"It is revolting to have no better reason for a rule of law than so it was laid down in the time of Henry IV." So wrote Oliver Wendell Holmes, capturing the spirit of an age. Tradition, said Holmes, was an irrational, useless, and faulty guide. Following his lead, 20th century "legal realists" were confident in nothing so much as in their iconoclasm; in stripping the falsifying masks of the law"divine decree," "justice," "natural right," "ancient tradition"they would expose the abiding reality underneath: the amoral, Darwinian struggle for power. Bereft of transcendent principles of right and justice sourced in the character of the triune God, or in the nature of things, or both, law was determined to be nothing more than the positive command of the sovereign brokers of power.
This cynical approach trickled down to form the conscience of generations of practicing lawyers in America, all of whom learn early enough in law school that "you can make the law mean whatever you want it to say"; that law is nothing more than a tool for amassing social, political, and economic power, a club for enforcing the hegemony of a given race, gender, or class, and so on. And it's not just the law schools: what sentient beneficiary of America's vaunted educational system hasn't been bludgeoned over the head with this supposedly liberating partial-truth? Given such an environment, it is small wonder that the appointment of a new Supreme Court justice is universally regarded as a momentous event fraught with far-reaching political significance.
Harold J. Berman's path-breaking work, Law and Revolution (1983), opened up new sources for a generation going thirsty in the desert wastes produced by the desiccating winds of legal modernism and its reductionist "postmodern" progeny. For Berman, drawing on Augustine's Trinitarian teachings, an effective, vibrant, and legitimate legal system operates as a durable cord of three strands. Law is not merely the positive command of the law-giver, but also reflects the universal moral lawcodified, for instance, in the second table of the Decaloguewhat C.S. Lewis called the Tao. There is also a temporal component to law; it expresses the historical traditions of a people. Bringing to light these submerged dimensions of the law, Berman identified the historical origins of a coherent, distinctly Western legal tradition in what he called the Papal Revolutionthe Investiture Controversy of the 11th century. As a result of the agitations of Pope Gregory VII, separate and competing jurisdictions developed in Church and Empire, the domain of Christendom, providing the impetus to further vigorous development.
Out of the competitive friction of canon law and secular systems emerged what we know today as the West's tradition of law. This tradition is characterized by its separateness as an integrated, organic corpuslaw in the West is not the same thing as the customs or mores or traditions of a given group of people. This autonomous body of law is subject to critical analysis and refinement; its institutions are staffed by a discrete class of specially trained professionals. Further, there is dynamic forward movement; law develops over time, punctuated by crisis periods, revolutions spurred by the failure of laws and legal institutions to live up to ideals of right and justice originally formulated in the crucible of Christian faith and practice. It was Berman's contribution to identify the context of these beginnings within the corresponding train of historical developments in Western Christendom.
This long-awaited second volume brings the account forward to embrace the period of the Reformation and the Puritan era. Here, Berman argues, unresolved tensions within the old political and legal order established by the Papal Revolution led to a comprehensive movement for reform that ultimately took on not only a theological, but also a social, political, and legal character.
The first half of the book examines the impact of the Lutheran "revolution" in German-speaking lands. Law could hardly remain unaffected by the upheaval of the Reformation. In territories that embraced it, the Reformation entailed the reform of law as well as theology. Berman is able to point out with precision just how this came about. In so doing, he brings to light the specifically legal dimensions and consequences of Luther's complaint. Theological reform entailed the dismantling of a works-oriented canon law system. A different legal philosophy and science arose in its place. Luther's colleague Philip Melanchthon produced a new systematic jurisprudence built on foundations laid by Lutheran theology. Melanchthon's method of analysis, set by the categories of the second table of the Decalogue, derived the basic topics of our contemporary law school curriculum, constitutional law, family law, criminal law, property law, etc. Berman does a great service to English readers in introducing the work of other important legal innovators, such as Johann Schwarzenberg in the field of criminal law, and Johann Apel and Konrad Lagus in the areas of civil, economic, and social law.
A familiar thesis states that the Protestant Reformation marked the origins of the rise of secular modernity, whereby the transference of large swathes of jurisdictional authority from Roman Catholic Church to secular princes eventually led to a public square leached of transcendent value, purpose, and meaning. Berman argues that the history of the legal Reformation points to a different conclusion: "In a deeper sense, the law governing these matters," because of the influence of the Lutheran churches upon the state and its institutions, "remained spiritual law." This influence produced amelioration of laws related to marriage and poor relief, for instance. "Politics and law were not paths to grace and faith, but grace and faith remained paths to right politics and right law. The Christian was supposed to be law-abiding, and the law of a Christian prince was supposed to achieve both order and justice."
The author doesn't gloss over the difficulties involved in tying historical causes with their concomitant effects. The emphasis on the long-term ramifications of political and cultural upheaval means that Berman takes a rather long view of the dimensions of the revolutions he explores here. What he calls "the German Revolution" extended from 1517 to 1555. The second half of the book deals with "the English Revolution of 1640-1689." But really, the story here goes back even further, to the Reformation in 16th-century England. And in the account of the legal reforms that followed from the crisis of the Puritan period, the story carries forward well into the 18th century. Here, too, a breakdown in the settlement of the Peace of Augsburg, and its parallel developments in the rest of Europe, led to a new period of crisis, culminating in the Puritan-led "English Revolution."
If the contribution of the Lutheran reforms was an emphasis on positivism, on the territorial Christian prince as law-giver, Calvinist-inspired reforms gave the impetus to a robust sense of the historical development of law. Here, "the Calvinist doctrine that history is wholly within the Providence of God" underlay a conception of England's history and institutions as "the heritage on which their constitutional law was founded and which gave guidance for its future development." While in some sense the features of a distinctive English philosophy of law predated this period, with the 17th-century transformation, the historical common-law tradition came into focus, crystallized, and sprang to life, giving rise to the works of the great common-law jurists Coke, Selden, and Hale. Here, too, Calvinist covenant theology spilled over to shape the transforming, innovative initiatives of a rich and vibrant voluntary associational life, leading to communitarian joint-stock enterprises, reform of private and public finance, charity schools and poor relief, to name only some of the most significant legal contributions of the period.
Berman draws upon his teacher, the German philosopher and historian Eugen Rosenstock-Huessy, in formulating his theory of the "punctuated equilibriums" of revolution in Western cultural and legal history. Rosenstock wrote in the idiom of what the historian Crane Brinton called "the German cloud-cuckoo-land of beautiful and inexact ideas," and some of the teacher rubs off here in Berman's loose and expansive periodization. The need to "get everything in" to fit the theory leads to some implausible stretching. Is the "English Revolution" still the proximate cause for Blackstone's famous Commentaries of the mid-18th century? Surely, Berman does not mean to contend for Proudhon's révolution en permanence!
Moreover, readers familiar with the refulgent development of Calvinist political and social theory may be disappointed in the book's treatment of it. It would have been helpful to see more engagement with a rich, underappreciated mine of original sources on these subjects. To take only one prominent example, the influential literature of "cases of conscience" produced by leading Puritans such as William Perkins, William Ames, and Richard Baxter contains a wealth of counsel on everything from theft and murder to negotiation and execution of contracts to lawyers' ethics. More emphasis on these sources could have lent greater coherence to Berman's account of English Calvinist thinking on law and society, and offered insight into the systematic durability of a Western and European tradition that extends from Calvin, Knox, Bullinger, and Althusius from the Reformation period, to the Dutchmen Kuyper and Dooyeweerd in the 20th century. But this reading might reflect a misapprehension of Berman's terms. From the long perspective reflected by the legal and political heritage of the "English Revolution," its abiding influence probably reflects more of the Anglican propensity for an all-embracing concordance of discordant theological and political canons, than a specifically Calvinist emphasis on systematic precision.
Additional sources could also have made for a much larger book. At 522 pages, the work already covers a huge and strangely new territory. We can only be grateful for Berman's labor of recovery as it stands. For all the faults of the legal orders of Christendomand the author doesn't gloss over thesethe perspective provided by these studies reveals an enduring strength and coherence, derived from the vigorous combination of positive command, clarity of moral right, and integrated historical tradition.
There is, after all, much that could be retrieved and salvaged, if we are willing to look. We live in an age in which, to use Burke's expression, "temporary possessors and life-renters" of the commonwealth have too long deemed it to be "among their rights to cut off the entail or commit waste on the inheritance by destroying at their pleasure the whole original fabric of their society, hazarding to leave to those who come after them a ruin instead of an habitation." For those trying to find their bearings in the wasteland of our contemporary culture wars, Professor Berman's work, the distillation of nearly six decades of teaching and reflection, can serve as a refreshing and helpful guide.