Product Description
A yawning divide has come to separate America from Europe. From the Kyoto Protocol to the newly-established International Criminal Court, a new wave of international institutions claiming universal jurisdiction has crashed onto the scene, fervently championed by Europe but stubbornly resisted by the United States. Behind the institutions lie the issues – the death penalty, energy use, military intervention in support of national interest, yea even spanking – tha… More >>
A Common Law: The Law of Nations and Western Civilization
Tags: Civilization, Common, death penalty, energy use, international criminal court, international institutions, kyoto protocol, law of nations, military intervention, Nation's, national interest, universal jurisdiction, Western, western civilization
#1 by R. J. Rozen on April 25, 2010 - 9:38 am
Ruben Alvarado begins this account of the “common law of Europe” with a surprising confession: before writing this book, he “had never known of an ancient constitution of Europe, of a common law of Europe. . . .” Having made this admission of ignorance, Alvarado implicitly promises the reader two things: (1) that he will convince the reader that he has remedied that initial ignorance, and that he now knows enough to offer an intelligent account and valuable insights into the subject; and (2) that the book will therefore be worth the reader’s investment in time and money. Unfortunately, (1) he didn’t and (2) it wasn’t.
Alvarado attempts to demonstrate that there is a Eurpean common law, a _jus gentium_ (lit. “law of nations,” not to be confused with “international law,” about which Alvarado says nothing of consequence). Broadly speaking, anyone attempting to define a set of laws applicable to all peoples will rely upon one of three theories: that such laws are either (1) set down by some authority (typically of divine nature); (2) ascertainable by human reason alone; or (3) ascertainable through study of actual practices. Alvarado, on the other hand, never really decides which of these three approaches is right. In particular, Alvarado studiously avoids describing his version of the _jus gentium_ as “natural law,” which makes it even more difficult to determine exactly what he’s trying to say.
This confusion extends to the dichotomy he establishes between the “common law” and the “civil law.” Unlike the familiar distinction between “precedent-based law” and “code-based law,” Alvarado sees the difference as one between “top-down absolutism” and “bottom-up constitutionalism.” Just why civil law tends toward absolutism and common law tends toward constitutionalism is never really made clear, and the author’s loose employment of the terms merely increases the confusion.
In the end, it appears that Alvarado is arguing for a set of laws deriving from some sort of Christian commonwealth. How these laws became “common,” or what authority is ultimately responsible for these laws, remains unresolved, and so Alvarado’s thesis remains unconvincing.
The book, however, isn’t a total waste. Alvarado offers some useful analysis of the Salamanca School (Vitoria, Vasquez, et al.). In contrast, his description of Grotius is limited, and he ignores modern natural law theorists entirely. Those readers wanting a better introduction to the history of theories regarding _jus gentium_ will have to find them elsewhere.
Rating: 2 / 5
#2 by Bartolus of Saxoferrato on April 25, 2010 - 10:19 am
It is absurd to expect from this book something which it is not. _A Common Law_ does *not* provide an exhaustive theoretical definition of the Common Law of Europe. What it does provide is an *interpretation* of a historical phenomenon as real as the existence of feudalism or the Holy Roman Empire itself. Neither of those items has been exhaustively defined to everyone’s satisfaction either, but that does not mean they did not exist, nor that books written about them are complete failures because they do not provide exhaustive theoretical definitions of them. The Common Law of Europe did exist. What exactly it was and how important it was are subjects for debate. _A Common Law_ provides an interpration emphasizing the constitutional, liberty-under-law nature of this Common Law. Other works such as Harold Berman’s _Law and Revolution_ and Manlio Bellomo’s _The Common Legal Past of Europe_ provide more details into the structure and institutions of the Common Law. The Common Law must not be confused with modern international law, which is a bastardized, corrupted version of the original jus gentium. Don’t purchase this book if you want your preconceived notions about law and history confirmed — buy it if you want to examine an alternative approach, that does not belittle the Christian and classical basis of the Western legal tradition.
Rating: 4 / 5