confronts the question of legal judgment--how is it to be understood and how is it to be justified? And because in so doing he defends explicitly--perhaps, in fairness to other commentators such as Constable, the word 'starkly' would be better--the social and institutional implications of his answers. The Gift of Science studies with great care the German positivist tradition from the late seventeenth century up to the enactment of that pinnacle of legal systematization, the Bürgerliches Gesetzbuches (BGB) of 1900. We might summarize Berkowitz' thesis as follows: 'modernity' in law involves the attempt to do without God as the foundation and origin of law. We see this first in Leibniz, though he remains a transitional figure in many ways (as was Newton in other fields), and then with increasing force in the theorists of German positive law who followed: Svarez, Savigny, Jhering. Absent God, 'law' ceases to be a coherent entity with an "existence outside of its posited existence in rules, norms, and conventions," This creates a problem for law's authority. Without God – or nature, or tradition, for that matter--who is to say what justice really requires of us?"
--Desmond Manderson, Judgment in Law and the Humanities
"The Gift of Science is an unqualified success. . . . What Berkowitz has done is to contribute to a fuller appreciation of Leibniz's 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.
"An extremely original treatment of the 18th century codification movement as an attempt to find a rational, non-religious ground for law. Clearly and elegantly written, it makes insightful and unique connections between the scientific revolution and the codification movement."
--Linda Meyer, Quinnipiac University School of Law
"Berkowitz offers not only a necessary rethinking of Leibniz's legal thought, but also a tremendously insightful and nuanced account of the intellectual history of modern codification and legal positivism."
--Karl Shoemaker, University of Wisconsin, Madison
"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 Book Review.
"[The Gift of Science] is both challenging and stimulating.... Compelled by a sense that "we live through a time unique in history," the author warns against severing the law's bond from ethics by reducing it to a simple mechanism of "legitimate decision-making and justice to fairness" (p. xiii). In its search for historical background to a social problem, this book might (in the sense of Richard Rorty) be characterized as "problem history" (histoire probléme) focused on two major issues, one practical, the other historical.... Choosing a topic with enormous social relevance may serve as a provocation for historians, philosophers and sociologists, politicians and lawmen, inciting them to rethink the very nature of modern law."
--Eric-Oliver Mader, American Historical Review, June 2007
"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 traces the origin of the disjuncture between law and transcendent justice to the European legal codification movement. The range and difficulty of the material that Berkowitz examines in his account of codification is extraordinary. He engages a large body of secondary 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. Legal historians and legal theorists alike will find much of interest and value in his work."
--Keith Bybee, Law and Politics Book Review, Vol. 16 No.8 (August, 2006) pp.608-611.
"Berkowitz's narrative encourages a new understanding of the nature of modern legal positivism.... Animating Berkowitz's book is his profound concern that law has abandoned justice as its fundamental aspiration. This insightful and provocative history of modern legal science aims to explain how this fundamental change in the nature of law occurred. Part I is a welcome addition to the scant English language commentary on Leibniz's jurisprudence and codification efforts. Berkowitz explains how, as the traditional moral authority of law waned in the seventeenth century, Leibniz sought to preserve law's power by embracing a scientific approach to natural law (ius). At the core of Part I is Berkowitz's claim that Leibniz's introduction of the principle of sufficient reason into jurisprudence initiated a fundamental shift in the nature of legal inquiry from a knowing of law itself to a knowing of the reasons for law. Leibniz's legal science made law subordinate to its rationalization; law came to be a mere instrument serving the ends posited as its justification. Part III argues that the German Civil Code of 1900, The Bürgerliches Gesetzbuch (BGB), falls squarely within the tradition of modern legal science intitiated by Leibniz. Berkowitz links the BGB to Leibniz through the jurisprudence of Carl von Savigny, the founder of the German historical School. Berkowitz claims that Savigny did more to advance German legal codification than did any other nineteenth century jurist. This is a novel thesis, since Savigny's opposition to codification is well known. Berkowitz makes a persuasive case for his claim, arguing that it was possible for the BGB to ground law in social science only after Savigny had succeeded in legitimating his historical-legal science."
--Michael B. Mathias, The Review of Metaphysics
"Offers careful, erudite translations of key texts in jurisprudence as well as original interpretations of such works that realign the larger disciplinary field toward proper understanding of the essential debates within law and philosophy."
--Kenneth Michael Panfilio, Illinois State University
"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, author Liberalism and Empire
"Dr. Berkowitz has developed a brilliant thesis. With a depth of erudition not often expressed in contemporary letters [Berkowitz] has illustrated another example in the conflict between modernity's eldest child, scientism, and the traditional order. Berkowitz has provided a thesis that will challenge anyone interested in the philosophical history of contemporary jurisprudence. His writing is clear, concise, and to the point; there is no philosophical meandering."
--Robert Cheeks, The Intellectual Conservative.
"[E]s handelt sich bei dieser Untersuchung um eine durchaus geistreiche und sprachlich geschliffene Darlegung des Themas."
--Marcel Senn, Zeitschrift der Savigny-Stiftung fur Rechtsgeschichte GA
"Modern codification, namely the effort to ground and to make law according to a rational and scientific method, has fatal consequences, according to the political and legal philosopher [Roger Berkowitz].Insofar as German jurists increasingly made legislative codification into a systematic science, they took from law--without noticing it--law's moral worth and subordinated law to political and ideological manipulation. Berkowitz engagingly tells this fateful history of decline in pointed, often paradoxical, formulations that prove him, already stylistically, an admirer of Nietzsche and Heidegger. In seven short chapters he provides a provocative exegesis of great legal texts with regard to their political-philosophical intentions, arguments, and aporias.... One need not unconditionally share the moral message of the book in order to find it stimulating. Whoever seeks a philosophical introduction into the emergence of modern legal science from 1700 to 1900 will certainly not be bored by this passionate essay."
--Gerrit Walther, Historische Zeitschrift v. 285 (2007)
"Berkowitz's Heideggerian account forms part of a recent revivification of Heideggerian thought in the humanities and social sciences academy, not least within professional history itself. One need only mention recent books by professional historians such as Dipesh Chakrabarty's Provincializing Europe (2000) and Constantin Fasolt's The Limits of History (2004) to see this. To be sure, thinkers like Chakrabarty and Fasolt are not explicitly concerned, as Berkowitz is, with 'justice.' But the analogy holds. In different registers, thinkers like Chakrabarty and Fasolt -- and now Berkowitz -- compel us to come to terms with the limits of our abstract contextualizing or instrumentalist endeavors by keeping in front of us that which we have lost or are at risk of losing. As such, Berkowitz's book is essential reading."
--Kunal Parker, Journal of Law, Culture, and the Humanities.
"The Gift of Science is a humble book in size, but lofty in its aims. It has an elegantly written and compelling introduction and conclusion. In between are three or perhaps actually four case studies in the history of German jurisprudence and legal philosophy. Roger Berkowitz illuminates in jurisprudence a development familiar to students of modernity: the fading of a transcendent realm to ground things--here, laws--in favor of a positivism of one sort or another."
--William Clark, Isis, v. 97, pg. 745 (2006).
"Roger Berkowitz presents a provocative intellectual history of the idea of legal science in Germany from Leibniz 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, author of The Idea of Private Law
"The Gift of Science chronicles the decline of law in three parts, each further subdivided into chapters. Part I, "from insight to science," focuses on Leibniz's pivotal role at the threshold of modernity, as he set out to relegitimate views and institutions whose traditional foundations were being eroded by the seventeenth-century crisis of authority. Part II describes the transition "from Recht to Gesetz," or "right [ius] to positive law [lex]," in the Prussian Allgemeines Landrecht [ALR] of 1794, which exhibits clearly law's paradoxical positivization, as it were, in the very attempt to avoid it. Part III completes the so-called "self-overcoming of legal science" by way of Savigny's nineteenth-century historicizing of reason, which facilitated the devolution of science into social science. As a result, law – embodied thereafter in the Prussian Bürgerliches Gesetzbuch [BGB] of 1900 – was left a mere "technique" wielded arbitrarily by bureaucrats and other experts in their management of Weber's "modern welfare state" (85). Berkowitz's narrative of this extended process rests on a close analysis of texts, some of them unfamiliar or hard to obtain, and he exhibits an impressive familiarity with the relevant primary and secondary literatures (there are forty pages of notes). It is a strong reading, of course, as noted above, even a violent one, since major players like Leibniz and Savigny are portrayed as agents unwittingly working against themselves. Indeed, the title's "gift of science" (cf. the German Gift) whereby they sought to save law turned out to be -- in appropriate mythic terms -- a poisoned apple. Berkowitz rightly calls attention to the relatively scant notice paid especially by Anglo-American scholars to Leibniz's legal studies."
--Michael J. Seidler, The Leibniz Review, v. 16 (2006).
"While the demise of law may have begun with the rise of skepticism in the early modern period, it has oddly been abetted by those who wanted to reinvest law with its special meaning through science. This core observation of Berkowitz's account is glimpsed in his title, The Gift of Science: Leibniz and Modern Legal Tradition. According to Berkowitz, Leibniz offers science as a gift in substitute for the lost connection between our daily experience of law and justice as transcendent, ethical practice. . . . . In addition to the significant theorists Berkowitz discusses, an original and prominent feature of his book also examines how proposed, and in some cases enacted, Prussian or German legal codes reflect the scientific approach of the Leibnizian tradition of legal theorists. . . . It is in the detailed discussions of these and many other German legal theorists and the intriguing connections he makes between them and formal legal codes that the strength of Berkowitz's text resides."
--Steven Gerencser, Theory & Event
"Roger berkowitz's The Gift of Science is about the genesis and development of legal codification from its birth in Gottfried Wilhelm Leibniz's work to the German Civil Code of 1900. Leibniz's legal writings have been long neglected and this study is to be commended for bringing those writings back to our attention. Berkowitz charts the development of Leibniz's legal thought from his early to mature writings, illuminating Leibnizs's surprisingly helpful reflections on the nature of law."
--Thom Brooks, Perspectives on Politics.
My Response to Thom Brooks' Review of The Gift of Science.
"Berkowitz tells this story of law's ontological change and decay in two parts. In the first part, Berkowitz tells of the metaphysical assumptions behind Leibniz's attempted legal code and the Prussian Provincial Law of 1794. In the second part, Berkowitz turns to Carl von Savigny's idea of a Volksrecht and the German Civil Code of 1900. The process of codification itself was meant to provide an independent basis for law by providing a rational justification of the legal order. But this attempt, Berkowitz argues, was doomed to fail. The account of this failure comes in a rich and detailed study of the connection between Leibniz's codification work (much of it available only in Latin) and his metaphysics, and is too complicated to discuss here. The bottom line, however, can be clearly stated: Leibniz is driven to ground law in an ultimate justification outside of the law, and that justification is the will of God. . . . Though Leibniz's theological order remains a far cry from modern, value-free positivism, that theology paves the way for positivism by introducing the fundamental assumption that man exists for the sake of a good that is posited and willed as opposed to a higher good to which an individual must "sacrifice his rights, his pride, his self" (xii)"
--Dan Silver, Foundations of Political Theory Book Review
"The fly in the proverbial ointment lies with the nature of contemporary law, and as Bard College professor Roger Berkowitz has brilliantly illustrated in his seminal study The Gift of Science summum bonum, natural law, in favour of "a purely formal and technical legal apparatus that is distinguished by its serviceability to any and all ends." (Harvard Press, 2005), "Beyond the waxing and waning of the felt actuality of justice that persists through history, modern society is witnessing the silent, unacknowledged extinction of justice… Within the rarefied world of the academy, the increasingly normalized divorce of law from justice is given the name positive law." Therefore law, like many of the pursuits of modern man, has become little more than what Leviathan's (the state's) nomenclatura say it is. Modern law is not "a moral agreement in which the actors acknowledge that they will abide by the 'rules of the game.'"
--Robert Cheeks, Philosophy Now.
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