Robin Bradley Kar (University of Illinois College of Law) has posted On the Origins of Western Law and Western Civilization (in the Indus Valley) on SSRN. Here is the abstract:
Western Law and Western Civilization are often said to be parts of a distinctive tradition, which differentiates them from their counterparts in the “East,” and explains many of their special capacities and characteristics. On one common version of this story, as propounded by legal scholars such as Harold Berman, Western Civilization begins with a return to the texts of three more primordial traditions: those of ancient Greece, Rome, and Israel. The basic story that Western Civilization finds its origins in ancient Greek, Roman and Hebrew culture is, however, so familiar and so pervasive that it has rarely - until recently - been questioned in the West. The story has illuminated a broad range of topics, arising from a diverse set of fields, and over a wide expanse of time.
There is nevertheless a deep sense in which this story is incomplete, and even potentially misleading. This article - along with its sequels - argues that if we are genuinely interested in understanding our origins, in a way that will shed light on why the West has exhibited such distinctive capacities for large-scale human civilization and the rule of law, then the story we commonly tell ourselves starts abruptly in the middle, and leaves out some of the most formative (and potentially transformative) dimensions of the truth. Western Law and Western Civilization are not just the outgrowths of three particularly creative cultures, which straddled the transition from human prehistory into human history, and developed in either Southeastern Europe or the Near East. Rather, the West is descended from a much deeper cultural tradition, which extends all the way back to some of our first human forays out of hunter-gatherer modes of subsistence and into settled agricultural living. The tradition in question began not in Greece, Rome, or Israel, however, but rather in the Indus Valley - which is a region that spans the Northwestern portions of the Indian subcontinent. Our failure to know this about ourselves has limited our self-understanding in critical respects, and has prevented us from realizing useful aspects of our traditions - including, in some cases, aspects that make them work so well for large-scale human civilization.
We live in an era in which it is, moreover, especially important to decipher the deepest origins of Western Law and Civilization. Scholars within the emerging “legal origins” tradition have produced an impressive body of empirical work, which suggests that we can explain a broad range of features of modern societies - incuding aspects of their corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates - in terms of the origins of their laws. Other legal scholars, such as James Whitman at Yale Law School, have argued that that the expansionary tendencies of Western law should be understood as arising in part from its origin in the Greek city-states and the socio-cultural dynamics inherent in that early situation. A proper understanding of the prehistoric structure of our legal family tree can, moreover, help combat various Western exceptionalist explanations of the relationship between Western law and other important variables, such modern economic development, political stability, and the rule of law. These exceptionalist explanations have, unfortunately, led to a series of failed policy decisions around the world, as we have exported various Western legal institutions to developing countries.
If legal origin variables can have important consequences like these, and if we hope to study these causal relations in more detail, then we plainly need to know the correct structure of our legal family tree. At the same time, however, both the present legal origins literature and much comparative law scholarship distinguishes primarily between the civil versus common law origins of a nation’s legal system, or between both of these types of Western law and various non-Western legal systems, and the findings of this literature have not yet been harmonized with the spate of known difficulties that many developing nations have faced in transitioning to large-scale societies with the rule of law regardless of its civil or common law origins. The family trees that are employed in these literatures are, moreover, typically identified from the historical record, and therefore fail to detect any relevant relations that might have arisen in human prehistory. The story told here will, by contrast, allow us to see the great majority of large-scale empires that have arisen throughout world history (and in both the “West” and much of the “East”, other than China) as arising from a shared cultural origin that goes much further back in time. Examples of such empires from ancient times will include the Roman, Athenian, Macedonian, Byzantine, Hittite, Mauryan, Carthaginian, Achaemenid, Sassanid, and Parthian empires; examples from the medieval period will include the Umayyad, Abassid, Sassanid, Carolingian, Danish, Mughal, Hapsburg, and German empires; and examples from more modern times will include the Portuguese, Spanish, Russian, Swedish, Dutch, British, French, Austro-Hungarian, German, Italian, and - most recently - American empires. These empires did not face the same difficulties in sustaining large-scale societies with the rule of law that many developing nations have, and features of their common origin may help to explain why.
Fascinating & highly original. Kar has a compelling story to tell.