Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition.

• Author: Ewald, William B.
• Position: Book review

LAW AND REVOLUTION II: THE IMPACT OF THE PROTESTANT REFORMATIONS ON THE WESTERN LEGAL TRADITION. By Harold J. Berman. (1) Harvard University Press. 2003. xii + 522 pp. $49.95.

What are the defining characteristics of the Western legal tradition? Where did it come from, how did evolve, and where is it heading? It is easy to fall into sprawling and superficial answers to these large questions, and even easier to neglect them altogether. Harold Berman has attempted to address them on a scale and with a precision that make this magisterial volume and its earlier companion a scholarly landmark. His first volume, Law and Revolution (3) (published in 1983 and still in print) traced the origins of the Western legal system to the "Papal Revolution" which began at the end of the 11th century, and continued until the beginning of the 13th. That study, a great work of synthesizing scholarship, is today the standard point of departure for work in the field. The present volume, Law and Revolution II, carries the story forward, exploring the consequences for Western law of the Protestant Revolutions of the sixteenth and seventeenth centuries. These two volumes represent a sustained attempt to describe the emergence of the Western legal tradition, and they offer an abundance of material for historical and philosophical investigation.

Alas, Berman's work has not attracted the attention it deserves outside the world of medieval legal history, and it has had little impact on constitutional theory or legal philosophy. But Berman is broaching topics of extremely wide significance, and so it may be helpful to begin by trying to explain his general enterprise, and to identify the reasons for its importance.

As the titles of his two volumes indicate, Berman is preoccupied with the theme of revolution. In this, he follows explicitly in the footsteps of the pioneer he calls "the great (and greatly neglected)" historian Eugen Rosenstock-Huessy (p. 21). Rosenstock-Huessy saw Western history, since its emergence from the dark ages, as one long, continuous tradition, stretching from the 11th century to the present, but punctuated by a series of transformative revolutions. Berman applies this general framework to the special case of law; he argues that the Western legal tradition was largely shaped by six major revolutions, each of which profoundly transformed the legal system (and, more importantly, the understanding of law) while at the same time ultimately finding a way to absorb much of what had gone before.

The three most recent revolutions are also the most familiar: the American Revolution of 1776, the French Revolution of 1789, and the Russian Revolution of 1917. Berman does not discuss these revolutions in detail, but they hover over his two volumes and motivate his broader inquiry. For Berman sees Western law at the start of the third Christian millennium as being in "crisis"--cut off from its historical and religious roots, unsure of its own foundations, or of its relationship to other legal traditions.

Underlying this modern crisis, on Berman's analysis, is a splintering of legal philosophy. Since the Enlightenment the three strands of legal philosophy that have provided the conceptual underpinning for the Western tradition--namely, the political strand (represented by legal positivism), the moral strand (represented by natural law theory), and the historical strand (represented by the historical school and its predecessors)--have tended to come unstuck in such a way as to disorient and obscure the West's understanding of its own tradition. The ancient idea of a law transcending national political power is no longer taken seriously; and indeed the idea of a common Western legal tradition has lost its meaning. "In the early 21st century," he concludes, "the Western legal tradition is no longer alive and well" (p. 382).

This formulation "no longer alive and well" contains a significant ambiguity. At times, Berman seems to think that Western law has in fact died, along with the systems of belief on which it was based thus at the end of this book he says that:

Protestantism led to dissent, which led to relativism, which led to Deism, which led to atheism--which presumably is fatal to the preservation of Western culture, including the Western legal tradition (p. 382). But at other times he suggests that Western law is merely ailing, and that his enterprise is to re-build an "integrative" legal philosophy (p. 382; also p. 130) that will once again unite the political, moral, and historical dimensions of law. (It is for this reason that he pays such close attention to the historical thinking of the great seventeenth-century common lawyers, and in particular Matthew Hale, since in his view they offer one of the supreme examples of an "integrative jurisprudence.")

This broader understanding about the importance of his project evidently lies close to Berman's heart, and gives his investigations a certain sense of apocalyptic urgency. Both volumes start and end with forebodings about the imminent end of Western law. These dramatic remarks are the first thing a reader will encounter; and some will be put off by them. But it seems to me that they, too, are ambiguous. They can be taken either in a strong or in a weak sense. If they are taken in a strong sense, the claim is that Western culture and the Western legal tradition have reached or are nearing their final collapse. But to support such a thesis, one would need a sustained examination of the state of modern Western law: and that is not what this book offers. Nor does it attempt to offer an "integrative jurisprudence" for the modern age. Berman indicates that such a thing would be desirable, and says that detailed historical investigations would furnish philosophers with a useful foundation on which to build; but he leaves that task to others. The strong version of his remarks indeed seems to me in certain ways to cut against the historical narrative in the book. For one reaction to his description of the legal tumult and upheaval of the sixteenth and seventeenth centuries is that the law of the early twenty-first century looks stable by comparison: if the Western legal tradition has survived those earlier dramatic upheavals, there is reason to think that it may be able to survive the present period as well.

A more modest interpretation of his remarks seems to me both more plausible, and more in keeping with his actual practice in the book itself. In the end, his project rests on three claims: first, that modern legal philosophy has, to its great detriment, tended to divorce itself from legal history, and in particular to overlook the broader sweep of Western law; secondly, that there are deep gains in philosophical and legal understanding to be had from a detailed study of the evolution of the Western legal tradition; thirdly, that in an age of globalization such an understanding is a fundamental first step towards integrating the Western tradition with other legal traditions. These claims seem to me both true and important, and to be all the justification that Berman's historical investigations require: and it is here that the real power and novelty of his approach makes itself evident.

For Berman's conception of Western legal history as a single tradition punctuated by revolutions has three significant consequences. First, he takes an extremely long view of his period. He sees the legal systems of the West as having their beginning around 1100. Indeed, he occasionally mischievously refers to the legal system of the 12th-century papacy as the first "modern" legal system. But if this is mischief, it is mischief with a serious purpose: for Berman's aim is to break down the historical opposition between "medieval" and "modern." Berman in his first volume argued at length that the Papal Revolution begun by Gregory...