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![introduction
Analytical legal theory has long taken as its central focus the experi-
ence of the law-state, and the success of analytical theories of law has
been measured by their ability to explain the phenomenon of the law-
state. Yet this focus and conception of success may be forced to
change as the place of the law-state in our experience of law is chang-
ing, from the United Kingdom’s devolution of power to Scotland, to
integration of European law-states to the point of consideration of a
shared constitution, to the rise of super-national legal institutions
such as the International Criminal Court. The goal of this book is to
revive the tools of analytic jurisprudence for a new set of theoretical
challenges posed by the flourishing of novel forms of legal order.
imbalances in analytical legal theory’s approach
to prima facie legal phenomena
We are far from revolutionary in pointing to a range of social phe-
nomena that challenges the utility of approaches to legality that depart
from the law-state as the fundamental instance of legality. Within the
analytical approach both H.L.A. Hart and Joseph Raz are aware that
the law-state is at the very least an institution with many forms, and
that we have not given enough attention to understanding how the
idea of “legal system” provides explanatory unity to understanding
legality in the law-state and in phenomena not easily dismissed as
outliers beyond the scope of our attention. Hart, for example, recog-
nized in the closing chapter of The Concept of Law that colonial and
post-colonial eras brought unanticipated developments of legal phe-
nomena, raising “fascinating problems of classification” for theorists
attempting to understand such devices as “[c]olonies, protectorates,
suzerainties, trust territories, confederations”1
—all variants of sover-
eignty with associated legal systems or subsystems of various kinds.
1. H.L.A. Hart, The Concept of Law 220 (1994).](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-18-2048.jpg)
![xxii introduction
where ten years ago 600 license holders fished those waters, now
there are none.
Supra-State Legality: The Puzzle of the European Union
The preceding example of non-state legality mentioned the familiar
feature of international law: that its existence depends largely on the
consent of states. This arrangement preserves the sovereignty of
states as a fundamental norm of international law while grounding
the force of international legal obligations in states. Voluntary agree-
ment of the sort familiar from international law undoubtedly lies at
the historic foundation of the European Union; yet as the Union has
evolved it has come to claim that it represents a new legal order, nei-
ther a super-state nor an intergovernmental association.13
But what is
that legal order? And what is the relation of that order to explanations
of legality as fundamentally systemic in a sense best evident in the
law-state? Julie Dickson usefully suggests that the puzzling nature of
the European Union can be revealed by asking an intuitively but mis-
leadingly simple question: how many legal systems are there in the
EU?14
As Dickson notes, there are several possible answers: one legal
system for every Member-State; one legal system for every Member-
State plus one additional European legal system; or perhaps only one,
super-European legal system. If there is more than one system—i.e.
more than just one super-European legal system—how are legal theo-
rists to characterize the relations among the systems? In particular,
since both Member-State courts and the European Court of Justice
have claimed supremacy of final authority to interpret and apply
European law, can we view either Member-State legal systems or a
European legal system as in some meaningful sense derivative, sub-
ordinate, or part of the other(s)? Or does this puzzle point us back to
giving more serious consideration to the possibility that the European
Union’s claimed “new legal order” really is something new and
different, not usefully reduced to talk of legal system?
13. Case 26/62 Van Gend en Loos v. Nederlandse administratie der belastingen
[1963] E.C.R. 1, p. 12.
14. See Julie Dickson, How Many Legal Systems?: Some Puzzles Regarding
the Identity Conditions of, and Relations Between, Legal Systems in the European
Union 9–50, 2 Problema: Annuario de Filosophia y Teoria del Derecho
(2008).](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-27-2048.jpg)
![6 legality’s borders
parts of a theory need to reflect their interdependence. More specifi-
cally, it is a call for an explanation of who counts as a legal official, and
how we are to identify those legal officials as a key part of our know-
ing where to look in the world for the social experience data fleshing
out the “functional” aspect of the rule of recognition.10
1.2 explaining officials’ contribution to the rule of
recognition: facing circularity and indeterminacy
Any adequate deepening of the account of legal officials’ functional
contribution to a rule of recognition must address two related prob-
lems: the problem of circularity and the problem of indeterminacy.
The problem of circularity refers to the burden of identifying legal
officials without presupposing a notion of legal validity, which is
simply the set of criteria of membership in a legal system practiced by
its officials.11
The problem of indeterminacy refers to the burden of
10. William Twining appears to emphasize a similar distinction between
structure and function in Hartian jurisprudence. He writes “It is sometimes
suggested that Hart’s The Concept of Law is solely concerned with ‘linguistic
analysis’ and in this sense is semantic . . . However, Hart’s conception of a
descriptive jurisprudence goes far beyond this: it includes both elucidating
concepts and using them. Concepts and models (such as the model of law as
a system of rules) are tools of description. The Concept of Law, and general
descriptive jurisprudence, go beyond conceptual clarification to describing
the common features of the form, structure and content of legal systems.”
[originalemphasis,internalnotesomitted]WilliamTwining,Globalisation
and Legal Theory 37 (2000).
11. The literature on circularity, particularly circularity in Hart’s theory of
law, is significant and varied. See, e.g., Charles Sampford, The Disorder of
Law: A Critique of Legal Theory 35–6 (1990); G.B.J. Hughes, The Existence
of a Legal System, 35 New York University Law Review 1001–1030 (1960);
Jules Coleman, The Practice of Principle: In Defence of a Pragmatist
Approach to Legal Theory 100–1 (2001); Matthew Kramer, The Rule of
Misrecognition in The Hart of Jurisprudence, 8 Oxford Journal of Legal
Studies 401 (1988); Kent Greenawalt, The Rule of Recognition and the
Constitution, 85 Michigan Law Review 624n. (1987); Brian Tamanaha,
A General Jurisprudence of Law and Society 142 (2001); Neil
MacCormick, H.L.A. Hart 136–140, (2008); Ian Duncanson, The Strange
World of English Jurisprudence, 30 Northern Ireland Law Quarterly 267](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-43-2048.jpg)
![the rule of recognition and international law 11
Responses to the circularity charge typically try to provide a
foundation—often in what might be regarded as a “bootstrapping”
approach. Jules Coleman, Kent Greenawalt, and Brian Tamanaha all
appear to have taken a route of this sort. Coleman argues, for example,
that legal officials emerge as follows:
First, some group of individuals—we do not call them officials and we need
not identify them by reference to laws—choose to have their behavior guided
by a certain rule. In other words, they take the rule as giving them good
reasons for action. If that rule takes hold in the sense of establishing mem-
bership criteria in a system of rules, and if those rules are complied with
generally, and if institutions of certain types are then created, and so on, it is
fair to say that a legal system exists. If a legal system exists, then that rule
which guides the behavior of our initial group of individuals is correctly
described as the rule of recognition for that legal system. And those individu-
als who guide their behavior by that rule are thus appropriately conceived of
as “officials.” They are, in a sense, officials in virtue of that rule, but they are
not officials prior to it (in either the factual or the logical sense). Their behav-
ior makes the rule possible, but it is the rule that makes them officials. 14
Coleman’s story is not that legal officials are those recognized by
other legal officials by means of law, but rather that certain conduct
gives rise to rules which in turn identify who is a legal official. On this
account there is no circle but instead a kind of social fact explanation
of legal officialdom—albeit one which does not arrive with specifica-
tion on the set of social facts from which it is generated. Similarly,
in the course of an exercise in applying Hart’s notion of the rule of
recognition to the United States, Kent Greenawalt supposes the
general populace is sufficiently able to identify legal officials that a
foundation can be safely presumed:
At first glance, [Hart’s] account may seem to involve a troubling circular-
ity, since officials determine what are the standards of law and they derive
their official status from the law. The break in the circle is that one looks
to the population at large to see who are recognized as officials. Ordinarily,
people’s judgments about who are officials may rely on certain assump-
tions about conformance with legal standards, such as election laws, but
people need not understand the complex criteria judges and other officials
use to determine what counts as law.15
14. Jules Coleman, The Practice of Principle 100–1 (2001).
15. Kent Greenawalt, The Rule of Recognition and the Constitution, 85
Michigan Law Review 621–671, n.624 (1987).](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-48-2048.jpg)
![12 legality’s borders
Brian Tamanaha also argues that legal officials can be assumed to
have a sufficiently determinate existence, conventionally established:
Remaining with Hart’s resort to social practices, the following additional
requirement solves the problem of distinguishing legal from non-legal
institutionalized systems of normative order: A ‘legal’ official is whomever,
as a matter of social practice, members of the group (including legal officials
themselves) identify and treat as ‘legal’ officials. Owing to their recognized
status as legal officials, their products (generated pursuant to the second-
ary rules) are treated as ‘law.’ Systems of primary and secondary rules that
are administered by legal officials—so identified—are ‘legal’ systems.
Systems of primary and secondary rules that are not administered by legal
officials may be institutionalized normative systems, but they are not
legal.16
All three responses meet the charge of circularity, by identifying
means by which legal officials can be identified without presuppos-
ing the fact of official recognition, but they take us little distance
towards positive determination of the class of legal officials whose
roles and activities determine the borders of legal systems. Coleman’s
explanation seems to be close to simply positing a state of normativity
as he presumes some historical set of facts corresponding to his
description. Does legal order and a cohort of officials in fact arise in
the way Coleman supposes? Is this the only way, or can officials ever
become officials by request, rather than by creating their own legal
power as his analysis seems to suggest? Viewed in this manner,
Coleman’s way out of the circularity problem depends on unsubstan-
tiated empirical claims, and reduces the account of officials to a hypo-
thetical sociological observation rather than a philosophical theory:
“the powerful can sometimes become officials.” This looks very much
like the speculative anthropology Les Green attributes to Hart, and so
marks little advance over Hart’s construction of Rex I—a construc-
tion in which Hart says explicitly that he does not suppose he is
describing any actual historical state of affairs.17
Yet even if we do
accept Coleman’s view as a modest advance with respect to a functional
aspect of analytical legal theory, that advance is insufficient, since it
16. Brian Tamanaha, A General Jurisprudence of Law and Society 142
(2001) [emphasis in the original].
17. Leslie Green, Legal Positivism, in Stanford Encyclopedia of Philoso-
phy, http://plato.stanford.edu/entries/legal-positivism/ (last visited Sept. 17,
2006).](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-49-2048.jpg)
![have been higher, by the rubbish which lies round it. It is built of
stone, without cement, and I take it to be between twenty and thirty
feet still. The entrance is by a low and narrow door, to pass through
which one is obliged to stoop much; but perhaps the ground may
have been raised since the first erection. When one is got in, and
placed in the centre, it is open overhead. All round the sides of the
walls are ranged stone shelves, one above another, like a circular
beaufait, reaching from near the bottom to the top. The stones
which compose these shelves are supported chiefly by the stones
which form the walls, and which project all round, just in that place
where the shelves are, and in no others; each of the shelves is
separated into several divisions, as in a bookcase. There are some
remains of an awkward staircase. What use the shelves could be
applied to I cannot conceive. It could not be of any military use,
from its situation at the bottom of a sloping hill, which wholly
commands it. The most learned amongst the inhabitants, such as
the gentry and clergy, who all speak the Irish language, could give
no information or tradition concerning its use, or the origin of its
name.”
Now, our Round Towers have similar shelves, or recesses in the wall,
and “reaching, like a circular beaufait, from near the bottom to the
top”! Wherever these do not appear, their place is supplied by
projecting stones, for the evident purpose of acting as supporters.
[528] And as the Mycenian, the Caledonian, and the Hibernian
edifices thus far correspond, the only thing that remains is to explain
to what purpose could those recesses serve.
I thus solve the question—They were as so many cupboards for
containing the idols of Budha, as the structures themselves for
temples of his worship, etc. Nor is this their use yet forgotten, in the
buildings of the like description in Upper India, as appears from the
following statement by Archer. “In the afternoon,” says he, “I went
to look at a Jain temple. It was a neat building, with an upper
storey. The idol is Boadh. There is a lattice verandah of brick and](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-56-2048.jpg)
![mortar round the shrine, and there are small cupboards, in which
numerous figures of the idol are ranged on shelves.”
Arguments crowd upon me to establish these particulars; the only
difficulty is in the compression. I shall, however, continue to prove
this from another source, even by showing that when Ezekiel
declared, in allusion to Tyre, that “the men of Dedan were thy
merchants,”[529] he meant the men of Ireland.
First let me refer you to page 4, by which you will be reminded of
our ancient possession of a naval equipment. Secondly, let me quote
to you an extract from Vallancey, when directing the result to a
different application. His words are: “Another proof of the ancient
Irish being skilled in the art of navigation, I draw from a fragment of
the Brehon laws in my possession, where the payment, or the
reward, for the education of children, whilst under the care of
fosterers, is thus stipulated to be paid to the ollamhs, or professors,
distinguishing private tuition from that of public schools. The law
says: ‘If youth be instructed in the knowledge of cattle, the payment
shall be three eneaclann and a seventh; if in husbandry and farming,
three eneaclann and three-sevenths; if in milrach, i.e. glais-argneadh
as tear, that is, superior navigation, or the best kind of knowledge,
the payment shall be five eneaclann and the fifth of an eanmaide; if
in glais-argneadhistein, that is, second, or inferior (branch of)
navigation, two eneaclann and a seventh.’ And this law is ordained
because the pupils must have been previously instructed in letters,
which is the lowest education of all.”
Thus you see, at all events, that we were qualified for the duties
required. Now, I will demonstrate, and that too by the aid, or rather
at the expense, of Mons. Heeren, that we were the actual persons
pointed to by the prophet.
“Deden,” says the professor, “is one of the Bahrein, or rather more
northerly one of Cathema. The proofs, which to detail here would be
out of place, may be found in Assemani, Bib. Orient. tom. ii. par. ii.
pp. 160, 564, 604, and 744. Difficulties arise here, not merely from](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-57-2048.jpg)
![want of maps, but also from the variation and confusion of names.
Daden, or Deden, is also frequently called Dirin; and it may be
conjectured that from hence arose the name of Dehroon, which is
given to one of the Bahrein islands in the map of Delisle. If that
were the case, then Dedan would not be Cathema, as Assemani
asserts, but the island mentioned above; and this is rendered
probable by the resemblance of names, which is a certain guide.”
If the “resemblance of names” be “a certain guide,” identity of
names must be still more certain; and then must my proofs already
prevail, and the professor’s conjectures fall to the ground! Surely he
cannot say that there is any even resemblance between D-Irin and
Dehroon! But he admits that the place alluded to is called
indifferently Dedan[530] and D-Irin; and have I not shown that each
of those names, identical and unadulterated, belonged properly to
Ireland? Ireland, therefore, alone can be the country alluded to by
the inspired penman.
In denying, however, a Dodona to the Greeks, and an oracle also,
General Vallancey was quite incorrect. What he should have
maintained was, that both name and oracle had their prototypes in
Ireland; but that, so remote was the date at which the transfer
occurred, all insight into the mysteries had long since perished.
Indeed, their priests very frankly acknowledged the fact to
Herodotus, when, in his thirst for information, he waited upon them
at Dodona. “We do not,” said they, “know even the names of the
deities to whom we make our offerings—we distinguish them, it is
true, by titles and designations; but these are all adventitious and
modern in comparison of the worship, which is of great antiquity.”
Upon which the historian very truly concludes, “that their nature and
origin had been always a secret; and that even the Pelasgi, who first
introduced them and their rites, had been equally unacquainted with
their history.”
Like a true Greek, however, he must set about coining an origin for
them; and so he tells us a cock-and-a-bull story of two pigeons](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-58-2048.jpg)
![(Peleiai) having taken flight from Thebes in Upper Egypt, and never
stopped until they perched, one upon the top of Dodona, and the
other God knows where; and then he flatters himself he has the
allegory solved, by imagining that those pigeons were priestesses, or
old women, carried off by Phœnician pirates, and sold into the land
of Greece!
In this he has been followed by thousands of imitators, and quoted
miraculously at all the public schools. Nay, his disciples would fain
even improve upon the thing; and Servius has gone so far as to say
that the old woman’s name was Pelias!
Now, here is the whole mystery unravelled for you.
When the Greeks established an oracle of their Dodona, subordinate
to our master one, they adopted, at the same time, one of the
orders of our priesthood. This was that of the Pheeleas, the meaning
of which being to them an enigma, they bent it, as usual, to some
similar sound in their own language.[531] This was that of Peleiai, in
the accusative Peleias, which, in the dialect of Attica, signifies
pigeons, and in that of Epirus, old women; and so the whole
metamorphosis was forthwith adjusted!](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-59-2048.jpg)
![pins to hold the instrument together. The birds move on loose pins,
which pass through the tube, and on the other end are rings. The
material and style of workmanship of this singular instrument leaves
no doubt of its high antiquity. But we confess ourselves totally
unable to form even a rational conjecture as to its probable use, and
should feel obliged to any antiquary who would throw light upon
it.”[532]
Had the antiquarian high-priest to this magnanimous assemblage
been equally modest in former cases, and courted instruction,
instead of erecting himself into a Pheelea, he would not cut the
figure which he now does. Ignorance is no fault: it is only its
vagaries that are so ridiculous!
However, he has said—I beg pardon, he is in the plural number—
well, then, they have said, that they would feel obliged to any
antiquary who would throw light upon the subject.
To be sure, I am no antiquary. The Royal Irish Academy have made
that as clear as the sun at noonday. Nay, they have even strove to
make their brethren at this side of the water to think so also! But
their brethren at this side of the water are too honest a people, and
too noble in their purpose, to make history a trade, and to stifle
truth at the unhallowed dictates of interest or partiality.
No matter; I will tell all what this piece of antiquity was. It was the
actual instrument through which the oracle of Dodona was
announced! You see upon it the swans by which Apollo was brought
to the Hyperboreans! The bulbul of Iran also attends in the train;
and the affinity of this latter bird to the species of pigeons,
convinced the Greeks that they had really hit off the interpretation of
the word Pheelea! and that pigeons were, in truth, the deliverers of
the oracle.
This was the block upon which Abbé Bannier was stumbling. Having
learned from some quarter, I believe from Aristotle, that there were
some brass appendages contiguous to Dodona, he converts those](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-61-2048.jpg)
![appendages into kettles—a worthy friend of mine would add, of fish
—“which,” says he, “being lashed with a whip, clattered against one
another until the oracle fulminated”!!!
As to those oracles themselves, with the registries of which antiquity
is so replete, I will here articulate my individual belief. No one who
knows me can suppose that I am superstitious; and, for those who
know me not, the sentiments herein delivered will scarcely foster the
imputation. Yet am I as thoroughly persuaded as I am of my
personal consciousness, that some prescience they did possess,
conducted partly by human fraud, and partly by spiritual co-
operation.
There is no question but that there must have been some
supernatural agency in the business; for human skill and human
sagacity could never penetrate the deep intricacies of doubt, and the
important pregnancies of time which they have foreshown.[533]
Porphyry, in his book De Dæmonibus, and Iamblichus in his De
Mysteriis, expressly mention that demons were in every case the
authors of oracles. Without going all this length, we may readily
allow that they had perhaps a great share in them; neither will the
ambiguity in which their answers were sometimes couched detract
anything from this admission, because the spirits themselves, when
ignorant of any contingency, would, of course, try to screen their
defect by the vagueness of conjectures, in order that if the issue did
not correspond with their advice, it may be supposed owing to
misinterpretation. The instance of Crœsus and the Delphian oracle
was an interesting event. He sent to all the oracles on the same day
this question for solution, viz. “What is Crœsus, the son of Alyattes,
King of Lydia, now doing?” That of Delphi answered thus: “I know
the number of the sand of Libya, the measure of the ocean—the
secrets of the silent and dumb lie open to me—I smell the odour of
a lamb and tortoise boiling together in a brazen cauldron; brass is
under and brass above the flesh.”](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-62-2048.jpg)
![Having heard this reply, Crœsus adored the god of Delphi, and
owned the oracle had spoken truth; for he was on that day
employed in boiling together a lamb and a tortoise in a cauldron of
brass, which had a cover of the same metal. He next sent, enjoining
his ambassadors to inquire whether he should undertake a war
against the Persians? The oracle returned answer, “If Crœsus passes
the Halys, he will put an end to a vast empire.”
Not failing to interpret this as favourable to his project, he again sent
to inquire, “If he should long enjoy the kingdom?” The answer was,
“That he should till a mule reigned over the Medes.” Deeming this
impossible, he concluded that he and his posterity should hold the
kingdom for ever. But the oracle afterwards declared that by “a
mule” was meant Cyrus, whose parents were of different nations—
his father a Persian, and mother a Mede. By which mule, says a
facetious writer, the good man Crœsus was thus made an ass!
That the priests, however, used much deception in the business, and
that this deception did not escape the notice of the learned men of
the time, is evident from the charge which Demosthenes had
brought against the Pythia, of her being accustomed to Philippise, or
conform her notes to the tune of the Macedonian emperor. The
knowledge of this circumstance made the prudent at all times
distrust their suggestions, whilst the rabble, without gainsay,
acquiesced as blindly in the belief of their infallibility.
But it was not only as to the meaning of the word Pheelea that the
Greeks were unapprised, they knew not the import of their own
name Pelargi![534] It is compounded of this same term pheelea, an
augur or a diviner; and argh, the symbolic boat, or yoni! And, mind
you, that this was the great difference between the Pelargi—which is
but another name for Pish-de-danaans—and the Tuath-de-danaans,
that the latter venerated the male organ of energy, and the former
the female; therefore in no country occupied by the former do you
meet with Round Towers, though you invariably encounter those
traces of art, which prove their descent from one common origin.](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-63-2048.jpg)
![As presiding over the diviners of the symbolical boat, Jupiter was
called Pelargicus.[535]
Agyeus was another term in their religious vocabulary, as applied to
Apollo, of which the Greeks knew not the source. They could not,
indeed, well mistake, that it was derived immediately from αγυια,
via; but that did not expound the fact, and they were still in
ignorance of its proper import. It is merely a translation of our Rudh-
a-vohir, that is, Apollo-of-the high-roads, not, what the Greeks
understood it, as stationary thereon, but, on the contrary, as
itinerant; and to whom Venus the stranger corresponded on the
other side; the especial province of both being to ensure the
comforts of hospitality, of protection, and of love, to all emigrants
and all travellers.
Grunie was another epithet applied to Apollo, as we may read in a
hymn composed by Orpheus, which they could not comprehend. It is
derived from Grian, one of our names for the Sun.
But, beyond comparison, the most inexplicable of all the epithets
applied to this divinity is Lycæus; which, though—as has been the
case, you perceive, in every subject yet discussed—it can be
explained only in the Irish!—yet, even there, it opposes some
difficulties to discourage, but not more than what give way to
sagacity and to perseverance.
At Glendalough, in the county Wicklow, one of the proudest abodes
of Budhism, are found, amongst other sculptures, upon the
dilapidated ruins, those which you see opposite.
The wolf is the most frequent in the multitude of those
hieroglyphics. His character is exhibited in more attitudes than one—
and all mysteriously significant of natural designs.
In one place you observe his tail gracefully interwoven with the long
hair of a young man’s head. That represents the youth Apollo,
controlling by his efficacy—alias, the sun’s genial rays—the most](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-64-2048.jpg)
![Thus it appears, that the Irish were not only acquainted with the
nature of this sickness, but also with the knack of taming that animal
of which it bore the name. All this was connected with the worship
of Apollo, and with Eastern mythology. Nay, the very dogs, for which
our country was once famous,[536] and which were destined as
protectors against the ravages of the wolf, are clear, from Ctesias, to
have had their correspondents in India.
The epithet Lyceus, I conceive, now elucidated; and so leave to
yourself to penetrate the rest of those devices. But I shall not, at the
same time, take leave of the “Valley of the Two Lakes.”[537]
On one of the loose stones, which remain after this wreck of
magnificence, you will see a full delineation of “The history of
Dahamsonda, King of Baranes (modern Benares), who, as his name
implies, was a zealous lover of religious knowledge; and was
incarnated, in order to be tried between his attachment to religion
and his zeal for the salvation of the world on the one side, and his
love to his own life, and his attachment to his kingdom and wealth,
as well as his kindred and friends, on the other; for which purpose
the gods had gradually and completely withdrawn the light of
religious knowledge from the world by the time of his accession to
the throne.”[538]
This king, in his anxiety to regain the lost condition of mankind—to
recover their literature and their ancient knowledge of religion,
instructs his courtiers to proclaim the offer of a casket of gold, “as a
reward to any person” who would instruct his majesty in the
mysteries of the Bana,[539] that is, the Budhist Gospel, with a view to
its salutary repropagation.
The officers proceeded in quest of such a phenomenon; but, in the
extent of their own realms, he was not to be found!
This excites the uneasiness of the king, who “having by degrees
increased his offers to thousands and millions of money, high titles,
possessions of land and great privileges; and, at last, offering his](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-67-2048.jpg)
![own throne and kingdom, but still finding no instructor, leaves his
court, resolved to become private traveller, and not to rest till he has
found one who could communicate to him the desired knowledge.
Having for a length of time travelled through many kingdoms, towns,
and villages, enduring hardships, he is, at last, by providential
interference, led through a delightful valley (which affords him
subjects for consideration and recreation of mind) into a dismal
forest, the habitation of frightful demons, venomous reptiles, and
beasts of prey.
“Sekkraia having on the occasion come down from heaven, in the
disguise of a Raksha, meets Bodhesat (the king) in the wilderness,
who fearlessly enters into conversation with him, and informs him of
the object of his wanderings. The disguised deity undertaking to
satisfy the king, if he will sacrifice to him his flesh and blood in
exchange for the sacred knowledge, Bodhesat cheerfully ascends a
steep rock, shown him by the apparition, and throws himself
headlong to the mouth of the Raksha. The king’s zeal being thus
proved, Sekkraia, in his own heavenly form, receives him in his
arms, as he is precipitating himself from the rock,” and has him
initiated in the desired information.[540]
Now, waiving for a moment the latter part of this legend—every
word of which, however, is still chronicled in our country, though
transferred by the moderns to St. Kevin and the monks—I return to
add, that, on the above-mentioned stone, you will see a
representation of the ambassadors offering this caske of riches to a
professor of letters seated in his “doctor’s chair”!!!
This stone itself is engraved in Ledwich’s Antiquities, where in his
ignorance of its meaning, as well as of everything else which formed
the subject of his libellous farrago, he perverts it into the bribing of a
Roman Catholic priest!—as if the priests would so emblazon
themselves!—and quotes Chaucer to prove the fact, when he says of
one them, that—](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-68-2048.jpg)
![“He would suffer, for a quart of wine,
A good fellow to have his concubine”!
How inconsistent is error! Elsewhere this Reverend Doctor has
asserted, and, accidentally, with truth, that there was no such thing
at all to be met with at this place, as “Christian symbols.” I wonder
was he one of those who consider Roman Catholics not to be
Christians?
However, again from this he diverges! And, when called upon to
decipher the hieroglyphics upon a stone-roofed Tuath-de-danaan
chapel, of the same character as that at Knockmoy, and discovered
here a few years ago, beneath the Christian piles which the early
missionaries had built over it, by way of supersedence, he throws
himself, in his embarrassment, into the arms of St. Kevin! associates
him with the whole! and that, too, after he had fatigued himself,
until half choked with spleen, in bellowing out the ideality and utter
non-existence of such a personage!
On the front of the cathedral erected out of the fragments of the
Tuath-de-danaan dilapidations, you will find Budha embracing the
sacred tree, known in our registries, by the name of Aithair Faodha,
which signifies literally the tree of Budha.[541]
The pomegranate of Astarte—the medicinal apple of affection[542]—
presents itself, also, in the foliage! The mouldings upon the arch of
the western window refer likewise to her. And, to complete the
union of Sabian symbolisation, the serpent mingles in the general
tale! while the traditional story of the adjoining lake having been
infested by the presence of that reptile, has a faithful parallel in one
of the lakes of Syria!
Will it not be believed, therefore, that the valley at which
Dohamsonda had alighted, after he had traversed many realms far
away from his own, was that of Glendalough? And where, I ask,
would he be more likely to obtain the object of his peregrination, viz.
initiation into gospel truth, than in that country which, from its pre-](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-69-2048.jpg)
![CHAPTER XXXI.
“They shall be astonished, and shall humble their countenances: and
trouble shall seize them, when they shall behold the Son of Woman
sitting upon the throne of his glory. Then shall the kings, the princes,
and all who possess the earth glorify him who has dominion over all
things—him who was concealed: for, from the beginning, the Son of
Man existed in secret, whom the Most High preserved in the
presence of his power, and revealed to the elect.”[543]
So speaks one of the most extraordinary productions that has ever
appeared in England, in the shape of literature! And the commentary
of its translator[544] is as follows:—
“In both these passages,” says he, “the pre-existence of the Messiah
is asserted in language which admits not the slightest shade of
ambiguity—nor is it such a pre-existence as the philosophical
cabalists attributed to him, who believed the souls of all men, and,
consequently, that of the Messiah, to have been originally created
together, when the world itself was formed; but an existence
antecedent to all creation, an existence previous to the formation of
the luminaries of heaven; an existence prior to all things visible and
invisible, before everything concealed.—It should likewise be
remarked, that the pre-existence ascribed to him is a divine pre-
existence.”[545]
As to the pre-existence of the Messiah, in the only way in which the
Archbishop affirms, I did not think that the doctrine was so obscure
as to require so much stress! Everybody acquiesces, who acquiesces
in Christianity—that its Founder had existence and dominion with His
Father before all worlds. And, therefore, when His Grace offers this
as an illustration of our opening extract, he either unconsciously](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-71-2048.jpg)
![contradicts himself, or, else, by dealing in generalities, evades an
exposition, which he was not at liberty to communicate!
I am quite ignorant as to whether or not Dr. Lawrence belongs to the
order of Freemasons, but I confess that when first I glanced at the
above remarks I fancied he did. The care with which the two words
“secret” and “concealed” were distinguished by him in italics, led me
to this conjecture. But the indefinite unsubstantiality into which he
afterwards wandered, made the fact of his initiation become, itself, a
secret.
Let me, however, prove the above dilemma.
His Lordship has asserted, that the uninspiration of “the author” will
admit of no dispute:[546] and yet that “author,” whom the Archbishop
himself acknowledges to have written, at the very lowest,
antecedently to the Advent, speaks of the Messiah as the “Son of
Man” and the “Son of Woman.”[547]
Either, therefore, the author was inspired, speaking prospectively of
an occurrence not then consummated! or else, uninspired, he
historically transmits the record of an incarnation vouchsafed before
his time.
I feel perfectly indifferent as to which horn of this alternative you
may patronise. They both equally make for me. Nor do I want
either, otherwise than to show, that else the Archbishop is already of
my way of thinking, and restrained from avowing it, or unwillingly
involved in a contradictory nodus, from a partial succumbing to
education!
With this I leave Enoch! I have hitherto done without him! I shall
continue still to do so! But while bidding adieu, I must disburthen
myself of the sentiments which his merits have inspired, and that
after a very short personal familiarity.
Thou art, then, a goodly and a wise book, Enoch, stored with many
and recondite truths, but “few they be who find” them. Better for](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-72-2048.jpg)
![thee it were, however, that thou hadst slept a little longer in thy
tranquil retirement, than obtrude thyself, unappreciated, upon an
ungenial world—a cold, a calculating, an adamantine world—who
fancy they know everything, but who, in truth, know nothing—to
meet with nothing but their scorn! It is true, Enoch, that thy face
hath been tarnished by many a blemish! And that the hand of time
hath dealt with thee, as it doth with the other works of man! Yet,
despite of the curtailments thus sustained, and the exotics
incorporated, thy magnificent ruin still holds within it some gleams,
which to the initiated and the sympathetic afford delight and
gratification.
———“Sweet as the ecstatic bliss
Of souls that by intelligence converse!”
Doubtless, reader, you are acquainted with the Gospel of St. John?—
and you have a heart?—and you have emotions?—and you have
sensibilities?—and you have intellect? Well, then, tell me frankly,
have not these all been brought into requisition, at the metaphysical
sublimity and the oriental pathos of the opening part of that
production?
“He was in the world, and the world was made by Him; and the
world knew Him not. He came unto His own, and His own received
Him not.”[548]
You surely cannot suppose this said in reference to the late
incarnation! Were it so, why should the Evangelist deliver himself in
terms so pointedly allusive to distant times? The interval between
Christ’s disappearance and St. John’s registration was but as
yesterday, and therefore the latter, when inculcating the divinity of
the former, upon the belief of his countrymen, who were all
contemporaries, as well of one as of the other, need not advertise
them of an addition, of which they were themselves cognisant.
But to illustrate to you as light, that it was not the recent
manifestation that was meant by the above text, he tells us in the](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-73-2048.jpg)
![sequel, when expressly narrating this latter fact, that “the Logos was
made flesh and dwelt among us”;[549] where you perceive that
“dwelling among us” is made a distinct thing from, and posterior in
eventuation to “coming unto His own,” as before recorded![550]
Indeed, in the delineation, it is not only the order of time, but the
precision of words, that we see most rigidly characteristic. The Jews,
it is certain, could not be called “His own,” except by adoption; and,
I am free to allow, that from them, “as concerning the flesh, Christ
came”; but by “His own”[551] are meant His real relations!—
emanations from the Godhead, such as He was Himself! beings
altogether separate from flesh and blood! and whose mysteriousness
was perceptible most clearly to St. John, as you will perceive by the
Greek words from which this is rendered, viz. τα ιδια, having been
put in the neuter gender!
But suppose them, for an instant, to have been the Jews!—Then we
are told that, “to as many as received Him, gave He power to
become sons of God.”[552] Now, the apostles were they who did
implicitly receive Him: and why does not St. John refer to those,
whether living or dead, as admitted to the privilege of becoming
“sons of God”? I will tell you:—it was because that they did not
answer to that order of beings “which were born not of blood, nor of
the will of the flesh, nor of the will of man, but of God.”[553]
These were the persons to whom Christ came before—these were
“His own,” because that, like Him, they also were of God.[554] These
were they, who having lapsed into sin,[555] and vitiated their nature,
drew down the vengeance of heaven upon them; and to the
descendants of these it was that “the elect” and “the concealed
one,” in mercy was made manifest, with proposals of redemption to
regain their lost state!!!
“O the depth of the riches both of the wisdom and knowledge of
God! how unsearchable are His judgments, and how inscrutable His
ways!”[556]](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-74-2048.jpg)
![Seest thou not now, therefore, the propriety of St. John’s expression,
when He says, “And I knew Him not, but that He should be made
manifest to Israel”;[557] for when, before “He was in the world,” it
was in secret and concealed—as still and always represented in the
mysteries! The latter, he asserts, as a matter of revelation—for the
former he appeals to the experience of his auditors, as a subject of
history: and both epochs are confirmed by the “voice from heaven,”
which replied to Christ’s own prayer, as thus, “I have both glorified
it,” viz. at Thy former manifestation—“and will glorify it again,”[558] at
this Thy present!!!
I was myself twelve years of age before ever I saw a Testament in
any language. The first I was then introduced to was the Greek.
Being in favour with my tutor, he took an interest in my progress,
and the consequence was, to my gratitude and his praise, that no
deviation from the exactness of grammatical technicality could
possibly escape my observation. Soon as I arrived at the text
wherein τα ιδια occurs, its irregularity, at once, flashed across my
mind. I sought for an explanation, but it was in vain; my imagination
set to work, but it was equally abortive. At length, in despair, I
relinquished the pursuit, and never again troubled myself with it, or
its solution, until recalled by its connection with the present inquiry.
But it was not alone the peculiarity of gender that excited my
circumspection, the phraseology, when translated, sounded so
familiar to my ear, as to appear an old acquaintance under a new
form. For, though I could then tolerably well express myself in
English, the train of my reflections always ran in Irish. From infancy I
spoke that tongue: it was to me vernacular. I thought in Irish, I
understood in Irish, and I compared in Irish. My sentiments and my
conceptions were filtrated therein!
As to dialectal idioms or lingual peculiarities, I had not, of course,
the most remote idea. Whether, therefore, the expression coming to
“His own” were properly a Greek or an English elocution, I did not,
then, know either sufficiently well to determine; but that it was Irish
I was perfectly satisfied; my ear and my heart, at once, told me so.](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-75-2048.jpg)
![I now positively affirm that the phrase is neither Hebrew, Greek, nor
English! And if you are not disposed to admit the information which
it conveys,[559] to be an immediate communication from the
Omnipotent, I have another very adequate mode of accounting for
St. John’s having acquired it, and expressed it too in a phraseology
so essentially Oriental.
The three wise men—who came from the East to Jerusalem, saying,
“Where is He that is born King of the Jews? for we have seen His
star in the east, and are come to worship Him”[560]—to a mortal
certainty imparted to him the intelligence!](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-76-2048.jpg)
![Here you see them with crosses upon their crowns,[561] the religious
counterparts of our Irish shamrocs![562] And surely, as Jesus was
then but an infant, those mysterious devices were commemorative
of His crucifixion, when “He came to His own,”—and not to that
which occurred while He “dwelt among us,” a catastrophe which had
not yet taken place!
Nor is it alone this single phrase (τα ιδια) that I claim as Oriental—
the five first verses of this Gospel, as at present arranged, appertain
also thereto. They speak the doctrine alike of the Budhists and of
the Free-masons; but in diction, and in peculiarity, in tone, in point,
and essence, they are irrefragably Irish.[563]
That St. John never wrote them is beyond all question! but having
found them to his hand, existing after the circuit of centuries and
ages, the composition seemed so pure, and so consonant with
Christianity, nay, its very vitality and soul, he adopted it as the
preface to his own production, which begins only at the sixth verse,
opening with, “There was a man sent from God whose name was
John”!
Having asserted that the preliminary part was inalienably Irish, I
now undertake to prove a radical misconception, nay, a derogation
from the majesty of the Messiah, to have crept into the text, in
consequence of its having been translated by persons unacquainted
with that language!
The term logos, which you render word, means to an iota the
spiritual flame—log, or logh, being the original denomination. The
Greeks, who had borrowed all their religion from the Irish, adopted
this also from their vocabulary; but its form not being suited to the
genius of their language, they fashioned it thereto by adding the
termination os, as loghos; and thus did it become identified in sound
with the common logos, which they had before, and which merely
expresses a word or term!](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-77-2048.jpg)
![But though thus confounded, their philosophers, for a long time,
kept both expressions distinct. The former they ever considered a
foreign importation, rendering it, as we did, by the spiritual flame; as
is evident from Zeno making use of the expression, δια του παντος
λογος, that is, the spiritual flame, which is diffused through, and
vivifies everything.
Pythagoras is so explicit upon this spiritual flame, that you would
swear he was paraphrasing the first five verses of St. John.
“God,” says he, “is neither the object of sense, nor subject to
passion, but invisible, only intelligible, and supremely intelligent. In
His body, He is like the light, and in His soul He resembles truth. He
is the universal spirit that pervades and diffuseth itself over all
nature. All beings receive their life from Him. There is but one only
God, who is not, as some are apt to imagine, seated above the
world, beyond the orb of the universe; but being Himself all in all,
He sees all the beings that fill His immensity, the only principle, the
light of Heaven, the Father of all. He produces everything, He orders
and disposes everything; He is the reason, the life, and the motion
of all being.”
Even the Latins having borrowed the idea from the Greeks, steered
clear of the equivocation of the ridiculous word; and the immortal
Maro, when describing the quickening influence of this ethereal
logos through all the branches of nature, interprets it as above,
literally, by the spiritual flame!
“Principio cœlum ac terras, camposque liquentes,
Lucentemque globum Lunæ, Titaniaque Astra,
Spiritus intus alit; totamque infusa per artus
Mens agitat molem, et magno se corpore miscet.
Inde hominum pecudumque genus, vitæque volantum,
Et quæ marmoreo fert monstra sub æquore pontus.”[564]
Am I, therefore, presumptuous in appealing to the community to
reject this word as applied to the logos? A meaning, it is true, has](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-78-2048.jpg)
![been trumped up for this, as the communicating vehicle between
God and His creatures! No doubt the Saviour is all that: but logos
does not express it; and the duration of an abuse is no reason why it
should be perpetuated after its exposure.
I have said that it degraded the dignity of the Godhead to render
this expression by the form of word. I do not retract the charge: on
the contrary, I add that, independently altogether of the former
arguments, adduced to establish its inaccuracy, it would be revolting
to common sense, were it not even thus incorrect!
For example—“In Him was life,” says the text, “and the life was the
light of men.”
Now, how could there be life in a word? except by the most
unnatural straining of metaphor. Or, admitting that there was life,
how could there be light, except by the same? Whereas, by
substituting the proper term, then all is regular and easy; for what
could be more natural, than that there should be life in spirit? and
that this life should give light to men?
You will observe accordingly, that Jesus Himself, when describing His
own character, exactly states what I here rectify, saying, “I am the
light of the world”—not the word of the world—or any such
nonsense. And He continues the idea by noting further, that “he that
followeth Me shall not walk in darkness, but shall have the light of
life.”[565] Thus keeping up an uninterrupted reference to logos, or
the spiritual flame!
I do, therefore, humbly, but strenuously, implore of the legislature
that they restore this epithet to its divine interpretation! I entreat of
the heads, as well of Church as of State, that they cancel the error;
for error I unhesitatingly pronounce it to be,—a derogation from the
Godhead, and a perversion of the attributes of the Messiah!
I will myself show the way—thus: “In the beginning was the spiritual
flame: and the spiritual flame was with God, and the spiritual flame
was God.”[566]](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-79-2048.jpg)
![How beautiful! may I hope that it will never more be extinguished!
Now, there is another text in the same chapter, which, though not
incorrectly translated, yet loses half its beauty as at present
understood! It will startle you when I recite it! Yet here it comes.
“Behold the Lamb of God, which taketh away the sin of the
world!”[567]
By lamb, no doubt, you mean a young sheep: but let me ask you,
what connection can you perceive between a young sheep and the
taking away of sin? That of immolation, you answer, as typifying the
grand offering. Well, then, why add “of God”? Why say, the young
sheep of God, if it was an ordinary animal of the mere ovine species
that was intended?
No, sir; recollect the “Lamb slain from the beginning of the world,”
recorded in the Revelations, as quoted before.[568]
A deep mystery is involved in this expression, which the ingenuity of
man could not evolve but through the Irish. In that language lambh
is a word having three significations. The first is a hand; the second
a young sheep; and the third a cross.[569]
Let us now, in rendering the text, substitute this latter instead of the
intermediate; and it will be, “Behold the cross of God, which taketh
away the sin of the world!” By which you perceive that when John
the Baptist, by inspiration, pointed out Jesus Christ as the universal
Saviour of the world, his very words establish a previous crucifixion!
You now see how it happened that ten, in numerals, came to be
represented by a cross X. This being the number of fingers upon
each person’s hands: and a hand and a cross being both prefigured
in the sacred, that is, in the Irish language,[570] by the same term,
lambh, it hence occurred that in all reckoning and notation, a new
score should be commenced therefrom—that its sanctity should be
still further enhanced by the epithet of diag, or perfection, which
characterises it as a submultiple, and that the mysteriousness of the](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-80-2048.jpg)
![whole should be additionally shrouded under the comprehensive
symbol of a pyramid or triangle △[571]
“Our Hibernian Druids,” says Vallancey, “always wore a key, like the
doctors of law of the Jews, to show they alone had the key of the
sciences, that is, that they alone could communicate the knowledge
of the doctrine they preached. The name of this key was kire, or
cire; and eo, a peg or pin, being compounded with it, forms the
modern eo-cire, the key of a lock. The figure of this key resembled a
cross; those of the Lacedæmonians and Egyptians were of the same
form.”
Estimable and revered Vallancey, it pains me to say anything against
you! but on those subjects you were quite at bay! It was not to
“show that they alone had the key of the sciences,” that “the doctors
of law of the Jews always wore a key,” but because that they had
seen it in the ceremonial of the Egyptians, from whom, like the
Lacedæmonians, they had borrowed its use, without either of them
being able to penetrate its import![572]
The origin, then, of this badge appearing amongst the habiliments of
our ancient priests, is developed by the name which those priests
themselves bore, viz. Luamh, which, being but a direct formative
from lambh, a cross, unlocks the secret of their being its ministers.
[573]
The Idæi-Dactyli, who superintended the mysteries of Ceres,
obtained their designation from the very same cause, and
corresponded literally with our Luamhs: for the Iod of the Chaldeans
being equivalent to the lambh or hand of the Irish, the number of
fingers thereon were made religiously significant of the X, or cross!
And,—what cannot fail to excite astonishment, as to the immutability
of a nation’s character,—to this very hour, the symbolical oath of the
Irish peasant is a transverse placing of the forefinger of one hand
over that of the other, and then uttering the words, “By the cross”!](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-81-2048.jpg)
![Are not the opposers of my truths, then, as yet satisfied? or will they
still persist in saying that it was the Pope that sent over our Tuath-
de-danaan crosses?[574] in the ship Argho! some thousands of years
before ever Pope was born. I wonder was it His Holiness that
transported emissaries also to that ancient city in America, lately
discovered in ruins, near Palenque; amongst the sculptures of which
we discover a cross! And the priority of which to the times of
Christianity is borne witness to by the gentleman who has published
the “Description” of those ruins,[575] though glaringly ignorant as to
what was commemorated thereby.
“Upon one point, however,” he says, “it is deemed essentially
necessary to lay a stress, which is the representation of a Greek
cross, in the largest plate illustrative of the present work, from
whence the casual observer might be prompted to infer that the
Palencian city flourished at a period subsequent to the Christian era;
whereas it is perfectly well known to all those conversant with the
mythology of the ancients, that the figure of a cross constituted the
leading symbol of their religious worship: for instance, the augural
staff or wand of the Romans was an exact resemblance of a cross,
being borne as the ensign of authority by the community of the
augurs of Rome, where they were held in such high veneration that,
although guilty of flagrant crimes, they could not be deposed from
their offices; and with the Egyptians the staff of Bootes or Osiris is
similar to the crosier of Catholic bishops, which terminated at the top
with a cross.”
But if the Pope had so great a taste for beautifying our valleys with
those costly specimens of art, whereof some are at least eighteen
feet in height, composed of a single stone, and chiselled into devices
of the most elaborate mysteries, is it not marvellous that he has not,
in the plenitude of his piety, thought proper to adorn the
neighbourhood of the Holy See with any similar trophies? And why
has he not preserved in the archives of the Vatican any record of the
bequest, as he has taken care to do in the case of the four palls?](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-82-2048.jpg)
![But, transcendently and lastly, why did he deem it necessary to
depict centaurs upon those crosses, with snakes, serpents, dogs and
other animals, such as this following one exhibits, which is that at
Kells, and which has been alluded to, by promise, some pages
backwards.[576]
I have now done with the appropriation of those columns; and shall
just whisper into my adversaries’ ears—if they have but recovered
from the downcrash of their fabric—that so far from laying claim to
the honour of their erection, the Pope has actually excommunicated
all such as revered them! and has otherwise disowned all](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-83-2048.jpg)
![participation therein, by the fulminating of bulls and of anathemas!
[577]
Yet did the zealots of party, after the history of those crosses was
forgotten, associate them individually with some favourite saint!
“This notion,” says Mosheim, referring to such diversions, “rendered
it necessary to multiply prodigiously their number, and to create daily
new ones. The clergy set their invention at work, and peopled at
discretion the invisible world with imaginary protectors; they
invented the names and histories of saints that never existed; many
chose their own patrons, either phantoms of their own creation or
distracted fanatics whom they sainted.”
Here, however, the historian is as inaccurate as he is severe: for not
only did the majority of those saints, if not all of them, exist, but the
greater part also of those exploits ascribed to them have actually
occurred! The imposition consisted in making them the heroes of
events and legends belonging to former actors.[578]
I shall now give you, from the Book of Ballymote, my proof for the
assertion before advanced as to the Goban Saer, whom they would
fain appropriate, having been a member of the Tuath-de-danaans,
viz.: “Ro gabsat sartain in Eirin Tuatha Dadann is deb ro badar na
prem ealadhnaigh: Luchtand saer credne ceard: Dian ceachd liargh
etan dan a hingeinsidhe: buime na filedh Goibneadh Gobha lug Mac
Eithe Occai; ro badar na huile dana Daghadae in Righ: oghma
brathair in Righ, is e ar arainic litri no Scot.” That is, The Tuath-de-
danaans then ruled in Eirin. They were first in all sciences. Credne
Ceard was of this people; and his daughter Dean Ceachd, who
presided over physic: she nursed the poet Gohne Gobha, the Free-
mason (lug is the same as Saer), son of Occai Esthne. Daghdae the
king was skilled in all sciences: his brother Ogmus taught the
Scythians the use of letters.
Thus you see that he could not, by possibility, be on the same
theatre with St. Abham; while the popular tradition is still](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-84-2048.jpg)
![substantially true which connects his name with the erection of the
Round Towers!
The Church festivals themselves, in our Christian calendar, are but
the direct transfers from the Tuath-de-danaan ritual. Their very
names in Irish are identically the same as those by which they were
distinguished by that earlier race. If therefore, surprise has
heretofore been excited at the conformity observable between our
Church institutions and those of the East, let it in future subside at
the explicit announcement that Christianity, with us, was but the
revival of a religion imported amongst us, many ages before, by the
Tuath-de-danaans from the East, and not from any chimerical
inundation of Greek missionaries—a revival upon which their hearts
were longingly riveted, and which Fiech himself, the pupil of St.
Patrick, and bishop of Sletty, unconsciously registers in the following
couplet, viz.:—
“Tuatha Heren, tarcaintais
Dos nicfead sith laithaith nua.”[579]
That is,—
The Budhists of Irin prophesied
That new times of peace would come.
What kind of peace, you ask? Is it of deliverance from their Scythian
oppressors? No, but that spiritual tranquillity, such as they enjoyed
before, and at which even the angels of heaven rejoiced, while
announcing the tidings to man[580]—
“And sweet, and with rapture o’erflowing,
Was the song from that multitude heard,
Who their heav’n for a season foregoing,
To second the Angel appear’d.
‘All glory,’ the anthem resounding,
‘To God in the highest,’ began;
And the chant was re-echoed, responding,
‘Peace on earth, loving-kindness to man.’”[581]](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-85-2048.jpg)
![You will remember that the Scriptures themselves record, how that
the wise men of the East foresaw this epoch; and “Lo, the star which
they saw in the east, went before them, till it came and stood over
where the young child was.”[582]
Is it therefore to be wondered at that our Tuath-de-danaans, who
were their brethren, should equally anticipate it?
Yes, from the commencement of time, and through all the changes
of humanity, God had always witnesses to the truth in this nether
world.
“And Melchizedec, King of Salem, brought forth bread and wine, and
he was the priest of the most high God.
“And he blessed him, and said, Blessed be Abram of the most high
God, possessor of heaven and earth:
“And blessed be the most high God, which hath delivered thine
enemies into thy hand. And he gave him tithes of all.”[583]
“Now consider how great this man was, unto whom even the
patriarch Abraham gave the tenth of the spoils.
“For this Melchizedec, King of Salem, priest of the most high God,
who met Abraham returning from the slaughter of the kings, and
blessed him:
“To whom also Abraham gave a tenth part of all: first being, by
interpretation, king of righteousness, and after that also king of
Salem, which is king of peace.
“Without father, without mother, without descent, having neither
beginning of days nor end of life; but made like unto the Son of God
—abideth a priest continually.”[584]
Thus does the apostle proceed, in a strain of the closest
argumentation, to point out the superiority of this king of peace,
over Abraham and his lineage: after which Mr. Brown, in his](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-86-2048.jpg)
![Commentary upon the Bible, expresses himself as follows, viz.:
—“Who this Melchizedec was, this priest of God among the
Canaanites, greater than Abraham, the friend of God, who were his
parents or his successors, is on purpose concealed by the Holy
Ghost. And hence he is without father or mother, predecessor or
successor, in his historical account, in order that he might typify the
incomprehensible dignity, the amazing pedigree and unchangeable
duration of Jesus Christ, our great High Priest.”
Nobody can quarrel with the piety of this commentator: but piety is
not the only requisite for a commentator upon the Scriptures: the
absence of stupidity is an essential condition. It is not, however, as
applied to this particular passage that I thus express myself: were
this the only instance of accommodating oversight it should draw
forth no critique from me. But the instances are innumerable, to
verify the expression that “some persons see, but perceive not.”
Mr. Brown had no idea of an emanation! Mr. Brown did not
comprehend the sons of God! Mr. Brown did not know the
connection which existed between the peace of Christ and that
which was represented by Melchizedec.[585]
“How beautiful upon the mountains are the feet of Him that bringeth
good tidings, that publisheth peace; that bringeth good tidings of
good, that publisheth salvation; that saith unto Zion, Thy God
reigneth.”[586]
“These things have I spoken unto you, that in Me ye might have
peace. In the world ye shall have tribulation: but be of good cheer; I
have overcome the world.”[587]
“If thou hadst known, even thou, at least in this thy day the things
which belong unto thy peace! but now they are hid from thine
eyes.”[588]
“Peace I leave with you; My peace I give unto you: not as the world
giveth, give I unto you.”[589]](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-87-2048.jpg)
![“Which hope we have as an anchor of the soul, both sure and
steadfast, and which entereth into that within the veil;
“Whither the forerunner is for us entered, even Jesus, made an High
Priest for ever after the order of Melchisedec.”[590]
“From our fathers to us the good tidings descend,
From us to our children agen;
Unrestrain’d as the sun, and as lasting, they blend
All the nations and ages of men.
Good news of great joy to all people, they speak
At once to the learn’d and the rude,
To barbarian and Scythian, the Jew and the Greek,
Nor country nor person exclude.
From the man who goes forth to his labour by day,
To the woman his help-meet at home;
From the child that delights in his infantine play,
To the old on the brink of the tomb;
From the bridal companions, the youth and the maid,
To the train on the death-pomp that wait;
From the rich in fine linen and purple array’d,
To the beggar that lies at his gate:
To all is the ensign of blessedness shown,
To the dwellers in vale or on hill,
Alike to the monarch who sits on his throne,
And the bond-man who toils at the mill;
High and low, rich and poor, young and old, one and all,
Earth’s sojourners, dead and alive,
Who perish’d by Adam, our forefather’s fall,
Shall in Jesus the Saviour revive.
Not an ear, that those tidings of welfare can meet,
But to it doth that welfare belong:
Then those tidings with rapture what ear shall not greet,](https://image.slidesharecdn.com/929812-250619075656-a9e0105c/75/Legalitys-Borders-An-Essay-In-General-Jurisprudence-Keith-Culver-88-2048.jpg)
Legalitys Borders An Essay In General Jurisprudence Keith Culver
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- 8. legality’s borders an essayin general jurisprudence keith culver michael giudice 1
- 9. 1 Oxford University Press,Inc., publishes works that further Oxford University’s objective of excellence in research, scholarship, and education. Oxford New York Auckland Cape Town Dar es Salaam Hong Kong Karachi Kuala Lumpur Madrid Melbourne Mexico City Nairobi New Delhi Shanghai Taipei Toronto With offices in Argentina Austria Brazil Chile Czech Republic France Greece Guatemala Hungary Italy Japan Poland Portugal Singapore South Korea Switzerland Thailand Turkey Ukraine Vietnam Copyright © 2010 by Oxford University Press, Inc. Published by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016 Oxford is a registered trademark of Oxford University Press Oxford University Press is a registered trademark of Oxford University Press, Inc. All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. ______________________________________________ Library of Congress Cataloging-in-Publication Data Culver, Keith Charles, 1969– Legality’s borders: an essay in general jurisprudence / Keith Culver and Michael Giudice. p. cm. Includes bibliographical references and index. ISBN 978-0-19-537075-1 ((hardback): alk. paper) 1. Jurisprudence. 2. Law—Philosophy. i. Giudice, Michael. ii. Title. K237.C858 2010 340–dc22 2009039244 _____________________________________________ 1 2 3 4 5 6 7 8 9 Printed in the United States of America on acid-free paper Note to Readers This publication is designed to provide accurate and authoritative information in regard to the subject matter covered. It is based upon sources believed to be accurate and reliable and is intended to be current as of the time it was written. It is sold with the understanding that the publisher is not engaged in rendering legal, accounting, or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. Also, to confirm that the information has not been affected or changed by recent developments, traditional legal research techniques should be used, including checking primary sources where appropriate. (Based on the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations.) You may order this or any other Oxford University Press publication by visiting the Oxford University Press website at www.oup.com
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- 12. contents Acknowledgments xi Introduction xiii chapter1. legal officials, the rule of recognition, and international law 1 1.1 Structure and Function of the Rule of Recognition 2 1.2 Explaining Officials’ Contribution to the Rule of Recognition: Facing Circularity and Indeterminacy 6 1.2.1 Officials by Office and Attitude 7 1.2.2 Speculative Social Anthropological Accounts 10 1.3 Hierarchy in the Rule of Recognition 14 1.4 The Rule of Recognition and International Law 22 1.4.1 Not a System but a Set 25 1.4.2 International Rules of Change and Adjudication 27 1.4.3 International Legal Officials? 32 1.4.4 Kelsen’s Account of International Law 37 chapter 2. the hierarchical view of legal system and non-state legality 41 2.1 Raz’s Structural Account of Legality 42 2.2 Functional Assessment of Raz’s Account of Legality 47 2.2.1 Indeterminacy at the Borders 47 2.2.2 Parochialism 54 2.3 State-Centered Hierarchy 62
- 13. viii contents 2.4 Non-StateLegality 65 2.4.1 Hierarchy and the European Union 66 2.4.2 Trans-State Legality Revisited 74 chapter 3. meta-theoretical-evaluative motivations 79 3.1 Perspective, Phenomena, Problems, and Method 80 3.1.1 The Ordinary Person’s Perspective and a Contingent Concept 81 3.1.2 Bootstrapping in Analytical Legal Theory 88 3.2 Recent Approaches to the Problem of Perspective 94 3.2.1 System and Set 94 3.2.2 Network Theory 99 3.2.3 International Relations Theory 101 3.3 Renewed Perspective 104 chapter 4. an inter-institutional theory 111 4.1 Elements of Legality 114 4.1.1 Content-Independent Peremptory Reasons for Action 114 4.1.2 Legal Normative Powers 115 4.1.3 Institutions of Law 120 4.1.4 Legal Institutions 122 4.1.5 Mutual Reference and Intensity 124 4.2 The Systemic Law-State 129 4.2.1 Minimum Content of Natural Law 129 4.2.2 Comprehensiveness, Supremacy, and Openness 131 4.2.3 System 133 4.3 The Narrative Concept of Law and the Problems of Circularity and Indeterminacy 138
- 14. contents ix chapter 5.an inter-institutional account of non-state legality 143 5.1 Meta-Theory Revisited: Between Legal Pluralism and Geo-Centric Statism 143 5.2 Meeting the Explanatory Challenge: Bringing Elements of Legality to Bear on Explanatory Problems Beyond the Systemic Law-State 148 5.2.1 Intra-State Legality 149 5.2.2 Trans-State Legality 155 5.2.3 Supra-State Legality 160 5.2.4 Super-State Legality 169 chapter 6. fresh problems 173 6.1 Pathologies of Legality 175 6.2 Novel Technologies and their Implications for Conceptions of Legality 180 6.3 Re-balance after Imbalance: Consequences of Re-socializing a Descriptive-Explanatory View of Law 181 Index 185
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- 16. acknowledgments We owe thanksto many colleagues for their encouragement and valuable comments on various drafts of parts of the book: Julie Dickson, Leslie Green, Neil MacCormick, Dennis Patterson, Brian Tamanaha, and Wil Waluchow. We would also like to acknowledge audiences who participated in discussion at the following events where early chapters of the book were presented: the Atlantic Region Philosophers Association, Fredericton, Canada (October 2006); the Oxford Jurisprudence Discussion Group, Oxford, England (February 2007); a special workshop, ‘Legality’s Edges’, at the meeting of the IVR in Krakow, Poland (August 2007); the Department of Philosophy, McMaster University, Hamilton, Canada (March 2008); the Center for Law and Society, Faculty of Law, University of Edinburgh, Edinburgh, Scotland (October 2008); and the Legal Research Institute, National Autonomous University of Mexico, Mexico city, Mexico (November 2008). We also thank research assistants Jessie Sabbagh, Jessica Duarte, and Emily Gray.
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- 18. introduction Analytical legal theoryhas long taken as its central focus the experi- ence of the law-state, and the success of analytical theories of law has been measured by their ability to explain the phenomenon of the law- state. Yet this focus and conception of success may be forced to change as the place of the law-state in our experience of law is chang- ing, from the United Kingdom’s devolution of power to Scotland, to integration of European law-states to the point of consideration of a shared constitution, to the rise of super-national legal institutions such as the International Criminal Court. The goal of this book is to revive the tools of analytic jurisprudence for a new set of theoretical challenges posed by the flourishing of novel forms of legal order. imbalances in analytical legal theory’s approach to prima facie legal phenomena We are far from revolutionary in pointing to a range of social phe- nomena that challenges the utility of approaches to legality that depart from the law-state as the fundamental instance of legality. Within the analytical approach both H.L.A. Hart and Joseph Raz are aware that the law-state is at the very least an institution with many forms, and that we have not given enough attention to understanding how the idea of “legal system” provides explanatory unity to understanding legality in the law-state and in phenomena not easily dismissed as outliers beyond the scope of our attention. Hart, for example, recog- nized in the closing chapter of The Concept of Law that colonial and post-colonial eras brought unanticipated developments of legal phe- nomena, raising “fascinating problems of classification” for theorists attempting to understand such devices as “[c]olonies, protectorates, suzerainties, trust territories, confederations”1 —all variants of sover- eignty with associated legal systems or subsystems of various kinds. 1. H.L.A. Hart, The Concept of Law 220 (1994).
- 19. xiv introduction Raz hasargued that although an understanding of legal system is crucial to an understanding of law, attention to legal system has been lacking: All four problems of the theory of legal system have for the most part been neglected by almost all analytical jurists. It seems to have been tradition- ally accepted that the crucial step in understanding the law is to define ‘a law’, and assumed without discussion that the definition of ‘a legal system’ involves no further problems of any consequence.2 Although Raz’s remark was made in 1970, we accept its enduring probative value—even though Raz’s subsequent writing perhaps inadvertently drew attention away from the problems of legal system and toward individual or constituent aspects of legal systems. He famously argues that legal systems are to be understood as claiming supreme authority to issue norms comprehending the whole of social life, all while remaining open in the sense that complementary social practices can be adopted for special legal purposes.3 Yet his subsequent work takes up very little of the themes of supremacy, comprehensiveness, and openness, focusing instead on the nature of authoritative reasons for action, often concretized in discussion of the force of particular kinds of norms in practical reasoning.4 More recently Raz has acknowledged that interest in the identity of legal systems has simply shifted elsewhere since Austin and Kelsen focused on the question: John Austin thought that, necessarily, the legal institutions of every legal system are not subject to—that is, do not recognize—the jurisdiction of legal institutions outside their system over them. (I am somewhat reinter- preting his claim here.) Kelsen believed that necessarily constitutional continuity is both necessary and sufficient for the identity of a legal system. We know that both claims are false. The countries of the European Union recognize, and for a time the independent countries of the British 2. Joseph Raz, The Concept of a Legal System 24 (1970). Earlier Hans Kelsen expressed a similar view: “Law is not, as it is sometimes said, a rule. It is a set of rules having the kind of unity we understand by a system. It is impossible to grasp the nature of law if we limit our attention to the single isolated rule.” General Theory of Law and State 4, (A. Wedberg trans., 1961). 3. Joseph Raz, Practical Reason and Norms 150–154 (1990). 4. See, e.g., Id. and Joseph Raz, The Authority of Law (1979).
- 20. introduction xv Empire recognized,the jurisdiction of outside legal institutions over them, thus refuting Austin’s theory. And the law of most countries pro- vides counterexamples to Kelsen’s claim. I mention these examples not to illustrate that legal philosophers can make mistakes, but to point to the susceptibility of philosophy to the winds of time. So far as I know, Austin’s and Kelsen’s failures were not made good. That is, no successful alterna- tive explanations were offered. In spite of this there is no great flurry of philosophical activity to plug the gap. Rather, the problem that their mis- taken doctrines were meant to explain, namely the problem of the identity and continuity of legal systems, lost its appeal to legal philosophers, who do not mind leaving it unsolved. Interest has shifted elsewhere.5 Shifting interests and waning appeal might justify changes in fash- ion, but they seem rather thin as reasons for analytical legal theorists to ignore important questions raised by new and changing prima facie legal phenomena for understanding of legal systems. The burden of Raz’s observation has not been entirely ignored, even though the challenge he offers has not been taken up in any substantial way. Jeremy Waldron recently suggested that: Those international lawyers who do bother to read Hart’s chapter on inter- national law usually come away with the impression that Hart, like Austin, did not believe there was any such thing as international law. That is not quite correct, but Hart did say that international law is like a primitive legal system—all primary norms and no secondary norms. And that was wrong in 1960 and it is certainly wrong now . . . This is another example of an area where Hart’s own carelessness or indifference has been imi- tated rather than compensated for, by his followers. Those who regard themselves as working to protect and develop Hart’s legacy have shown little interest in subjecting Hart’s claims about international law to any sort of careful scrutiny or revision. The neglect of international law in modernanalyticjurisprudenceisnothingshortofscandalous.Theoretically it is the issue of the hour . . .6 To describe these remarks as strong stuff is likely an understatement. Yet the firm tone of Waldron’s remarks is likely justified by the fact 5. Joseph Raz, Two Views of the Nature of the Theory of Law: A Partial Comparison, in Hart’s Postscript: Essays on the Postscript to The Concept of Law 11 (J. Coleman ed., 2001). 6. Jeremy Waldron, Hart and the Principles of Legality, in The Legacy of H.L.A. Hart: Legal, Political, and Moral Philosophy 68–69 (M. Kramer et al. eds., 2008).
- 21. xvi introduction that somuch time has passed from Hart’s tentative engagement of borderline phenomena of legality, to Raz’s recognition of the short- comings of analytical approaches to legal system, and to the current situation in which only a few widely read figures such as Neil MacCormick are making real inroads into manifestations of legality at the edges of the familiar model of the law-state. These observations leave us at a critical turning point. Prima facie legal phenomena give reasons to doubt the adequacy of at least extant analytical explanations of the nature of legal system and the condi- tions for inclusion or exclusion of social phenomena within particu- lar legal systems or subsystems. Far from this observation arriving as a surprise to analytical theorists, it appears that there is longstanding recognition of the need to account for these troublesome phenomena at legality’s borders. What is worse, there is recognition among ana- lytical theorists that for whatever reason they have continued to fail to take up the challenging “issue of the hour” as Waldron puts it. What should be made of this? Here we part ways with Raz’s suggestion that the “winds of time” are to blame for analytical legal theory’s neglect of the problem of the relation between legality and legal system. Our diagnosis is much less optimistic. What Raz sees as neglect is in fact much worse: it is simply a symptom of an underlying inability of dominant analytical approaches to capture legal phenomena outside the model of the law-state. Our diagnosis can be framed quite simply. Current analytical approaches to legality and legal system exhibit a kind of explanatory imbalance which deprives those approaches of the capacity to respond to novel law-like social phenomena. Although analytical jurisprudes have constructed rich and deep theories of the distinguishing fea- tures of individual legal norms, significantly less attention has been devoted to accounts of legal systems which house individual norms. Two particular aspects of norm-level investigations have exacerbated this imbalance. First, analytical theorists in the Hartian tradition have failed to recognize that accounts of Hart’s notion of an official- operated rule of recognition require both structural and functional parts: while we have rich structural explanations of the logical fea- tures of the rule of recognition, little attention has been given to whether it can actually function in a way that allows it to carry out the promised task of distinction of valid legal norms of a system from
- 22. introduction xvii other normativeclaims. We contend that it does not, and moreover that it cannot, since as we argue in detail in Chapter 1, the official- dependent rule of recognition contains insuperable problems of cir- cularity and indeterminacy in its account of the nature and identity of officials, and these problems deprive the rule of recognition of its promised explanatory power. Legal officials make a special constitu- tive contribution to the rule of recognition since their practices of norm-creation, application, and enforcement are system-constituting and system-defining practices. Yet without an adequate account of who the legal officials are, and how their identity might change, a necessary precondition for a theory of legality and legal system is unsatisfied. Second, and more generally, the analytical approach con- tains an imbalance between the descriptive and explanatory parts of its account of legality and legal system. A great deal of effort has been devoted to elaboration of the explanatory part, provided as an account of what is conceptually or logically possible for a system of norms. Much less effort has been given to the descriptive part, understood as the attempt to test conceptual explanations of legal governance against observationally-available evidence. The presence of this imbal- ance is evident in the paucity of analytical theories’ explanation of their connection to observational evidence, and to adjacent areas of inquiry into life under law. As we argue in Chapter 3, employment of evidence tends to proceed without reference to a general account of the nature of evidence, requirements for reliability of that evidence, and so on, required to support the explanatory part of the analytical theory of law. What appeals there are to evidence amount to surveys of data intuitively relevant to elucidation of “our concept” and simi- larly obscure objects, whose explanation is not clearly connected to moments of greater ambition involving elucidation of more than local practices. new phenomena Yet the imbalances just identified are perhaps most demonstrable in the failure of analytical legal theory to address prima facie legal phe- nomena in a variety of emerging contexts. Prima facie legal phenom- ena fall under four admittedly provisional categories which rely for
- 23. xviii introduction their utilityon their conventional meaning within law, political science, and legal theory.7 We identify and discuss intra-state legality, trans- state legality, supra-state legality and super-state legality, capturing a range of norms and normative orders often spoken of as international law. It should be emphasized that although we write here of these phenomena as exhibiting “legality,” we do so only suggestively, as part of our contention that they exemplify social phenomena which pose a serious challenge to the explanatory adequacy of contemporary analytical legal theory. Conclusive analysis of course awaits the results of our arguments contra contemporary analytical theory, and our positive argument for what we call an inter-institutional theory of legality. Intra-State Legality Perhaps the most intuitively challenging instances of prima facie legality are found within the law-state, yet nonetheless appear to be meaningfully independent of the law-state and so deserve recogni- tion as “intra-state” forms of legality. Distributed governance arrange- ments are likely the most familiar intra-state devices for creation of what are sometimes regarded as subsystems of law, a relinquishing of centralized governance authority that nonetheless stops short of full division of sovereignty. In these arrangements historically core legal institutions distribute their authority to relatively distant legal institutions within the system, whether reformed extant institutions or new institutions. Typically this distribution is undertaken to locate decision-making within institutions best suited to making particular decisions—whether geographically or experientially or financially or in some other way best suited. Shared governance is a less familiar, yet increasingly evident form of governance involving collaboration between traditionally or historically central legal institutions and other social organizations of varying complexity and institutionaliza- tion, contributing in various plainly evident ways to formation and variation of legal norms. From shared governance we may now be moving to overlapping, relatively independent legal orders of a new 7. For another account, William Twining usefully identifies eight differ- ent “levels” of law in General Jurisprudence: Understanding Law from a Global Perspective 70 (2009).
- 24. introduction xix form orkind of order—perhaps sometimes in spite of insistence to the contrary on the part of the central agents in these new orders.8 In Canada, for example, federal and provincial governments face complex governance tasks with respect to indigenous “First Nations” peoples, several of whom are still in the process of negotiating land claims treaties, denying Canada’s authority and acting in a fashion similar to sovereign states while for the most part remaining de facto within the authority of the Canadian law-state. The justice of First Nations claims and the aftermath of colonial practices have left fed- eral and provincial governments very sensitive to the complexity of governance of related issues. One result has been the negotiation of methods of mutual relation between the Government of Canada and First Nations authorities regarding matters such as taxation. For example, the Government of Canada itself acknowledges in the terms of its regulations governing the appointment of commissioners that the newly created First Nations Tax Commission is “a shared governance organization which requires that appointments to the governing body be made by both the Government of Canada and at least one other government or organization.”9 The First Nations Tax 8. For an illuminating account of emerging forms of federalism, see, e.g., Robert B. Ahdieh, From Federalism to Intersystemic Governance: The Changing Nature of Modern Jurisdiction, 57 Emory Law Journal 1–30 (2007). 9. See First Nations Tax Commissioner Appointment Regulations, http://www. fntc.ca/en/supporting-legislation/regulations/first-nations-tax-commissioner- appointment-regulations (last visited October 29, 2009) The role of the First Nations Tax Commission (FNTC) is explained as follows: Specifically, the FNTC was created to • assume authority for the approval of First Nation property tax laws made under the Act; provide professional and objective assessments of First Nation • property taxation under the Act; • prevent and minimize the costs of disputes by providing a mechanism for hearing the concerns of affected parties under the Act and for promoting the reconciliation of the interests of First Nations and taxpayers; • set standardized administrative practices for First Nation real property tax administrations created under the Act and provide training to ensure standards are achieved; provide education in order to raise awareness of the benefits of First • Nation taxation between First Nations and the rest of the country; and
- 25. xx introduction Commission aimsgenerally to reform existing divisions of authority, recognize First Nations governments, and reconcile First Nations interests with other Canadian interests. The nature of this relation is complex, yet whatever final analysis reveals, it is worth considering the possibility that new forms of legal order are being forged. Trans-State Legality If intra-state practices such as shared governance are the most intui- tively challenging instances of potentially non-state legality, perhaps the most surprising unanticipated developments are found in situa- tions in which apparently non-state agents function like state agents in making general agreements outside the state which nonetheless bind citizens within the state. In situations of this kind, norms claim- ing peremptory, content-independent force10 arise as a result of prac- tice or convention and are generally recognized as holding that force without reference to authorization of those norms by any particular law-state. • advise the Minister on policy issues relating to the implementation of First Nation property taxation powers and on any matter or policy put to it by the Minister. The FNTC is a shared governance organization which requires that appointments to the governing body be made by both the Government of Canada and at least one other government or organization. In the case of the FNTC, nine commissioners are selected by the Governor in Council on behalf of the Government of Canada, with the remaining commissioner appointed by a body established pursuant to subsection 20(3) of the Act. The First Nations Tax Commissioner Appointment Regulations, made pursuant to paragraph 140(a) of the Act, identify the NLC as the body to appoint the additional commissioner to the FNTC. Renowned for its expertise in promoting First Nation law, the NLC is a research centre within the University of Saskatchewan. It is responsible for the Program of Legal Studies for Native People. This program has been widely recognized for its role in increasing Aboriginal representation in the legal profession. The NLC also publishes the Canadian Native Law Reporter and since 1997, the First Nations Gazette. The First Nations Gazette is similar to the Canada Gazette and has been instrumental in improving the accessibil- ity of First Nation laws, maintaining confidence in First Nation governments, and improving First Nation taxpayer relations. 10. On the peremptory and content-independent character of legal rea- sons see H.L.A. Hart, Essays on Bentham 243–268 (1982).
- 26. introduction xxi Our exampleis taken from the complex and increasingly important area of ocean resource governance, and more specifically, in gover- nance of fishing of salmon which migrate across state boundaries and international waters. The Greenland Conservation Agreement provides for a seven-year moratorium on commercial, non-subsistence salmon fisheries in Greenland’s territorial waters, from the 2007 season forward. This agreement extends the practice established by a 2002 moratorium. The agreement is signed by the “Atlantic Salmon Federation (ASF) of North America, the North Atlantic Salmon Fund (NASF) of Iceland, and the Organization of Fishermen and Hunters in Greenland (KNAPK), three non-governmental organizations” and “has been endorsed by the Greenland Home Rule Government which will help enforce it. . . .”11 Several aspects of this agreement are rele- vant to analytical theories of legality, and their inclusion or exclusion of this phenomenon as an instance of legality or part of a legal order. In assessing whether the moratorium might represent a legal norm or part of a legal order, it is significant that its proponents are neither governmental bodies nor representatives of government; in fact, the independence of this agreement from the law-state and inter- national law goes much further. The Atlantic Salmon Federation draws its membership from both the United States and Canada and as a transboundary non-government organization is beholden to nei- ther government. The Home Rule Government of Greenland is a devolved authority of the Kingdom of Denmark and lacks authority to enter into international treaties. These and the other proponents have entered into an agreement they describe as a “a private contract”12 growing out of an agreed practice, relying on social pressure within this group for its effectiveness and having no reference to the laws of any state jurisdiction as the laws of the agreement or the legal locus of dispute resolution with respect to the agreement. The agreement nonetheless extends an effective established moratorium on com- mercial salmon fishing in Greenland’s waters, to the extent that 11. “New Atlantic Salmon Conservation Agreement—Safer Ocean Migra- tion Ensured”, http://www.asf.ca/news.php?id=99. (Last visited July 27, 2007). 12. Personal communication with the Atlantic Salmon Federation, July 2007.
- 27. xxii introduction where tenyears ago 600 license holders fished those waters, now there are none. Supra-State Legality: The Puzzle of the European Union The preceding example of non-state legality mentioned the familiar feature of international law: that its existence depends largely on the consent of states. This arrangement preserves the sovereignty of states as a fundamental norm of international law while grounding the force of international legal obligations in states. Voluntary agree- ment of the sort familiar from international law undoubtedly lies at the historic foundation of the European Union; yet as the Union has evolved it has come to claim that it represents a new legal order, nei- ther a super-state nor an intergovernmental association.13 But what is that legal order? And what is the relation of that order to explanations of legality as fundamentally systemic in a sense best evident in the law-state? Julie Dickson usefully suggests that the puzzling nature of the European Union can be revealed by asking an intuitively but mis- leadingly simple question: how many legal systems are there in the EU?14 As Dickson notes, there are several possible answers: one legal system for every Member-State; one legal system for every Member- State plus one additional European legal system; or perhaps only one, super-European legal system. If there is more than one system—i.e. more than just one super-European legal system—how are legal theo- rists to characterize the relations among the systems? In particular, since both Member-State courts and the European Court of Justice have claimed supremacy of final authority to interpret and apply European law, can we view either Member-State legal systems or a European legal system as in some meaningful sense derivative, sub- ordinate, or part of the other(s)? Or does this puzzle point us back to giving more serious consideration to the possibility that the European Union’s claimed “new legal order” really is something new and different, not usefully reduced to talk of legal system? 13. Case 26/62 Van Gend en Loos v. Nederlandse administratie der belastingen [1963] E.C.R. 1, p. 12. 14. See Julie Dickson, How Many Legal Systems?: Some Puzzles Regarding the Identity Conditions of, and Relations Between, Legal Systems in the European Union 9–50, 2 Problema: Annuario de Filosophia y Teoria del Derecho (2008).
- 28. introduction xxiii Super-State Legality:Claims to Universality in Peremptory Jus Cogens Norms In mentioning the role of states’ consent in the existence of interna- tional law we omitted identification of a further element of interna- tional law: the relatively small set of jus cogens or peremptory general norms of international law. These norms purport to bind states and their authorities independently of any prior consent: both historic and newly created law-states now appear everywhere subject to a sort of substrate of general, peremptory norms which claim to form part of a universally supreme system.15 These norms have more recently been employed to bind the leaders of states, who might dispute the norms’ application to them, as Slobodan Milosevic, former President of Serbia and Yugoslavia, famously did throughout his trial.16 A now-familiar range of jurisprudential questions emerges: is the existence of jus cogens demonstration that there is one global legal system, in which each law-state is but a subsystem? What distin- guishes one subsystem from another? Or are peremptory interna- tional norms part of some non-systemic international legal order instead incorporated universally into otherwise separable state systems, so we have “one” international law inside the “many” law-states? Or something else? state-based legal theory Analytical legal theory that takes the experience of the law-state as the standard and measure of legality explains the existence and nature of 15. Jus cogens, or peremptory norms of general international law, is clearly defined in article 53 of the Vienna Convention on the Law of Treaties (1969): A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general international law. For the purposes of the present Convention, a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. 16. See, e.g., “Milosevic Defiant in Court”, http://news.bbc.co.uk/2/hi/ uk_news/wales/1420561.stm (last visited Apr. 7, 2008).
- 29. xxiv introduction non-state typesof prima facie legality in the following way: intra-, trans-, supra-, and super-state social phenomena are legal phenom- ena only to the extent that (i) they share the characteristic features of state law or (ii) are in some way actually supported by or connected to state practice or recognition. Although we shall analyze the quality of state law in detail in subsequent chapters, it is enough at this point to offer a working formulation which combines the views of Hart and Raz: state law exists where there are primary rules of obligation and secondary rules of recognition, change, and adjudication which in combination and in the hands of central law-applying officials claim with a certain degree of success to govern comprehensively, supremely, and openly.17 On this understanding of the features of state law it is easy to see that other forms of legality must in some way be connected to state practice: if the world is divided without remain- der into states which make and practice claims of comprehensive- ness and supremacy, little conceptual or normative room is left for novel, state-independent forms of legality to emerge. Yet how well does such a state-based approach actually fare in explaining the novel phenomena sketched above? Here we offer the beginning of a diag- nosis which we take up more fully in Chapters 1 and 2. In examples of intra-state prima facie legality such as the First Nations Tax Commission, application of the state-based approach may be stretched beyond credulity if we say that what marks the legal- ity of this interaction is incorporation of First Nations authorities by Canadian officials’ recognition of them. The nature of the relation simply does not bear this out, to the extent that the Government of Canada itself represents the relation as one of shared governance between distinct governments. An adequate theoretical understand- ing of this situation may need to reach beyond the law-state model of legality and legal system to understand the special characteristics of intra-state legal orders which abut or overlap in various ways the range of other legal orders with which they interact. Put simply, what is the relation between First Nations’ legal order and the legal system of Canada? Whatever the answer, it cannot simply presume that First 17. We examine in detail the legal theories of H.L.A. Hart and Joseph Raz in Chapters 1 and 2.
- 30. introduction xxv Nations’ claimsand experience must be read through the lens of the extant and dominant Canadian law-state. A state-based analytical approach also interprets trans-state social practices such as the Greenland Conservation Agreement in a par- ticular way: the agreement-derived obligation applying to all salmon fishers in Greenland’s waters is a legal norm insofar as the Greenland Home Rule government has enacted this norm or endorsed it by authoritative certification, out of the urging of non-governmental organizations (NGOs), and under the authority granted it by the Kingdom of Denmark to govern natural resources. The precise con- tours of this norm can be assessed by observation of how Greenland’s officials in fact handle application of the norm. Little more need be said about this situation on the state-based analytical approach, because the NGOs are just that—non-governmental—and so are not parties to an international treaty, and the Greenland Home Rule gov- ernment is simply exercising its devolved powers. This conventional analytical view of course expresses a plausible understanding of the situation; yet a kind of distorting selectivity of emphasis seems evi- dent, and that selectivity points to shortcomings in an approach that presumes that a justified ascription of legality to some state of affairs must be a statement about membership in a system of norms associ- ated with an authorizing law-state. In seeking a state-based explana- tion of the phenomena, the conventional view obscures the special formative role of the NGOs in the agreement, and in turn mistakenly underestimates the contribution of the Greenland Home Rule govern- ment in reaching an agreement which falls short of an international treaty, yet seems to be something other than simple incorporation into Greenland law of normative content presented by lobbying from NGOs from within and without Greenland. The effectiveness of the moratorium and its independence from law-states resembles the emergence of a legal order or subsystem from practice—even as a description of the situation in these terms might be surprising to some of the participants. This zone of interstitial, transboundary prima facie legality might, of course, be affected by Danish, Canadian, or U.S. governments’ activities in international treaties in this area, but this is a familiar matter: not all legal norms are of equal force, nor are all legal orders, systems, and subsystems of equal force. As with the case of self-governance in Canada, we are left with a puzzle: what is the legality of effective peremptory norms which
- 31. xxvi introduction happen tobe reported as “private contracts” despite their being formed by the secondary rules of no particular system? More simply, what tells us whether these social phenomena are legal or non-legal, and if so, what determines their system membership and how that membership matters to their legality? Whatever the answer to these questions, it cannot simply presume that what appear to function as legal norms must have state-based origins. Answers to questions about the nature of the European Union as a form of supra-state legality also require prior answers to the ques- tion of the nature of legal system and the edges of a given legal system. What is also clear, however, is that a search for a state-based explana- tion of the European Union’s legal order will not be of much help. While the expression “European Community” is widespread, there is justifiable reluctance to attribute to it statehood, understood in the conventional way, when it is observed that member-states still retain significant political and legal powers. Yet, it would be equally mis- leading to suppose that individual state recognition is capable of ade- quately explaining the existence and nature of the European Union legal order, since on this account there would be no European Union law at all which governs member-states, but only a new political source of norms which individual member-states have the discretion of either incorporating or not into their domestic legal systems. Again, such an explanation is required if member-state legal systems are understood to be making meaningful claims of supremacy and com- prehensiveness. As will become clear throughout the course of our argument, little ground is gained by simply “bootstrapping” from the presupposition that legality’s foundational unit is the state, since such a view is precisely what gives rise to the puzzling aspects of the legality of and within the European Union as we ask whether its new legal order is one or many. Here it seems to us that legal theorists such as Neil MacCormick are right to think that European law is inadequately theorized, and not just because we lack answers to ques- tions regarding its nature, but more importantly because it is likely we lack the theory required to answer them.18 18. See Neil MacCormick, Questioning Sovereignty: Law, State, and Nation in the European Commonwealth (1999).
- 32. introduction xxvii State-based legaltheory gives much the same explanation—and so faces much the same difficulty—for super-state legality as it does for supra-state legality. But since analytical approaches to law have said so little about super-state legality, there is little merit speculating on how H.L.A. Hart, for example, might renovate the final chapter of The Concept of Law in which he concludes that international law exists only in the form of primary rules since no rule of recognition is evi- dent in the practices spoken of and regarded as international law. Indeed, in the next chapter we offer reasons why the core of Hart’s view is likely beyond renovation when applied to international law. re-balancing after imbalance: an incremental addition to analytical legal theory The results of preceding discussion now allow us to state in more detail the goals and course of argument provided in the next and suc- ceeding chapters. We do not take ourselves to be offering fatal criti- cisms of the analytical approach; rather, we aim to contribute to the cycles of improvement running from Bentham to Austin, to Hart and on through the many contributions undergirding the sophistication of contemporary legal theory’s norm-level explanations of legality. Yet we do aim to re-balance the analytical approach by building a better institutional account of legality and legal system, supported by improved descriptive-explanatory elements of an analytical legal theory that aims at continuity between theoretical and empirical accounts of life under law. We take as our touchstones two characteristic approaches to the novel phenomena we have sketched. State-based theories of Hart and Raz suppose that intra-, supra-, super-, and trans-state legality are only law (and so part of the object of analysis of general jurispru- dence) to the extent that they share the characteristic features of state law or are in some way actually supported by or connected to state practice or recognition. As we suggested above and will argue further in subsequent chapters, state-based explanations—with their com- mitment to the ideas of “official”, “hierarchy”, and “system”—very likely distort the nature of emerging forms of prima facie legality, forcing as they do all experience of legality through understanding of the law-state. Legal pluralists such as Brian Tamanaha occupy the
- 33. xxviii introduction opposite endof the spectrum of contributions to analytical legal theory which at least purport to recognize and handle novel kinds of social phenomena. Tamanaha rejects entirely state-based legal theory as “analytical imperialism”,19 and urges instead admission that the forms of legality are simply too diverse—with none more theoreti- cally important than others—to continue pursuit of essential features of law. Although legal pluralists are characteristically more sensitive than orthodox Hartians to the diversity and emergence of social phe- nomena warranting attention from legal theorists, we shall argue that Tamanaha’s legal pluralism likely surrenders too readily and too much to a kind of skepticism about the possibility of broad and general understanding of legal order applicable across cultures and times. The inter-institutional theory of legality we propose in Chapters 4 and 5 is not a panacea, but a modest addition to the line of argument begun by Hart. We aim to secure the explanatory advantages accru- ing from commitment to morally neutral methods, while advocating a modest universalism in explanation of legality and legal system, much as Hart did in pursuing a style of general jurisprudence which explains law as “a form of social institution with a normative aspect, which in its recurrence in different societies and periods exhibits many common features of form, structure, and content.”20 Although its full meaning can only be delivered in the chapters that follow, our inter-institutional theory offers a descriptive-explanatory picture of legality as variegated combinations of legal institutions, institutions of law, and function-oriented content-independent peremptory norms and associated normative powers. In this picture, diverse kinds of relation of mutual reference among these elements charac- terize legality, rather than a particular relation to a hierarchical, com- prehensive, supreme, and open law-state. To the extent that our inter-institutional account is not based in the law-state, it avoids the explanatory distortions of the approach to legal theory which sees all claims to legality as claims in some way parasitic upon a foundational explanation of legality rooted in the central case experience of the 19. Brian Tamanaha, A General Jurisprudence of Law and Society 146 (2001). 20. H.L.A. Hart, Comment in Issues in Contemporary Legal Philosophy 36–37 (R. Gavison ed., 1987).
- 34. introduction xxix law-state andits typical uses of law. Escape from the historically dominant yet only contingently central experience of the law-state opens the way to explanatory separation of the state from legality. This separation enables better characterization of such blends of legal system and political model as devolved governments, shared gover- nance, associations of international institutions, and many others discussed in the remainder of our argument. In developing our theory we recognize the importance of the law- state to legal theory, yet we are particularly concerned to provide an account of legality that is minimally attached to the presumption of the law-state as a primary or sole source or model of legality, to avoid prejudicial assessment of the nature of prima facie legal phenomena which seem to be emerging outside the law-state. The inter-institutional theory represents in this way a response to both the meta-theoretical- evaluative challenge of identifying legal theory’s object of study, and the task of providing a theoretically illuminating account of that object of study—legality and legal order, whether within or without the long-dominant idea and practice of the law-state. Our conclu- sion—that we must go beyond theories of law tied to the law-state—is, we think, appropriately unsurprising. Just as we are all now accus- tomed to a less prominent role for the law-state in life under law, so our theories of law must face their explanatory task without the com- forting assumption of a central instance of legality which is the mark and measure against which all other legality is to be understood. The remaining chapters are organized as follows. Chapters 1 and 2 are preparatory, and investigate the limits to contemporary analyti- cal legal theories as these function in explanation of both the borders of state legal systems and the existence and reaches of non-state instances of prima facie legality. More specifically, in Chapter 1 we analyze the limits to Hart’s account of an official-operated rule of rec- ognition as an account of the existence and borders of legal systems. We develop our argument via assessment of the success of the account’s solutions to problems of circularity and indeterminacy in the identification of a distinct class of legal officials whose practices constitute the rule of recognition. We aim to show that while the problem of circularity may have been adequately addressed in expla- nation of state legal systems, its solutions leave intact the problem of indeterminacy and reveal a strong presumption of hierarchy which threatens to run past rather than solve issues at the borders of
- 35. xxx introduction legality. Thisis true in explanation of state legal systems, but the difficulties are particularly troubling in explanation of international law, as analysis of Hart’s chapter on international law in The Concept of Law makes plain. In Chapter 2 we examine Raz’s theory of legal system, which explicitly sets out to overcome difficulties in Hart’s account regarding the identity and borders of legal systems by introducing new explana- tory elements. Raz claims that legal systems are unique normative systems since they claim, via the activities of a broad range of norm- applying institutions, to govern comprehensively, supremely, and openly the social life of their subjects. Unlike Hart’s, Raz’s theory is avowedly state-based and state-restricted, as he says it is not meant to be tested against non-state phenomena of legality. Here we argue that there are nonetheless several problems with Raz’s theory as a contri- bution to general jurisprudence. In addition to leaving the problem of indeterminacy unresolved, Raz’s theory is unable to explain various types of state legal systems that are comprised of federalist structures as well as shared and distributed governance arrangements. We will also argue that the feature of openness offers a sweeping but distort- ing account of non-state legality, suggesting as it does that all non- state forms of legality must be in some sense supported or authorized by state institutions and law. Chapters 1 and 2 examine the limits to two of the most influential contemporary analytical legal theories. In Chapter 3 we consider these limits more generally and return to the method and purpose of analytical jurisprudence. We discuss the way analytical legal theorists have attempted to identify what they claim are necessary features of an admittedly contingent concept of law, and the meta-theoretical- evaluative virtues appropriate to such an explanation. We argue that the problems associated with leaving the issue of indeterminacy unresolved and the lack of specification of the connection to actual social situations demonstrates just how narrowly bootstrapped exist- ing analytical legal theories are. Such theories suppose that adequate data and experience of life under law are in hand such that a general jurisprudence can be advanced. Our conclusion is not that bootstrap- ping itself is at fault, but only the way it has been carried out. In Chapter 3 we offer a renewed view of the perspective of analytical legal theory that emphasizes the conditions under which bootstrap- ping must be carried out to achieve a general jurisprudence that is
- 36. introduction xxxi balanced inits conceptual elaboration and descriptive-explanatory responsiveness to situations of life under law. Chapters 1 to 3 set the challenge to be met by any supplement to analytical legal theory’s approach to legality. In Chapter 4 we describe our response to this challenge as an “inter-institutional theory” of legality. Our approach is rooted in an account of content independent peremptory norms, normative powers, institutions, and relations amongst groups of institutions which deserve to be regarded as legal. As we shall argue, these elements of legality can combine in different ways, and at varying levels of intensity, which explains the differing degrees of normative force, scope, and diversity of subject matters that legality covers both within and without the state. The key to our approach is that it makes minimal use of the ideas of legal officials and legal system in explanation of the existence and borders of legality. Where legal officials and legal system are present, these rep- resent particular combinations of norms, powers, institutions, inter- institutional relations, and subject matter, most often focused in the law-state. But the connection between legal official and legal system on the one hand, and legality on the other, is best characterized as contingent. On our inter-institutional view, then, the connection between legality and the state, though historically dominant, is itself contingent. We also show how hierarchy is one among many types of relation between institutions, and by no means exhaustive as a descriptive-explanatory tool in tracing the borders of legality. So although in Chapters 1 and 2 we leave open the possibility that exist- ing accounts may be open to further elaboration in ways that might meet at once both the circularity and indeterminacy challenges in explanation of the law-state, in Chapter 4 we show how the inter- institutional view provides a superior alternative. Separation of legality from the state is what enables our view to better explain without distortion the various forms of non-state prima facie legality whose emergence is too pervasive to leave outside the scope of a balanced general jurisprudence. In Chapter 5 we return to the prima facie legalities we have identified above, and show fully how freedom from the ideas of legal official, legal system, and hierar- chy (and so in general the idea of “chains of validity”) is crucial to responsive descriptive-explanation of legality broadly. In the final chapter we come full circle, and argue how the problems of continuity and identity, declared unsolved by Raz, are
- 37. xxxii introduction fundamentally altered.The old conceptions of the problems are thor- oughly state, official, system, and hierarchy-based, and as such are of limited value in facing both old and new challenges to explanation of the existence and borders of legality. We propose a new way of under- standing these old problems, here re-characterizing them in terms more suited to the goals of general jurisprudence in facing a much broader range of phenomena than before. In the concluding chapter we also identify some of the next challenges an inter-institutional view faces.
- 38. 1. legal officials,the rule of recognition, and international law It is only a small exaggeration to say contemporary analytical legal theory began with Hart’s contention that we might find the “key to the science of jurisprudence”1 in the combination of primary and secondary rules. Hart’s “practice theory of rules”2 has influenced a generation of thinking about legal norms, even as Hart himself has conceded defects in the theory. Hart did not, however, surrender the practice theory of rules entirely, and what remains of the theory is arguably its core: the account of the rule of recognition, the special “master” or “ultimate” secondary rule whose intentional practice in the hands of legal officials binds together and gives life to a legal system.3 For Hart, and indeed for nearly all major contemporary ana- lytical legal theorists, the rule of recognition remains the cornerstone of morally neutral, descriptive-explanatory theorizing of law and legal system; and to the extent that the idea of a legal system bears the mark of legality, the rule of recognition is a key to understanding the idea of legality. It is accordingly crucial to the analytical project that the nature and function of the rule of recognition should be fully explained, with particular attention to the nature and function of the legal officials whose acceptance and practice of the rule of recognition simultaneously constitute the rule and give evidence of its existence and reaches. Here a significant challenge arrives. How exactly are 1. H.L.A. Hart, The Concept of Law 81 (1994). 2. Id. at 254. 3. As Hart puts it in the Postscript, “. . . the theory remains as a faithful account of conventional social rules which may include, besides ordinary social customs (which may or may not be recognized as having legal force), certain important legal rules including the rule of recognition, which is in effect a form of judicial customary rule existing only if it is accepted and prac- ticed in the law-identifying and law-applying operations of the courts. . . .,” Id. at 256.
- 39. 2 legality’s borders officialsin actual social situations to be identified, such that the existence and borders of legal systems can be determined? In this chapter we investigate the nature of the limits of Hart’s account of legal officials and the rule of recognition in explanation of the borders of law and legal systems. We do so by analyzing two familiar problems the account must face: the problem of circularity refers to the burden of identifying legal officials without presuppos- ing a notion of legal validity, which is simply the set of criteria of membership in a legal system practiced by its officials, whereas the problem of indeterminacy refers to the burden of identifying which sorts of activities or exercises of power in a legal system distinguish officials from non-officials, and so determine the borders of legal sys- tems. We aim to show that while Hartian analytical legal theories have offered satisfactory solutions to the problem of circularity, they have largely overlooked the problem of indeterminacy and its conse- quences for (i) identification of legal officials and (ii) characterization of the “functional” part of the rule of recognition qua descriptive- explanatory account of actual experience of life under law. We should emphasize that our purpose in this chapter is mainly comparative. As we explained in the first chapter, familiar features of theories of state legal systems may be ill-suited to explanation of non-state instances of legality. In explanation of state legal systems, the limits to determinacy in Hart’s account of legal officials are more or less tolerable given the restricted focus on explaining the nature of state law (although there is room for more work along lines we sug- gest, and we take up Raz’s account of legal system fully in the next chapter). In explanation of international law, however, we argue that the limits take on new force and become significant shortcomings, and show clearly that new descriptive-explanatory elements—beyond the notion of an official-operated rule of recognition—are needed for a balanced general jurisprudence. 1.1 structure and function of the rule of recognition As originally sketched by Hart, the rule of recognition is a criterial device whose operation identifies valid legal norms of some system. He later accepted the suggestion that “the rule of recognition is
- 40. the rule ofrecognition and international law 3 treated in my book as resting on a conventional form of judicial consensus.”4 This much, then, is the foundation of the rule of recognition, whose explanatory value is widely accepted by analytical legal theorists. Yet is this an adequate explanation of the role of the rule of recognition in identification of the existence and borders of legal systems? There are reasons to worry about the quality of available answers. As Brian Bix has argued, for example, In the course of answering some of Raz’s arguments for exclusive legal positivism, Coleman offered clarifications (some might say, modifica- tions) of the legal positivist position regarding the nature and role of the Rule of Recognition within a legal system. The end product may be a more precise theory, and one which arguably offers a more accurate description of our practices, but there are questions about its explanatory force and distinctiveness.5 We shall discuss later the descriptive accuracy and the explanatory force of post-Hartian versions of the rule of recognition. For the moment, however, it is worth continuing to follow Bix’s summary of Coleman: As Coleman pointed out, the Rule of Recognition can serve a variety of purposes within a legal system. It serves a “metaphysical” function to the extent it determines whether norms are valid members of a legal system or not (whether they are or whether they are not “law”). It serves a seman- tic function to the extent that it helps to specify the truth conditions for general propositions of law (“it is the law that. . . .”). Finally, the Rule can serve two different “epistemic” functions: validation, through helping judges determine whether official actions are valid; and identification, through helping citizens determine which norms are binding law for them.6 Far from its origins as a criterial device for validation of norms, the rule of recognition as elaborated by Coleman is a multi-purpose entity, even as Coleman is at pains to mark its being addressed to officials, contra Joseph Raz’s emphasis on the rule of recognition as a 4. Hart, supra note 1, at 266–7. 5. Brian Bix, Patrolling the Boundaries: Inclusive Positivism and the Nature of Jurisprudential Debate (1999) 12 Canadian Journal of Law and Jurisprudence 17, 25. 6. Id.
- 41. 4 legality’s borders validationof norms capable of being obeyed by citizens.7 Debate over this point of emphasis goes on, as do debates regarding the possibil- ity that the rule of recognition need not (or cannot) be a conventional rule.8 What remains constant as the conceptual accounts gain detail and precision is the view that the rule of recognition is chiefly the product and tool of officials. Raz may be right that the rule of recogni- tion affords citizens an opportunity to identify their legal obligations (and permissions, and so on). Officials, however, remain special insofar as their use of the rule of recognition is taken to be system- constituting, constantly reaffirming and creating the edges of their legal system. Here a much simpler way of understanding the multi- purpose rule of recognition might be introduced, both for clarity in analysis and to assist explanation of what we will later argue are seri- ous problems in the application of the notion of an official-operated rule of recognition to international law. On the view we propose, the rule of recognition should be under- stood as having both structural and functional aspects in a descriptive- explanatory account of law and legal system.9 Our advocacy of this view arises from our observation that analytical legal theorists typi- cally assert simultaneously that legal norms have a special existence distinguishing them from other norms, and further assert that the special existence is revealed in the way those norms are handled by a special class of norm subjects. In its structural aspect the rule of recognition identifies something like the anatomical aspects of a legal system: as explained by Hart, the rule of recognition marks the membership criteria of valid legal norms, and ranks conflicting sources of law. This aspect of the rule of recognition is espe- cially important to analysis of historical systems of law, for example, 7. This possibility is a central feature of Raz’s “service conception” of authority. See Raz, Authority, Law, and Morality, in Ethics in the Public Domain, (1995). 8. See, for example, Leslie Green, Positivism and Conventionalism, 12:1 Canadian Journal of Law and Jurisprudence 35–52 (1999). See also Julie Dickson, Is the Rule of Recognition Really a Conventional Rule? 27 Oxford Journal of Legal Studies 373–402 (2007) . 9. For a similar view see Lewis Kornhauser, Governance Structures, Legal Systems, and the Concept of Law, 79 Chicago-Kent Law Review 355, 375 (2004).
- 42. the rule ofrecognition and international law 5 Roman law. Using the rule of recognition for the system of Roman law, it is possible to make findings of Roman law, even though the system’s officials are dead. Yet apart from a sort of mechanical deriva- tion of findings from the body of laws we know operated as a legal system, there is little more we can say without looking to the record of how actual officials were identified and how they applied legal norms of the system. So although the existence and identity of a Roman legal system and some of its specific norms might be roughly assessed from an external point of view without reference to officials’ actual existence and operations, any “thick” descriptive-explanation of Roman law requires further examination of the identity of officials and their function—much as an understanding of human biology must go beyond the structure or anatomy of the body, and on to its function or physiology. A demand for understanding of the function of legal officials is soon perilously close to a demand for observational evidence, since the general, structural discussion of kinds of norms, analogous to rough biological discussion of “body plans,” depends on abstraction from the activities of actual legal officials. In our view, where contemporary analytical theorists seem to run into trouble—and where we contend more work must be done to sub- stantiate the analytical approach—is precisely in the relation and imbalance between their accounts of structural and functional aspects of the rule of recognition. Although they recognize both aspects of the rule of recognition, analytical legal theorists have much more extensive explanation of its structural aspect than its functional aspect; yet since its structures are identified and distinguished by their use in the hands of officials, it is not an option to deepen the structural account while continuing to populate the functional account via armchair intuition, or selective reading of officials’ experi- ences in specific legal systems. Each part of the account of the rule of recognition must be given independent attention, since each is equally important to a comprehensive explanation of the rule of rec- ognition in its structural and functional aspects, serving, as Coleman says, metaphysical and epistemic purposes in a larger descriptive- explanatory account of law and legal system. Notice, however, that this is not simply a demand for a “verstehen account” of the rule of recognition, looking into its meaning in some way enabled by “deep reproduction” of the meaning of the rule of recognition to those who use it. It is a more general call for recognition that interdependent
- 43. 6 legality’s borders partsof a theory need to reflect their interdependence. More specifi- cally, it is a call for an explanation of who counts as a legal official, and how we are to identify those legal officials as a key part of our know- ing where to look in the world for the social experience data fleshing out the “functional” aspect of the rule of recognition.10 1.2 explaining officials’ contribution to the rule of recognition: facing circularity and indeterminacy Any adequate deepening of the account of legal officials’ functional contribution to a rule of recognition must address two related prob- lems: the problem of circularity and the problem of indeterminacy. The problem of circularity refers to the burden of identifying legal officials without presupposing a notion of legal validity, which is simply the set of criteria of membership in a legal system practiced by its officials.11 The problem of indeterminacy refers to the burden of 10. William Twining appears to emphasize a similar distinction between structure and function in Hartian jurisprudence. He writes “It is sometimes suggested that Hart’s The Concept of Law is solely concerned with ‘linguistic analysis’ and in this sense is semantic . . . However, Hart’s conception of a descriptive jurisprudence goes far beyond this: it includes both elucidating concepts and using them. Concepts and models (such as the model of law as a system of rules) are tools of description. The Concept of Law, and general descriptive jurisprudence, go beyond conceptual clarification to describing the common features of the form, structure and content of legal systems.” [originalemphasis,internalnotesomitted]WilliamTwining,Globalisation and Legal Theory 37 (2000). 11. The literature on circularity, particularly circularity in Hart’s theory of law, is significant and varied. See, e.g., Charles Sampford, The Disorder of Law: A Critique of Legal Theory 35–6 (1990); G.B.J. Hughes, The Existence of a Legal System, 35 New York University Law Review 1001–1030 (1960); Jules Coleman, The Practice of Principle: In Defence of a Pragmatist Approach to Legal Theory 100–1 (2001); Matthew Kramer, The Rule of Misrecognition in The Hart of Jurisprudence, 8 Oxford Journal of Legal Studies 401 (1988); Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Michigan Law Review 624n. (1987); Brian Tamanaha, A General Jurisprudence of Law and Society 142 (2001); Neil MacCormick, H.L.A. Hart 136–140, (2008); Ian Duncanson, The Strange World of English Jurisprudence, 30 Northern Ireland Law Quarterly 267
- 44. the rule ofrecognition and international law 7 identifying which sorts of activities or exercises of power in a legal system distinguish officials from non-officials such that the borders of the legal system can be determined. We begin in section 1.2.1 with discussion of the view that officials can be identified via observation of special rules of office and attitudes characteristic of officials’ spe- cial allegiance to law. In section 1.2.2 we examine speculative social anthropological accounts of the emergence and persistence of offi- cials whose practices constitute the existence of the rule of recogni- tion. We argue that these approaches show that although the problem of circularity has been adequately addressed, the problem of indeter- minacy remains incompletely resolved to the extent that it threatens to deprive the rule of recognition of its promised role in identifying the borders of legal systems. In section 1.3 we offer a diagnosis, and argue that the explanatory limits of extant analytical approaches in resolution of the problem of indeterminacy are largely a consequence of a presumption of hierarchy created by Hart’s account of the rule of recognition. Hart’s account presumes that the set of legal officials as agents of legal systems is structured in a way such that officials can be ranked in terms of their constitutive importance in the deter- mination of borders. This presumption of hierarchy supposes that problems of indeterminacy at the borders of legal systems pose little problem in practice since one need only look up the hierarchy for resolution of borderline cases. We shall argue that the presump- tion is more or less reliable in explanation of state legal systems, but the presumption is significantly less reliable in explanation of international law. 1.2.1 Officials by Office and Attitude Hart’s theory of law offers many advances over John Austin’s com- mand theory of law. Hart showed with exceptional clarity that a theory of law constructed from concepts such as a social rule, the internal point of view, content-independent reason, and union of primary and secondary rules offers a far better explanation of life under law than a theory of law constructed out of the concepts of order, threat, sanction, habit of obedience, and legally unlimited sovereign. In place (1979); Nigel Simmonds, Legal Validity and Decided Cases, 1 Legal Studies 24–36 (1981),; Rolf Sartorius, Hart’s Concept of Law, in More Essays in Legal Philosophy 131, 156 (R.S. Summers ed., 1971).
- 45. 8 legality’s borders ofthe notion of a legally unlimited sovereign Hart argues we ought to think in terms of rules of office, whereby official positions, with their constitutive duties and powers, enjoy legal authority independently of the particular persons who contingently occupy those positions. Rules of office and rules of succession explain the continuity of legal systems through changes in legislators and governments and also explain the persistence of laws long after their creators have died. Central cases of legal officials are of course deceptively easy to find. They include judges, lawyers, legislators, police, and immigra- tion officers, among others. There is, however, an immediate prob- lem with an account of officials that does no more than list examples and explain their status as officials by claiming that legal officials are those who occupy their positions by special rules of office, succes- sion, and competence. Rules of office identify who is to count as an appellate judge, state lawyer, police officer, provincial legislator, immi- gration officer, but not who is to count as a “legal official.” This is perhaps to be expected as particular legal systems have an interest in identifying specific legal officials for the specific purposes of those legal systems, but no need for a general account of the nature of officials. Philosophers of law pursuing a general jurisprudence are nonetheless left with a problem: without an account of the shared features that elucidate and explain the genus “legal official,” we are left basing what purports to be a comprehensive, general jurispru- dence on a fragmented collection of species-level accounts of judicial practices, prosecutorial practices, police practices, and so on.12 In Hart’s account, however, there is a further element that prom- ises to help with the task of identification of legal officials. Hart famously distinguishes his view from Austin’s command theory via the argument that officials of a legal system necessarily “accept” the rules of a legal system, especially its secondary rules, from an internal point of view. Indeed, that the officials of a legal system accept the rule of recognition is one of two minimum conditions necessary and 12. Peter Morton has remarked that “legal sociology”—the law and society movement—also suffers from lack of critical attention to widely held views. He counts the belief “judges are officials” to be among a set of “ill-considered generalities” that hinder a proper analysis of law. Peter Morton, An Institutional Theory of Law: Keeping Law in its Place 8 (1998).
- 46. the rule ofrecognition and international law 9 sufficient for the existence of a legal system.13 This requirement opens the way to a second, complementary yet separable way to identify officials of a legal system: a descriptive-explanatory theorist might look to see who accepts and practices the secondary rules of recogni- tion, change, and adjudication, conducting this investigation in situ- ations where the difference between officials and private citizens is most likely to be starkly evident. Such situations might include those where the application conditions of rules are unclear and officials might be revealed by their practice of stepping forward to set the application conditions or make determinations of the content of those rules. With this approach, officials’ identity and characteristic contri- bution to a rule of recognition is assessed by detection of the presence of a special normative attitude of commitment to secondary rules, and at least obedience to primary or duty-imposing rules. Introduction of the idea of the internal point of view does a great deal to give analytical legal theory an explanatory reach which outstrips a bare rules of office approach. Yet even this addition leaves unsolved the problem of determining the class of officials and so determining the borders of legal systems. Two related reasons support this claim. First, social actors ranging from private citizens to lobby groups to 13. As Hart puts it in a widely discussed passage: On the one hand, those rules of behaviour which are valid according to the system’s ultimate criteria of validity must be generally obeyed, and, on the other hand, its rules of recognition specifying the criteria of legal validity and its rules of change and adjudication must be effectively accepted as common public standards of official behaviour by its officials. The first condition is the only one which private citizens need satisfy: they may obey each ‘for his part only’ and from any motive whatever; though in a healthy society they will in fact often accept these rules as common standards of behaviour and acknowledge an obligation to obey them, or even trace this obligation to a more general obligation to respect the constitution. The second condition must also be satisfied by the officials of the system. They must regard these as common standards of official behaviour and appraise critically their own and each other’s deviations as lapses. Of course it is also true that besides these there will be many primary rules which apply to officials in their merely personal capacity which they need only obey. Hart, supra note 1, at 116–117. It is worth noting that this view survives conces- sions in the Postscript to critics of the social rule theory of legal rules and the internal point of view.
- 47. 10 legality’s borders accountantsto supreme court judges can accept secondary rules from an internal point of view, as Hart’s own argument makes clear. There is nothing structurally incoherent—or functionally unrealistic—in the idea of a private citizen accepting the constitution of her country as supreme law by invoking a right contained in it to challenge a state or provincial law. So although there is undeniably explanatory value in the distinction between internal and external points of view, the dis- tinction is nonetheless insufficient as a means to practical detection or testing for the borders of legal officials. Questions needing answers remain: do citizens who adopt the internal point of view towards their legal system’s secondary rules thereby become officials, even if only low- level or momentary officials? If not, as we might plausibly suppose, why not? If there is no difference in kind between the attitudes of officials and other social actors in legal systems, and the difference is instead to be found in something like an accumulation of practice, is there some “tipping point”? Second, to the extent that this approach augments rather than replaces the rules of office view, it presupposes rather than shows that officials can already be identified by means of rules of office. Since both legal officials and other social actors can accept primary and secondary rules from an internal point of view, it must be that legal officials are those who also occupy a special position in the legal system by virtue of the rules of office. 1.2.2 Speculative Social Anthropological Accounts It is important to note, however, that Hart’s account is not subject to the kind of vicious circularity which would deprive it of all explana- tory power. The charge runs as follows. For a rule to count among the rules of a legal system, it must be recognized. Yet recognized by whom? Private citizens may conduct what appear to be acts of recog- nition, but those acts have at most probationary status, awaiting review by officials. This scenario might occur in a situation in which private citizens apply legal norms as best they can in the absence of relevant officials. So recognition may come from citizens, but such recognition is not sufficient for validation, which is necessarily con- ferred by the officials of the legal system. Legal officials, then, are those who are recognized by the officials of a legal system. So just as a rule requires recognition by officials for its validity, so too officials require official recognition to validate their membership in the body of officials.
- 48. the rule ofrecognition and international law 11 Responses to the circularity charge typically try to provide a foundation—often in what might be regarded as a “bootstrapping” approach. Jules Coleman, Kent Greenawalt, and Brian Tamanaha all appear to have taken a route of this sort. Coleman argues, for example, that legal officials emerge as follows: First, some group of individuals—we do not call them officials and we need not identify them by reference to laws—choose to have their behavior guided by a certain rule. In other words, they take the rule as giving them good reasons for action. If that rule takes hold in the sense of establishing mem- bership criteria in a system of rules, and if those rules are complied with generally, and if institutions of certain types are then created, and so on, it is fair to say that a legal system exists. If a legal system exists, then that rule which guides the behavior of our initial group of individuals is correctly described as the rule of recognition for that legal system. And those individu- als who guide their behavior by that rule are thus appropriately conceived of as “officials.” They are, in a sense, officials in virtue of that rule, but they are not officials prior to it (in either the factual or the logical sense). Their behav- ior makes the rule possible, but it is the rule that makes them officials. 14 Coleman’s story is not that legal officials are those recognized by other legal officials by means of law, but rather that certain conduct gives rise to rules which in turn identify who is a legal official. On this account there is no circle but instead a kind of social fact explanation of legal officialdom—albeit one which does not arrive with specifica- tion on the set of social facts from which it is generated. Similarly, in the course of an exercise in applying Hart’s notion of the rule of recognition to the United States, Kent Greenawalt supposes the general populace is sufficiently able to identify legal officials that a foundation can be safely presumed: At first glance, [Hart’s] account may seem to involve a troubling circular- ity, since officials determine what are the standards of law and they derive their official status from the law. The break in the circle is that one looks to the population at large to see who are recognized as officials. Ordinarily, people’s judgments about who are officials may rely on certain assump- tions about conformance with legal standards, such as election laws, but people need not understand the complex criteria judges and other officials use to determine what counts as law.15 14. Jules Coleman, The Practice of Principle 100–1 (2001). 15. Kent Greenawalt, The Rule of Recognition and the Constitution, 85 Michigan Law Review 621–671, n.624 (1987).
- 49. 12 legality’s borders BrianTamanaha also argues that legal officials can be assumed to have a sufficiently determinate existence, conventionally established: Remaining with Hart’s resort to social practices, the following additional requirement solves the problem of distinguishing legal from non-legal institutionalized systems of normative order: A ‘legal’ official is whomever, as a matter of social practice, members of the group (including legal officials themselves) identify and treat as ‘legal’ officials. Owing to their recognized status as legal officials, their products (generated pursuant to the second- ary rules) are treated as ‘law.’ Systems of primary and secondary rules that are administered by legal officials—so identified—are ‘legal’ systems. Systems of primary and secondary rules that are not administered by legal officials may be institutionalized normative systems, but they are not legal.16 All three responses meet the charge of circularity, by identifying means by which legal officials can be identified without presuppos- ing the fact of official recognition, but they take us little distance towards positive determination of the class of legal officials whose roles and activities determine the borders of legal systems. Coleman’s explanation seems to be close to simply positing a state of normativity as he presumes some historical set of facts corresponding to his description. Does legal order and a cohort of officials in fact arise in the way Coleman supposes? Is this the only way, or can officials ever become officials by request, rather than by creating their own legal power as his analysis seems to suggest? Viewed in this manner, Coleman’s way out of the circularity problem depends on unsubstan- tiated empirical claims, and reduces the account of officials to a hypo- thetical sociological observation rather than a philosophical theory: “the powerful can sometimes become officials.” This looks very much like the speculative anthropology Les Green attributes to Hart, and so marks little advance over Hart’s construction of Rex I—a construc- tion in which Hart says explicitly that he does not suppose he is describing any actual historical state of affairs.17 Yet even if we do accept Coleman’s view as a modest advance with respect to a functional aspect of analytical legal theory, that advance is insufficient, since it 16. Brian Tamanaha, A General Jurisprudence of Law and Society 142 (2001) [emphasis in the original]. 17. Leslie Green, Legal Positivism, in Stanford Encyclopedia of Philoso- phy, http://plato.stanford.edu/entries/legal-positivism/ (last visited Sept. 17, 2006).
- 50. the rule ofrecognition and international law 13 still lacks a general explanation of the nature of officialdom, and how it is to be identified in those other than the “first generation” of officials who create their own legal power. Greenawalt’s explanation—that officials are to be identified by seeing who are recognized as such by the population at large—is similarly incomplete. It simply assumes that such recognition occurs and provides no method for resolution of situations in which popular recognition is divided, at odds with officials’ self-understanding, or otherwise unsettled. These omissions from Greenawalt’s view lead to other troublesome questions. Does the public have the knowledge needed to make this judgment? If the test, to be meaningful, takes as its precondition the existence of a knowledgeable population, what sort of knowledge counts, and how can it be determined if a popula- tion is sufficiently knowledgeable? Further, will this actually generate a philosophically satisfying account of officials, or just a snapshot of the perceptions of some group of citizens? Most importantly, are we to conduct some sort of international aggregation in order to reach “the concept of law” as opposed to “American” or “Canadian” or “British” understanding of the nature and identity of legal officials? How are we to avoid parochialism in our theory of law? Tamanaha’s thoroughly conventionalist theory of legal positivism threatens to give up entirely on the pursuit of philosophical explana- tion of the social foundations of law, giving up on repair of the struc- ture-function imbalance in favor of a nearly entirely functional explanation. Yet if we suppose—as surely we must—that in labeling a group of norm-subjects as legal officials, legal officials and the wider group itself are not doing so willy-nilly, we owe an explanation of the basis of our reasoning. What are the concepts or categories employed, and are they consistent, coherent, and part of an illuminating picture of the social conditions that give rise to law? Although Coleman’s, Greenawalt’s, and Tamanaha’s explanations might avoid the overt circularity of views that suppose legal officials are simply those persons recognized as such by other legal officials, they leave intact the equally troubling philosophical problem that awaits the speculative anthropological approaches: indeterminacy at the edges of legality and legal officialdom.18 On Coleman’s account, 18. See, e.g., Charles Sampford, The Disorder of Law: A Critique of Legal Theory 35–6 (1990). Sampford notes that a sociological definition of
- 51. 14 legality’s borders whichof the non-circularly determined rules identify who is a legal official and which sorts of activities demarcate legal officials from pri- vate citizens and other social actors? On Greenawalt’s and Tamanaha’s accounts, according to what non-circularly devised criteria or under- standing are legal officials conventionally identified? Are the criteria or understanding coherent, illuminating, and adequate to the task of providing a functional explanation of the borders of legal systems? Most importantly, what costs are incurred by a theory dependent on an account of legal officials when indeterminacy characterizes the theory’s attempts to solve at more than an intuitive level the problem of demarcating legal officials from other norm subjects? These unanswered questions suggest that the problem of indeterminacy is to elucidate the philosophical concept of a legal official in a way which provides the means to identify legal officials in actual legal systems, and that it is a problem which runs deeper than the problem of circularity. 1.3 hierarchy in the rule of recognition A natural objection at this point is that we have over-emphasized the difficulties for descriptive-explanatory theories of law raised by inde- terminacies at the borders of legality. After all, the existence of clear cases of legal officials and legality is consistent with the absence of clear lines of demarcation distinguishing official from non-official activities in law: clear lines should not be sought when they need not or cannot be found. Andrei Marmor offers such a view about the nature of social conventions in general: . . . the dividing line between the practitioners, whose practice determines the conventions, and others, who are more or less aware of them, is not a sharp one. To the question, Whose convention is it?, there is rarely a simple answer. What we would normally see is a kind of division of labour: a core of practitioners, whose practices and self-understandings deter- mine, to the greatest extent, what the convention is, and additional groups “official” is needed to overcome circularity, but any such sociological defini- tion would still fail to pick out distinctly “legal” officials. Sampford also cites G.B.J. Hughes, The Existence of a Legal System, 35 New York University Law Review 1001–1030, 1029 (1960) for helpful discussion.
- 52. the rule ofrecognition and international law 15 of people in outer circles, whose knowledge of the convention is much more partial, and whose influence on its content is relatively marginal. But again, the distinction between the relevant populations is not a hard and fast one; a complex division of labour may obtain, whereby even those groups who are relatively farther removed from the inner circle do affect, albeit in a limited way, the shape and content of the relevant conventions.19 Applied to the context of law, Marmor writes that clear lines are unnecessary because we can assume a central case: Perhaps the clearest example of this actually obtains in the case of law. Most people are only faintly aware of the rules of recognition of their country, and, mostly, they rely on their lawyers to know what those con- ventions really are. Even within the legal circles, however, some groups are more important than others. Judges, and perhaps to a similar extent legislators, play the crucial role. The rules of recognition, as noted by Hart himself, are, first and foremost, the conventions of judges, particularly in the higher courts. But in fact, other legal officials can also play various roles in determining the content of the rules of recognition. The practices of police officers, accountants, tax collectors, city councilors, etc., all con- tribute something to what the rules of recognition are. So once again, the image I suggest is one of a division of labour, taking place in concentric circles; the closer one is to the centre, the greater effect one has on what the convention is; and vice versa, of course.20 In the next chapter we will examine Joseph Raz’s view of the centrality of norm-applying institutions in explanation of the nature of legal system, which, along with Hart’s view that the rule of recognition is first and foremost a judicial practice, no doubt explains Marmor’s choice to locate judges in the innermost circle of a legal system. Judges, on this view, are the clearest example of legal official—and so sit in the innermost circle—precisely because their activities have the greatest normative consequences within their legal systems. For now, however, it is necessary to analyze a further feature of Hartian accounts of legal officials that Marmor’s argument makes explicit: a strong pre- sumption of hierarchy in the notion of the rule of recognition. The presumption amounts to the view that in practice, problems of indeterminacy at the borders of legal systems, much like problems of 19. Andrei Marmor, Positive Law and Objective Values 16–17 (2001). 20. Id. at 17.
- 53. 16 legality’s borders theindeterminacy of legal norms, are resolved by looking up the hierarchy (or towards the center of the system) of officials. For exam- ple, one may not know whether an accountant is a legal official or not, but such a problem can be resolved in practice by looking at the prac- tice of those officials who have the authority and jurisdiction to apply and enforce norms about the authority and power of accountants. Similarly, just as one may not know whether a particular interpreta- tion of a legal norm would amount to application of existing content or instead discretionary extension of content, courts do in practice resolve such indeterminacy and render settled what was previously unsettled. In other words, if we can presume a core of officials, such as judges, who sit at the top or center in a hierarchical structure of a legal system, worries about borders become less worrisome, since there is in practice a means of resolving such indeterminacy. The presumption of hierarchy certainly helps to explain why ques- tions about the determinacy of the class of legal officials persist, and accepted solutions such as those offered by Coleman, Greenawalt, Tamanaha are found tolerable. If anyone can be presumed to be a legal official, surely a supreme court judge is one. We can then measure the distance of other social actors from the top or center of a legal system by means of their similarities and connections to supreme court judges. Yet precisely how reliable is the presumption of hierarchy? We can begin by noticing that the presumption tends to reproduce the imbalance between structural and functional parts to the explanation of the rule of recognition, as the imbalance is perhaps best revealed—rather than remedied—by the near universal atten- tion to judges as the central operators of the rule of recognition, to the extent that virtually no account is offered of how to identify other typical officials in legal systems at more than an intuitive level. Are other norm subjects legal officials only to the extent that they resemble judges? We should also observe, however, a distinction between two differ- ent kinds of hierarchy in Hartian analytical legal theories, a distinc- tion which is often overlooked. Typical modern legal systems include a hierarchy of norms. Constitutional law overrides conflicting statu- tory law, and supreme court decisions can nullify the decisions of trial courts but not vice versa. For analytical legal theorists who accept a version of the positivist social sources thesis—all law is source- based or entailed by source-based law—it is also thought, as Marmor’s
- 54. the rule ofrecognition and international law 17 “concentric circle” view shows, that a hierarchy of norms likely entails a hierarchy of officials. For example, if a “supreme” court’s decisions are weightier or have greater normative consequences than a trial court’s decisions, then the supreme court must also be considered a higher cohort of officials. Indeed, common expressions of our insti- tutions confirm this thought: there are “higher” and “lower” courts, “superior” courts and “supreme” courts, and Parliamentary “suprem- acy.” However, is it true that a hierarchy of norms entails a hierarchy of officials? In any complex legal system, Hart says, the rule of recognition will specify and rank diverse sources of law. For any rule, its membership in the legal system can be revealed by pulling on a chain of validity. Consider Hart’s illustration: The sense in which the rule of recognition is the ultimate rule of a system is best understood if we pursue a very familiar chain of legal reasoning. If the question is raised whether some suggested rule is legally valid, we must, in order to answer the question, use a criterion of validity provided by some other rule. Is this purported by-law of the Oxfordshire County Council valid? Yes: because it was made in exercise of the powers con- ferred, and in accordance with the procedure specified, by a statutory order made by the Minister of Health. At this first stage the statutory order provides the criteria in terms of which the validity of the by-law is assessed. There may be no practical need to go farther; but there is a standing possibility of doing so. We may query the validity of the statutory order and assess its validity in terms of the statute empowering the minister to make such orders. Finally, when the validity of the statute has been queried and assessed by reference to the rule that what the Queen in Parliament enacts is law, we are brought to a stop in inquiries concerning validity: for we have reached a rule which, like the intermediate statutory order and statute, provides criteria for the assessment of the validity of other rules; but it is also unlike them in that there is no rule providing criteria for the assessment of its own legal validity.21 This example was only intended as an illustration, but it is nonethe- less inadvertently misleading. While Hart describes the test of validity as a “familiar chain of legal reasoning,” the different links in the chain represent the interaction of several distinct officials. The Oxfordshire County Council and Ministry of Health mutually refer to each other; the Council exercises powers granted to it by the Ministry. 21. Hart, supra note 1, at 107.
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- 56. have been higher,by the rubbish which lies round it. It is built of stone, without cement, and I take it to be between twenty and thirty feet still. The entrance is by a low and narrow door, to pass through which one is obliged to stoop much; but perhaps the ground may have been raised since the first erection. When one is got in, and placed in the centre, it is open overhead. All round the sides of the walls are ranged stone shelves, one above another, like a circular beaufait, reaching from near the bottom to the top. The stones which compose these shelves are supported chiefly by the stones which form the walls, and which project all round, just in that place where the shelves are, and in no others; each of the shelves is separated into several divisions, as in a bookcase. There are some remains of an awkward staircase. What use the shelves could be applied to I cannot conceive. It could not be of any military use, from its situation at the bottom of a sloping hill, which wholly commands it. The most learned amongst the inhabitants, such as the gentry and clergy, who all speak the Irish language, could give no information or tradition concerning its use, or the origin of its name.” Now, our Round Towers have similar shelves, or recesses in the wall, and “reaching, like a circular beaufait, from near the bottom to the top”! Wherever these do not appear, their place is supplied by projecting stones, for the evident purpose of acting as supporters. [528] And as the Mycenian, the Caledonian, and the Hibernian edifices thus far correspond, the only thing that remains is to explain to what purpose could those recesses serve. I thus solve the question—They were as so many cupboards for containing the idols of Budha, as the structures themselves for temples of his worship, etc. Nor is this their use yet forgotten, in the buildings of the like description in Upper India, as appears from the following statement by Archer. “In the afternoon,” says he, “I went to look at a Jain temple. It was a neat building, with an upper storey. The idol is Boadh. There is a lattice verandah of brick and
- 57. mortar round theshrine, and there are small cupboards, in which numerous figures of the idol are ranged on shelves.” Arguments crowd upon me to establish these particulars; the only difficulty is in the compression. I shall, however, continue to prove this from another source, even by showing that when Ezekiel declared, in allusion to Tyre, that “the men of Dedan were thy merchants,”[529] he meant the men of Ireland. First let me refer you to page 4, by which you will be reminded of our ancient possession of a naval equipment. Secondly, let me quote to you an extract from Vallancey, when directing the result to a different application. His words are: “Another proof of the ancient Irish being skilled in the art of navigation, I draw from a fragment of the Brehon laws in my possession, where the payment, or the reward, for the education of children, whilst under the care of fosterers, is thus stipulated to be paid to the ollamhs, or professors, distinguishing private tuition from that of public schools. The law says: ‘If youth be instructed in the knowledge of cattle, the payment shall be three eneaclann and a seventh; if in husbandry and farming, three eneaclann and three-sevenths; if in milrach, i.e. glais-argneadh as tear, that is, superior navigation, or the best kind of knowledge, the payment shall be five eneaclann and the fifth of an eanmaide; if in glais-argneadhistein, that is, second, or inferior (branch of) navigation, two eneaclann and a seventh.’ And this law is ordained because the pupils must have been previously instructed in letters, which is the lowest education of all.” Thus you see, at all events, that we were qualified for the duties required. Now, I will demonstrate, and that too by the aid, or rather at the expense, of Mons. Heeren, that we were the actual persons pointed to by the prophet. “Deden,” says the professor, “is one of the Bahrein, or rather more northerly one of Cathema. The proofs, which to detail here would be out of place, may be found in Assemani, Bib. Orient. tom. ii. par. ii. pp. 160, 564, 604, and 744. Difficulties arise here, not merely from
- 58. want of maps,but also from the variation and confusion of names. Daden, or Deden, is also frequently called Dirin; and it may be conjectured that from hence arose the name of Dehroon, which is given to one of the Bahrein islands in the map of Delisle. If that were the case, then Dedan would not be Cathema, as Assemani asserts, but the island mentioned above; and this is rendered probable by the resemblance of names, which is a certain guide.” If the “resemblance of names” be “a certain guide,” identity of names must be still more certain; and then must my proofs already prevail, and the professor’s conjectures fall to the ground! Surely he cannot say that there is any even resemblance between D-Irin and Dehroon! But he admits that the place alluded to is called indifferently Dedan[530] and D-Irin; and have I not shown that each of those names, identical and unadulterated, belonged properly to Ireland? Ireland, therefore, alone can be the country alluded to by the inspired penman. In denying, however, a Dodona to the Greeks, and an oracle also, General Vallancey was quite incorrect. What he should have maintained was, that both name and oracle had their prototypes in Ireland; but that, so remote was the date at which the transfer occurred, all insight into the mysteries had long since perished. Indeed, their priests very frankly acknowledged the fact to Herodotus, when, in his thirst for information, he waited upon them at Dodona. “We do not,” said they, “know even the names of the deities to whom we make our offerings—we distinguish them, it is true, by titles and designations; but these are all adventitious and modern in comparison of the worship, which is of great antiquity.” Upon which the historian very truly concludes, “that their nature and origin had been always a secret; and that even the Pelasgi, who first introduced them and their rites, had been equally unacquainted with their history.” Like a true Greek, however, he must set about coining an origin for them; and so he tells us a cock-and-a-bull story of two pigeons
- 59. (Peleiai) having takenflight from Thebes in Upper Egypt, and never stopped until they perched, one upon the top of Dodona, and the other God knows where; and then he flatters himself he has the allegory solved, by imagining that those pigeons were priestesses, or old women, carried off by Phœnician pirates, and sold into the land of Greece! In this he has been followed by thousands of imitators, and quoted miraculously at all the public schools. Nay, his disciples would fain even improve upon the thing; and Servius has gone so far as to say that the old woman’s name was Pelias! Now, here is the whole mystery unravelled for you. When the Greeks established an oracle of their Dodona, subordinate to our master one, they adopted, at the same time, one of the orders of our priesthood. This was that of the Pheeleas, the meaning of which being to them an enigma, they bent it, as usual, to some similar sound in their own language.[531] This was that of Peleiai, in the accusative Peleias, which, in the dialect of Attica, signifies pigeons, and in that of Epirus, old women; and so the whole metamorphosis was forthwith adjusted!
- 60. “The very extraordinarypiece of antiquity, represented in the annexed woodcut, was found,” says Mr. Petrie, “in a bog at Ballymoney, county of Antrim, and exhibited to the Royal Irish Academy, by the Lord Bishop of Down, in March 1829. Its material is that description of bronze of which all the ancient Irish weapons, etc., are composed, and its actual size is four times that of the representation. It is a tube, divided by joints at A and B into three parts, which, on separating, were found to contain brass wire, in a zigzag form, a piece of which is represented in Fig. G. This wire appears to have been originally elastic, but when found was in a state of considerable decomposition. At E and F are two holes, about one-eighth of an inch in diameter, and seem intended for rivets or
- 61. pins to holdthe instrument together. The birds move on loose pins, which pass through the tube, and on the other end are rings. The material and style of workmanship of this singular instrument leaves no doubt of its high antiquity. But we confess ourselves totally unable to form even a rational conjecture as to its probable use, and should feel obliged to any antiquary who would throw light upon it.”[532] Had the antiquarian high-priest to this magnanimous assemblage been equally modest in former cases, and courted instruction, instead of erecting himself into a Pheelea, he would not cut the figure which he now does. Ignorance is no fault: it is only its vagaries that are so ridiculous! However, he has said—I beg pardon, he is in the plural number— well, then, they have said, that they would feel obliged to any antiquary who would throw light upon the subject. To be sure, I am no antiquary. The Royal Irish Academy have made that as clear as the sun at noonday. Nay, they have even strove to make their brethren at this side of the water to think so also! But their brethren at this side of the water are too honest a people, and too noble in their purpose, to make history a trade, and to stifle truth at the unhallowed dictates of interest or partiality. No matter; I will tell all what this piece of antiquity was. It was the actual instrument through which the oracle of Dodona was announced! You see upon it the swans by which Apollo was brought to the Hyperboreans! The bulbul of Iran also attends in the train; and the affinity of this latter bird to the species of pigeons, convinced the Greeks that they had really hit off the interpretation of the word Pheelea! and that pigeons were, in truth, the deliverers of the oracle. This was the block upon which Abbé Bannier was stumbling. Having learned from some quarter, I believe from Aristotle, that there were some brass appendages contiguous to Dodona, he converts those
- 62. appendages into kettles—aworthy friend of mine would add, of fish —“which,” says he, “being lashed with a whip, clattered against one another until the oracle fulminated”!!! As to those oracles themselves, with the registries of which antiquity is so replete, I will here articulate my individual belief. No one who knows me can suppose that I am superstitious; and, for those who know me not, the sentiments herein delivered will scarcely foster the imputation. Yet am I as thoroughly persuaded as I am of my personal consciousness, that some prescience they did possess, conducted partly by human fraud, and partly by spiritual co- operation. There is no question but that there must have been some supernatural agency in the business; for human skill and human sagacity could never penetrate the deep intricacies of doubt, and the important pregnancies of time which they have foreshown.[533] Porphyry, in his book De Dæmonibus, and Iamblichus in his De Mysteriis, expressly mention that demons were in every case the authors of oracles. Without going all this length, we may readily allow that they had perhaps a great share in them; neither will the ambiguity in which their answers were sometimes couched detract anything from this admission, because the spirits themselves, when ignorant of any contingency, would, of course, try to screen their defect by the vagueness of conjectures, in order that if the issue did not correspond with their advice, it may be supposed owing to misinterpretation. The instance of Crœsus and the Delphian oracle was an interesting event. He sent to all the oracles on the same day this question for solution, viz. “What is Crœsus, the son of Alyattes, King of Lydia, now doing?” That of Delphi answered thus: “I know the number of the sand of Libya, the measure of the ocean—the secrets of the silent and dumb lie open to me—I smell the odour of a lamb and tortoise boiling together in a brazen cauldron; brass is under and brass above the flesh.”
- 63. Having heard thisreply, Crœsus adored the god of Delphi, and owned the oracle had spoken truth; for he was on that day employed in boiling together a lamb and a tortoise in a cauldron of brass, which had a cover of the same metal. He next sent, enjoining his ambassadors to inquire whether he should undertake a war against the Persians? The oracle returned answer, “If Crœsus passes the Halys, he will put an end to a vast empire.” Not failing to interpret this as favourable to his project, he again sent to inquire, “If he should long enjoy the kingdom?” The answer was, “That he should till a mule reigned over the Medes.” Deeming this impossible, he concluded that he and his posterity should hold the kingdom for ever. But the oracle afterwards declared that by “a mule” was meant Cyrus, whose parents were of different nations— his father a Persian, and mother a Mede. By which mule, says a facetious writer, the good man Crœsus was thus made an ass! That the priests, however, used much deception in the business, and that this deception did not escape the notice of the learned men of the time, is evident from the charge which Demosthenes had brought against the Pythia, of her being accustomed to Philippise, or conform her notes to the tune of the Macedonian emperor. The knowledge of this circumstance made the prudent at all times distrust their suggestions, whilst the rabble, without gainsay, acquiesced as blindly in the belief of their infallibility. But it was not only as to the meaning of the word Pheelea that the Greeks were unapprised, they knew not the import of their own name Pelargi![534] It is compounded of this same term pheelea, an augur or a diviner; and argh, the symbolic boat, or yoni! And, mind you, that this was the great difference between the Pelargi—which is but another name for Pish-de-danaans—and the Tuath-de-danaans, that the latter venerated the male organ of energy, and the former the female; therefore in no country occupied by the former do you meet with Round Towers, though you invariably encounter those traces of art, which prove their descent from one common origin.
- 64. As presiding overthe diviners of the symbolical boat, Jupiter was called Pelargicus.[535] Agyeus was another term in their religious vocabulary, as applied to Apollo, of which the Greeks knew not the source. They could not, indeed, well mistake, that it was derived immediately from αγυια, via; but that did not expound the fact, and they were still in ignorance of its proper import. It is merely a translation of our Rudh- a-vohir, that is, Apollo-of-the high-roads, not, what the Greeks understood it, as stationary thereon, but, on the contrary, as itinerant; and to whom Venus the stranger corresponded on the other side; the especial province of both being to ensure the comforts of hospitality, of protection, and of love, to all emigrants and all travellers. Grunie was another epithet applied to Apollo, as we may read in a hymn composed by Orpheus, which they could not comprehend. It is derived from Grian, one of our names for the Sun. But, beyond comparison, the most inexplicable of all the epithets applied to this divinity is Lycæus; which, though—as has been the case, you perceive, in every subject yet discussed—it can be explained only in the Irish!—yet, even there, it opposes some difficulties to discourage, but not more than what give way to sagacity and to perseverance. At Glendalough, in the county Wicklow, one of the proudest abodes of Budhism, are found, amongst other sculptures, upon the dilapidated ruins, those which you see opposite. The wolf is the most frequent in the multitude of those hieroglyphics. His character is exhibited in more attitudes than one— and all mysteriously significant of natural designs. In one place you observe his tail gracefully interwoven with the long hair of a young man’s head. That represents the youth Apollo, controlling by his efficacy—alias, the sun’s genial rays—the most
- 65. hardened hearts, andso revolutionising the tendency of the inborn system, as from antipathy often to produce affection and love! Of this illustration, the practical proof is afforded in Bakewell’s Travels in the Tarentaise, to the following purpose, viz.:— “By way of enlivening the description of the structure of animals, he (M. de Candolle, Lecturer on Natural History at Geneva), introduced many interesting particulars respecting what he called leur morale, or their natural dispositions, and the changes they underwent when under the dominion of man. Among other instances of the affection
- 66. which wolves hadsometimes shown to their masters, he mentioned one which took place in the vicinity of Geneva. A lady, Madame M ——, had a tame wolf, which seemed to have as much attachment to its mistress as a spaniel. She had occasion to leave home for some weeks; the wolf evinced the greatest distress after her departure, and at first refused to take food. During the whole time she was absent, he remained much dejected: on her return, as soon as the animal heard her footsteps, he bounded into the room in an ecstasy of delight; springing up, he placed one paw on each of her shoulders, but the next moment he fell backwards and instantly expired.” Elsewhere you discern two wolves unmercifully tearing at a human head! And this is symbolical of a species of disease, of which there is published an account in a work called The Hospitall of Incurable Fooles, translated from the Italian by Todd, to the following effect, viz.:— “Amongst these humours of Melancholy, the phisitions place a kinde of madnes, by the Greeks called Lycanthropia, termed by the Latines Insania Lupina, or Wolves furie: which bringeth a man to this point (as Attomare affirmeth), that in Februarie he will goe out of the house in the night like a wolfe, hunting about the graves of the dead with great howling: and plucke the dead men’s bones out of the sepulchres, carrying them about the streets, to the great fear and astonishment of all them that meete him: And the foresaide author affirmeth, that melancholike persons of this kinde have pale faces, soaked and hollow eies, with a weak sight, never shedding one tear to the view of the world,” etc. And that this was epidemic amongst the Irish is proved by Spenser’s testimony, when, drawing a parallel between the Scythians and the Irish of his day, he says: “Also, the Scythians said, that they were once a year turned into wolves; and so it is written of the Irish: though Martin Camden, in a better sense, doth suppose it was a disease, called lycanthropia, so named of the wolf: and yet some of the Irish doe use to make the wolf their gossip.”
- 67. Thus it appears,that the Irish were not only acquainted with the nature of this sickness, but also with the knack of taming that animal of which it bore the name. All this was connected with the worship of Apollo, and with Eastern mythology. Nay, the very dogs, for which our country was once famous,[536] and which were destined as protectors against the ravages of the wolf, are clear, from Ctesias, to have had their correspondents in India. The epithet Lyceus, I conceive, now elucidated; and so leave to yourself to penetrate the rest of those devices. But I shall not, at the same time, take leave of the “Valley of the Two Lakes.”[537] On one of the loose stones, which remain after this wreck of magnificence, you will see a full delineation of “The history of Dahamsonda, King of Baranes (modern Benares), who, as his name implies, was a zealous lover of religious knowledge; and was incarnated, in order to be tried between his attachment to religion and his zeal for the salvation of the world on the one side, and his love to his own life, and his attachment to his kingdom and wealth, as well as his kindred and friends, on the other; for which purpose the gods had gradually and completely withdrawn the light of religious knowledge from the world by the time of his accession to the throne.”[538] This king, in his anxiety to regain the lost condition of mankind—to recover their literature and their ancient knowledge of religion, instructs his courtiers to proclaim the offer of a casket of gold, “as a reward to any person” who would instruct his majesty in the mysteries of the Bana,[539] that is, the Budhist Gospel, with a view to its salutary repropagation. The officers proceeded in quest of such a phenomenon; but, in the extent of their own realms, he was not to be found! This excites the uneasiness of the king, who “having by degrees increased his offers to thousands and millions of money, high titles, possessions of land and great privileges; and, at last, offering his
- 68. own throne andkingdom, but still finding no instructor, leaves his court, resolved to become private traveller, and not to rest till he has found one who could communicate to him the desired knowledge. Having for a length of time travelled through many kingdoms, towns, and villages, enduring hardships, he is, at last, by providential interference, led through a delightful valley (which affords him subjects for consideration and recreation of mind) into a dismal forest, the habitation of frightful demons, venomous reptiles, and beasts of prey. “Sekkraia having on the occasion come down from heaven, in the disguise of a Raksha, meets Bodhesat (the king) in the wilderness, who fearlessly enters into conversation with him, and informs him of the object of his wanderings. The disguised deity undertaking to satisfy the king, if he will sacrifice to him his flesh and blood in exchange for the sacred knowledge, Bodhesat cheerfully ascends a steep rock, shown him by the apparition, and throws himself headlong to the mouth of the Raksha. The king’s zeal being thus proved, Sekkraia, in his own heavenly form, receives him in his arms, as he is precipitating himself from the rock,” and has him initiated in the desired information.[540] Now, waiving for a moment the latter part of this legend—every word of which, however, is still chronicled in our country, though transferred by the moderns to St. Kevin and the monks—I return to add, that, on the above-mentioned stone, you will see a representation of the ambassadors offering this caske of riches to a professor of letters seated in his “doctor’s chair”!!! This stone itself is engraved in Ledwich’s Antiquities, where in his ignorance of its meaning, as well as of everything else which formed the subject of his libellous farrago, he perverts it into the bribing of a Roman Catholic priest!—as if the priests would so emblazon themselves!—and quotes Chaucer to prove the fact, when he says of one them, that—
- 69. “He would suffer,for a quart of wine, A good fellow to have his concubine”! How inconsistent is error! Elsewhere this Reverend Doctor has asserted, and, accidentally, with truth, that there was no such thing at all to be met with at this place, as “Christian symbols.” I wonder was he one of those who consider Roman Catholics not to be Christians? However, again from this he diverges! And, when called upon to decipher the hieroglyphics upon a stone-roofed Tuath-de-danaan chapel, of the same character as that at Knockmoy, and discovered here a few years ago, beneath the Christian piles which the early missionaries had built over it, by way of supersedence, he throws himself, in his embarrassment, into the arms of St. Kevin! associates him with the whole! and that, too, after he had fatigued himself, until half choked with spleen, in bellowing out the ideality and utter non-existence of such a personage! On the front of the cathedral erected out of the fragments of the Tuath-de-danaan dilapidations, you will find Budha embracing the sacred tree, known in our registries, by the name of Aithair Faodha, which signifies literally the tree of Budha.[541] The pomegranate of Astarte—the medicinal apple of affection[542]— presents itself, also, in the foliage! The mouldings upon the arch of the western window refer likewise to her. And, to complete the union of Sabian symbolisation, the serpent mingles in the general tale! while the traditional story of the adjoining lake having been infested by the presence of that reptile, has a faithful parallel in one of the lakes of Syria! Will it not be believed, therefore, that the valley at which Dohamsonda had alighted, after he had traversed many realms far away from his own, was that of Glendalough? And where, I ask, would he be more likely to obtain the object of his peregrination, viz. initiation into gospel truth, than in that country which, from its pre-
- 70. eminent effulgence inits beatitudes, was exclusively denominated the Gospel-land? This, sir, is no rhetoric,—no declamatory exaggeration. I will reduce it for you, in its simple elements, to the perspicuity of vision. Bana-ba is one of the names of our sacred island, which, like all the rest of our history, has been heretofore a mystery to literary inquirers! The light bursts upon you!—does it not already? Need I proceed to separate for you the constituent parts of this word? It is compounded, then, be it known, of Bana, which indicates good tidings, or gospel, and aba, land—meaning, in the aggregate, the Gospel-land! And accordingly the pilgrim, when he set out upon his journey in quest of the Bana, very naturally betook himself to Bana- ba, or the land of the Bana, where alone it was to be found! And you presume to say that Christianity is a thing which only commenced last week? “Great God! I’d rather be A Pagan suckled in a creed outworn; So might I standing on this pleasant lea, Have glimpses that would make me less forlorn; Have sight of Proteus rising from the sea; Or hear old Triton blow his wreathed horn.” Wordsworth.
- 71. CHAPTER XXXI. “They shallbe astonished, and shall humble their countenances: and trouble shall seize them, when they shall behold the Son of Woman sitting upon the throne of his glory. Then shall the kings, the princes, and all who possess the earth glorify him who has dominion over all things—him who was concealed: for, from the beginning, the Son of Man existed in secret, whom the Most High preserved in the presence of his power, and revealed to the elect.”[543] So speaks one of the most extraordinary productions that has ever appeared in England, in the shape of literature! And the commentary of its translator[544] is as follows:— “In both these passages,” says he, “the pre-existence of the Messiah is asserted in language which admits not the slightest shade of ambiguity—nor is it such a pre-existence as the philosophical cabalists attributed to him, who believed the souls of all men, and, consequently, that of the Messiah, to have been originally created together, when the world itself was formed; but an existence antecedent to all creation, an existence previous to the formation of the luminaries of heaven; an existence prior to all things visible and invisible, before everything concealed.—It should likewise be remarked, that the pre-existence ascribed to him is a divine pre- existence.”[545] As to the pre-existence of the Messiah, in the only way in which the Archbishop affirms, I did not think that the doctrine was so obscure as to require so much stress! Everybody acquiesces, who acquiesces in Christianity—that its Founder had existence and dominion with His Father before all worlds. And, therefore, when His Grace offers this as an illustration of our opening extract, he either unconsciously
- 72. contradicts himself, or,else, by dealing in generalities, evades an exposition, which he was not at liberty to communicate! I am quite ignorant as to whether or not Dr. Lawrence belongs to the order of Freemasons, but I confess that when first I glanced at the above remarks I fancied he did. The care with which the two words “secret” and “concealed” were distinguished by him in italics, led me to this conjecture. But the indefinite unsubstantiality into which he afterwards wandered, made the fact of his initiation become, itself, a secret. Let me, however, prove the above dilemma. His Lordship has asserted, that the uninspiration of “the author” will admit of no dispute:[546] and yet that “author,” whom the Archbishop himself acknowledges to have written, at the very lowest, antecedently to the Advent, speaks of the Messiah as the “Son of Man” and the “Son of Woman.”[547] Either, therefore, the author was inspired, speaking prospectively of an occurrence not then consummated! or else, uninspired, he historically transmits the record of an incarnation vouchsafed before his time. I feel perfectly indifferent as to which horn of this alternative you may patronise. They both equally make for me. Nor do I want either, otherwise than to show, that else the Archbishop is already of my way of thinking, and restrained from avowing it, or unwillingly involved in a contradictory nodus, from a partial succumbing to education! With this I leave Enoch! I have hitherto done without him! I shall continue still to do so! But while bidding adieu, I must disburthen myself of the sentiments which his merits have inspired, and that after a very short personal familiarity. Thou art, then, a goodly and a wise book, Enoch, stored with many and recondite truths, but “few they be who find” them. Better for
- 73. thee it were,however, that thou hadst slept a little longer in thy tranquil retirement, than obtrude thyself, unappreciated, upon an ungenial world—a cold, a calculating, an adamantine world—who fancy they know everything, but who, in truth, know nothing—to meet with nothing but their scorn! It is true, Enoch, that thy face hath been tarnished by many a blemish! And that the hand of time hath dealt with thee, as it doth with the other works of man! Yet, despite of the curtailments thus sustained, and the exotics incorporated, thy magnificent ruin still holds within it some gleams, which to the initiated and the sympathetic afford delight and gratification. ———“Sweet as the ecstatic bliss Of souls that by intelligence converse!” Doubtless, reader, you are acquainted with the Gospel of St. John?— and you have a heart?—and you have emotions?—and you have sensibilities?—and you have intellect? Well, then, tell me frankly, have not these all been brought into requisition, at the metaphysical sublimity and the oriental pathos of the opening part of that production? “He was in the world, and the world was made by Him; and the world knew Him not. He came unto His own, and His own received Him not.”[548] You surely cannot suppose this said in reference to the late incarnation! Were it so, why should the Evangelist deliver himself in terms so pointedly allusive to distant times? The interval between Christ’s disappearance and St. John’s registration was but as yesterday, and therefore the latter, when inculcating the divinity of the former, upon the belief of his countrymen, who were all contemporaries, as well of one as of the other, need not advertise them of an addition, of which they were themselves cognisant. But to illustrate to you as light, that it was not the recent manifestation that was meant by the above text, he tells us in the
- 74. sequel, when expresslynarrating this latter fact, that “the Logos was made flesh and dwelt among us”;[549] where you perceive that “dwelling among us” is made a distinct thing from, and posterior in eventuation to “coming unto His own,” as before recorded![550] Indeed, in the delineation, it is not only the order of time, but the precision of words, that we see most rigidly characteristic. The Jews, it is certain, could not be called “His own,” except by adoption; and, I am free to allow, that from them, “as concerning the flesh, Christ came”; but by “His own”[551] are meant His real relations!— emanations from the Godhead, such as He was Himself! beings altogether separate from flesh and blood! and whose mysteriousness was perceptible most clearly to St. John, as you will perceive by the Greek words from which this is rendered, viz. τα ιδια, having been put in the neuter gender! But suppose them, for an instant, to have been the Jews!—Then we are told that, “to as many as received Him, gave He power to become sons of God.”[552] Now, the apostles were they who did implicitly receive Him: and why does not St. John refer to those, whether living or dead, as admitted to the privilege of becoming “sons of God”? I will tell you:—it was because that they did not answer to that order of beings “which were born not of blood, nor of the will of the flesh, nor of the will of man, but of God.”[553] These were the persons to whom Christ came before—these were “His own,” because that, like Him, they also were of God.[554] These were they, who having lapsed into sin,[555] and vitiated their nature, drew down the vengeance of heaven upon them; and to the descendants of these it was that “the elect” and “the concealed one,” in mercy was made manifest, with proposals of redemption to regain their lost state!!! “O the depth of the riches both of the wisdom and knowledge of God! how unsearchable are His judgments, and how inscrutable His ways!”[556]
- 75. Seest thou notnow, therefore, the propriety of St. John’s expression, when He says, “And I knew Him not, but that He should be made manifest to Israel”;[557] for when, before “He was in the world,” it was in secret and concealed—as still and always represented in the mysteries! The latter, he asserts, as a matter of revelation—for the former he appeals to the experience of his auditors, as a subject of history: and both epochs are confirmed by the “voice from heaven,” which replied to Christ’s own prayer, as thus, “I have both glorified it,” viz. at Thy former manifestation—“and will glorify it again,”[558] at this Thy present!!! I was myself twelve years of age before ever I saw a Testament in any language. The first I was then introduced to was the Greek. Being in favour with my tutor, he took an interest in my progress, and the consequence was, to my gratitude and his praise, that no deviation from the exactness of grammatical technicality could possibly escape my observation. Soon as I arrived at the text wherein τα ιδια occurs, its irregularity, at once, flashed across my mind. I sought for an explanation, but it was in vain; my imagination set to work, but it was equally abortive. At length, in despair, I relinquished the pursuit, and never again troubled myself with it, or its solution, until recalled by its connection with the present inquiry. But it was not alone the peculiarity of gender that excited my circumspection, the phraseology, when translated, sounded so familiar to my ear, as to appear an old acquaintance under a new form. For, though I could then tolerably well express myself in English, the train of my reflections always ran in Irish. From infancy I spoke that tongue: it was to me vernacular. I thought in Irish, I understood in Irish, and I compared in Irish. My sentiments and my conceptions were filtrated therein! As to dialectal idioms or lingual peculiarities, I had not, of course, the most remote idea. Whether, therefore, the expression coming to “His own” were properly a Greek or an English elocution, I did not, then, know either sufficiently well to determine; but that it was Irish I was perfectly satisfied; my ear and my heart, at once, told me so.
- 76. I now positivelyaffirm that the phrase is neither Hebrew, Greek, nor English! And if you are not disposed to admit the information which it conveys,[559] to be an immediate communication from the Omnipotent, I have another very adequate mode of accounting for St. John’s having acquired it, and expressed it too in a phraseology so essentially Oriental. The three wise men—who came from the East to Jerusalem, saying, “Where is He that is born King of the Jews? for we have seen His star in the east, and are come to worship Him”[560]—to a mortal certainty imparted to him the intelligence!
- 77. Here you seethem with crosses upon their crowns,[561] the religious counterparts of our Irish shamrocs![562] And surely, as Jesus was then but an infant, those mysterious devices were commemorative of His crucifixion, when “He came to His own,”—and not to that which occurred while He “dwelt among us,” a catastrophe which had not yet taken place! Nor is it alone this single phrase (τα ιδια) that I claim as Oriental— the five first verses of this Gospel, as at present arranged, appertain also thereto. They speak the doctrine alike of the Budhists and of the Free-masons; but in diction, and in peculiarity, in tone, in point, and essence, they are irrefragably Irish.[563] That St. John never wrote them is beyond all question! but having found them to his hand, existing after the circuit of centuries and ages, the composition seemed so pure, and so consonant with Christianity, nay, its very vitality and soul, he adopted it as the preface to his own production, which begins only at the sixth verse, opening with, “There was a man sent from God whose name was John”! Having asserted that the preliminary part was inalienably Irish, I now undertake to prove a radical misconception, nay, a derogation from the majesty of the Messiah, to have crept into the text, in consequence of its having been translated by persons unacquainted with that language! The term logos, which you render word, means to an iota the spiritual flame—log, or logh, being the original denomination. The Greeks, who had borrowed all their religion from the Irish, adopted this also from their vocabulary; but its form not being suited to the genius of their language, they fashioned it thereto by adding the termination os, as loghos; and thus did it become identified in sound with the common logos, which they had before, and which merely expresses a word or term!
- 78. But though thusconfounded, their philosophers, for a long time, kept both expressions distinct. The former they ever considered a foreign importation, rendering it, as we did, by the spiritual flame; as is evident from Zeno making use of the expression, δια του παντος λογος, that is, the spiritual flame, which is diffused through, and vivifies everything. Pythagoras is so explicit upon this spiritual flame, that you would swear he was paraphrasing the first five verses of St. John. “God,” says he, “is neither the object of sense, nor subject to passion, but invisible, only intelligible, and supremely intelligent. In His body, He is like the light, and in His soul He resembles truth. He is the universal spirit that pervades and diffuseth itself over all nature. All beings receive their life from Him. There is but one only God, who is not, as some are apt to imagine, seated above the world, beyond the orb of the universe; but being Himself all in all, He sees all the beings that fill His immensity, the only principle, the light of Heaven, the Father of all. He produces everything, He orders and disposes everything; He is the reason, the life, and the motion of all being.” Even the Latins having borrowed the idea from the Greeks, steered clear of the equivocation of the ridiculous word; and the immortal Maro, when describing the quickening influence of this ethereal logos through all the branches of nature, interprets it as above, literally, by the spiritual flame! “Principio cœlum ac terras, camposque liquentes, Lucentemque globum Lunæ, Titaniaque Astra, Spiritus intus alit; totamque infusa per artus Mens agitat molem, et magno se corpore miscet. Inde hominum pecudumque genus, vitæque volantum, Et quæ marmoreo fert monstra sub æquore pontus.”[564] Am I, therefore, presumptuous in appealing to the community to reject this word as applied to the logos? A meaning, it is true, has
- 79. been trumped upfor this, as the communicating vehicle between God and His creatures! No doubt the Saviour is all that: but logos does not express it; and the duration of an abuse is no reason why it should be perpetuated after its exposure. I have said that it degraded the dignity of the Godhead to render this expression by the form of word. I do not retract the charge: on the contrary, I add that, independently altogether of the former arguments, adduced to establish its inaccuracy, it would be revolting to common sense, were it not even thus incorrect! For example—“In Him was life,” says the text, “and the life was the light of men.” Now, how could there be life in a word? except by the most unnatural straining of metaphor. Or, admitting that there was life, how could there be light, except by the same? Whereas, by substituting the proper term, then all is regular and easy; for what could be more natural, than that there should be life in spirit? and that this life should give light to men? You will observe accordingly, that Jesus Himself, when describing His own character, exactly states what I here rectify, saying, “I am the light of the world”—not the word of the world—or any such nonsense. And He continues the idea by noting further, that “he that followeth Me shall not walk in darkness, but shall have the light of life.”[565] Thus keeping up an uninterrupted reference to logos, or the spiritual flame! I do, therefore, humbly, but strenuously, implore of the legislature that they restore this epithet to its divine interpretation! I entreat of the heads, as well of Church as of State, that they cancel the error; for error I unhesitatingly pronounce it to be,—a derogation from the Godhead, and a perversion of the attributes of the Messiah! I will myself show the way—thus: “In the beginning was the spiritual flame: and the spiritual flame was with God, and the spiritual flame was God.”[566]
- 80. How beautiful! mayI hope that it will never more be extinguished! Now, there is another text in the same chapter, which, though not incorrectly translated, yet loses half its beauty as at present understood! It will startle you when I recite it! Yet here it comes. “Behold the Lamb of God, which taketh away the sin of the world!”[567] By lamb, no doubt, you mean a young sheep: but let me ask you, what connection can you perceive between a young sheep and the taking away of sin? That of immolation, you answer, as typifying the grand offering. Well, then, why add “of God”? Why say, the young sheep of God, if it was an ordinary animal of the mere ovine species that was intended? No, sir; recollect the “Lamb slain from the beginning of the world,” recorded in the Revelations, as quoted before.[568] A deep mystery is involved in this expression, which the ingenuity of man could not evolve but through the Irish. In that language lambh is a word having three significations. The first is a hand; the second a young sheep; and the third a cross.[569] Let us now, in rendering the text, substitute this latter instead of the intermediate; and it will be, “Behold the cross of God, which taketh away the sin of the world!” By which you perceive that when John the Baptist, by inspiration, pointed out Jesus Christ as the universal Saviour of the world, his very words establish a previous crucifixion! You now see how it happened that ten, in numerals, came to be represented by a cross X. This being the number of fingers upon each person’s hands: and a hand and a cross being both prefigured in the sacred, that is, in the Irish language,[570] by the same term, lambh, it hence occurred that in all reckoning and notation, a new score should be commenced therefrom—that its sanctity should be still further enhanced by the epithet of diag, or perfection, which characterises it as a submultiple, and that the mysteriousness of the
- 81. whole should beadditionally shrouded under the comprehensive symbol of a pyramid or triangle △[571] “Our Hibernian Druids,” says Vallancey, “always wore a key, like the doctors of law of the Jews, to show they alone had the key of the sciences, that is, that they alone could communicate the knowledge of the doctrine they preached. The name of this key was kire, or cire; and eo, a peg or pin, being compounded with it, forms the modern eo-cire, the key of a lock. The figure of this key resembled a cross; those of the Lacedæmonians and Egyptians were of the same form.” Estimable and revered Vallancey, it pains me to say anything against you! but on those subjects you were quite at bay! It was not to “show that they alone had the key of the sciences,” that “the doctors of law of the Jews always wore a key,” but because that they had seen it in the ceremonial of the Egyptians, from whom, like the Lacedæmonians, they had borrowed its use, without either of them being able to penetrate its import![572] The origin, then, of this badge appearing amongst the habiliments of our ancient priests, is developed by the name which those priests themselves bore, viz. Luamh, which, being but a direct formative from lambh, a cross, unlocks the secret of their being its ministers. [573] The Idæi-Dactyli, who superintended the mysteries of Ceres, obtained their designation from the very same cause, and corresponded literally with our Luamhs: for the Iod of the Chaldeans being equivalent to the lambh or hand of the Irish, the number of fingers thereon were made religiously significant of the X, or cross! And,—what cannot fail to excite astonishment, as to the immutability of a nation’s character,—to this very hour, the symbolical oath of the Irish peasant is a transverse placing of the forefinger of one hand over that of the other, and then uttering the words, “By the cross”!
- 82. Are not theopposers of my truths, then, as yet satisfied? or will they still persist in saying that it was the Pope that sent over our Tuath- de-danaan crosses?[574] in the ship Argho! some thousands of years before ever Pope was born. I wonder was it His Holiness that transported emissaries also to that ancient city in America, lately discovered in ruins, near Palenque; amongst the sculptures of which we discover a cross! And the priority of which to the times of Christianity is borne witness to by the gentleman who has published the “Description” of those ruins,[575] though glaringly ignorant as to what was commemorated thereby. “Upon one point, however,” he says, “it is deemed essentially necessary to lay a stress, which is the representation of a Greek cross, in the largest plate illustrative of the present work, from whence the casual observer might be prompted to infer that the Palencian city flourished at a period subsequent to the Christian era; whereas it is perfectly well known to all those conversant with the mythology of the ancients, that the figure of a cross constituted the leading symbol of their religious worship: for instance, the augural staff or wand of the Romans was an exact resemblance of a cross, being borne as the ensign of authority by the community of the augurs of Rome, where they were held in such high veneration that, although guilty of flagrant crimes, they could not be deposed from their offices; and with the Egyptians the staff of Bootes or Osiris is similar to the crosier of Catholic bishops, which terminated at the top with a cross.” But if the Pope had so great a taste for beautifying our valleys with those costly specimens of art, whereof some are at least eighteen feet in height, composed of a single stone, and chiselled into devices of the most elaborate mysteries, is it not marvellous that he has not, in the plenitude of his piety, thought proper to adorn the neighbourhood of the Holy See with any similar trophies? And why has he not preserved in the archives of the Vatican any record of the bequest, as he has taken care to do in the case of the four palls?
- 83. But, transcendently andlastly, why did he deem it necessary to depict centaurs upon those crosses, with snakes, serpents, dogs and other animals, such as this following one exhibits, which is that at Kells, and which has been alluded to, by promise, some pages backwards.[576] I have now done with the appropriation of those columns; and shall just whisper into my adversaries’ ears—if they have but recovered from the downcrash of their fabric—that so far from laying claim to the honour of their erection, the Pope has actually excommunicated all such as revered them! and has otherwise disowned all
- 84. participation therein, bythe fulminating of bulls and of anathemas! [577] Yet did the zealots of party, after the history of those crosses was forgotten, associate them individually with some favourite saint! “This notion,” says Mosheim, referring to such diversions, “rendered it necessary to multiply prodigiously their number, and to create daily new ones. The clergy set their invention at work, and peopled at discretion the invisible world with imaginary protectors; they invented the names and histories of saints that never existed; many chose their own patrons, either phantoms of their own creation or distracted fanatics whom they sainted.” Here, however, the historian is as inaccurate as he is severe: for not only did the majority of those saints, if not all of them, exist, but the greater part also of those exploits ascribed to them have actually occurred! The imposition consisted in making them the heroes of events and legends belonging to former actors.[578] I shall now give you, from the Book of Ballymote, my proof for the assertion before advanced as to the Goban Saer, whom they would fain appropriate, having been a member of the Tuath-de-danaans, viz.: “Ro gabsat sartain in Eirin Tuatha Dadann is deb ro badar na prem ealadhnaigh: Luchtand saer credne ceard: Dian ceachd liargh etan dan a hingeinsidhe: buime na filedh Goibneadh Gobha lug Mac Eithe Occai; ro badar na huile dana Daghadae in Righ: oghma brathair in Righ, is e ar arainic litri no Scot.” That is, The Tuath-de- danaans then ruled in Eirin. They were first in all sciences. Credne Ceard was of this people; and his daughter Dean Ceachd, who presided over physic: she nursed the poet Gohne Gobha, the Free- mason (lug is the same as Saer), son of Occai Esthne. Daghdae the king was skilled in all sciences: his brother Ogmus taught the Scythians the use of letters. Thus you see that he could not, by possibility, be on the same theatre with St. Abham; while the popular tradition is still
- 85. substantially true whichconnects his name with the erection of the Round Towers! The Church festivals themselves, in our Christian calendar, are but the direct transfers from the Tuath-de-danaan ritual. Their very names in Irish are identically the same as those by which they were distinguished by that earlier race. If therefore, surprise has heretofore been excited at the conformity observable between our Church institutions and those of the East, let it in future subside at the explicit announcement that Christianity, with us, was but the revival of a religion imported amongst us, many ages before, by the Tuath-de-danaans from the East, and not from any chimerical inundation of Greek missionaries—a revival upon which their hearts were longingly riveted, and which Fiech himself, the pupil of St. Patrick, and bishop of Sletty, unconsciously registers in the following couplet, viz.:— “Tuatha Heren, tarcaintais Dos nicfead sith laithaith nua.”[579] That is,— The Budhists of Irin prophesied That new times of peace would come. What kind of peace, you ask? Is it of deliverance from their Scythian oppressors? No, but that spiritual tranquillity, such as they enjoyed before, and at which even the angels of heaven rejoiced, while announcing the tidings to man[580]— “And sweet, and with rapture o’erflowing, Was the song from that multitude heard, Who their heav’n for a season foregoing, To second the Angel appear’d. ‘All glory,’ the anthem resounding, ‘To God in the highest,’ began; And the chant was re-echoed, responding, ‘Peace on earth, loving-kindness to man.’”[581]
- 86. You will rememberthat the Scriptures themselves record, how that the wise men of the East foresaw this epoch; and “Lo, the star which they saw in the east, went before them, till it came and stood over where the young child was.”[582] Is it therefore to be wondered at that our Tuath-de-danaans, who were their brethren, should equally anticipate it? Yes, from the commencement of time, and through all the changes of humanity, God had always witnesses to the truth in this nether world. “And Melchizedec, King of Salem, brought forth bread and wine, and he was the priest of the most high God. “And he blessed him, and said, Blessed be Abram of the most high God, possessor of heaven and earth: “And blessed be the most high God, which hath delivered thine enemies into thy hand. And he gave him tithes of all.”[583] “Now consider how great this man was, unto whom even the patriarch Abraham gave the tenth of the spoils. “For this Melchizedec, King of Salem, priest of the most high God, who met Abraham returning from the slaughter of the kings, and blessed him: “To whom also Abraham gave a tenth part of all: first being, by interpretation, king of righteousness, and after that also king of Salem, which is king of peace. “Without father, without mother, without descent, having neither beginning of days nor end of life; but made like unto the Son of God —abideth a priest continually.”[584] Thus does the apostle proceed, in a strain of the closest argumentation, to point out the superiority of this king of peace, over Abraham and his lineage: after which Mr. Brown, in his
- 87. Commentary upon theBible, expresses himself as follows, viz.: —“Who this Melchizedec was, this priest of God among the Canaanites, greater than Abraham, the friend of God, who were his parents or his successors, is on purpose concealed by the Holy Ghost. And hence he is without father or mother, predecessor or successor, in his historical account, in order that he might typify the incomprehensible dignity, the amazing pedigree and unchangeable duration of Jesus Christ, our great High Priest.” Nobody can quarrel with the piety of this commentator: but piety is not the only requisite for a commentator upon the Scriptures: the absence of stupidity is an essential condition. It is not, however, as applied to this particular passage that I thus express myself: were this the only instance of accommodating oversight it should draw forth no critique from me. But the instances are innumerable, to verify the expression that “some persons see, but perceive not.” Mr. Brown had no idea of an emanation! Mr. Brown did not comprehend the sons of God! Mr. Brown did not know the connection which existed between the peace of Christ and that which was represented by Melchizedec.[585] “How beautiful upon the mountains are the feet of Him that bringeth good tidings, that publisheth peace; that bringeth good tidings of good, that publisheth salvation; that saith unto Zion, Thy God reigneth.”[586] “These things have I spoken unto you, that in Me ye might have peace. In the world ye shall have tribulation: but be of good cheer; I have overcome the world.”[587] “If thou hadst known, even thou, at least in this thy day the things which belong unto thy peace! but now they are hid from thine eyes.”[588] “Peace I leave with you; My peace I give unto you: not as the world giveth, give I unto you.”[589]
- 88. “Which hope wehave as an anchor of the soul, both sure and steadfast, and which entereth into that within the veil; “Whither the forerunner is for us entered, even Jesus, made an High Priest for ever after the order of Melchisedec.”[590] “From our fathers to us the good tidings descend, From us to our children agen; Unrestrain’d as the sun, and as lasting, they blend All the nations and ages of men. Good news of great joy to all people, they speak At once to the learn’d and the rude, To barbarian and Scythian, the Jew and the Greek, Nor country nor person exclude. From the man who goes forth to his labour by day, To the woman his help-meet at home; From the child that delights in his infantine play, To the old on the brink of the tomb; From the bridal companions, the youth and the maid, To the train on the death-pomp that wait; From the rich in fine linen and purple array’d, To the beggar that lies at his gate: To all is the ensign of blessedness shown, To the dwellers in vale or on hill, Alike to the monarch who sits on his throne, And the bond-man who toils at the mill; High and low, rich and poor, young and old, one and all, Earth’s sojourners, dead and alive, Who perish’d by Adam, our forefather’s fall, Shall in Jesus the Saviour revive. Not an ear, that those tidings of welfare can meet, But to it doth that welfare belong: Then those tidings with rapture what ear shall not greet,
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