On the Early Eastern Origins of Western Law and Western Civilization: New Arguments for a Changed Understanding of Our Earliest Legal and Cultural Origins (Part 2)
Robin Bradley Kar
University of Illinois College of Law
April 13, 2012
University of Illinois Law Review, Vol. 2012, No. 5, 2012
Illinois Program in Law, Behavior and Social Science Paper No. LBSS12-20
Illinois Public Law Research Paper No. 11-26
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. One common version of this story, as propounded by the influential legal scholar Harold Berman, asserts that Western civilization (including its incipient legal traditions) began in the 11th century AD 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.
This Article develops a novel set of arguments, rooted in recent findings from a broad range of cognate fields, to suggest that this standard story is nevertheless incomplete and even potentially misleading. 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 appears to be 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 and around the Indus Valley — which is a region that spans the Northwestern portions of the Indian subcontinent.
From approximately 4500 BC until approximately 1900 BC — and hence long before the rise of ancient Greece, Rome or Israel — the Indus Valley region gave rise to one of the very first large scale civilizations in our natural history as a species: the so-called “Harappan” Civilization. This civilization was also part of a much larger and highly integrated social complex, with strong ties to ancient Bactria and the eastern parts of modern day Iran. In this Article, I argue that this ancient socio-cultural complex is most likely the actual source of a range of important Western traditions. Through an unbroken chain of cultural transmission that has operated through an immense number of generations, we have likely inherited an important set of traditions from this ancient socio-cultural complex, which have specially equipped us to produce and sustain large-scale civilizations with the rule of law. If this is true, then our failure to understand our deep genealogical relationship to this ancient socio-cultural complex has limited our self-understanding in critical respects. It has also prevented us from realizing useful aspects of our traditions — including, in some cases, those aspects that make our current traditions in the West so capable of supporting large-scale human civilizations with the rule of law.
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 (e.g., Rafael La Porta, Florencio Lopez-de-Silanes, Andrei Shleifer, and Robert Vishny) have now produced an impressive body of empirical work, which suggests that we can explain a broad range of features of modern societies in terms of the origins of their laws. This literature suggests that legal origin variables can have strong effects on issues as diverse as corporate governance structure, labor regulations, the robustness of capital markets, and even literacy and infant mortality rates.
The present Article argues that this literature may nevertheless be working with legal origin variables that fail to track our deepest and most genuine lines of relevant descent. After developing a special methodology to discern the relevant genealogical facts, I use this methodology to propose a new (and fundamentally changed) account of the most plausible phylogenetic structure of the Indo-European legal family (including the socio-cultural traditions needed to support legal systems, along with the special psychological attitudes that animate these traditions). This novel account traces many of the most important developments of this family of traditions deep into human prehistory. A proper understanding of this new family tree should have important empirical implications: this work can, for example, be used to help explain why certain exportations of Western-style legal institutions have worked so well while others have not. Inquiries of this kind should have special urgency today, given the massive exportations of Western law and Western legal institutions to so many other parts of the world and given the increased pressures toward westernization that are being felt around the globe.
The origins story that I develop in this Article should, however, also have broader implications for a much wider range of cognate fields, which have typically presumed a primarily Greco-Roman or Judeo-Christian origin for key developments in the West. The revised origins story that I will be telling should therefore be of more general human concern.
This part 2 of a 3 part series; Part 1 may be found at http://ssrn.com/abstract=2039500 and Part 3 may be found at http://ssrn.com/abstract=2039504.
Number of Pages in PDF File: 64Accepted Paper Series
Date posted: April 14, 2012 ; Last revised: June 21, 2012
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