Vol. 16 No. 4 (April, 2006), pp.285-288
LAW AND REVOLUTION II. THE IMPACT OF THE PROTESTANT REFORMATIONS ON THE WESTERN LEGAL TRADITION, by Harold J. Berman. Cambridge, MA: Harvard University Press, 2004. 544pp. Hardcover. $52.50 / £33.95 / €48.40. ISBN: 0-674-01195-3.
Reviewed by Javier A. Couso, Universidad Diego Portales, Chile. Email: javier.couso [at] udp.cl
Two decades after the publication of his well known LAW AND REVOLUTION. THE FORMATION OF THE WESTERN LEGAL TRADITION (1983), Harold J. Berman has issued a second volume, aimed at expanding his analysis of the role played by what he takes to be a series of key “revolutionary moments” in the configuration of the Western legal tradition. While in the first volume Berman concentrated on the “Papal Revolution” (1075-1122), which in his view led to the emergence of “the first modern legal system,” in this second installment he addresses the “German and English Protestant Revolutions” of the sixteenth and seventeenth centuries.
As the above suggests, the book under review should be regarded as an integral part of a larger work aimed at tracing the emergence, development, and eventual crisis of the Western legal tradition, a rather formidable task. This is explicitly stated by Berman at the outset of LAW AND REVOLUTION II: “The principal purpose of this introduction is to recapitulate . . . the main themes of the entire work, in order to place the sixteenth—and seventeenth—century transformations of German and English law, respectively, in the context of the Western Legal tradition as a whole, from its origins in the late eleventh century, through its successive major transformations, to its precarious situation in the twentieth and early twenty first centuries” (p.2).
Given the continuity between Berman’s two books dealing with the Western legal tradition, it is important to briefly state the main contours of what he considers the whole work. As Berman himself has acknowledged, his approach to legal history is tributary of the “millennial” historiography of Eugen Rosenstock-Huessy, a rather forgotten scholar who (back in 1938), advanced the thesis that the history of “Western civilization” is best understood as a series of crucial “revolutions” which shaped “its spirit” (Rosenstock-Huessy 1993).
Following Rosenstock-Huessy’s thesis, Berman identifies six key “revolutionary moments” shaping the legal tradition of the West. These critical junctures were, in historical order: a) the “Papal Revolution” of the eleventh and twelfth centuries; b) the First Protestant Revolution inspired by Martin Luther in Germany, in the sixteenth century; c) the Second Protestant Revolution of Calvinist England, in the seventeenth century; d) the American and French Revolutions of the late eighteenth century; and finally, e) the Russian Revolution of the early twentieth century. [*286]
What is peculiar about Berman’s approach to legal history is the emphasis he places on the impact that changes in the “belief system” of different eras have had in the evolution of legal institutions and legal thought. In his own words: “Now that leading economic historians, taking a millennial view, have recognized that changes in legal institutions have played a key role in the economic development of the West, it remains for legal historians to show that changes in the belief system have played a key role in the development of those legal institutions” (p.23).
As this passage suggests, Berman takes belief systems to play a crucial role in the formation and development of law—a domain which he believes with Douglas North and other to be key in the evolution of economics. More specifically, Berman believes that religion (i.e., theology) has been the most important “belief system” contributing to the Western understanding of law. In taking this “spiritual” understanding of what influences legal evolution and revolution, Berman is consciously against materialistic accounts of a Marxist or Weberian nature.
After identifying the revolutionary moments that have presumably shaped the Western legal tradition, Berman justifies the relevance of his enterprise, arguing that being aware of this history is critically important, given the crisis facing the Western legal tradition at the dawn of the new millennium: “In the early twentieth century, the Western legal tradition is no longer alive and well” (p.382). This crisis can only by addressed with full knowledge of the “spirit” and trajectory of legal tradition over the last millennium. “Because we are at the end of an era,” he assets, “we are able to discern its entire course; and it is because we are at the beginning of a new era of transnational and transcultural interaction that we must search our past in order to find what from its beginning gave its vitality, and what can help us meet the challenges of the future” (p.21).
The theoretical framework just described permeates the two volumes of Berman’s LAW AND REVOLUTION. In fact, although the second volume emerges after almost two decades since publication of the original volume – that is, after the author was aware of the mixed reception given to his first book – the general theoretical framework remains untouched.
The structure of the book under review follows a clear format. After a brief introduction restating the general framework, two long sections analyze each of the Protestant Revolutions. Finally, a short conclusion is provided. The first long section addresses the German Revolution (1517-1555), where Berman describes the impact that the Lutheran Reformation had on the political and constitutional landscape of what is now Germany, as well as the way in which ‘Lutheran legal Philosophy’ transformed German legal science and substantive areas of criminal, civil, economic and social law. The second section is dedicated to a similar analysis of the English Revolution (1640-1689). [*287]
Even though it is hard to do justice to what amounts to an impressive synthesis of massive legal-historical data, one can summarize Berman’s account of the impact of the German Lutheran Revolution on the Western legal tradition as follows: the breakdown of the unity of Christianity – due to Luther’s call for reform and eventual break from the Catholic Church – led to the transfer of the ecclesiastical jurisdiction previously under control of the Catholic Church to the secular authorities of Germany, which then started to regulate matters previously left to Canon law (such as laws governing ecclesiastical liturgy, marriage, oral offences, education and poor relief). According to Berman, this revolutionary process had an enormous impact on the Western understanding of constitutional law and theory, in particular, the gradual establishment of a religiously plural society.
At this point, it must be said that Berman’s efforts to try to make a direct link between the theological thought of Luther and the way German constitutional, criminal, civil, economic, and social law evolved after the Protestant Reformation, are not entirely successful. It is not clear that the evolution of the German legal system of the sixteenth century can be explained by changes in Christian theology of the time, or instead by the sheer political impact of Luther’s call for Reformation and ultimate break with the Catholic Church.
Something similar happens with Berman’s account of the second ‘legal revolution’ analyzed in this volume, that of seventeenth-century England (which he labels the ‘English Calvinist Revolution’). In this case too, the author argues that the revolutionary change experienced by the English legal system in the period 1640-1689 is a consequence of ‘Puritan’ ideas. Thus, in a same way in which the Lutheran theology explains change in the German legal system of the sixteenth century, evolution in the religious domain during the English Calvinist revolution of the seventeenth century are thought by Berman to be the crucial factor explaining the emergence of, say, the doctrine of precedent or the rise of relatively independent courts in England. The problem, of course, is that correlation is not the same as causation, so even if it is true that England experienced a fundamental change in its belief system at the time, it is not at all clear that it explains the rather revolutionary changes experienced in the legal domain.
It is hard to provide a summary that does justice to a work containing an enormous amount of detailed legal-historical material, skillfully gathered by an author who has devoted almost two decades to this task. Therefore, one should celebrate the enormous erudition and work done by Harold Berman in conveying extremely complex historical processes and legal doctrines in a rather clear and coherent way. Just for doing that, this book represents a highly valuable contribution, particularly with regard to the material dealing with the German legal history of the sixteenth century (of which there is so little available in English). Having said this, one cannot but express frustration over the [*288] fact that the ultimate thesis of the book does not seem to work, because the author fails to establish an explicit link between the “spiritual” changes in the religious domain and those occurring in law. At any rate, and even if the ultimate thesis did not persuade this reader, it is a valuable and fascinating contribution to the literature on fundamental aspects of the Western legal tradition.
Berman, Harold J. 1983. LAW AND REVOLUTION. THE FORMATION OF THE WESTERN LEGAL TRADITION. Cambridge, MA: Harvard University Press.
Rosenstock-Huessy, Eugen. 1993. OUT OF REVOLUTION: AUTOBIOGRAPHY OF WESTERN MAN. Oxford: Berg Publishers.
© Copyright 2006 by the author, Javier A. Couso.