Customer Reviews

Law and Revolution, The Formation of the Western Legal Tradition

5 star:		(7)
4 star:		(3)
3 star:		(0)
2 star:		(0)
1 star:		(0)

 

 

At its core, the thesis of the book is this: that the origins of the western legal tradition can be traced to a "Papal Revolution" in the 11th and 12th centuries. The Papal Revolution, in essence, was an effort by scholars like Peter Abelard, Gratian, and Bracton, who applied an ancient Greek method of abstraction and analysis to the remnants of Roman law dating back to Justinian five or six centuries earlier. The Greek philosophers never gave much regard to the laws of their city-states, and the Romans wilfully avoided applying any level of abstraction to their laws, so when the 11th and 12th century scholars applied the Greek analytical method to the Roman law, something truly unique was born.

But that's only the beginning. Berman goes to great lengths to show that the "Papal Revolution", though it may not have taken place as abruptly as the other later revolutions in the western world, was no less an epochal event. The first half of the book traces how the canon law and papal power first separated itself from the secular law of the territorial kingdoms, and then asserted its own kind of jurisdiction. Although the level of detail sometimes distracts from Berman's main point, the organization of the chapters in Part I are careful to build up the story of how the need to gloss the old Roman texts led to a "science of law" in itself, and then to competing jurisdictions between emperor and pope, and how the development of the law led to the resolution of these conflicts. Part I ends with a short chapter on the personal conflict between King Henry II of England and Thomas Becket, Archbishop of Canterbury, which Berman proposes is the personification of the competing interests of the papacy and the secular authority.

Part II takes a different organizational approach in describing how the secular law developed at the same time. Rather than a chronological buildup, part II is a subject-matter survey of the different clusters of secular authority, and the body of law that bound them together. (For example, urban law of certain cities that got franchised to other towns and cities, mercantile law that was largely self-governed by the merchants, royal law that up until then had not developed in itself.)

Law students and lawyers will recognize some of the terminology that gets introduced as a part of the discussion, and it can provide some greater perspective on where and why these western legal concepts came from. But also, as emphasized in the introduction and conclusion, Berman proposes that the western tradition he describes is in a state of crisis. This book was published in 1984, at a time before Marxism's decline as living academic thought. In this light, the worries that legal history might be wrongfully described in only economic terms, or in terms of other historical "forces", may not be as pronounced. However, another concern -- that the western legal tradition is losing its structural integrity, or that the law is less and less founded upon a coherent foundation of reason -- still has relevance today. In that sense, the book is worth reading both for historical and for present-day purposes.

As an average US citizen without any legal training or education, I've always found the subject of law a bit overwhelming and intimidating to grasp. It is so primary in our "nation of laws" that law permeates almost every aspect of our lives. How does one even begin to get a handle on it? I asked a law professor if he had any recommendations, and he recommended "Law and Revolution", by Harold Berman. This book finally lifted the veil for me, on what law is in our society, and how it got that way. It portrays a huge panorama of the evolution of law from primitive trials by fire, to trials by church and by competing states, to our modern systems. I learned, for example, that one of the first and enduring reasons for criminal law is to prevent persons from retaliating in person against criminals. Back a thousand years ago, it was common for families to take revenge into their own hands, and the civil systems tried many ways to control this "need" to avenge, and modern criminal law grew out of those efforts. Another interesting learning was that the early church spent enormous efforts learning how to intellectually "reconcile" conflicting church dogmas, devising such techniques as "thesis, "anti-thesis" and "synthesis". Then, later, these highly refined intellectual skills were turned to the extremely complicated and confusing arena of law, and helped to gradually sort out and codify successful ways of acting civilized as a society. Ok, you get the idea. Just a few tidbits from this vast book. A wonderful reference for the average citizen who wants to understand the role of law in our lives. It stands as one of the top ten books I've ever read! Roger Matthews

"Law and Revolution" is a tour de force and a lasting contribution to legal scholarship. Scholars fortunate enough to be familiar with Berman's earlier book, "The Nature and Functions of Law," will immediately recognize Berman's approach to law as a social institution; an approach that is firmly grounded in history and experience, but which also takes into consideration the realm of ideas. Berman's thesis is that the Western legal tradition was created by a series of social "revolutions," and that we are currently at the end of an era and experiencing a "revolution" that will transform our legal institutions. "Law and Revolution" is Berman's attempt to trace the development of our Western legal tradition in order to glean knowledge that will be useful to us in weathering the storm of the current "revolution" in our legal institutions. As Berman states, "So I have had to view the Western tradition of law and legality, of order and justice, in a very long historical perspective, from its beginnings, in order to find a way out of our present predicament." The result of Berman's approach is a long book-Berman simply could not achieve his purpose in a brief essay. Berman writes well, however, and he manages always to fascinate the reader. Berman's depth of thought is as beautiful as it is rare. This is a book to read, to ponder, and to re-read. It deserves a broad audience both inside and outside legal academia.

This is a wonderful, wonderful book. I'm a law professor, but this book makes me wish I were a legal historian. I loved this book so much I taught a seminar where what we did mainly, was read this book. The only criticisms I have are that it is like one of those overwhelming meals where you cannot possibly ingest, let alone digest and appreciate, everything that is offered. The book is also an important corrective to the PC notion that the West is the source of all evil in the world. Instead you learn how deeply rooted are the ideas of individual freedom and dignity (not least, the dignity of women) in Western legal traditions, that can be traced ultimately to the complex interplay of Christian and Roman legal traditions. I teach at a (somewhat nominally) Catholic law school. I wish I could require all of our students to read this book before they graduate.

Prof. Berman wrote a comprehensive book about a forgotten historical topic. LAW AND REVOLUTION is precise explantion of the gradual developement of carefully crafted legal tradition during the Middle Ages beginning in the 11th century. Prof. Berman gives a solid background of family law, contractual law, criminal law, etc. Prof. Berman also gives a solid background of due process. He examination of the Catholic Church jurists' careful work is impressive. Prof. Berman explains who the Catholic Canon Law jurists tried to merge law with the Church's mission and sacramental system.

LAW AND REVOLUTION gives the Catholic Church's reasoning in attempting to bring what they thought was God's justice and mercy in line with legal norms. The attempt was to replace blood fueds, trial by combat, and trial by ordeal with a well ordered legal system that replaced vengence with justice. His citing of St. Anselm's (1035-1109) CUR DEUS HOMO as a partial explanation for the emergence of the Canon Law gives the reader insight for the Canon Law.

One example of the Canon jurists to merge the Catholic Church's sacraments with family law is their attempt to define marriage as both a sacrament and part of the law. The sacraments were suppose to be voluntary acts rather forced on individuals. This gradually led to the theory that arranged marriages were not binding. Another concern of the Catholic jurists was the legal definition of actions due to causa mortis(bacause of death). Prof. Berman uses this background to explain the Canon Law's reasoning regarding wills and estates.

The sections dealing with contractual law are informative. Prof. Berman explains the gradual change of the Catholic authorities on interest rates which were originally considere usury and a sin. Berman explains that the rapid economic changes beginning the in the tenth century led to a change in Canon Law. The Canon jurists ruled that interest rates were just compensation to the creditor due to the temporary loss of their money during the term of a loan. The legal term was "Pacta sunt servanda"(Contracts must be kept).

Prof. Berman's sections on criminal and civil law are useful. He explains the differnce between deliberate criminal acts and unintended negligence. Prof. Berman also explains the emergence of the differences between misdemeanors and felonies from the Catholic Church's definitions of venial and mortal sins. He cites Peter Abelard's dictum, "Nullum crimen, nulla poena, sine lege" (No crime, no punishement, without law). The Canon Law jurists were clear that unpopular acts were not necessarily crimes without a legal statute.

Prof. Berman's examination of Par Legum(by law or due process) demonstrates that the Catholic jurists were very concerned with legal rules and norms in legal cases. An example of this concern is the treatment of Rules of Evidence. This section shows that law was not arbitrary, and there were attempts to use "fair play" in legal proceedings.

Prof. Berman's LAW AND REVOLUTION undermines the politically correct gurus. This book gives the historical development of a carefull crafted legal system that is the basis of both Church Law and Constitutional Law. The Catholic authorities started Trial by Jury at the Fourth Lateran Council in 1215 which may have influenced English Common Law jurists. The politically correct gurus may be embarrassed to know that every time they make a legal claim in court, they are using a legal system that emerged in the history of Western Civiliation. Another reviewer suggested that this book would be useful in Western Civiliztion classes, European History classes, etc. This is a good suggestion. Every college student should be required to read this book. This is simply a well written book that is crucial in understanding a legal system that is a basis to civilized men who settle their disputes in courtrooms rather than in the streets.

This is a very long review. I did not originally intend to write such a long review but it kind of got away from me. The first section is my general summary of the book and the second section is just a compilation of some random thoughts from this book that I found interesting. They are presented in no particular order and can be safely skipped by anyone who is uninterested.

I.

This book really has a ton of information in it. It is not a book that can be fully absorbed after only a single reading especially for those who do not already possess a working knowledge of legal history and legal philosophy (I do not). Although I should stress: that does not mean this book should only be read by legal scholars. The story it tells is interesting enough, and if Harold Berman is correct, important enough to deserve the attention of anyone who is at all interested in questions relating to legal history or legal philosophy.

In this work Harold Berman attempts to trace the origin of the Western legal system to the Papal Revolution that took place in the eleventh and twelfth centuries. The first half of the book begins with an examination of the background of the Western legal tradition in the Germanic folk law and in the penitential practices within monasteries. Berman then provides a detailed history of the transformation in Western law that took place at the time of the Papal Revolution and the social, political, intellectual, and theological causes behind that transformation. In the second half of the book Berman attempts to trace the history of the secular law that took place at the same time by examining the development of Feudal law, Manorial law, Mercantile law, Urban law, and Royal law. We are so used to the system of nation states as the bearers of law that this section is particularly interesting in terms of providing historical perspective. People living at the time of these transformations did not live within single states with a unified set of laws but lived under a number of competing jurisdictions depending on their place in society and their activities. Berman believes the competition between jurisdictions played a big role in the dynamism of the law during this period as representatives from different jurisdictions competed for power and in so doing began to define their position within a more general structure of law.

One might ask two questions in regard to Harold Berman's thesis. First, other then historians who are interested in this particular period of history why should we care? And second, if the Papal Revolution was such an epochal event in the formation of our Western legal system why are we not already aware of that fact?

Harold Berman offers answers to both of these questions. In answer to the first Harold Berman argues that law has a necessary historical dimension and that understanding this history is essential to anyone who is interested in understanding the law. We cannot understand our particular law codes, or even the concept of law itself, without understanding the history of our law. Berman quotes Nietzsche approvingly on the first page of this book who said, "nothing that has a history can be defined" (1). We can never understand our legal institutions by simply fitting them into an ahistorical logical or functional schema. Law has a history and in order to understand it we must understand that concrete history. A little further on Berman develops these thoughts further, "It is never enough, in any Western legal system, to attempt to interpret or explain a legal rule (or concept or value or institution) solely by appeal to logic or policy or fairness; it must also be interpreted and explained in part by appeal to the circumstances that brought it into being and by the course of events that have influenced it over time" (16).

There are a few places in this book where Berman points out practices within our current legal systems that do not make sense unless understood in terms of their historical origin. These are interesting but the more general point, I believe, that Berman wants to make is that we cannot even understand the concept of law as it is understood in the West or the nature of the Western legal system itself conceived as a relatively autonomous sphere of social life without understanding the history of our law. Law was not always conceived as an autonomous sphere of social life. As Berman writes, "the legal rules and procedures which were applied in the various legal orders of the West in the period prior to the late eleventh and early twelfth centuries were largely undifferentiated from social custom and from political and religious institutions. No one had attempted to organize the prevailing laws and legal institutions into a distinct structure" (50). Berman believes that the origin of the Western legal tradition in the sense of an autonomous sphere of social life with professional jurists, lawyers, etc. is a result of the Papal Revolution and the attempts made within the universities at the time of the Papal Revolution to systematize Roman law through the Scholastic method of analysis and synthesis.

In answer to the second question Berman argues that the significance of the Papal Revolution in the history of law has been missed due to biases in the historiography of law. The historiography of law has been dominated by Marxists on one hand, and by nationalism (for sake of a better word) on the other. Marxist historians, according to Berman, missed the Papal Revolution because there was no fundamental transformation in the mode of production. From a Marxian standpoint the Papal Revolution is invisible. Nationalist historians who focus their attention on the history of nation states miss the importance of the revolution because it was not confined to any particular nation state. Berman takes the title of this work seriously. The Papal Revolution gave birth to the Western legal tradition (not the English, French, German, Italian, etc. legal tradition). Neither of these traditions in historiography are capable of even seeing the Papal Revolution. It would require of both of them a kind of Gestalt shift in perception. One of the primary goals of this book is to argue for the importance of carrying out such a Gestalt shift in our perceptions of our own legal history.

I took one star off of my review only because I felt that the wealth of detail obscured to some degree the main points Berman was trying to make. The detail was interesting and certainly worth having in the book but I do wish Berman had done a little better job of summarizing his theses along the way.

II.

There are a number of other ideas expressed in this book that I found interesting but that do not fit neatly into my general summary of the book that I thought I would draw attention to in this section of my review for anyone who is interested. They are in no particular order.

One idea that I think is interesting is the way that legal institutions are connected to more general worldviews. A good example of this is the tradition within German folk law of trial by ordeal. Those accused of a crime were tried either by fire or water, "Those tried by fire were passed blindfolded or barefooted over hot glowing plowshares, or they carried burning irons in their hands, and if their burns healed properly they were exonerated. The ordeal of water was performed either in cold water or in hot water. In cold water, the suspect was adjudged guilty if his body was borne up by the water contrary to the course of nature, showing that the water did not accept him. In hot water he was adjudged innocent if after putting his bare arms and legs into scalding water he came out unhurt" (57). Originally these practices were related to beliefs in gods of fire and water who were immanent within the natural world.

What I found particularly interesting was that originally, according to Berman, "Christianity supported the German legal institutions of ordeal and compurgation by reinforcing the Germanic concept of divine immanence that underlay them. It was presupposed both by Germanic religion and the Christianity which initially replaced it that supernatural powers were immanent within the natural sphere...It was only when the church shifted its emphasis to a transcendent God, who inspires man to imitate him, that ordeals, oath helpers, duels, and trial by champions gave way to a `rational' procedure for finding truth by questioning witnesses" (64). The idea that questioning witnesses is a far more rational approach when determining someone's guilt than the practice of trial by ordeal is certainly self-evident to us, but this self-evidence is based, at least implicitly, on a certain cosmology; a cosmology based on the notion of unalterable and impersonal natural laws which never deviate from their course and take no account of `moral' qualities like guilt or innocence. If you believe, on the other hand, that the divine is immanent within the natural world trial by ordeal will seem entirely rational. Even legal practices seem to have metaphysical assumptions built into them. I am of course not arguing that our own metaphysical system or cosmology is merely relative, or that it should be considered on an equal footing with the cosmology that inspired trial by fire. I am only arguing that practices are not unrelated to more abstract theoretical views.

Another main thesis of this book is that law should be considered a relatively autonomous sphere, one that has its own teleology apart from other aspects of society. Berman actually gives some idea of how this process worked. The jurists in the twelfth-century attempted to systematize the current legal customs and decisions of their own culture with the Roman law texts of Justinian and other written sources by discovering general principles embedded within particular laws and practices and decisions. They achieved this goal, however, in a rather novel way. Rather than attempting to compare legal rules to ideal Forms of justice in a Platonic sense they developed a kind of experimental method where they would develop a general principle from a given rule and then apply it to other cases, see what effects it had, and then revise it if necessary. This led to a dynamic process of development in the law. In Berman's own words, "experience, including the experience of applying rules in concrete cases, was viewed as a process of constant feedback concerning the validity both of the rules and of the general principles and concepts that were thought to underlie them. Of course, the science of law was at the mercy of politics: lawmakers could and often did disregard the jurists' findings. In practice, logic and experience were often sacrificed to power, prejudice, and greed" (153).

What I find interesting about all of this is that Berman's analysis here seems to me to chart a middle course between the view of the law as a fully autonomous sphere reflecting transcendent values or moral purposes, and the more Marxian view of law as merely the reflection of class antagonisms and power struggles. The jurists were relatively autonomous from the social and economics struggles effecting society and were engaged in the task of rationalizing the law based on general principles and always with an eye on the effect (harmful or beneficial) that the application of such principles had on society. The jurists themselves, however, were not in a position to actually act on their ideas. In order to be enacted they had to pass through the realm of politics and power struggles which lends a relative validity to the Marxian view.

Berman also questions three fundamental aspects of the Marxian interpretation of law (these are the last ideas I will mention). I should say upfront that I am not an expert by any means on the Marxian theory or interpretation of law so these interpretations may not be fair to Marx, but that is ultimately a side issue; one I think I can safely leave to the Marx scholars. If you feel I have been unfair to Marx I do apologize; know that it was not intentional.

The first aspect of Marxian thought that Berman takes issue with is the Marxian distinction between `consciousness' and `being'. Berman does not believe that this ontology is adequate to the nature of the law. Berman argues that, "legal institutions should be seen to overlap the dividing line between social-economic factors and political-ideological factors. Law must be treated as an essential part of both the material structure of Western society (`mode and relations of production') and its spiritual life (`political and social consciousness')" (296). I will say that personally I am a great admirer of Marxian thought but this is one area in which I think I ultimately side with Berman. Marxian thought tends, in my opinion, towards an unsustainable dualism between matter and spirit, or productive activity and meaning (this dualism can be interpreted in many ways) while I tend to think concrete reality includes both aspects (I will be accused of being a Hegelian for this since my own notion of concrete reality is closer to Hegel's Geist, but so be it).

Second, Berman believes that the belief in the supremacy of law, and the mutuality of obligations in particular, was an important factor "in the development of a legal consciousness that could be invoked against arbitrary power" (537). Marxians, or Marixan inspired thinkers such as Michel Foucault, often tend to view law as nothing but a form of domination which means that it is pointless to attempt to redress the injustices of the legal system by applying to the legal system itself. The legal system, or the legal form, is itself unjust. One has to pursue extra-legal means in order to deal with the forms of injustice enshrined within the law. Contrary to this view Berman sees the possibility of appealing to the law itself when battling against arbitrary power. In my own humble opinion this is a much better means of redressing the injustices of the law than the recourse to extra-legal or revolutionary means.

And finally, Berman does not believe that the causality between the economic sphere and the legal sphere of society flows in only one direction. The legal sphere is not a mere epiphenomenon of the more fundamental economic sphere. Berman points out that the economic systems of Western Europe, Russia, and Japan developed very differently despite the fact that they were all forms of feudalism. Berman asks, "might not the differences in the legal systems of those three cultures have played an important part in producing changes in the economic systems, and not just the other way around? If so, then the model of base and superstructure becomes highly problematical. In fact, the development of law in the West under what is called feudalism, including constitutional law, property law, and the other parts of the legal system, was an essential precondition for the economic changes of the seventeenth to the nineteenth centuries which Marxists have identified with capitalism" (543). The legal system is seen as having important effects on the direction of economic evolution. I would argue that this is actually an important point for those who are interested in progressive political projects. If we stick to a strict base/superstructure model then there is really nothing we can do to change our current system. We have to simply wait for economic changes to come about which will bring fundamental political and legal changes in their wake (this view tends towards determinism). If, however, causality flows in both directions then legal and political reform become important vehicles of change and important means of steering the economy in a direction we would like it to go.

So I am afraid that is the end of my review. If anyone has actually read this far in my review I would be very surprised, but I thank you all the same. You clearly possess a superhuman capacity for the endurance of tedium.

-Brian

Berman's book covers a broad scope of the governing structures of the middle ages--making the period come alive. Rather than painting pictures of skullduggery, chivalry, and castles, Berman describes how the political and economic systems of the middle ages actually worked.

He details each jurisdiction: Urban law, Civil Law, Royal (common) Law, the Jus Gentium, Manorial Law, etc. It's quite impressive. I haven't read another like it yet.

If you want a real understanding of the Middle Ages, this is perhaps the most comprehensive book on the subject.

Law and Revolution is indespensible to understand how western civilization came about. Berman, in the exhaustive fashion of Gibbon, present an irrefutable case that Western Civilization is not a unqualified adoption of Rome or merely a footnote to Plato's Republic, but is uniquely a product of Christianity.

As a journalism student, I found it quite easy to follow the history of our legal system specially because Berman includes a whole bunch of references, is very well informed, and yet, manages to make his scholarly writing available to someone not familiarized with some terms. Highly recommended!

Berman's evidence and comprehensive detail is irrefutable. Heavy reading and may require exploration of other references. Even though he is not Catholic, he almost persuaded me to become one!