Howard Richards

Part Three

A Sketch of the History of the Cultural Structures that Dominate Us

 One can do history in many ways, depending partly on where one locates the causal powers that move events.  One can write of the rising and falling of empires and nations.  One can write a Whig history of the gradual but sure triumph of liberal institutions.  One can write an intellectual history of scientific discoveries and inventions.   One can write of the daily life of the toiling masses.  One can recount battles and wars.  One can write a history of consciousness, which will turn out to be in large part a history of religion.  Like Jared Diamond one can write eco-history, relating physical facts to social facts.  One can like R.R, Palmer write an administrative history explaining how some nations succeed in administering such large territories that they become able to dominate smaller nations.  Like Arnold Toynbee one could (perhaps updating what he has already done) write a history of challenge and response.    Like Wallerstein and Braudel one could write of long-distance trade.  One could like Michel Foucault write histories of creeping normalization.   One could write a history of gender and of patriarchy, which would to a large extent be a history of violence and submission.  Like Rosa Luxembourg one could write a history of capital accumulation, or like Maria Mies one could combine such a history with gender history….
   True to my attribution of causal powers to rules, and especially attributing causal powers to those rules that constitute basic structures, I will do history by sketching the origins of the basic cultural structures of the modern world.  Of the rules of our world.  Of the rules that constitute markets.   I will distinguish four key moments of the ethical construction of the legal and ethical framework we now live in: early Rome about 750-350 BC when our legal tradition began; under the Empire after about 100 AD when it was simplified and generalized to create the jus gentium, the basis of the modern laws of commerce; early modern times about 1400-1800 AD when in the phrase of Karl Polanyi economic relations were “disembedded” from social relations generally and became an independent dominating force (Polanyi 1944); and in our own times about 1970-1980 AD when the rise of social democracy after World War II and the effervescence of the 1960s ended and were replaced by today´s neoliberal tide.  (Fredric Jameson dates the end of the 1960s and the beginning of neoliberalism precisely on September 11, 1973, the day when General Augusto Pinochet backed by U.S. Secretary of State Henry Kissinger and President Richard Nixon destroyed Chilean democracy in a bloody coup d ´etat.)
   I agree with those who hold that the genealogy of the laws of commerce that now govern the global economy begins in ancient Rome, finding that the distinctive contributions of the British common law and other smaller legal traditions either are themselves currents within the Roman Law mainstream or are eddies which make no substantial difference to it. 
          In early Rome, at the beginning of its first four centuries (approximately 750-350 B.C.), land was “…divided among heads of families according to the necessities of the agricultural economy.”  (Iglesias 1958 p. 42).   The Roman city-state was composed of gentes (whose further evolution produced the classical 35 tribes of Rome) , each of which was a grouping together of familiae.    (Id. p. 12)   The chief and sovereign of  a familia was  a paterfamilias, who was expected to rule its persons and things not for personal gain but as a patrimony  to be maintained intact and passed on to the next generation.   (Id. p. 247)   “The paterfamilias is diligent, that is to say religiosus.  There exists a kind of religio which the paterfamilias scrupulously complies with.  It is in this religio  that there operates the wise and sacred will of the maiores [elders], transmitted from generation to generation.”  (Id. p. 533)  The chief of a gens was a pater gentis.   Whatever their disadvantages –and they were many when compared to modern institutions and when compared to the still older patterns of human life believed to have existed before patriarchy (Eisler 1987) -- the most ancient Roman mores had the advantage of prescribing that everybody was included.    There could be no class of landless laborers because each individual was part of a family and each family had access to land.   This feature of Rome’s most ancient customs was not, of course, peculiar to Rome, but rather typical of indigenous peoples the world over.  (e.g. Tonnies 1887)    Already, however, at the beginning of the Republic (510 B.C.) exclusions had begun which would fuel the social struggles that wracked Rome for nearly a thousand years until its fall: there appeared plebeians (people who belonged to no gens) and proletarians (people who had no property).  (Id. pp. 15-16) 

 “Paterfamilias appelatur qui in domo dominium habet.”   (Digest, book 50: 16, 195, 2).   (“The one who has dominion over the house is called the paterfamilias.”)  This is a definition of paterfamilias.  ”That which defines the familia, the familia proprio iure, is the submission of all of its members to the same authority –manus, potestas--, the same chief, who is the lord and sovereign of the family, and not the ‘father of the family.’” (Iglesias 1958 pp. 529-30)    Similarly, Max Muller writes, “In ancient times, when most wars were carried on, not to maintain the political equilibrium of Asia or Europe, but to take possession of good pasture, or to appropriate large herds of cattle, the hurdles grew naturally into the walls of fortresses, the hedges became strongholds, and those who lived behind the same walls were called a gotra, a family, a tribe, a race.”  (Muller 1909, p. 37).   The head of the family was the lord, the strong protector.  (Id. p. 49)  It was not until late in its evolution that Roman Law defined a familia as people related by blood.   Originally the familia was what the paterfamilias ruled.   It included persons and things: women, slaves, animals, and land.   The “family” was a household that was to a large extent economically self-sufficient.  (This fact is reflected in the etymology of “economics,” which is derived from the Greek oikos nomos, “the rule of the household.”)    The Digest’s definition of paterfamilias sheds light on that Roman concept of property which has become our concept; that has become our social structure; that came to be the prevailing concept in pre-modern Europe and then came to be the prevailing concept of how persons relate to things on a global scale as the European world-system  became the modern world-system.   It was dominium.   It is dominium.  The idea of “property” was in early Rome and under the Republic expressed as “dominus.”    It was what the paterfamilias dominated.   Originally the most legitimate dominium was acquired by seizing things from the enemy in war.  (Iglesias 1958 p. 266 citing Vogel 1948)  (The Latin source of our word “property” i.e. proprietas, did not come into general use until the beginning of the Empire, that is to say  until the reign of Augustus beginning in 27 B.C.; and when proprietas did come into general use it was defined in terms of dominus. (Iglesias 1958, p. 249))
 A word with a meaning similar to dominium was mancipium,  from manus, the Latin word for hand.   All the persons in the household were under the hand of its paterfamilias. (Iglesias 1958 p. 247)  They were also said to be in potestas, under his power.  Only the paterfamilias was a juridical subject capable of having legal rights recognized by public magistrates.  Custom and religion organized human life within the household, but the for the most part law was not about that.  Only occasionally did law concern itself with religious matters.  In its early days and decreasingly under the Republic it did draw on custom as a source of authority, until under the Empire the decrees of the Emperor eclipsed custom as a source of public law, while commercial pacts known as stipulatio increasingly became a source of private law.    In its beginnings Roman Law was not about relationships within households but about relationships between one household and another.   It was about what the magistrate (frequently the praetor) would enforce with the backing of public arms when one paterfamilias complained of another.  It was about peace in a limited sense of the word.  It was about avoiding mini-warfare between the mini-king of one mini-state and another mini-king of another mini-state.    It was about settling disputes without civil wars that would have divided Rome against itself, and therefore made it vulnerable to enemy attack.  What a paterfamilias did with his children, his slaves,  and his women; as well as what he did with his animals and his other possessions within his own household; was governed  by social norms and expectations, but not by law.

    To become a juridical subject, a person under the mancipium of a paterfamilias had to be emancipated.  This Roman origin of western traditions has influenced the shape of successive movements for emancipation.  It has given concrete meaning to ideals of liberty and freedom.   To be emancipated is to become, like a paterfamilias, a sovereign individual who is not someone else’s property but who is instead capable of being an owner of property.  It is to have rights and to be able to appeal to the law for the enforcement of one’s rights.   The tendency over the centuries has been for first adult male children, and then slaves, and then women to become emancipated.   Today there is a tendency for even minor children to become emancipated, as public agencies intervene in families to protect children’s rights.  Generally in western countries children are emancipated at the age of eighteen.   (Over time Roman Law itself came to recognize as free of mancipium and having the status of a paterfamilias a male who in fact had no household, but who was legally eligible to establish one if he should choose to do so.  It also came to recognize intermediate stages in which an adult son, and in some respects a woman, could, without being a complete legal subject nonetheless enjoy certain legal capacities.) (e.g. Iglesias 1958, pp. 137-157)
 It is a remarkable fact that Roman Law became a system.  Moreover,  after its revival and “reception” in modern Europe to serve the needs of nascent capitalism; from the 17th century forward; it gave rise to what purported and still purports today to be a “science” of law.    Customs, agreements, the deliberations of popular assemblies (such as the concilium plebis), the decisions of the Roman Senate, the edicts of magistrates, and the decrees of Emperors, all were brought together in such a way that posterity inherited form Rome a coherent legal framework, which could serve, and has served, as the historical predecessor of the normative structure of what Immanuel Wallerstein names as the modern world-system.   The agents who welded the sources together were neither the governors nor the governed.   Roman Law became a system not because of the work of Rome’s officials and rulers, the governors; and not because of the collective action of its citizens and inhabitants, the governed; but instead because of the activity of a specialized educated class, the iuris prudentes.  (Iglesias 1958 pp. 54-58).  It is true that when the classical age of Rome was already history, the Byzantine emperor at Constantinople, Justinian, ordered the compilation of  the  Institutes  (533 A.D.),  the Digest, and the other books that later came to be regarded as comprising the  Corpus Juris Civilis.   But Justinian did not decree the law.  Justinian decreed that a group of jurists would compile and codify the law.   The jurists were iuris prudentes who took as their sources the books that had been written by earlier iuris prudentes.   The iuris prudens is an interpreter of the law, an expert on legal matters.      During the classical period when the principles of Roman Law were formulated (27 B.C. to 235 A.D.) providing legal counsel was a private liberal profession, practiced by experts who without holding public office advised litigants and others who wanted to know what the law was.

 I would offer the history of Roman Law as evidence that cultural structures are  active forces in history.  It nuances Justice Oliver Wendell Holmes’ famous assertion that the law is 9/10 history and 1/10 logic.  Roman Law’s history is logic.  This is not to say that there is only one logic, or only one standard of rationality; it is to say that clearly defined concepts knitted together to form a coherent system tend to flourish over time partly –in any given case certainly not entirely—just because they are clear and are coherently systematized.   Logical organization makes legal norms more useful.  It makes them easier to teach.  It makes the law more predictable, and therefore makes it easier for people to plan ahead knowing the legal consequences of their actions.  When the law works on the whole to keep the rich rich and the poor poor –as Roman Law certainly did—its logical coherence makes it easier to intimidate the poor verbally, thus diminishing the need to intimidate them physically.  A lucid rational exposition of the laws governing dominium, slavery, and the status of women makes it easier to forget and harder to remember that their origin and cause is violence.    For these and other reasons, constitutive rules consciously organized are historical causes with historical effects.
 The classical jurist Ulpian (died 228) carried systematization so far that he regarded the whole of law as derived from three principles, as nearly 15 centuries later Sir Isaac Newton would derive the whole of mechanics from three laws of motion.     Ulpian, like Newton, proposed three principles to characterize and synthesize a vast array of data; unlike Newton, he treated the opinions of authorities as data.  Ulpian was followed by the compilers working for Justinian, who put at the head of the Institutes, which was intended as an introduction to law for beginning students, the same three principles.  Iuris praecepta sunt haec: honeste vivere, alterum non laedere, suum cuique tribuere.  (Digest book 1; 1, 10, 1.  Institutes 1)   “The principles of jurisprudence are these: live honorably, do not harm others, to each his own.”   The first principle honeste vivere, live honorably, shows ius (law) to be a continuation of mores and rooted in mores; it enjoins virtu (from vir, the Roman word for man, the root of the English words “virile” and “virility” as well as “virtue”), the conduct expected of a good man.   The second principle alterum non laedere, do not injure the other, shows that although law is rooted in mores it demands less: although customary norms may prescribe helping others, the law only forbids harming others.  Leave them alone and do not hurt them.  The praetor’s aim is to keep the peace; he will intervene in fights but he will not insure that everyone cooperates to till the fields and bake the bread.   The latter functions belong to the familia, not to the res publica.  They belong more to slaves and women than to men.   The third principle suum cuique, to each his own, commits the law to confirming existing property rights, as they have been established by conquest, maintained by inheritance, and modified by commerce.    That Roman Law favored a limited form of social peace based on respect for the status quo is confirmed by Ulpian’s definition of justice, which was, like his three principles, endorsed and carried forward in Justinian’s Institutes:   constans et perpetua voluntas ius suum cuique tribuendi.  (Ibid.)  Justice is the constant and perpetual will to give to each what the law defines as his.   The administration of justice so defined represented a Roman achievement that should not be underestimated.  Logic won out over constant internecine warfare.  It limited the tendencies of Romans to fight among themselves, and thus helped them to live more happily  and to conquer a vast empire.
       Contracts, the aspect of law most constitutive of today´s global economy are not mentioned explicitly in any of Ulpian’s three fundamental postulates.  To be sure, nearly 15 centuries later Samuel Pufendorf coined a maxim expressing the first principle of contract law, pacta sunt servanda (pacts are “served,” i.e. honored, complied with).   Pufendorf worked in and contributed to the Roman Law tradition; his maxim might be added as a fourth postulate of the system, one that was implicit in Ulpian’s day, remained implicit in Justinian’s day, and became explicit in Pufendorf’s day. 
           The delayed development of contract law might be explained two ways.   Firstly, the delayed development of the law of contract can be explained by observing that the practice of making contracts developed slowly in Rome.  Since discourse follows practice; since even though the two are inextricably mixed in discursive practices the practical aspect tends to drive the discursive aspect; since –as the legal historian Sir Henry Maine showed in Ancient Law (Maine 1861)—it is normal for practice to change faster than language, so that for a time the new substance parades under the same form, the new wine remaining in the old bottles; since –as the same writer shows in the same book—the transition from a society where a person’s activities are mainly determined by his social role (i.e. his status) to a society where  a  person’s activities are mainly determined by markets (i.e. by contracts) is the work of centuries, not of years; it is to be expected that doing business by contract, which evolved slowly in Rome in practice, would evolve even more slowly in theory.   “Even as late as the reign of Justinian, the Roman jurists did not conceive of the performance of promises as a matter of urgent social necessity.” (Hyland    1994    p. 413)  The Romans did not at first use the consensual contract—what for us is the normal contract, which consists of a meeting of the minds leading to the drafting of an agreement that expresses the joint will of the parties.  Instead they often used what they called a stipulatio.  (Iglesias 1958 p. 441ff)   A stipulatio was a ceremonial performance in which the parties engaged in asking and answering a standard set of questions and answers.  Many things we do routinely by contract –buying or selling a house, renting a farm, hiring or being hired, chartering a boat …-- they did by stipulatio.  There remain remnants of the stipulatio today in our European and Europeanized successor states of the Roman Empire; for example at that point in a marriage ceremony when the preacher asks standard questions and the bride and groom answer “I do.”  There are similar echoes of the ancient past in Roman Catholicism, for example in that part of the sacrament of first communion when the priest asks a series of questions beginning with, “Do you renounce Satan and all his works and all his pomps?”   The gradual decline of stipulatio and other early practices, and the rise of the consensual contract, that is to say of contract in its modern form, accompanied the growth of the Empire and the growth of commerce.   “Consensual contracts are those whose validity does not require the observance of a  standard form ….  Purchase and sale,  lease, forming a partnership, and giving a power of attorney fall in the category of consensual contracts, ruled by the principle of good faith,  free of formal requirements, and available to foreigners.”  (Iglesias 1958 p. 415)    In discussing the emergence of contracts as we know them Iglesias refers to the jus gentium or law of nature,  a school of thought that proposed to distill from Roman Law and from what it took to be natural reason a common law applicable to everybody  whether Roman or non-Roman; so that anybody,  regardless of religion or nation, could engage in trade with anybody else.  “Born in the school of the jus gentium, at the time of the expansion of Rome, they [consensual contracts] spoke to the new necessities of world commerce.”  (Ibid.)

 Secondly, the delay in seeing contract as a fundamental concept of the system can be explained by saying it was really not a fundamental concept of the system after all.   It is a derived concept, and as such it was an important part of the Roman law of obligations.  ( Iglesias 1958 pp. 401-69)   This second explanation is consistent with the first if one posits that the ancient Romans had all the premises from which pacta sunt servanda follows.   Over a thousand years after Justinian, the growing commercial importance of  contracts led European jurists to make the consensual contract even more central than it had been in the last days of Rome.   The work the jus gentium began was interrupted for a thousand years during the Middle Ages and then completed in early modern times.  If pacta sunt servanda could be ranked  since the 17th century as a fourth fundamental postulate of the system, alongside Ulpian’s three, it is not because jurists discovered something new in the 17th century;  it is because the historical process Karl Polanyi describes as the disembedding of market relationships from social relationships had made contract the glue of glues, the social glue that more than any other social glue was responsible for holding society together.   But Ulpian and Justinian were right to treat it as a corollary of first principles, not as a first principle.  Conceptually   contract law is like Sir Isaac Newton’s parallelogram law.   It is not one of the three laws of motion from which mechanics can be deduced; it is rather their first and perhaps most important corollary.   (Newton’s parallelogram law states that the resultant of two combined vector forces can be calculated by drawing a diagram in which the two forces are depicted moving outward from a  single point,  the length of their corresponding line segments showing their magnitude,  the angles the lines make with the axis showing their direction;  completing a parallelogram by drawing two more lines parallel to the first two; and then drawing a third line segment starting from the same point and through the middle of the parallelogram as its diagonal.    The diagonal graphs the resultant vector force.)
    As Newton could derive his first corollary, the parallelogram law, from his three laws of motion, somewhat similarly the concept of contract, as it developed in the jus gentium and later in modern European law, can be regarded as a logical outgrowth of the principles of early Roman Law.   It follows from the idea of independent juridical subjects in principle not bound by anything but their own wills, who can together create obligation by an act of their mutual will.
Early Modern Times
    With a few exceptions (such as Michel Foucault who dates notre modernité as starting after the French Revolution) scholars think of our modern world-system as taking shape approximately in the years 1400 – 1800.   I will briefly list nineteen points concerning its then emerging basic cultural structures:
1.In the territories Rome had governed, its law survived the fall of its Empire, not only in the Byzantine East but also in the medieval West, not only on the continent but also in Britain.
2.Most of Europe officially received Roman law and fashioned from it a modern jurisprudence that was part and parcel of the modern economy under construction during the same time period.
3.The principal institutions of Europe were formed under monarchies.   Democracy came later.
4.The monarchs of Europe ruled by and under law.  Roman legal principles were a normative framework limiting the powers of the state.
5.Later, when the sovereign people replaced the sovereign monarch, the new sovereign was also a constitutional ruler, who accepted the principles of private law, notably those of property and contract, as juridical and moral givens.
6.The early modern philosophers articulated ethics and politics as normative frameworks parallel and complementary to law.
7.Immanuel Kant, for example, in his Grundlagen zur Metaphysik der Sitten (1785) illustrates his ethical theory with only one example of a strict duty to others, the duty not to incur a debt without intending to pay it (cf. pacta sunt servanda).   Late in the book he remarks that he could just as well have chosen as his illustration the duty to respect the property of others (cf. suum cuique) or the duty to respect other people´s freedom (cf. honeste vivare).
8.(Kant explicitly makes the principles of Ulpian eternal and universal (Kant 1797, pp. 314-5))
9.Other early modern European thinkers (Hobbes, Locke, Spinoza, Rousseau) explicitly made contract (cf. pacta sunt servanda) the basis of political obligation, imagining that society had been created by an original social contract.
10.  Large populations came to depend on markets to obtain food.  Selling something to get money became a necessity of life.
11.   The historical conditions of the possibility of unemployment were established, i.e. a wage earning class composed of people who  needed to sell their labor power and sometimes did not find employers willing and able to buy it.
12. The shaping of the European system, then on its way to becoming the world-system, was part and parcel of the conquest by Europe of the rest of the world.
13.  The conquered peoples were compelled to accept European legal reasoning, sometimes by fraud, as when native Americans who had no comprehension of Roman Law concepts of contract “sold” Manhattan Island to the Dutch for a few trinkets ….
14.  … more often by force, as when in South Africa tribal peoples were forced to sell their labor for wages in the mines in order to  pay a money tax that had been levied on them.
15.  (My friend Catherine Hoppers who teaches at the University of Pretoria once said to me, “Europeans never remember that Africa was incorporated into the global economy by violence.  Africans never forget.”)
16.  One of the bitter lessons the defeated peoples of the world learned from their European conquerors was that tribal or community ownership of land was legally impossible.
17.  Perhaps the most bitter lesson was that each juridical subject is in principle alone.  The bitter point of contract conceived as the general form of social relationships is that where there is no contract there is no obligation of mutual aid.   Older forms of social relationship, the normal ones for the human species, depend on reciprocity and gift-giving.  (Gouldner 1960,  Malinowski 1922, Mauss 1925, Vaughan  2006, www.gift-economy.com )
18.  (This bitter point is expressed in the Argentine national epic Martin Fierro when the main character exclaims, “What kind of world is this where everybody demands to be addressed as señor,  and nobody takes care of you?”)
19.    I will not try to add up every plus and subtract every minus of modernity.   At this point trying to decide rationally whether modernity is on the whole good or bad is a low priority task compared to high priority tasks like the ones aptly described by Mahatma Gandhi with this striking image: “…with the rest of the world India finds itself in the deadly coil of the mercantile cobra… It will take all the resources of all her best Brahmins to unwind that coil.”  (Gandhi 1924, p. 316)

Part Two— “Tide”  as an Image for Cause
http://howardrichards.org/peace/content/view/113/150/