2024-03-11
This text was published in a Festschrift, The Significance of Gregor Noll (eds. Brännström, Parsa, & Gunneflo) on the occasion of Noll’s 60th birthday on 8 March 2024.
The diversity of words that are synonyms for “law” is well-known. All languages have a number of related words such as norm, rule, right, legal, order, and further justice, correctness, obligation, legality, etc. Different languages employ a wide range of terms, not least due to the influence of different language families and their mutual impact on each other’s vocabulary. What in my own language is lag is the same basic word as the English law. The word was lagh in Old Swedish and has its counterpart in Danish lov, Icelandic lǫg, Old Saxon gilagu, Old English lagu. The word comes from a semantic development from meaning that something is laid down, i.e., established or determined. This is similar to the way the German Gesetz comes from setzen, to set. The Swedish word rätt has its origin in the Old Norse réttr and is the same as several other European languages’ variants, such as German Recht and English right. The same distinction is found in the Romance languages: loi/droit, legge/diritto, etcetera.
What do these connections and the terminological heterogeneity imply about the concept of law? Or are we more correct in talking about a family of concepts, a plurality of different forms of laws or legal concepts? This is certainly implied by the etymology, as we will see below. In this text I will suggest that following the conceptual paths through the etymology backwards we can shed light on the poverty of our contemporary understanding and discourse of law. The way we speak about law and legal orders tells us about how we understand the world. For a jurist, language is a practical tool, in a sense the primary and final tool. But it is also the key to uncovering fundamental assumptions of what law is and can be, in other words the path to grasping the ontology of law.
In Émile Benveniste’s Le vocabulaire des institutions Indo-Europeenes, these etymological aspects are connected to fundamental concepts in Indo-European society. Right corresponds to the Latin rectus, meaning straight, right. Moreover, the same Indo-European root is found in the Latin regere, meaning to direct, guide, lead, rule. It is also the function of the rule, the Latin regula as the tool that draws the straight line, indicating what is right. According to Benveniste, the idea of straightness in a moral sense, as opposed to twisted and crooked, is an ancient Indo-European idea expressed in various ways in different languages, such as proverbs like “do not deviate from the straight path.”
This idea of ruling as a directing is also what connects the latin rex with the rule. Benveniste discusses how rex, meaning king, is a very ancient term that relates to both religion and law, as we understand them today. The connection between the Latin rego and the Greek orégō, meaning “draw out in a straight line,” is understood as rex being “properly more of a priest than a king in the modern sense, [where] the man who had authority to trace out the sites of towns and to determine the rules of law.” (Benveniste, 312)
The evolution of rex (king) and regere (rule) can be seen in an important religious act, regere fines, which in ancient Rome was required when a temple or village was to be built. Regere fines means ‘drawing the boundaries with straight lines’ and was done by a high priest to distinguish between inner and outer, sacred and profane, national and foreign territory. The one who possesses the supreme power to draw its borders is the rex. All this is familiar, that it is the role of the legislator, the function of the rule, etc.
Benveniste’s point is that here we do not see sovereign power so much as we see it drawing the line that must be followed and pointing out what is right. It is not an exercise of power so much as it is a pointing, a message or explanation, or perhaps a (magical) creation of a boundary that was not there before. The king/priest was a religious and magical actor, rather than a political actor. ”His mission was not to command, to exercise power, but to draw up rules, to determine what was in the proper sense ‘right’ (‘straight,’ droit).”
The emergence of kingship from this priestly function must, according to Benveniste, have been a long process in which it was transformed both into kingship and political authority, but also gradually became independent of religious power. The latter, in turn, was transferred to a specific group of priests.
Other related concepts are the Iranian shah, which Benveniste insists is something other than a rex and rather a king of kings, that is, a ruler of those whom the world sees as kings in an empire. He also argues that this is the prototype for the eschatology of prophetic Judaism and the heavenly kingdom of Christianity, where God is the ruler of all rulers. This is then also clearly different from the Latin rex (raj in Sanskrit) which is just ruling as “ruling”, i.e. measuring, where the ruler points out the straight path. In the Persian concept of the king, we see instead the idea of an absolute power, what in Greek is formulated as “autocracy”, power that comes from the ruler himself.
One invention that Benveniste identifies in both Greek and Germanic culture is the departure from the older Indo-European notion of kings as divine in nature. Aristotle instead describes how the king has the same relationship with his subjects as the master of the house has with the members of his household, as an absolute ruler, but not as a god. This is already the case in Homer where the king, basileús, is diogenés and diotrephés, born of Zeus and nourished by Zeus, and also carries his attributes in the form of the sceptre. But it is clear that he received the sceptre from the god, and is not a god himself.
This ancient notion of empire and the emperor as a king of kings, is also transferred into the Jewish and later Christian notions of God as a king over the Kingdom of Heaven, the king over all kings. The connection between the imperial context of both Jewish and Christian scripture and the anti-imperial use of imperial language in both the Gospels and other books of the New Testament, not least the Book of Revelation, attests to the significance of these concepts in Western thought and society up until the present. It has been argued that the most fundamental form of political society is kingship, and even that this has never truly been superseded. In societies with actual kings this is obvious, but even in supposedly egalitarian societies, the “state of nature has the nature of the state” as Graeber & Sahlins have put it. If there are no actual kings in a society, they always exist in a divine realm or as “metapersons” structuring the normative and social order of the society. (Graeber and Sahlins 2017) In the Christian religion this even turns into the promise of a final order when all faithful will become kings: “But you are a chosen people, a royal priesthood, a holy nation, God’s special possession, that you may declare the praises of him who called you out of darkness into his wonderful light.” (1 Pet. 2:9)
What then can we do, or understand better, with these etymologies reasonably established? One view of the etymology of words is that they contain a kind of truth, a more or less hidden original meaning of the words that we can bring out and thus reach a deeper understanding of their essence, or true meaning. Another view is more cautious and assumes that words have no essential meaning. This might then fuel a hope that etymology is an uncovering of multiple prior meanings and connotations that have been lost or submerged in familiar usage. Therefore, etymology does not create an unambiguous truth, but rather generates a more complex picture. It opens up the potential of philosophical investigation – what do we mean when saying law? What have been meant previously in different eras and contexts? But also: what could we potentially mean?
What then could it be for the two words law and right? Regarding the law, it is not surprising that the law is what is laid down, what is determined. We also interpret the law, just as we present our arguments. As if the law was always on the table and we add things next to or above it. This also conjures up the image of a negotiation, a meeting, a court process or a “thing”, which is the name of both legislatures, like Norwegian Stortinget, or a court, like a Swedish “tingsrätt”.
Law seems to have two main etymologically relevant meanings: on the one hand that which is right and proper, straight and correct; on the other hand the governing, leading, which we also find in government. But is this the most fundamental pair of concepts — is it where we should stop in our attempts to grasp the most basic structures of normative thought?
According to Benveniste, one of the most important concepts in the Indo-European world is the idea of order, which governs religious, moral and legal beliefs. It is the fundamental principle that underpins every society and without which everything would fall into chaos. The common root is rta in Vedic (arta in Iranian) and written in Latin as ars, artus, ritus, which precisely points to a harmonious arrangement of parts in a whole. In Zoroastranism this order was personified in the deity Astra. But this overall order, and idea of order, originally had no direct or distinct legal connotation. The order manifested itself in different religious, technical and legal spheres and thus terms that more closely correspond to our concept of law existed in these different spheres. (Benveniste, 386)
This all-encompassing and fundamental notion of order is therefore unavoidable, but it has not led to unification of the notions of law, order, normativity, rule, etcetera. Rather the societal and intellectual development of the last several thousands years since the hypothesised emergence of the Indo-European language has seen a proliferation of terms and concepts springing from this basic conceptual distinction. Whether any distinction could have replaced it, complemented it on a similar level of importance or been more fundamental in human thought is of course open for speculation. In any case the number of concepts that we today can relate under headings of law is considerable. A couple of important examples, again from Benveniste:
The Greek themis (comparable to the Sanskrit dhâman) is the unwritten law that applies within a family or group, based on a leader/judge/father (basileús) who rules according to these norms. The norms are of divinely inspired origin and govern actions of all kinds. Etymologically, it comes from laying down, placing, establishing. The king has received his sceptre from Zeus along with themistic knowledge, just as the pig farmer welcomes a guest into his home because it is in accordance with thémis. They are opposed to díkē, the laws that apply between families in a tribe. Here we clearly see how different laws, and even different concepts of law, govern different spheres. Dikē (Latin dico) refers to the idea that certain specific norms describe what is right to do in specific situations. Its etymology comes partly from direction and from pointing out and saying with authority what is right. It is clear that the administration of justice according to dikē consists not in a judgement requiring deliberation or discussion, but in the formalistic application by the judge of certain rules. This governing aspect of the administration of justice has then been transferred to the meaning of dikē as custom, usage or way of being - that is, what was originally a matter of duty then describes the usual and habitual way of behaviour. Which in turn has made the word dikē a term for justice in ancient Greek, a meaning it did not have originally according to Benveniste. Dikē is what was used to prevent injustice and abuse. Adikia is the goddess of injustice and wrongdoing, with her opposite in Dike.
Ius, the Latin term most often translated as law (and which in turn gave rise to justice) has a derivative verb, iurare, meaning “to swear”, as in to take an oath, (and which in turn gave rise to jurisprudence, legal). Just as dikē above corresponds to themis, so ius has its opposite in fas, as the human law instead of the divine law. Fas then connects to what is spoken and therefore willed by the Gods, which implies divine law.
It is interesting that the divine law in Greece, and Rome, concerns what is within the family, within a defined group, while the non-divine/human law concerns the relationship between families and groups. What is the relevance of divine law in the Jewish and Christian understanding? The Jewish law can certainly be said to be just for a limited group (the Jews themselves) and is then a kind of more comprehensive “family law” given by God to the chosen group. When the divine law is taken over by Christianity, its change is (at least) twofold: it is universalised to apply to everyone (both Jew and Greek) and the law is to be in our hearts, in a heavenly inspired way of knowing it. The law can thus not be the formalised, worldly one (themis) but the one in which we realise what is right, in which we are led by our hearts, in which God can lead us.
At the same time, according to Benveniste, the meaning of the Latin ius is twofold, going back to the Indo-European word *yous which meant “a regular relationship, required by normality and the rules of ritual”. Ius thus depends both on a normal relationship, a situation in accordance with the ius, and on the “normality formula”, i.e. what must be done in order for something to be in accordance with the ius, which is, for example, a particular ritual, such as swearing. Benveniste notes how significant it is that the original Indo-European terms are both about what is to be done and what is to be said, which is often the same in the legal sphere where the ritual is done with words, and these words are the action itself. Thus ius becomes a formula rather than an abstract concept and consequently iura is the collection of judgements, authoritative decisions. These judgements gain their force by being pronounced, by pronouncing the formula, by pronouncing the judgement.
Benveniste discusses in some detail the difference between iurare, which is a swearing in which the swearer merely repeats words spoken by someone else (often while holding a sacred object or performing some such ritual action), and sacramentum, which corresponds to what we now understand by swearing an oath, when one is the one who submits to the wrath of the gods if one breaks one’s oath. It also means that iurare requires two people, the one who speaks before, who pronounces the ius, and the one who repeats the formula (ius iurandum). This also clearly points to the religious, ritual context from which jurisprudence, the law, originates. The verbally repeated oath, following a certain formula, is the source of legal practice as transmitted to us through Roman law.
Benveniste points out the peculiar fact that while no expression or procedure “would seem more necessary for the functioning of social life” (439) than the oath, there exists no common Indo-Europan expression. Rather, each language has different words, often without any etymology. How could this be? The seeming conflict, Benveniste suggests, might be due to the intimate connection between the social order in which it is performed and the oath itself. It is in this sense not really possible to disentangle from society:
It is because the oath is not an autonomous institution; it is not an act which has its significance in itself and is self-sufficient. It is a rite which guarantees and makes sacred a declaration. The purpose of the oath is always the same in all civilizations. But the institution may appear in different guises. (Benveniste 440)
This suggestion, that the oath is at the absolute basis of Indo-European and therefore Western society, is taken up by Giorgio Agamben in his short book The Sacrament of Language, where he polemicizes against those who explain the oath as referring to a magico-religious sphere:
My hypothesis is exactly the reverse: the magico-religious sphere does not logically preexist the oath, but it is the oath, as originary performative experience of the word, that can explain religion (and law, which is closely connected with it). (Agamben 2011, 65)
The oath creates the juridical truth or fact, in its performative aspect. The contract is created through the oath or its similar ritual functions such as the signature. The marriage as a juridical fact consists of the performance of the binding oath of marriage. And in the same sense the world is created by the monotheistic God through the words, which Agamben interprets as always being an oath: “he is the being whose word is an oath or who coincides with the position of the true and efficacious word in principio”. (Agamben 2011, 65) The world is then created in the same way as laws are created, through a performative word expressed and through that very act constituting the truth of its existence.
If the world is created by a word, the legal order as such is created by the judge. The Latin arbiter, the judge, was not as today bound by written laws. He adjudicates in cases where the law does not provide for a solution, and thus has a wide range of powers, while at the same time adjudicating at his own discretion and in the name of “equity”. He stands in the place of the king as the ultimate or general judge, and “makes his decision not according to formulas and the laws but by a personal assessment and in the name of equity.” (Benveniste 404) This is the same basic structure as other judges in antiquity, in Greece or in the Judaean and Jewish tradition.
Michael Gagarin in a work on Greek law critiqued Bentham and other scholars in their focus on substantive law. He argued that “it may be more accurate to view procedural law as primary and substantive law as a later development” (Gagarin 1986, 13) The procedure as such, the judgement made possible by an equitable judgement or divine inspiration. This meant that judgments were for the particular situation and were not in general guidance for future judgments or settlements. (Gagarin 1986, 106) The equity, as a form of discretion that tempers and renders more equitable the formal or strict application of written law, is therefore not just a historical phenomena following on written law. Rather the development first went in the opposite direction: “As in the traditions of the origins of law in Greece and Rome, written law is a response to the abuse of an earlier discretion, rather than discretion being the response to the supposed rigidities of an earlier written law. “(Jackson 2002, 39)
How does this originally procedural function of the judge (arbiter) connect with the fundamental structure of the world, the order (rta) that Benveniste contrasts to the threatening chairs, as the basis for normative order? Let us at least consider one more example of how these functions and concepts have been combined. As we saw above the basic structure the legal concepts were based in or even indistinguishable from the authority and power of the king, rex. This then understood either as a political or religious actor or perhaps more correctly before such a distinction made sense or arose. This combination of or indistinction between what we now take for granted as separate – legislation, judgement, administration – has recurred in different forms since deep history and arguably even up until today in the paradigm of state of exception. This is of course often disregarded as anachronistic or criticised as illegitimate conflations of the spheres or functions of the Rechtsstaat. But does this dismissal not risk hiding a more fundamental potential in our conception of law? In the mediaeval world, the concept of iurisdictio implied not an “autocratic” sovereign action, but rather the uncovering of an already existing, immanent or divine, law:
[T]he true raison d’être of power consisted in making everyone observe a law of natural origin, immanent to things themselves and prior to every creative act by man. Sovereigns and magistrates were not intended by God to rule over men by their own will, but to guarantee respect for the rules which He had already inscribed in the natural order of the world. Every act of power, therefore, was aimed at revealing, declaring, and imposing an already given law; and only towards this end were rulers invested with certain rights of supremacy over their subjects. The prince’s law, the judge’s sentence, and the magistrate’s order were not truly different from one another. Though on a different level, each of them contained the authentic statement of a legal rule, and was therefore the expression of a unitary function, which the medieval legal vocabulary indicated everywhere with the same expression: “iurisdictio” (Mannori & Sordi, 226)
With this, I would not suggest that a reversal to the mediaeval form of rule is preferable or even possible. Rather the question of the ordering of human society — as a question intimately based in the metaphysically fundamental (and perhaps even anthropological) distinction between order and chaos — is not avoidable. The philosophical solutions to these problems, as well as the practical arrangements for human affairs and societal conduct, are necessarily the task of the jurist as well. The jurist should not restrict her task to the interpretation of written norms and the systematisation or partial critique of them inside the legal order as it exists. Or, rather, it is not possible to do so without making choices in regard to fundamental philosophical views on the eternal and indeterminate task of ordering society. There is no apolitical task of working inside the status quo, there is only a political choice of understanding one’s own task as jurist as part of the legal order which in turn is always subordinated and judged in the light of the ultimate order of the cosmos.
The idea that law could be a strictly human affair, and that secular and worldly matters could be cut loose from their ultimate reliance on the world and universe as it exists, is a curious phenomena of modernity. All modern thought inherits the fundamental problem of the original distinction between order and chaos and engages in new formulations of old solutions, as well as perhaps a few new ones. But in modernity we also curiously restrict our own capacity in this regard by both forgetting the deeper conceptual history as well as dismissing traditions and paths of thought that have struggled with these matters for literally thousands of years. Every generation seems to wake up thinking that the disorder of its time is uniquely new and calls for solutions de novo. Our time’s insistent reliance on narrowly understood legal and juridical modes of ordering (sometimes honestly, often dishonestly) formulates this age-old problem for us again. In order to move towards solutions to our ongoing and impending crises, we should not turn away from law. But not law as equated with the repressive power of the state. A violence which as I am writing these words is the absolute dominant option put forward in public discourse. Rather we need to rediscover the deeper structures and potentials of law beyond the impotent violence of states.
~
Agamben, Giorgio & Kotsko, Adam. (2011). The sacrament of language: an archaeology of the oath (Homo sacer II, 3). Stanford, Calif.: Stanford University Press
Benveniste, Émile (2016). Dictionary of Indo-European Concepts and Society
Gagarin, Michael (1986). Early Greek law. Berkeley: University of California Press
Graeber, David & Sahlins, Marshall (2017). On kings. Chicago: Hau Books
Jackson, B. S. (2012). Judaism as a religious legal system. In Religion, Law and Tradition (pp. 34-48). Routledge.
Mannori, L., & Sordi, B. (2009). “Science of administration and administrative law”. In A Treatise of Legal Philosophy and General Jurisprudence: Vol. 9: A History of the Philosophy of Law in the Civil Law World, 1600-1900; Vol. 10: The Philosophers’ Philosophy of Law from the Seventeenth Century to our Days (pp. 225-261). Dordrecht: Springer Netherlands.