On the Origins of Western Law and Western Civilization (in the Indus Valley)
105 Pages Posted: 20 Oct 2010 Last revised: 11 Oct 2017
Date Written: February 18, 2011
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.
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 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 has nevertheless been working with legal origin variables that fail to track genuine lines of genetic descent. It then develops a distinctive, and more complete, picture of the phylogenetic structure of the Indo-European legal family, which traces many of its most important developments in human prehistory. A proper understanding of this 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, moreover, 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.
Keywords: legal origin, western law, western civilization, east, west, orientalism, indus, harappan, rule of law, development, comparative, legal history, indo-european, evolution of law, christianity, druid, brahman, celt, prehistory, berman, edward said, roman law, india, iran, linguistics, social structure
JEL Classification: N00, N13, N15, N10, N20, N30, N40, N43, N45, O10, O57, P50, F01, F00
Suggested Citation: Suggested Citation
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By Orin S. Kerr