Protestantism and the Western Legal Tradition
In the predecessor to this volume, Law and Revolution: The Formation of the Western Legal Tradition, Harold J. Berman showed how the Papal Revolution of the eleventh and twelfth centuries set in motion the formation of the western legal tradition. By winning the right and power to appoint his own bishops, the Pope liberated the Church from domination by secular political leaders. One crucial result was formation of the canon law. And in response to this law, and the increased influence of the Church hierarchy and its religious principles throughout Europe, secular systems of law, including royal, urban, feudal, and mercantile, developed. The result was a diversity of laws and jurisdictions which, combined with the diversity of powerful groups and authorities (religious, royal, feudal, familial, economic, urban and folk-based) gave individuals greater self-determination and created the so-called high Middle Ages. Spurred by individual and communal freedoms amidst an increased security of person and process, society flourished, producing art, economic advancement and political liberties of very high order, and shaping law and society to this day.
That first volume of Law and Revolution played an important role in the recovery of scholars’ understanding of the roots of constitutionalism, individual freedom and ordered liberty. Now Berman has turned his attention to revolutions rooted in a second great religious upheaval: the Protestant Reformation. This upheaval was the motive force, according to Berman, of two critical revolutions, the one (Lutheran) in Germany, and the other (Calvinist) in England. Berman argues that by Luther’s time the Papal or Gregorian revolution “had failed;” that is, the idea of the state as aiming at grace and justice with the help of the Church no longer was taken seriously. And it certainly is true that this time of great corruption and dislocation was ripe for reform.
The primary “reform” figure in this volume is Martin Luther. The former monk changed the Christian world through his attacks on the Catholic Church. He proclaimed and in much of Europe institutionalized the end of the ecclesiastical jurisdiction—the religious jurisdiction that had ruled along with a variety of secular jurisdictions since the Papal revolution. Luther sought to aim an unrestricted secular government toward attainment of justice and salvation. His method was the replacement of the two swords with the notion of two kingdoms. In this he moved the “invisible church,” the “priesthood of all believers” to an otherworldly jurisdiction of heaven, leaving “this world” of government and institutionalized religion to be ruled by law.
It is the nature of this law, influenced by Lutheran and Calvinist theology, as well as political movements and the Catholic inheritance important even in Protestant Europe, which Berman sets forth in this volume. Luther and his fellow Protestants believed that salvation in the heavenly kingdom comes only through grace, and not through “works of the law.” This meant, in their view, that the Church had no special authority in the realm of earthly lawmaking. This did not, however, mean that for Luther and his followers there was no special, spiritual role for law. Thus Berman claims that the Reformation not only produced the secularization of the spiritual realm, but also a spiritualization of the secular realm, as Protestant countries eventually handed over to the state control over formerly Church-governed areas such as moral discipline, marriage, poor relief and schooling.
Moreover, Luther’s follower Philip Melanchthon set forth a positive program for legal reform in the earthly kingdom. Purposes of the law, on this view, were three: to make sinners conscious of their sinfulness and so bring them to repentance; to deter sinners from antisocial acts; and to guide the righteous in following the paths of justice and the common good. Such purposes clearly are relevant for the souls of men. But, while Protestantism provided a kind of theological grounding for its law, that law was to be the product of the secular powers. No longer would there be a separate, religious jurisdiction as the secular governors seized Church lands and became heads of unitary secular states with their own integrated legal systems.
Berman is careful to point out that monarchical absolutism became a fact in both Protestant and Catholic kingdoms. Nonetheless, it remains clear from the thrust of his argument that the elimination of the Church’s institutional ability to counter secular rulers was essential to the consolidation of powers in the territorial nation state. Lutheranism brought with it the consolidation of many jurisdictions separated by purpose and subject matter into a relatively few jurisdictions, many of them separated only by territorial control, within a system clearly aiming at uniformity of legal rules.
Thus the eventual absorption of jurisdictions into the secular state had a massive impact on the nature and purposes of law in Germany. This impact stretched from greater concentration on earthly effects of formerly spiritual legislation to a rationalization of forms of law dealing with contract, civil wrongs and criminal law. But Berman emphasizes the extent to which mere legal positivism—definition of the law as the will of the sovereign, inherently justified as such—was not the result of this transformation, though the rise of a political conception of law clearly took place.
An important subject given surprisingly little treatment, or even credence, by Berman is the effect of the loss of a multiplicity of authorities on the liberties of individuals and corporate groups in many parts of Europe. But Berman does provide detailed treatments of the effects of consolidation and rationalism on law in nations influenced by the Reformation. In Germany the Prince and his councilors became the sole source of law; yet the interpretation of law, particularly after the development of the notion of equity or fairness (highly influenced by the now supposedly banished canon law), along with the role of legal scholars, provided a kind of check on the Prince’s power.
England during what is often called the early modern period went through a series of upheavals, beginning with Henry VIII’s split from Rome, passing through the English Civil War of the seventeenth century, and culminating in the Glorious Revolution of 1688-89. Henry VIII’s concentration of powers in his own hands brought the religious jurisdiction under his control. But the Civil War and eventual victory of Whig elements produced a fundamental restructuring of the monarchy itself.
England generally is credited with being among the few kingdoms that retained its liberty, and helped spawn liberty’s rebirth in America. But this retention was in fact a throwback, after the bloody times of the Tudor monarchs, to more medieval conceptions of group solidarity and separate governmental jurisdictions—the roots of our current separation of powers. Key, here, was the English revolution. Rooted in Calvinist theology, this revolution saved from consolidation the local rights regnant in English life. It embedded the covenant tradition in English (and American) practice and gave a communitarian cast to all forms of English law—including those regarding contracts and the formation of corporations.
Especially important in checking the King’s supremacist ambitions was the work of Sir Edward Coke. Coke, a prominent seventeenth century jurist, held that, while the king was, in fact, the only source of law (as Henry VIII had claimed) the “king” was not just the current occupant of the throne, but rather the kingship as an historical institution, comprising the succession of monarchs, each binding their successors. This historical understanding of law and political power developed over time into the peculiarly English doctrine of precedent, according to which judges are to reason from analogy with past cases, deciding issues in front of them so as to retain continuity with the past as well as the capacity to deal with changing needs. Procedural rights (eventually culminating in our own adversarial system of two lawyers arguing in front of an impartial judge and jury) also were emphasized and expanded, as were the rights of corporations seen as communities joined in common ventures aimed at the public good. All these developments, rooted in theological conceptions of the person, society, and the means of salvation, and combined with institutional imperatives, eventually brought the king to heel, as part of the king-in-parliament.
Clearly this English heritage is of particular importance for Americans, whose political culture in particular retains firm connections with its mother country’s past. But Berman is more concerned with what he sees as the contemporary crisis of the Western legal tradition as a whole. Berman argues that we have left behind the era of the West in our law, and are entering into a time of world law, in which the West should play a large and productive role. It is to spur productive rethinking and engagement that Berman has written these two volumes, with future volumes projected to deal with other great revolutions Berman sees punctuating and re-forming the Western legal tradition.
Such revolutions form the core of Berman’s theory of the development of legal systems. Rejecting the common periodization of Western history into ancient, medieval and modern, Berman pushes the modern back to its roots in the eleventh century and emphasizes revolutions in Germany, England, America, France and Russia in reshaping the West. Berman is right to reject the more or less standard periodization of history. This periodization is particularly dismissive of the “between times” during which so much of our contemporary world was formed. Moreover, it posits as “modern” vastly differing times and movements, from Romanticism to the Enlightenment, to Existentialism.
Any periodization will in important respects be arbitrary, for it is the imposition of broad themes on the widely divergent experiences of widely divergent peoples and civilizations. Unfortunately, there is behind Berman’s often brilliant study of particular historical events and legal developments a particularly Whiggish view of history that at times blurs his vision. The clearest example of this comes when Berman spells out for the reader his schema of all the revolutions that have shaped the west until this day. In order to show the steady progression of our conceptions of law from the most local and variegated to the most universal (indeed, world law) he actually misplaces the French Revolution in time, placing it before the American in order to further his argument that the American revolution was “half French and half English.”
And this prejudice leads Berman to overlook one of the most emphasized trends among both its friends and opponents: secularization, the emptying out of faith from social and political life. While he attempts in his other works to construct a vision of “world law” that has important roots in earlier conceptions of natural law, the religious aspect has become so truncated, the social commonalities of the particular so muted, and the emphasis on the universal so insistent, that one wonders what is left of people’s actual lived communities. Given Berman’s emphasis on the role of religion in forming law, one wonders what substantive religion is left—and whether any “world” religion could have sufficient substance to undergird a “world” law.
It is important to note, however, that, scholar that he is, Berman does not allow his overarching theme to influence or ideologize his brilliant and groundbreaking treatment of historical subjects central to our self-understanding as a culture, and too often ignored or distorted in contemporary discourse.
Bruce Frohnen is an associate professor of Law at Ave Maria School of Law in Ann Arbor, Michigan.
Posted: May 14, 2007
A Road Not Taken
Gerald J. Russello