From Homer to Hegel: Ideas of Law and Culture in the West

This review essay offers a critical appraisal of Donald Kelley's account of the dialectic of natural law and cultural custom in the Western legal tradition – from the battles between Platonists and Sophists in ancient Greece to the struggle between Enlightenment liberals and the advocates of modern codification. On the strength of his historical analysis, Kelley argues that custom should be elevated as a legitimate source of law, and that social, economic, and idealist interpretations of the Western legal tradition fail to do justice to the role of tradition, custom, and precedent. While commending Kelley's general thesis, this essay argues that Kelley has deprecated the fundamental role of religious ideas and institutions in the development of the Western legal tradition, has underplayed the real differences in ideas of nature and culture over time and across cultures, and has been far too selective and sometimes skewed in his analysis of relevant historical sources.