The Transcendental Dimensions of American Law.

The Transcendental Dimensions of American LawThis paper will address the different conceptions of "law" in the English common law and Continental civil law traditions. The nature of "law," how it is defined and conceived in particular cultures reveals the religious and transcendental qualities inherent in law itself. I should like to raise the following characteristics to the political consciousness: (1) ritual, (2) tradition, (3) authority, and (4) universality. Following Harold J. Berman's analysis in his Faith and Order: The Reconciliation of Law and Religion (1993), I will explore the transcendental dimensions of American Law using the American Revolution and the French Revolution as concrete historical examples of the distinction between common law and civil law traditions, and how this affects political society and government.These four characteristics of law: ritual, tradition, authority, and universality were all manifested differently in the aftermath of the American Revolution and French Revolution. The English common law has medieval ideas of Roman and canon law as does the French civil code, yet, there is a profound difference in their conceptions of the law of nature, divine law, and positive law. The common law of England emphasized "law as reason" not "law as the will of the sovereign". As an expression of the customs and practices of the English people, the common law is both particular and universal. Particular in the sense of its specific expression of England, but also universal in the sense that the common law was closely associated and developed from within the law of nature and divine law of Scripture. The key, though, is the epistemic distinction between the "discovery" of law (common law) and the "making" of law (legislation). While the common law does not have the universal character of the law of nature or divine law, it is similar in being "unwritten." This aspect of being unwritten relates to the idea of ritual, symbol, and more organic representations of the law in the American polity. Since common law had no detectable origin as in the clear, specific act of a legislature enacting a statute, the reason of this kind of law had to be "artificial" according to Coke. Epistemic, philosophical, and religious ideas are at play, particularly the tension of the universal and particular which the common law seems to hold in balance, while the civil law tends to subsume the particular within the universal because of its codification.After the French Revolution, the Code Napoléon of 1804 was meant to abolish all prior law and start anew with a comprehensive, coherent, and complete civil code that sought to eliminate the need for judicial interpretation. Originating in the Justinian Code of 533, the Roman civil law always possessed imperial authority, codification, and a statutory will as sovereign. In this sense, the civil law is more removed from the people; whereas, the common law and law of nature possesses an inherent "reason" and proximity to the people. Political implications of these contrasting transcendental conceptions will be explored. Initially, it appears that the American tradition supports the doctrine of popular sovereignty, a Madisonian separation of power less rigid that the typical French idea via Montesquieu of strict separation, and a different view of the judiciary, since in France judicial decisions are not a source of law. Codification and the rise of the statute in America may want us to consider whether an erosion of the common law is occurring, and in that sense a weakening of the legal and religious foundations of the American polity. ..PAT.-Unpublished Manuscript [ABSTRACT FROM AUTHOR]