34-41
Anglophone and Civilian Legal Cultures: Two understandings of human trust for the global age.
Authors: Joseph P. Garske

Number of views: 42
The principle of human trust works in both the Anglophone and Civilian legal cultures,
but does so in two opposite ways. Although not explicitly stated in either legal
tradition, the element of trust is of central importance in both. The two traditions
began in the medieval period, but in very different circumstances. They had entirely
different understandings of what law was and the purposes for which it worked.
Their modern incarnations, together with implicit attitudes toward human trust, took
shape during the seventeenth and eighteenth centuries--in ways that reinforced their
original differences. Their contradictory ideas of trust derived from opposing concepts
of human nature: a Humanist confidence in the capacity of men as compared with
a Calvinist belief in the depravity of men. Eighteenth century Continental jurists
rejected religion as the educative basis of rule. Instead, they embraced an Optimistic
philosophic view of human nature, expressed in the Sensus Communis. During the
same period England retained a deeply established Puritan ethos. It separated Church
and State but, unlike the more secular Continent, it retained an amorphous religiosity
as the legitimizing basis of its rule. In Continental legal culture, the ideological and
educative half of governance was emphasized. Public cultivation and learning, and
the faculty of human reason, were relied on as the ultimate basis of order. By contrast,
Anglophone legality, resting on an assumption of human turpitude, promised
freedom—but within enforced limits. Its hierarchical Rule of Law was founded on public
faith in judicial authority. The project to construct a global law brings these traditions
into confrontation. A resolution reached by them will determine the meaning and
importance of human trust in the global age.