Law and Revolution II has been long in the making. Few readers recall that, in the last line of its predecessor [Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983), p. 636] Harold Berman made casual note of his plan for a sequel. Twenty years later, he treats us to another impressive volume. To set the context for the present book, some recapitulation is in order.

On Law and Revolution I

Harold Berman made a significant mark in legal historiography with the first volume of Law and Revolution (hereafter LR1). In it, he challenged the standard periodization of Western history, which held that "modernity" began in the sixteenth century and that it was preceded by a long, undistinguished, and largely undifferentiated "middle age" throughout which not much of consequence occurred (LR1, p. 14). Such periodization reflected the historians' disregard for law "as an independent factor, one of the causes, and not only one of the results, of social, economic, political, intellectual, moral, and religious developments." (LR1, p. 44) To focus on the history of the Western legal tradition, Berman argued, would show that the first modern Western legal system can be traced to the end of the eleventh century. Hildebrand's revolutionary assertion of ecclesiastical independence from imperial authority in 1075 helped establish in the Roman Catholic Church a jurisdiction separate and parallel to the many secular jurisdictions of the day (LR1, p. 107ff). This newfound independence coincided with the discovery of the Emperor Justinian's compilations of the law of the Roman Empire, and their methodical study in European universities. Over the next two centuries, under the influence of Papal authority and scholarly method, the Canon Law of the Roman Catholic Church was systematized and transformed into the first modern legal system (LR1, p. 120-23, 253-54). By the same token, secular authorities were stripped of spiritual power and constrained to the functions of government familiar to us today: "the maintenance of peace and the establishment of justice in [the] realm" (LR1, p. 534). The Western legal tradition was born out of the plurality of jurisdictions—and, in particular, the competition between the ecclesiastical and the secular legal systems—that characterized the later part of the Middle Ages (LR1, pp. 273ff, 531ff).

If LR1 is the tale of the triumph of the Papal Revolution, Law and Revolution II (hereafter LR2) is the tale of its demise. (LR2, p. 39) The Papal Revolution had divided the spiritual jurisdiction from the secular and allowed them both to coexist; the Protestant Reformations abolished the ecclesiastical jurisdiction altogether and put many areas of spiritual law—church liturgy, marriage, schooling, moral discipline, and poor relief—back in secular hands (LR2, p. 179). The result was a dramatic transformation of the Western legal tradition. Some have characterized it as a secularization of spiritual realm, but, as Berman notes, it was simultaneously a spiritualization of the secular (LR2, p. 64).

LR2 is presented in two parts: the first corresponds to the German Reformation, sparked by Martin Luther at Wittenberg in 1517 and provisionally settled in the Peace of Augsburg of 1555; the second to the English Reformation, specifically the Calvinist Revolution of 1640 that culminated in the Glorious Revolution in 1688-89. Both parts follow the same structure: a historical narrative situates each revolution in a political, economic and religious context. Then follows with an examination of the manner in which each revolution transformed the legal philosophy, legal science, criminal law, civil and economic law, and social law of its country and of the Western legal tradition.

On the German Revolution

In the German case, the abolition of the autonomous ecclesiastical jurisdiction was the consequence of Luther's repudiation, in the Ninety-five Theses, of the doctrine of salvation by works. If nothing a man did could make him acceptable to God, then no priest could effect absolution through confession, penance or indulgence. By extension, the Church could not base its authority to make laws on a position of spiritual privilege. "The true church is not a lawmaking institution." (LR2, p. 40) But if the authority of the Church was abolished, who would replace it? Who would regulate worship, marriage, education and poor relief? The German Reformation, antinomian at the outset, eventually settled on the civil authority—the high magistracy or Obrigkeit, composed of the prince and his counselors—as sole source of law. The Lutheran doctrine of "two kingdoms"—a "heavenly kingdom of grace and faith," governed by the Church, and an earthly one "of sin and death," governed by the Law—meant that secular authority should have the monopoly over legislation and administration (LR2, p. 40).

If the old legal science presupposed jurisdictional pluralism, in which different jurisdictions relied on different texts for the source of law, the new legal science served the unified jurisdiction of the Protestant princely domain, and thus had to systematize anew the principles that underlay the entire legal order. Lutheran legal philosophy provided a rationale for bringing a number of matters previously under ecclesiastical jurisdiction under the authority of the Obrigkeit. The civil authority had a duty to make laws to regulate contract, family, and liturgy, and also to set punishments to illustrate divine retribution, ensure the deterrence of crime and impart moral education (LR2, p. 83).

Berman explains how Luther and his followers, most notably Philip Melanchthon and Johann Oldendorp, conceived of law in these terms. Melanchthon developed the theory of the three "uses of the law"—civil, theological, and pedagogical (LR2, p. 76)—to justify princely legislation over heretofore spiritual matters. Oldendorp brought the Aristotelian concept of equity to bear on the application of the law, allowing the necessary space for the judicial conscience to interpret the law in accordance not just with its letter but also its spirit (LR2, pp. 90-99). Berman's chapters on legal philosophy and legal theory, and those on the criminal and social law excellently illustrate the change in legal thinking that followed the German Revolution. Somewhat less convincing (but very interesting nonetheless) is the case for the influence of Lutheranism on commercial law, but only because its development seems to have been driven by social forces contemporary with, but independent of Lutheranism itself.

On the English Revolution

The English case begins with Henry VIII's break with Rome in 1534—which Berman refers to as the first English Revolution—but concentrates on the period between 1640 and 1689, comprising the Civil War, the Restoration, and the Glorious Revolution. The first revolution asserted the authority of the crown over the Church; the second changed the character of the monarchy itself.

In terms of the development of English law, Sir Edward Coke is the pivotal figure. The king, Coke held, was indeed the only source of law, but the king is not the present monarch only but all the succession of monarchs, and he is bound not only by his pronouncements but those of his predecessors (LR2, p.39). Rather than a theory of law simpliciter, Coke developed a theory of English law, or more specifically, a theory of the English common law (LR2, 241). The experience of English lawyers throughout many generations constituted an "artificial reason" that guided the common law. In this, Coke anticipates the historical school of jurisprudence and—it may be added—its characteristic manifestation in the English context: the theory of precedent (LR2, 243-44). John Selden and Matthew Hale expanded on Coke's foundation; Hale especially "emphasize[d] not only the ancient roots of the English legal tradition but also its capacity to evolve and to adapt itself to new needs." (LR2, 253)

Besides the emergence of the modern doctrine of precedent (LR2, pp. 273-75), substantial changes transformed the law of England during the revolutionary era. Historical forms of action were crafted into modern remedies through the expansion of the jurisdiction of the common law courts (LR2, pp. 276-77). Legal fictions were devised to make new law while maintaining continuity with the past (LR2, pp. 278-80). Further changes reflected the new standards of truth that came to dominate the legal system. The increased use of sworn witness testimony at trials, for instance, made the jury—previously an "active" inquisitor whose members often relied on their personal knowledge in order to pass judgment—into a "passive" adjudicator of the facts (LR2, p. 286). Yet the integrity of the judicial system thus demanded, on the one hand, that juries not be subject to the control and coercion of judges, and on the other, that the accused be granted more extensive rights. Of the effect of all these elements, the adversarial system was born (LR2, pp. 284-92). Whether to credit these changes to the scientific revolution of the sixteenth and seventeenth centuries or to "the new latitudinarian Anglicanism, which […] advocated tolerance of certain kinds of dissent within limits of probable truth" is not settled by Berman's narrative. His answer—that the changes in English legal science originated in the "dialectical interaction between the Puritan and the reformed Anglican phases of the revolution"—is ambiguous, but may be all that can be gleaned from this turbulent yet fruitful time (LR2, pp. 304-05).

Some other controversial elements of Berman's account deserve consideration. Not least among these is his claim that the form of capitalism that developed in England in the seventeenth century was not, as Weber argued, the product of the Puritan's ascetic individualism. The joint stock company, Berman claims, reflected the communitarian tendencies of the English Calvinist ethic both in its avowals of public spiritedness and in its organizational structure, which required "the close cooperation of many like-minded people, who were motivated partly by a desire to participate with others in a joint venture serving a public cause." (LR2, p. 342) The same communitarian tendencies Berman discovers in the criminal law—where the community is made collectively responsible for the correction and guidance of sinners (LR2, p. 319)—and in the social law—where associations take it upon themselves to prosecute vice, charter charity schools, and manage poor-houses (LR2, p. 353ff). In the latter two spheres, the case for a communal ethos is solid; in the economic sphere, as was the case in Germany, a good deal of the legal innovations admit causes independent of religion. One cannot but observe that not only Calvinists are given to community, not all communities are built on covenant, and not all relations of common enterprise and reciprocal trust need emerge from that foundation. Yet the influence of English Calvinism in shaping these institutions and motivating citizens is not easily dismissed.

On the objectives of Berman's legal theory

On a more theoretical plane, three objectives dominate LR2, and arguably all of Berman's writings. The first, already alluded to, is the revindication of law as an independent historical force that should be studied in its own right, and not merely as a derivative of cultural proclivities or economic relations. The second is the revival of the historical school of jurisprudence, most notably identified with Friedrich Karl von Savigny, but later eclipsed by legal positivism and natural law theory. The third is "the rediscovery and revival of the historical connections between the Western legal tradition and the Western religious tradition" (LR2, p. xii). The three objectives come together in what Berman has called "integrative jurisprudence"—a synthesis of history, politics, and morality—and for which he has argued elsewhere at some length ["Towards an Integrative Jurisprudence: Politics, Morality, History" in Faith and Order: The Reconciliation of Law and Religion (Atlanta: Scholars Press, 1993), pp. 289-310].

Berman is at his best when illustrating the effect that a judicious study of law has on our appreciation of Western history. His meticulous and impassioned parsing of the theological and philosophical roots of the German legal academy or of the English adversarial system is instructive to a degree surpassed only by his previous work in LR1. His prescient call for an "integrative jurisprudence" will surely be heeded, and is arguably already the norm in legal practice, though perhaps not in legal theory.

Yet, on occasion, Berman's incitements take on an evangelizing tenor which distracts and detracts from his argument. One is impelled to note that, from the "is" of the theological origin of Western law, the "ought" of a Judeo-Christian commonwealth does not follow (Cf. LR2, p. xii). That the covenantal spirit which animated many English Calvinists should not lead us to take at face value the communitarian professions of the stockholders of the Bank of England (Cf. LR2, p. 26). That the post hoc discernment that the faith, law, and intellectual tenor of an epoch settle eventually into a kind of cadence should not drive us to turn too quickly from "millennial historiography" to a philosophy of history (Cf. LR2, pp. 4-23). Berman is most convincing when busy with discovery and exposition, least when engaged in apologetics. Fortunately the latter instances are rare, the former plentiful, and the ensuing work indisputably remarkable.

Victor M. Muñiz-Fraticelli, The University of Chicago

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