by Roger Berkowitz. New York: Fordham University Press, 2010. 234pp. Paperback. $25.00 ISBN: 9780823231911.
Reviewed by: Renee A. Pistone, Rutgers University, Faculty, The Writing Program and Fellow, Harvard Ukrainian Research Institute. Email: rpistone [at] fas.harvard.edu.
This work represents a marked departure from other arguments about positive law that tend not to focus on scientific objectivity or proof. Some philosophy of law scholars might be tempted to compare and contrast positive law and natural law. While, explanations are provided, the book does more than any mere comparison of positive and of natural law. It seems to be aiming for something more: it wants to inject science into the discourse, “more importantly, science offered a systematic way of knowing the world as it proceeds out of divine and rationally certain first principles” (p.18).
This book provides a novel exploration of the various meanings of the terms natural and positive law. Legal scholars have continued to struggle with the application of what Berkowitz terms, “legal science” (p.1). For Bix (1999), “occasionally, there are arguments about what is or should be distinctive about law” (p.8). Berkowitz provides readers with an interesting analysis of the origin of legal science and a stirring analysis of Gottfried Wilhelm Leibniz’s writings that depict positive law. The book bridges any gap in understandings about how positive law came to be a large part of what we consider to be modern law, arguing “Liebniz’s work to bring law within a new metaphysics activated by scientific revolution has helped to bring about one of the central phenomena of our times: the near total acceptance of legislative and judge-made positive laws as the ultimate source of law” (p.14). In short, Berkowitz’s work helps to answer the question: what is Law? (Hart, 1994). This book would appeal to intellectuals and students of jurisprudence as well as to lawyers interested in legal theory.
Ultimately, Berkowitz skillfully tells the readers the story about a disconnect from the divine that science cannot compensate for, “to bring the transformation of law into a product of science into question is the highest ambition of THE GIFT OF SCIENCE . . . like every meaningful question, it seeks to open a path to thinking” (p.160). Berkowitz does provide readers with questions to consider as they ponder how the law relates to them. It is useful to understand the history of law and how it impacts us in the modern world. More specifically, we can know and reach an understanding about what those forces were. Those forces directly shaped the modern law. The book gives equal treatment to history and philosophy as each chapter expresses one clear meaning with sufficient evidence to support all arguments.
One of the major strengths of Berkowitz’s book is he explains the painstaking process of codification of laws (along with its apparent weaknesses). Meanwhile, the reasons [*9] why there was a European shift in favor of de-codification are also revealed. In the end, what you are left with is either a codified process or one that is vastly more interpretive, “by bringing the grounds and reasons of law down to earth, Savigny opened the door to the rise of new sciences of law --sociology and economics -- that sought to locate the principles of justice in decidedly earthly and positive norms . . . with Savigny died the last great attempt to call science to the rescue of law” (p.137).
Another strength of Berkowitz’s book is that he presents readers with precise moments for further reflection as he flushes out the evidence he provides. Berkowitz’s somewhat broad claims about the interconnectivity of these concepts are specific to the nature of jurisprudence itself, “as a forceful substance, law too must, as Leibniz insists it must, follow internal laws of development… . Law has, Leibniz sees, its end already in itself” (p.49). One main contention is that the usefulness of the law can be tied to its specific purpose. The book examines Leibniz’s writings as another way to further justify legal authority. According to Berkowitz, Leibniz struggled to use science as that exacting means to grant law more power. And the problem largely stemmed from an error with metaphysics that many scholars call “knowing.” In a real sense, Berkowitz demonstrates a particularly skillful attempt to improve upon Leibniz’s theoretical discourse by elucidating when “knowing” is to be applied, “while it would certainly be wrong to conflate God’s divine will with the human will of modern positivist legal science, the basic characteristic of positive law -- its being for a willful and posited ground -- is rightly understood as the gift of Leibniz’s legal science” (p.53).
The question is whether law should be subjugated to being justified or is it self-authenticating and simply powerful within itself. Political Science, as a discipline, begins to have some relevance to the ongoing discussion. Readers can see how political science was infused with principles of morality via the 1794 Allgemeines Landrecht (ALR): “as it was for Leibniz 100 years earlier, the impetus behind the ALR was the furtherance of happiness through a scientific knowing of Recht … the erection of the modern codes as willfully posited systems of laws was a concrete response to a pressing need of the times, namely the increasing sense of the loss of the authority of law” (p.69). This development in jurisprudence occurred because some Prussian scholars later considered science and morality, “what prevents the ALR from the descent into the arbitrary rule of will is the lingering conviction that the king’s sovereign will follows calculable and therefore rationalizable ends” (86). Berkowitz does think this development or move toward science and law was influenced by Leibniz’s views. Later on, Berkowitz explores how the Burgerliches Gesetzbuch (BGB) constructs what Leibniz intended all along, “as a system for and toward any end, the BGB shows itself to be a pure technical code in which Recht, once an expression of mankind’s highest ethical ideals, has been reduced to a mere means to social and political ends . . . recht, in other words, comes to be a product of science” (108). This is a more complex view of law that seems to be contemporary as it includes innovations in law that are [*10] directly influenced by science; according to Berkowitz , “because the BCB offers a pure technique of law in the service of external social and political ends, it proves amenable to a multitude of potential and actual ends that come to govern its application” (p.108). The book includes various well analyzed and integrated primary texts from: Aristotle, Derrida, H.L.A. Hart, Heidegger, Posner, Raz, and Savigny.
Finally, note that this is a paperback version of Berkowitz's 2005 GIFT OF SCIENCE (Harvard; reviewed http://www.bsos.umd.edu/gvpt/lpbr/subpages/reviews/berkowitz0806.htm). In this edition, the author has continued to work with these concepts and now presents a virtually perfect analysis of the difficult concepts. Ideas are presented to readers in an accessible way that is easy to understand. The book proves to be appropriate for readers that are less familiar with Leibniz.
Bix, B. 1999. JURISPRUDENCE: THEORY AND CONTEXT. Durham, NC: Carolina Academic Press.
Hart, H. 1994. THE CONCEPT OF LAW. Oxford, UK: Clarendon Press.
© Copyright 2011 by the author, Renee A. Pistone.