In German, Gift means poison. Roger Berkowitz, in his The Gift of Science, argues that Leibniz gave us the gift of modern legal science. In so doing, Berkowitz claims, Leibniz unintentionally poisoned the waters of our legal tradition. Where pre-modern law once faced its subjects through ancient traditions and customs as the immediate presence of transcendent justice, now, in the wake of the advent of modern science, law seems a value-neutral tool for maximizing our human-all-too-human social and economic aims. Where law formerly situated individuals in relation to something bigger and more meaningful, now law rests on the arbitrary and forceful will of the powerful.

Berkowitz's sense that modern positive law is unconcerned with transcendent justice rooted in a "more-than-human source" (xvi), and that this divorce is morally troubling, is not new. But his account of the sources of that divorce in the metaphysical demands of modern science - rather than in politics or epistemology -- is fresh and interesting. Our idea of law itself has changed under the pressures of scientific reasoning, and this is because, Berkowitz argues, our conception of what law is (and, at bottom, what anything is) has changed.

Berkowitz tells this story of law's ontological change and decay in two parts, each one organized according to a similar pattern of hopeful philosophical and theoretical attempts to salvage law's transcendent authority followed by practical failure in actual legal codes. In the first part, Berkowitz tells of the metaphysical assumptions behind Leibniz's attempted legal code and the Prussian Provincial Law of 1794. In the second part, Berkowitz turns to Carl von Savigny's idea of a Volksrecht and the German Civil Code of 1900.

For Berkowitz, Leibniz paradigmatically represents the attractions and perils of modern legal science. On the one hand, Leibniz, Berkowitz argues, was keenly aware that modern enlightenment science had sapped laws of their immediate traditional power. This thought, Berkowitz argues, is already implicit in the application of the principle of sufficient reason to the law. If nothing is without reason, than laws are to the extent that they are justified by reasons. The authority of law therefore arises not from "the insightful bond that one sees with the mind's eye when one acts lawfully" (xii), but from the force of rational justification.

Leibniz's attempt to provide a systematic legal code is an attempt to meet this justificatory demand, Berkowitz argues. Modern codification, as opposed to its Roman predecessors, did not simply organize existing ancient customs. The process of codification itself was meant to provide an independent basis for law by providing a rational justification of the legal order.

But this attempt, Berkowitz argues, was doomed to fail. The account of this failure comes in a rich and detailed study of the connection between Leibniz's codification work (much of it available only in Latin) and his metaphysics, and is too complicated to discuss here. The bottom line, however, can be clearly stated: Leibniz is driven to ground law in an ultimate justification outside of the law, and that justification is the will of God. For Leibniz, God's will is rational and knowable, and so not arbitrary. But in the turn specifically to the will, Berkowitz sees an ominous change: "law threatens to become merely a means to any rational ends that legislators posit" (52) instead of "the experience of friendship and mutual reciprocity that…inspires the acts of grace that unite a plurality into a unity" (xii). Though Leibniz's theological order remains a far cry from modern, value-free positivism, that theology paves the way for positivism by introducing the fundamental assumption that man exists for the sake of a good that is posited and willed as opposed to a higher good to which an individual must "sacrifice his rights, his pride, his self" (xii).

Berkowitz follows his account of Leibniz with a more empirical legal-historical study of Das Allgemeine Landrecht fuer die Preussischen Staaten of 1794. The details of this study are interesting. But Berkowitz does not take up the ALR for merely historical purposes. His aim is to demonstrate that the ALR continues the process that Leibniz's codification program had begun. While for Leibniz the authority of positive laws rests on the natural rationality of God's will, in the ALR, that authority rests on the natural rationality of the King's will. But the King's will, as opposed to God's, cannot be identified with transcendent justice. Instead, the sovereign's will aims at meeting the secular demands for security, peace, and certainty. And in becoming subject to such demands, law becomes that much closer to becoming nothing more than a tool or technique for meeting extra-legal economic and social needs.

The second part of the book turns to Carl von Savigny, whom Berkowitz calls "the last great defender of the spiritual sanctuary of the law," in order to examine a different sort of modern defense of law's dignity. Savigny, Berkowitz argues, attempted to replace Leibniz's rational foundation of the law with a quasi-poetic insight into the law as rooted in the historical and cultural needs of a people, in the Volksgeist. This had the salutary promise of rooting law in something outside the wills of jurists. But it had the unintended effect, Berkowitz argues, of blurring the line between law's transcendent existence in the spirit of a people and its everyday existence in their social and economic norms (136).

In the new German civil code, the Buergerliches Gesetzbuch of 1900, Berkowitz argues, that line is erased. "The end of justice" has been reached. According to the BGB, law is a human product, made by and for human beings. Legal science therefore provides a set of formal and abstract techniques that can be put in the service of whatever purposes we desire. Law therefore depends on the study of human ends as undertaken in the social and human sciences. And this means that law has become pure technique, Berkowitz argues, divorced from any inner ethical purpose by which it might be guided or limited. Instead, law has been reduced to "its new status as a handmaid of power," ruled by "nameless bureaucrats" to whom one cannot even protest (157).

If this sounds apocalyptic, that is because Berkowitz wants it to sound that way, I think, in the old sense of an apocalypse: a revelation of the hidden ending of the existing order. Berkowitz, in fact, claims that his book narrates the story of how the law fell to earth - and this story, he also says, is the same story of how God died, we killed Him, and have tried to fill the void ever since. Though legal and intellectual historians will find much to argue with in Berkowitz's rich and thoughtful account of Leibniz and the German legal codes, it is on this grander level of the meaning and fate of modernity that his book is most provocative and will likely engage most readers interested in philosophy and political theory.

It is also on this level that the book raises the most questions. For an author so sensitive to the hidden assumptions and unintended consequences of the texts he analyzes, Berkowitz is remarkably cagey about his own theoretical assumptions. Indeed, Berkowitz does not state explicitly his philosophical orientation until, in a "Note on Sources" on the final page, Berkowitz writes that his views on law and science cannot be appreciated without "a prolonged meditation on Heidegger's texts" (167). But what that meditation amounts to, how it guides the selection and interpretation of examples, and how it might defend itself against its rivals, we are never told.

One clue to what this approach passes over is given in Berkowitz's Preface, where he lists as examples of different characterizations of the transcendental activity of justice Plato's Ideas, the religious believer's unio mystica with God, Rousseau's General Will, Kant's Kingdom of Ends, Nietzsche's aesthetic redemption of life, Whitehead's "ingression," and Heidegger's Ereignis. Notably absent here is Hegel - certainly no lover of technical rationality and positivism, but an equally staunch defender of the spiritual dignity of modern, bourgeois life. Hegel saw his own turn to historical actuality neither as a reduction of transcendent justice to earthly desires nor as, on Savigny's model, an appeal to an ancient Volksrecht, but as a historical narrative of how human beings have bound themselves, through a series of painful failures, to laws which they have given to themselves. Though this approach may be at bottom another symptom of the "end of justice" in modernity, given that The Gift of Science purports to demonstrate and defend a particular view about the fate of the West, at least some explicit defense of the Heideggerian approach against its most profound competitors - on whatever ground that sort of argument might take place - does not seem unjustified.

These questions of the grand meaning of modern life aside, readers interested in philosophy, political theory, and legal theory will find in The Gift of Science a provocative and stimulating account of the nitty-gritty dynamics by which modern legal science became what it is. The book is written with clarity and rigor, it is erudite and forcefully argued, and provides a powerful defense of the importance of the metaphysical conceptions at work in what look to be the more mundane aspects of our lives.

Dan Silver, University of Chicago

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