VALUE PREMISES OF LEGAL SCIENCE

Although science, in the modern Western sense, has usually been defined only in methodological terms, there has been an increasing recognition that it must also be defined in terms of the attitudes, convictions, and fundamental purposes of those engaged in the scientific enter- 155- prise.

Many would doubt the likelihood, or even the possibility, that a "lawyer" could meet these three standards. His objectivity, integrity, and universality seem questionable, since he is called by both political and private partisans to promote and justify their interests. Further, if he is to be skeptical of his own conclusions he may place difficulties in the way of their acceptance, and it is often part of his professional responsibility to persuade people to accept them. The same difficulty obstructs the concept of legal science as a body of ever changing ideas: society itself seems to demand that "law" be something more than that. Finally, during the period when not only the authority and power of the papacy but also its dogmatism were at their height, it seems incredible that lawyers -- even though they might have been legal scholars and not practitioners (in fact many of them were both) -- or, indeed, any other pursuers of knowledge, could have had the disinterestedness and openmindedness that is at the basis of the code of values of modern Western science.

These doubts raise fundamental questions concerning the freedom not only of legal science in the twelfth century but of any science in any society. 81_The scientific code of values is always precarious; it must always be defended against political and ideological pressures from without and from prejudices and partisanship on the part of scientists themselves. What is striking about the twelfth century is that at the very climax of the movement to centralize authority and power in the church, and at the very time when dogma itself first became legalized and heresy defined in terms of criminal disobedience, ⁸² there emerged the belief that the progress of science depends on the freedom of scientists to take opposing points of view on matters of scientific truth. It was presupposed that such dialectical reasoning from contradictory positions would result in a synthesis, and that the synthesis would correspond to authoritative declarations of the true faith; nevertheless, it was also presupposed that the dialectical reasoning must proceed scientifically or else it would be

156- worthless. Thus at the same time that unorthodox doctrines were being legally proscribed, and heretics who persisted in "disobedience" were being put to death, the values of scientific objectivity, disinterestedness, organized skepticism, tolerance of error, and openness to new scientific truths were not only proclaimed but given expression in the very form of the new sciences that then emerged. The two opposing movements _toward authority and toward rationality __ were in fac t closely interconnected.

Doubts concerning the capacity of lawyers to adhere to scientific values rest on several misconceptions. It is true, of course, that when a lawyer is an advocate for a party or cause, he must act as a partisan and not as a scientist. However, this role is an essential part of legal proceedings in which opposite points of view are presented to a tribunal charged with making a decision.

However, it is neither the legal practitioner nor the tribunal (whether it be a judicial or legislative or administrative body), but the law teacher or legal scholar who is asked to adhere to the scientific code of values. He, too, has difficulties in doing so -- greater difficulties, perhaps, than scholars in fields that are more remote from everyday political, economic, and social life. Yet by the same token he may be more aware of the outside pressures upon him as well as of the inside pressures of his own passions and prejudices, and hence may be better able than others to resist them, or at least more sensitive to the precariousness of his own scientific freedom.

The value premises of science, including legal science, were implicit in the dialectical method of analysis and synthesis of legal problems created by the scholastic jurists of the eleventh and twelfth centuries. The intense concentration on contradictions in the law, on dialectical problems, and the intense effort to reconcile them by legal principles and concepts on ascending levels of generalization, could only succeed, as a method, by adherence to the very values that characterize science itself: objectivity, integrity, universalism, skepticism, tolerance of error, humility, openness to new truth -­and, one should add, a special time

157- sense that is associated with the coexistence of contradictories.

In speaking of the "value premises" of science, one cannot ignore the fact that, at least in Western civilization, where science has flourished more than in any other culture (indeed, some would say it has flourished too much), the objectivity, skepticism, openness, and general spirit of rationalism that characterize scientific inquiry have stemmed from a complex relationship between the sacred and the profane. On the one hand, a belief in the sacredness, or potential sacredness, of all things, such as existed among the Germanic peoples and also in Eastern Christianity, inhibits objective, skeptical, open, rational investigation. Thus it was no accident that the first Western sciences emerged at the time when there was a separation between ecclesiastical and secular polities. On the other hand, they first emerged precisely in the ecclesiastical sphere, not the secular -- in canon law and in theology itself. Western theologians of the late eleventh and twelfth centuries -- Anselm, Abelard, and others -- did not hesitate to subject the evidence of divine mysteries to systematic, rational, and even skeptical examination. Anselm sought to prove "by reason alone," without the aid of faith or revelation, not only the existence of God but also the necessity of his incarnation in Christ. Abelard exposed the self­contradictions in sacred writings -- a first step toward scientific Biblical criticism. Similarly, the canon lawyers examined openly the contradictions in the canons of the church. Proceeding from an objective analysis of the prevailing law, they concluded that even the pope, Christ's deputy, was subject to deposition if found to be a heretic or if guilty of a crime that was a scandal to the church.

The conclusion seems inescapable that what gave rise to scientific values was not the carving out of a sphere of life -- the secular, the temporal, the material -- which could be investigated without risk to religious beliefs, but rather a new attitude toward the sacred itself. The church, though still understood to be the "mystical body of Christ," was viewed as also having a visible, legal, corporate identity and an earthly mission to reform the world. The emphasis shifted from sacredness in the sense of otherworldliness to the incarnation of the sacred, which meant its manifestation in the political, economic, and social life of the times. That, in turn, made it necessary to examine the sacred, the spiritual, with scientific value premises. Only when the effort was made to study God objectively, and God's laws, did it become possible to attempt to study secular life, and secular laws, objectively -- and eventually nature and nature's laws.

Nevertheless, there was, of course, an obvious tension between the

-158- sacred and the profane in the theology of the church and in the canon law, which existed also in other branches of learning and which inevitably imposed severe restrictions on scientific value premises. It is hardly necessary to recall the repressive measures taken against scientists who departed from official dogma. The original thinker, the innovator, ran severe risks of condemnation; the heretic might be executed. It is of little comfort, yet it is important, to know that the very tension that caused such repression also made possible the first growth of science in the West.