A Historicist Revolt in Jurisprudence

“The Guilty Have No Past” – Death in June

Edmund Burke’s ‘Reflections on the Revolution in France’ cemented, in the eyes of conventional scholars and lay people alike, his place as the father of modern conservatism. Although frequently posited, there are a number of issues with this contention.

Burke was a life-long member of the Whig party. Further, he supported the American Revolution and legitimised the Revolution of 1688 in his aforementioned work. Notwithstanding this, the title confers to Burke undue credit, and erases his more interesting contemporaries. He is by no means as important to contemporary rightists as: Joseph de Maistre, Adam Müller, and Karl Ludwig von Haller.

Nevertheless, Burke’s text is not completely without merit. In his polemic against the Revolution, Burke contends that the revolutionaries erred in their endeavour to recast the French social order along anti-monarchical, egalitarian, and secular lines. For Burke, any attempt to ground the social edifice upon abstract ideals was bound to fail.

For society is not a tabula rasa which can be moulded by revolutionary hankering. Rather, the social order derives from a particular history, and thus encompasses an array of inherited prejudices, norms, and accompanying peculiarities. Revolution acts in a punctuating manner, and therefore, even when done with the best of intentions, is a disruptive force thrust upon the social organism.

Given that man’s relationship with society is congenital, rather than one of volition, it can be said that man, like society, is a historical being. Consequently, man is subject to the same aforementioned inheritances as wider society. Therefore, an idea is not simply to be evaluated by whether it meets a standard of cogency – its veracity also hinges upon its congruence with the body politic, that repository of “irrational” inherited traditions.

Burke was not alone in his critique of Enlightenment rationalism and concomitant defence of embedded, historical societies. In the domain of jurisprudence, his efforts were mirrored by the German jurist and historian, Friedrich Carl von Savigny. Savigny’s thought, alongside that of Gustav Hugo’s, forms the basis for the German Historical School of Jurisprudence. A later notable figure in this tradition is Otto von Gierk, who assisted in renewing interest in Johannes Althusius.   

Born in 1779, Savigny came of age in an epoch in which civil law was in a state of ascendency; the Napoleonic Code was established in 1804. One commentator states: “the codes generally reflect the radical, utopian hyper-rationalism of the French Revolution”. A testament to this is that the French Civil Code is bereft of stare decisis, unlike common law jurisdictions. Disregarding the element of precedent, apologists for civil law believe that “law ought to originate abstractly in the human mind”.

In 1814, A. F. J. Thibault proposed a unified German civil code based on the aforesaid French model. Against the proposed mimicry, Savigny affirmed that the law of a nation is not an a-historical phenomenon established by individual whim at a particular juncture, like painting an empty canvas. Unlike the canvas, the nation, as already stated, is a substantive body, which is given form, personality, and distinctiveness by history.

With this comprehension of the nation as his foundation, Savigny proceeds to argue that law is an expression of a nation’s Volksgeist. John Henry Merryman states: “In their view, the law of a people was a historically determined organic product of that people’s development”. He views custom as the ur-law of a people – as does the British critic of Democracy, Henry Sumner Maine.

Andrew Hamilton states: “The Volksgeist, constantly changing and evolving as the German people changed and evolved, drove the slow evolution of law over the course of history. Savigny believed that the Volk of every land had a similar effect on each nation’s law”.

He therefore rejected the universalism of natural law theorists, who believed that law should be deduced from the nature of man – typically conceived of in an individualistic and universalist sense. He would certainly agree with de Maistre’s dictum: “A constitution that is made for all nations is made for none”.

It should be noted that Savigny did not consider codification to be anathema. However, as a prerequisite, there must first be a “thorough study of the existing German law and of its historical development”, because this is the law which was congruent with the German people’s ethnic community, since it emanated from it.

Burkean Pashtuns

“Their code of Pashtunwali… has kept them as the dominant tribal force on the landscape for over 2,000 years… More than any other tribe, the Pashtuns have helped Afghanistan earn its reputation as the ‘Graveyard of Empires’” – Major John M. Auten III, ‘Counterinsurgency: Clear-Hold-Build and the Pashtun Tribes in Afghanistan’

The Occidental mind is a repository of misconceptions regarding the Taliban. Although often disparaged as illiterate goat herders, the Taliban was originally a student movement which placed a special emphasis on education. In fact, in the 1990s the Taliban’s Madrassa had a lower acceptance rate than Harvard – a testament to its intellectual exclusivity.  

Another misunderstanding concerns the Taliban’s view of law. Typical western narratives purport that the Taliban are a harsh Orthodox organisation, seeking to instantiate an anachronistically distilled form of Shariah law. This could not be further from the truth.

The Taliban’s ideological roots are heterodox in nature. The Taliban’s ideology is a mix of Deobandi Fundamentalism and Pashtunwali. Pashtunwali is the pre-Islamic customary law of the Pashtun people – the Pashtuns, it should be added, are highly overrepresented among the Taliban’s ranks. This eclectic ideological mix has resulted in commentators describing the Taliban as the progenitors of an “innovative form of sharia”.

It is certainly true that the Taliban sought to undermine the rule of the jirga – a tribal assembly involving all adult males, the purpose of which is to settle disputes. However, this was likely an attempt at power centralisation, rather than a disagreement regarding doctrine.

It is evident that many of the Taliban’s actions are motivated by their belief in Pashtunwali. Tom Ginsburg states: “Many of the harsh rules of the previous Taliban government have their origin in Pashtun custom, rather than classical Islamic sources; in particular, the treatment of women”. Pashtunwali is highly patriarchal.

The fidelity to Pashtun tribal law has almost certainly assisted in the Taliban’s enduring efficacy, most acutely in recent weeks. Their syncretic approach to Pashtunwali, whereby it is synthesised with Islamic law, implicitly recognises that this law is an emanation of the Pashtun people’s volksgeist.

Rather than impose an abstract or alien creed, and thus alienate the Pashtun populace, the Taliban opted to assimilate Pashtun law into their doctrine, and thereby secure a reservoir of men from which the Taliban can draw fighters and supporters.

In contrast, the recently departed United States of America’s imposition of “progressive” values – anathema to the historical laws of the Pashtun people – has resulted in their protracted efforts crumbling immediately upon departure. BTFO.

Conclusion

In lieu of concrete evidence, it can merely be speculated upon as to whether the Taliban have been influenced by the anti-rationalist arguments of figures such as Burke and Savigny.

Nevertheless, there is certainly a Burkean aspect to the Taliban’s respect for Pashtunwali. The common denominator between the positions of Savigny, Burke, and the Taliban is their mutual comprehension of society as a historical phenomenon, and hence their objection to the radical imposition of universalist abstractions on the social order.

Although famous for his written prose and skills as an orator, I doubt even Edmund Burke could encapsulate the verity at the heart of this essay better than the Bull McCabe did, when he stated: “There’s another law, stronger than the Common Law. The Law of the Land”.

Posted by Ulick Fitzhugh

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