- Paperback: 672 pages
- Publisher: Harvard University Press; Reprint edition (December 7, 1983)
- Language: English
- ISBN-10: 0674517768
- ISBN-13: 978-0674517769
- Product Dimensions: 6 x 1.5 x 9.2 inches
- Shipping Weight: 2.1 pounds (View shipping rates and policies)
- Average Customer Review: 24 customer reviews
- Amazon Best Sellers Rank: #381,582 in Books (See Top 100 in Books)
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Law and Revolution: The Formation of the Western Legal Tradition Reprint Edition
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A magnificent volume, broad in scope and rich in detail; this may be the most important book on law in our generation. (American Political Science Review)
This is a book of the first importance. Every lawyer should read it ... Clearly written and well-organized, it is a work of immense scholarship. (Los Angeles Daily Journal)
Superb... A tour de force of insight and erudition The principal text divides into two parts, the first dealing with the papal revolution and its distinctive legal system of canon law and the second describing the emergence of secular legalism through its roots in feudal, manorial, mercantile, urban, and royal systems... A magnificent topping-off to the conventional [law school] curriculum. (The Benchmark)
By demonstrating the revolutionary character of the papal reformation, Berman upsets periodizations commonly accepted by Church historians, positivists, Marxist historians, and historians of the law... Law and Revolution is itself a revolutionary book in obliging the practitioners of many university disciplines to readjust their focus and to see in law a revolutionary cultural force. (George H. Williams)
By demonstrating the revolutionary character of the papal reformation, Berman upsets periodizations commonly accepted by Church historians, positivists, Marxist historians, and historians of the law... Law and Revolution is itself a revolutionary book in obliging the practitioners of many university disciplines to readjust their focus and to see in law a revolutionary cultural force. (George H. Williams) --This text refers to an out of print or unavailable edition of this title.
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Berman expressed this in 1983. Maybe the 'scientific proof' is now here!
''One knows by intuition that the old images, as Archibald MacLeish says in ''The Metaphor'', have lost their meaning . . .
''A world ends when its metaphor has died.
An age becomes an age, all else beside,
When sensuous poets in their pride invent
Emblems for the soul's consent
That speak the meanings men will never know
But man-imagined images can show:
It perishes when those images, though seen,
No longer mean.''
''Because the age is ending, we are now able to discern its beginnings.''
Berman goes back to 'beginnings'.
''It is impossible not to sense the social disintegration, the breakdown of communities, that has taken place in Europe, North America, and other parts of Western civilization in the twentieth century. Bonds of race, religion, soil, family, class, neighborhood, and work community have increasingly dissolved into abstract and superficial nationalisms. This is closely connected with the decline of unity and common purpose in Western civilization as a whole.''
Any kind of bonds (connections) are so weak, so abstract, as to seem invisible.
''What has this to do with law? A great deal. The traditional symbols of community in the West, the traditional images and metaphors, have been above all religious and legal. In the twentieth century, however, for the first time, religion has become largely a private affair, while law has become largely a matter of practical expediency. The connection between the religious metaphor and the legal metaphor has been broken. Neither expresses any longer the community's vision of its future and its past; neither commands any longer its passionate loyalty.''
Law and History
Law and Revolution
The Crisis of the Western Legal Tradition
Toward a Social Theory of Law
PART I: THE PAPAL REVOLUTION AND THE CANON LAW
The Background of the Western Legal Tradition
The Origin of the Western Legal Tradition in the Papal Revolution
Revolution The Rise of the Modern State
3. The Origin of Western Legal Science in the European Universities
The Law School at Bologna
The Scholastic Method of Analysis and Synthesis
The Relation of Scholasticism to Greek Philosophy and Roman Law
The Application of the Scholastic Dialectic to Legal Science
Law as a Prototype of Western Science
7. Becket versus Henry II: The Competition of Concurrent Jurisdictions
Benefit of Clergy and Double Jeopardy
Ecclesiastical Jurisdiction in England
PART II: THE FORMATION OF SECULAR LEGAL
The Concept of Secular Law
The Emergence of New Theories of Secular Government and Secular Law
John of Salisbury, Founder of Western Political Science
The Rule of Law
11. Mercantile Law Religion and the Rise of Capitalism
12. Urban Law Causes of the Rise of the Modern City
The City as a Historical Community
13. Royal Law: Sicily, England, Normandy, France
French Royal Civil and Criminal Law
French and English Royal Law Compared
Conclusion - Beyond Marx, Beyond Weber
The concept 'Revolution' is foundational in this work . . .
''The Western legal tradition has been transformed in the course of its history by six great revolutions.''
''Three of them —the Russian Revolution, the French Revolution, and the American Revolution—were called revolutions by those who participated in them, although the meaning of the word "revolution" was different in each case.''
''A fourth, the English Revolution, was first called a revolution (the Glorious Revolution) only when it was coming to an end in 1688-89; in its initial stage (1640-1660) it was called the Great Rebellion by its enemies and a "restoration of freedom" by its friends, the second stage (1660-1685) was called the Restoration at the time, although some contemporary writers also called it a revolution. (That was the first modern use of the word revolution to identify a major political upheaval; it meant, however, a turn of the wheel back to an earlier system of government.) Thus what most historians now call the English Revolution consisted of three successive 'restorations.' ''
''The fifth great revolution —still going backward in time —was the Protestant Reformation, which in Germany had the character of a national revolution, starting with Luther's attack upon the papacy in 1517 and ending in 1555 with the frustration of the Emperor by the Protestant League and the establishment of religious peace among the German principalities.''
''The sixth, the Papal Revolution of 1075-1122, which is the subject of this study, was also called a reformation at the time, the Reformatio of Pope Gregory VII, generally translated into modern languages as the Gregorian Reform, thereby concealing still further its revolutionary character.'' (18)
This last one the - 'Papal Revolution' - is the focus of this work.
Why so much analysis of the past? Even a thousand years ago???
''This certainly does not mean that the study of the past will save society. Society moves inevitably into the future. But it does so by walking backwards, so to speak, with its eyes on the past. Oliver Cromwell said . . .
'Man never reaches so high an estate [success] as when he knows not whither he is going.' He understood the revolutionary significance of respect for tradition in a time of crisis.'' (40)
Berman states that western culture, especially the freedoms that the rest of the world did not develop, comes from the two competing institutions, the King vs the Pope. Due to the constant struggle to power by each, neither was able to become totalitarian.
Lord Acton makes the same point in many of his speeches. The Christian precept, "Caesar's things to Caesar and God's things to God", was the seed that grew into secular freedom in the west. Toynbee also commented that Islam does not have this idea. Therefore the restraint on power is lacking.
Rose Wilder Lane makes a similar point in "Discovery of Freedom."
Friedrich Meinecke in "The German Catastrophe," "Hitler's deepest hatred of Christianity, however, was directed, it seems to us, toward something else: the idea inherent in Christianity of an independent conscience and answerable only to God; The command to obey God rather than man and to recognize a Kingdom that is not of this world and to obey laws other than those proclaimed by national Socialism."
Instead of disparaging Christian principles, we should be grateful. Ideas matter. Christian ideas, even imperfectly applied, have great value.
Berman provides great detail how this tension worked out in European history. Original thinker. Persuasive.
Includes 73 pages of notes (linked); 21 page index (not linked).
Also, three maps and two charts.
I purchased the paperback edition first. Good quality paper and excellent binding. Recently got the kindle version (I have the large iPad and perfer reading with it). Excellent!
(See - ''The Demon in Democracy: Totalitarian Temptations in Free Societies'', by Ryszard Legutko. Polish scholar - who explains modernity somewhat like Berman. Fascinating!; also ''Out of Revolution: Autobiography of Western Man'', by Eugen Rosenstock-Huessy)
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.
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.
It is very long and wordy, but by the end he does convince you that the Papal Revolution and the systemetization of Canon law and theology, along with the rediscovery of the Justinian Codex, lead to the legal values and traditions that we have today.
In a day and age where revisionists would have us forget our roots in the law a tome like Law and Revolution is all that more vital. Looking forward to reading the second one.
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