The Future of Law in a Multicultural World

by Adda Bruemmer Bozeman

Overview

Examining the unique cultures of the Islamic Middle East, sub-Saharan Africa, Indianized Asia, and China, Adda Bozeman attacks the supposition that world unity can be achieved through the application of Western ideals of international law and organization.

Originally published in 1971.

The Princeton Legacy Library uses the latest print-on-demand technology to again make available previously out-of-print books from the distinguished backlist of Princeton University Press. These editions preserve the original texts of these important books while presenting them in durable paperback and hardcover editions. The goal of the Princeton Legacy Library is to vastly increase access to the rich scholarly heritage found in the thousands of books published by Princeton University Press since its founding in 1905.

Product Details

ISBN-13:	9780691620602
Publisher:	Princeton University Press
Publication date:	03/08/2015
Series:	Princeton Legacy Library , #1704
Pages:	248
Product dimensions:	6.10(w) x 9.10(h) x 0.60(d)

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The Future of Law in a Multicultural World

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By Adda B. Bozeman

PRINCETON UNIVERSITY PRESS

Copyright © 1971 Princeton University Press
All rights reserved.
ISBN: 978-0-691-05643-2

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CHAPTER 1

INTERCULTURAL DISCOURSE AND THE PROBLEM OF UNDERSTANDING

A.

Words and Ideas

WORDS often assume an existence of their own, separate from the ideas in conjunction with which they first appeared. One particular term may come to stand for a variety of concepts, sometimes only loosely related to each other; it may shed a meaning with which it has long been closely associated; it may attract an idea formerly carried by a different term; or it may come to convey an entirely new intellectual construction. Some of these metamorphoses are barely perceptible while occurring; others by contrast are willful manipulations. For, whereas the development of the relation between thought and its expression is sometimes allowed to take place at random, it is at other times and in other places the object of watchful scrutiny.

For example, in the formative period of classical Roman jurisprudence, law and Latin were cultivated in close alignment to each other with the result that legally and politically crucial concepts were conveyed reliably to successive generations. The elaboration of theories of natural law and natural rights in the seventeenth and eighteenth centuries, on the other hand — admirable and fruitful as it may have been in the context of philosophy — impaired the integrity of "law" and "rights" as juristic concepts because the language of legal symbolization was permitted to move away from the meanings it had originally held. Furthermore, these two words, "law" and "rights," had at that time become particularly active precisely because they were being widely trusted in all sectors of Western civilization as summary symbols for major value orientations, and in the light of this fact, their careers suggest that culturally strategic terms may also be particularly vulnerable terms. Every civilization or human grouping, unified by its own language and traditions and rallying around its own preferred concepts and symbols, must have had to face, at one time or another, similar problems in relation to the relevance of thought to word. But what in any case is clear from the records is that the integrity of the thinking process, and therefore also the integrity of the culture itself, is greatly dependent upon the careful use of words.

In a multicultural environment and in periods marked by intense international discourse and cultural borrowing, the association between ideas and the symbols denoting ideas presents special complexities and challenges.

India and China, for example, had coexisted for centuries in virtual ignorance of each other until certain extraordinarily talented linguists and translators began to adapt Buddhism, an originally Indian faith, to Chinese needs. These intellectual go-betweens translated numerous texts and compiled elaborate dictionaries of Sanskrit-Tibetan-Chinese terms in behalf of the cause they served. However, in their painstaking labors they presently came to realize firstly, that whole categories of Sanskrit terms could not be rendered into Chinese at all; secondly, that entire concepts had no equivalents in Chinese patterns of thought; and finally, that India and China had developed different ways of thinking and lived by totally different values. What was required, they thus found, was not a mere translation of words but rather an interpretation of the images and experiences that had originally inspired the words; and this meant in the final analysis that all of India and all of China had to be understood before the separate aspects of Buddhism could be made meaningful to the Chinese.

This bold intellectual process (upon which several generations of scholars engaged) of adjusting to each other two very different vocabularies of words and ideas conduced eventually to the establishment of a purely Chinese kind of Buddhism; and the operation was so successful that India and China became strangers again, as they had been before Buddhism had linked their spiritual destinies. Furthermore, in the extended context of the history of cultures and intercultural relations, the remainder is in order that Indian Buddhism was finally to wither away in its confrontation with the orthodox Hindu order, while Chinese Buddhism did not long maintain itself in the face of Confucianism. The original roots of the two civilizations had evidently not been disturbed. And in the light of this well-known record, it is ironical, to say the least, that twentieth-century representatives of India and China should have "borrowed" Buddhism as the official guiding reference, not only for the establishment of amicable political relations between their own two countries, but also as the major informing principle of their project for an all-Asian solidarity bloc that might defy the West. Yet this is what was arranged by means of accords and conferences, notably in 1954, when Communist China and India agreed to incorporate references to Buddhist ethics — i.e., the panca-sila — in a treaty recognizing China's military acquisition of Tibet under the guise of regulating trade in this unfortunate Buddhist land.

It would be difficult to find a more instructive example of what can happen when the organic relation between words and ideas is deliberately severed or otherwise allowed to lapse, and when ideas stand suddenly emptied of their intrinsic meanings. The original system of Buddhist ethics had been aimed at developing a nonpolitical mentality, withdrawn from the concerns of acquisitive and self-defensive action. The Buddha, with this end in mind, had laid down ten precepts for "right conduct," of which the first five — the panca-sila — admonished every Buddhist to avoid: 1) the destruction of life; 2) theft; 3) unchastity; 4) lying; and 5) the use of intoxicating liquor. Sino-Indian diplomacy, however, 2,500 years later, took over this hallowed Buddhist formula in the full knowledge that it had carried through the centuries exclusively religious connotations, and enumerated, then, for the conduct of international relations, five "norms" that had been recognized in Occidental international law and politics even before they were inserted in the Charter of the United Nations (which itself was a product, not of Eastern, but of Western political thought), namely: 1) mutual respect for each other's territorial integrity and sovereignty; 2) nonaggression; 3) noninterference in each other's internal affairs; 4) equality and mutual advantage; 5) peaceful coexistence and economic cooperation. In other words, the implied reference to Buddhist ethics was from every point of view entirely spurious — and especially since Chou En Lai and Nehru, the architects of this Asian house of friendship, were openly scornful of all religion. Subsequent events — including a Chinese invasion of India made possible by the prior occupation of Tibet — were to prove that China had outwitted and enfeebled its Asian collaborator by creating illusions through artful verbalizations — which is a mode of psychological warfare that had been common not only in Confucian China but in Hindu India as well, where maya (deceit, trick, the display of an illusion) and saman (the way of appeasement) had long been recognized as primary tools of statecraft. Lulled to sleep by Chinese rhetoric, Indian thought was unable to recall in time the actual meaning of the Buddhist value-language of its own heritage.

The borrowings engaged in by the Muslim elites of the Near East during the first centuries of the Islamic era were carried out under circumstances and by human dispositions significantly different from those of the early interchanges between India and China; and yet they, too, illustrate the proposition that cultural borrowing is a creative act that does not necessarily lead to intercultural understanding. Mohammed had fashioned his new faith by openly accepting religious propositions that had been fundamental to the older rival religions of Judaism and Christianity, and successive Muslim governing and scholarly elites drew freely from Persian, Indian, and Byzantine knowledge, taking only what could be absorbed and ignoring what appeared to be incompatible with their basic domestic value system. None of these encounters with the highly developed Oriental civilizations was felt to threaten the integrity of the "new" Islamic culture world. However, a crisis came with the onslaught of Greek thought, which presented not only new ideas for which native equivalents were missing, but, more importantly, a revolutionary way of thought that invited the inquisitive to rely rather upon the reasoning powers inherent in their own imagination than on the authority of established religion and tradition. The areas of knowledge in which the encounter between the two systems of thought was most intense were philosophy and the natural sciences. Here we find the towering intellects of Farabi (c. 870-950) and Avicenna (979-1037) fearlessly immersed in the substantive aspects of Greek philosophy, and capable, moreover, of correlating and fusing Hellenic and Islamic, as well as Persian, concepts, so as to fashion imposing philosophical structures of their own. Yet these great but isolated men were not allowed to set the tone of the intercultural dialogue. The consensus of the dominant theological guardians of knowledge had it that divine revelation was the exclusive source of truth and that Greek thinking was a threat to the faith; or, as Ghazali (1058-1111), one of the greatest and most influential of orthodox thinkers, held, reliance on reason was bound to lead to unbelief. In the face of a continuously uncompromising administration of sacred law as the exclusive carefully bounded context for speculative thought, Greek philosophy in its conceptual integrity simply could not be understood after the eleventh century AD, no matter how dedicated the labors of the translators may have been. Relegated to the category of "alien sciences," it never inspired the kind of concerted effort toward the further discovery of assimilable ideas that had sent the early Chinese Buddhist scholars on comprehensive quests to understand all of India. What we observe instead is a massive but uncoordinated and somewhat shallow movement aimed only at excerpting formulations and dialectical devices from the body of substantive thought in the service of which the devices had been developed by the Greeks.

For example, as Von Grunebaum points out, Islamic hellenizing philosophers could accept many of Plato's doctrines but none of his ontological premises, with the result that Platonic theorems could never become really operative in the Muslim world after their transplantation. Obliged to defend their own tenets not only against the sophisticated adversaries of Islam in the newly conquered, formerly Christian territories, but also against rival orthodox defenders of the faith, the hellenizers freely helped themselves to a great deal of Aristotelian logic while evading conceptually threatening philosophical propositions — just as others in their midst were drawing extensively on Hindu mathematics while bypassing Hindu philosophy. In short, Greek philosophy was useful to Islam mainly as an auxiliary science capable of supporting what was to all intents and purposes its opposite, namely the monolithic control of knowledge by religion. One can even say that the integrity of Islamic culture and society, as originally defined, was preserved by this carefully limited association with the vocabularies of non-Islamic and non-Arabic thought and values. And one may say, further, that these generations of arabized and islamized Near Eastern peoples were actually remaining faithful to traditions set by very much earlier generations in the region; for the Greek factor had, after all, been a continually challenging presence from about the fourth century BC onward, i.e., in pre-Islamic times, without inducing any radical questioning of prevalent thought patterns in the then existing Semitic societies.

Further West, meanwhile, the Romans had established for Europe an altogether different precedent by insisting on learning all that there was to learn from Greece; and their approach was followed by the European Christians, hesitatingly at first yet stubbornly, until they were intellectually capable — thanks in large measure to translations of Greek texts by Nestorian Christians and other residents of the Arabic-Islamic realm — of examining rationally the relation between classical and Christian systems of knowledge. In the course of a series of intellectual movements known collectively as the Renaissance, they were able finally to develop entirely new vocabularies of thought and discourse: yet these — it was soon realized — could be used profitably only by minds freely committed to the processes of rational thinking invented by the Greeks.

In contrast, the Mohammedan intellect, which in the early Islamic era had amazed contemporaries with its adventurous spirit, was prohibited from going that far. From about the eleventh century onward, it was held in check by ecclesiastical theories of law and government and forced to operate in a cultural environment from which foreign influences were banned unless found compatible with the faith as interpreted by theological jurists. "Renaissances" here were consequently mere returns to familiar grounds, which had been temporarily vacated or neglected: for the conviction reigned that all the great problems of knowledge had been solved, once and for all, by the revealed word of God.

In the course of his masterful analysis of this intellectual impasse and its historic effects upon subsequent Islamic thought, as well as upon all the later relations between Islam and the European West, Gibb writes as follows:

The struggle between rationalism and intuitive thought for control of the Muslim mind was fought out, for the first time, over the postulates of Greek speculative philosophy in the early centuries of Islam. The intellectual consequences of that conflict were decisive. They not only conditioned the formulation of the traditional Muslim theology but set a permanent stamp upon Islamic culture.

In sum: by rejecting rational modes of thought, the Arabs — and Muslims in general — rendered themselves constitutionally distrustful of all abstract or a priori universal concepts, such as "the law of nature," "ideal justice," and the like, which have had such a decisive normative effect on the evolution of secular legal systems in the West. These concepts, Gibb continues, were branded in the Near Eastern realm as "dualistic" or "materialistic," emanating from false modes of thought. "It is therefore," he writes, "not to be wondered at that to the generality of the Muslim ulema the West came to stand for pure materialism: they do not know what lies behind all the external manifestations of Western material civilization, and they judge it mainly by its reflections in Muslim life and Muslim writings — manifestations which are often fantastically divorced from the spirit of Western culture."

The discourse with the West, which had commenced so promisingly in the shared context of Greek learning, was thus cut off in a decisive manner. Even Muslim "modernists" in the twentieth century, eager to loosen or even to shake off the fetters of traditional thought, appear to be doomed to failure in their efforts. "Baked in the same oven of which the medieval 'Greece-ridden' theologian was the product," the Islamic modernist attempts "to adopt European practice without accepting the theory of the human presupposition, or the attitude to the world lying at the basis of it." One of the few contemporary Arab thinkers who has had the courage to address himself to the essential problem of Islam today is Taha Husayn (b. 1889). his Future of Culture in Egypt, he points to Greek thought as the source of the West's vitality and as the one possible bridge between his own civilization and that of the modern Occident. "Europe is Christian," he writes, "and I do not call for the adoption of Christianity, but for the motive forces of European civilization. Without them Egypt cannot live, let alone progress and govern herself." But on the other hand, another writer of the same generation, Tawfiq al-Hakim, writes that an understanding of the human ideal of the Greeks would be a powerful weapon in Arab hands, which would enable them to overcome the destructive human concept of the West.

Thus a tradition of ignoring or misunderstanding ideas emanating from "the other," notably the Occidental counterplayer, whether represented by ancient Greece or by the modern West, had become so firmly settled in the formative period of the Islamic civilization as to prove unshakeable in subsequent centuries — except perhaps in Turkey and Iran. Due probably to both an insecure self-view and a basic fear of the Occidental impact upon the local political scene, it has had the effect of stunting intellectual growth and blocking the evolution of interculturally valid norms and institutions — effects which have been most poignantly manifested in the general sphere of law and order, as a subsequent discussion will show.

(Continues...)

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Excerpted from The Future of Law in a Multicultural World by Adda B. Bozeman. Copyright © 1971 Princeton University Press. Excerpted by permission of PRINCETON UNIVERSITY PRESS.
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Table of Contents

• Frontmatter, pg. i
• Preface, pg. v
• Contents, pg. vii
• Introduction, pg. ix
• Chapter One. Intercultural Discourse and the Problem of Understanding, pg. 1
• Chapter Two. Political Systems and the Role of Law, pg. 34
• Conclusion, pg. 161
• Appendix. Text of Pravda Article Justifying the Invasion of Czechoslovakia, September 25, 1968, pg. 187
• Bibliography of Works Cited, pg. 195
• Index, pg. 219