The Gift of Science: Leibniz and the Modern Legal Tradition

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Overview

The front pages of our newspapers and the chatter on the blogs bear witness to the divorce of law from justice. Highly paid lawyers mine the law for loopholes to help Fortune 500 corporations legally evade their taxes and spoil the environment. In a world governed by the rule of law, justice, it seems, is a chimera, an abstraction, and thus a distraction from the real world struggle over political interest. Ought we, then, to abandon talk about abstract ideals of justice in favor of strategic and political arguments? In The Gift of Science, a bold, revisionist account of 300 years of jurisprudence, Roger Berkowitz argues that the idea of justice is endangered and needs to be saved. Moving from the scientific revolution to the rise of law and economics, Berkowitz tells the story of how lawyers invented a science of law to preserve law's claim to moral authority. The giftof science to law, 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. The Gift of Science is a mesmerizing and original intellectual history of law. As a genealogy of the modern divorce of law from justice, Berkowitz shows that positive law has its formative impulse not in the English works of Thomas Hobbes and John Austin, but in the German tradition of legal science stretching from Gottfried Wilhelm Leibniz to Friedrich Carl von Savigny and Rudolf von Jhering. As a contribution to jurisprudence, Berkowitz argues that positive law is best understood as a product of science and not, as usually thought, as the will of a sovereign. As a work of political theory, Berkowitz explores how the subordination of law to social science has hollowed out the ethical center of law as the institutional embodiment of justice. 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.

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Editorial Reviews

From the Publisher
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 issure to inspire continuing debate.-Samuel Moyn

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

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

Uday Singh Mehta
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.
Drucilla Cornell
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.
Lindsay Farmer
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.
Anthony Sebok
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.
Ernest J. Weinrib
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.
Foundations of Political Theory - Dan Silver
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.
Law & Politics Book Review - Keith J. Bybee
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.
Review of Metaphysics - Michael B. Mathias
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.
Philosophy in Review - Eike-Henner W. Kluge
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.
Foundations of Political Theory

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

Law & Politics Book Review

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

Review of Metaphysics

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

Philosophy in Review

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

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Product Details

  • ISBN-13: 9780823231911
  • Publisher: Fordham University Press
  • Publication date: 3/15/2010
  • Series: Just Ideas Series
  • Edition description: 1
  • Pages: 234
  • Product dimensions: 6.00 (w) x 8.90 (h) x 0.60 (d)

Meet the Author

Roger Berkowitz is the Director of the Hannah Arendt Center for Ethical and Political Thinking at Bard College, where he is also Assistant Professor of Human Rights and Political Studies. He recently edited (with Thomas Keenan and Jeffrey Katz) Thinking in Dark Times: Hannah Arendt on Ethics and Politics (Fordham).

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Table of Contents

Preface

Note on Terminology

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

Part I: From Insight to Science: Leibniz's Scientific Foundation of Justice

Introduction

1. Beyond Geometry: Leibniz and the Science of Law

2. The Force of Law: Will

3. Leibniz's "Systema Iuris"

Conclusion

Part II: The Allgemeine Landrecht: From Recht to Gesetz

Introduction

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

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Sort by: Showing all of 2 Customer Reviews
  • Anonymous

    Posted November 7, 2005

    Outstanding Book

    I attending Roger Berkowitz¿s reading of The Gift of Science and quickly purchased my own copy. While I am certainly not an ¿academic-type¿ the concepts in this book really got me thinking. Whenever I listen to a press conference or read anything related to law and justice I can¿t help but bounce the information off what I have learned in The Gift of Science. This brilliant book opened my eyes and gave me the tools to look at the American justice system in a whole new light.

    Was this review helpful? Yes  No   Report this review
  • Anonymous

    Posted October 29, 2005

    From the Back Cover

    '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 of Liberalism and Empire

    Was this review helpful? Yes  No   Report this review
Sort by: Showing all of 2 Customer Reviews

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