The Integrative Jurisprudence Of Harold J. Berman

Howard O Hunter

• Publisher: Taylor & Francis
• Year: 2019
• eBook ISBN: 9781000302493
• Edition: 1
• Topic: Política y relaciones internacionales
• Subtopic: Política

The essays in this volume appeared in slightly different versions in the Emory Law Journal, volume 42, number 2, pages 433-560. The edited and revised versions of those essays are published with the consent of the editors of the Emory Law Journal to whom grateful acknowledgment is given.

1
Justice in Russia

Soviet Law and Russian History

William E. Butler

Hal Berman's seventy-fifth birthday offers an occasion to celebrate his contributions to Soviet/Russian law as a preeminent scholar in the field and to comment upon their contemporary relevance in the last decade of the twentieth century. As is apparent from the essays in this volume, Berman is a scholar of many areas. Legal history legal philosophy, law and language, legal education and the liberal arts, law and religion, international trade law, and Soviet law are the principal—though not necessarily exhaustive—components of his repertoire. It was Russian law, however, that captured his imagination as the microcosm within which to pursue his larger concerns. The bibliography of his published writings discloses that Soviet/Russian law dominates the first two decades of his scholarly output. Gradually it was displaced by larger studies of comparative legal history and philosophy, law and religion, and others. International trade emerged in the mid-1950s as a spinoff of his interest in Soviet law.

We turn first to the measure of Berman's contributions as reflected in his writing, his teaching, his practice of law, and his role as an educator generally.

I

Justice in Russia was the title of Harold Berman's first major contribution to legal scholarship forty-three years ago (renamed Justice in the U.S.S.R. in its revised edition). Guided by his inclinations as a legal historian, Berman gave due weight to the "Russianness" of the socio-legal transformations underway in that country during the mid-twentieth century. Giving less attention to the alleged capacity of a political movement to eradicate a thousand years of cultural history in the name of a purportedly scientific ideology, he wrote,

Soviet law ... is Russian law.... Each system is a mixture not only of socialist and capitalist features, but also of precapitalist elements, stemming from many different periods of past history .... A legal system is built up slowly over the centuries, and it is in many respects remarkably impervious to social upheavals.¹

Were Berman to undertake a third edition of this classic work, doubtless he would feel justified, if not vindicated, in returning to the original title.

To direct attention to the aptness of the title of a book about a foreign legal system is not common in comparative legal studies. It smacks of the "political," and comparative law traditionally has been content with an aloofness to such mundane considerations as the societal context within which a legal order operates. Soviet legal studies in the West have never been so, thanks largely to the work of Hal Berman, John Hazard, and others of the senior generation of Anglo-American specialists in Soviet law. Hal's books and articles on Soviet law and East-West relations have fundamentally configured Soviet legal studies in the West and, in some measure, comparative legal studies generally. And through his students and proteges that influence has endured in the principal law schools in the United States and Britain where Russian law is taught.²

Berman's inclinations toward legal history and philosophy were fueled, if not created, by his studies under Eugen Rosenstock-Huessy at Dartmouth College and the graduate work in English legal history at the London School of Economics and Political Science at the University of London 1938-1939. Service in the United States Army in the Second World War brought him in 1943-1945 into direct contact with Russians in England, France, and Germany. He had started to learn Russian on June 22, 1941, the day Germany invaded the Soviet Union. He had just completed his first year at Yale Law School. It was clear to him that the future of humankind depended on friendly relations between the United States and Russia. Upon being discharged, he returned to Yale to pursue a degree in law. There he was left chiefly to his own devices in mastering Soviet law and the language.³ A splendid article on Russian family law in the Yale Law Journal displayed a mastery of the field and led to an appointment at Stanford University Law School.⁴

Stanford proved to be a brief interlude. However bold Stanford may have felt in appointing a junior faculty member to develop a field in gestation, bolder and more prescient deans were at work. Erwin Griswold brought Hal Berman to Harvard Law School in 1948, where Soviet legal studies flourished until Berman joined Emory Law School in 1985 as the holder of the Woodruff Chair. By 1948, the Cold War was well underway. The Marshall Plan was announced as Stalin's grip in Eastern Europe tightened and domestic Russian affairs became increasingly authoritarian. Russian studies in the United States were the beneficiary of unprecedented interest, expansion, and financial support as Americans created the infrastructure required to joust in the new postwar environment and to comprehend an adversary society bent on belligerent isolation. Hal's Justice in Russia, published in 1950, challenged the orthodox totalitarian models of Stalinist Russia then in vogue, models themselves exaggerated and distorted by the rhetoric of international political rivalry. These models were not explanations of Soviet reality persuasive to a law-trained scholar such as Berman. He was aware of the more enduring role of law, legal values, and legal institutions in modern society and of the inability of any system to achieve—even in those days—the levels of societal control over human behavior seemingly presumed by our characterizations of totalitarianism. Hal was conscious of the elements of Russian history and prerevolutionary Russian law so influential in shaping the present but beyond the capacity of any ruler of the day to eradicate. Justice in Russia emphasized that, despite the pervasive terror, law was not absent or incidental in Stalin's Russia—it was a vital means of understanding the Soviet social system and of appreciating both the meaning and the limitations of its socioeconomic revolution.

Berman demonstrated that law was an important component of Soviet society with significant policy implications for Russian studies and, indeed, for foreign policy and public international law.⁵ Law and the legal system were a key to understanding Soviet life and behavior. In fact, so central was legal policy to Soviet affairs that most Western students of Russia regard legal materials as one of the most important sources for insight into what is happening and for shaping responses in international negotiations.⁶ Hal chiefly pursued the policy dimension with Peter B. Maggs in a collaborative study commissioned by the United States Arms Control and Disarmament Agency.⁷ This study provided the groundwork for several inquiries by that Agency into the legal foundations of possible arms control inspection arrangements. In the Anglo-American tradition of analyzing court cases for guidance as to the law-in-action, Berman collaborated with Russian émigré lawyer Boris Konstantinovsky in the preparation of a set of materials illustrating how legal matters were dealt with in the late 1930s and early 1940s by a practicing advocate. This book was an important addition to the slender early postwar Soviet supreme court case reports, providing concrete examples of a working legal system at the height of the Stalinist purges. From these cases, it became evident that, whatever the constraints of authoritarianism, many areas of social life proceeded within the existing legal framework.⁸ Another dimension of Soviet legal life was explored in two volumes that Berman was involved with on Soviet military law.⁹

Law-in-action was explored in another domain: the practice of Soviet law in Russian courts, arbitration tribunals, and American courts. Perhaps the most celebrated case involved the pursuit of royalties on behalf of the Sir Arthur Conan Doyle estate, an undertaking that required the development of a doctrine for recovery and standing to pursue the claim in a Moscow court. The adventures of Sherlock Holmes in the Soviet Union ended with a partial victory: Berman won on the issue of whether a foreign lawyer has standing to represent a foreign client in a Soviet court, but lost on the merits.¹⁰ The Gary Powers U-2 case presented another occasion to comment on the law-in-action, albeit not an opportunity to become directly involved.¹¹ Inheritance was a domain of legal practice to which Hal made a major contribution, playing a key role in persuading state courts in the United States to remit inheritances to Soviet heirs and to rework the interpretation of statutes originally directed against Nazi Germany.¹²

During the post-Stalin thaw of the mid-1950s it became possible for Western scholars to arrange research visits to the Soviet Union.¹³ First among those American Soviet-law specialists able or willing to undertake that challenging opportunity, Berman visited the Soviet Union dozens of times, including extended periods as a Visiting Fulbright professor and an IREX Senior Exchange Scholar. His early visits were used to advantage in preparing the revised edition of Justice in the U.S.S.R., which, it transpired, encapsulated virtually the entire Khrushchev era with vivid impressions, illustrations, anecdotes, and observations gleaned firsthand. Enriched and informed by personal contact with the legal system, Justice in the U.S.S.R. remains without peer among the senior generation of American Soviet-law specialists and leaves a remarkable legacy for rising generations. As the Cold War gave way to competitive coexistence, students at the Harvard Law School benefited from the appearance of Soviet legal scholars in Hal's course who would collaborate in teaching and offer their own views.

Berman was also present in the Soviet Union during the criminal law reforms of 1959 to 1960. In late December 1958, the USSR enacted Fundamental Principles of Criminal Legislation, which in several key respects attenuated the harsher aspects of Stalinist criminal repression and, as part of the ethos of the Khrushchev era, attempted to translate into action more liberal philosophies of penology. During Berman's visits, the union republic criminal codes were being drafted and, after early reactions against the "soft" criminal policies embodied in the codes, significantly amended. Collaborating with James W. Spindler, Berman produced in 1966 a remarkable translation of the 1960 RSFSR Criminal Code, Code of Criminal Procedure, and Law on Court Organization ¹⁴ and, in collaboration with the present writer, a set of accompanying case materials.¹⁵ A revised edition appeared in 1972 ¹⁶ and the codes themselves appeared again in 1980.¹⁷ The need for translations of Soviet legal materials and the opportunity to use them for instructional purposes led Berman to accept the founding editorship of a quarterly journal of translations, Soviet Statutes and Decisions. In 1969, he collaborated with John B. Quigley, Jr. in producing a handy student edition of basic legislation on the Soviet State.¹⁸

Legal translation of quality is perhaps the penultimate achievement of the accomplished comparatist (the ultimate achievement must be drafting legislation for a foreign legal system in its own language and style). Legal advice, or for that matter substantive legal knowledge, with respect to foreign law is only as good as the translation on which it is based. A faulty translation will produce faulty legal advice. It is truly astonishing what law firms of repute rely upon these days when representing themselves to the public as competent to advise on Russian law. Young language students or linguists who know nothing of law, or accomplished interpreters who know nothing of the same, churn out texts for young lawyers with a modicum of Russian and senior partners with no Russian at all. This comprises the basis upon which law firms purport to advise clients—firms that would never imagine giving legal counsel of that standard with respect to their own legal system. The capacity of a comparativist to place himself within the legal fabric (the terminology and concepts) of the legal system in which he is a specialist is a rare talent. Hal Berman set the standard in legal translation by generating texts of the highest scholarly merit and nurturing a generation of younger scholars of Soviet law in the same spirit. Acutely sensitive to the nuances of legal Russian, he has explored law and language in a number of learned essays with respect to Soviet law.¹⁹

Although not a public international lawyer, Berman was deeply concerned from the outset with the role of law in East-West relations and the ways in which a knowledge of Soviet law could contribute to maintaining peace in a hostile world and building relations during an era of accommodation. Accordingly, he addressed the links between Soviet foreign and domestic policies and between attitudes toward public international law and municipal legal systems in the Soviet Union. Eschewing mechanical categorizations of national legal systems into classes, families, or similar classifications, Hal constantly invited stude...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Acknowledgments
• Contributors
• Introduction
• 1. Justice in Russia Soviet Law and Russian History
• 2. The Character of the Western Legal Tradition Assessing Harold Berman's Contributions to Legal History
• 3. International Trade and Commerce
• 4. "Complete Achievement" Integrity of Vision and Performance in Berman's Jurisprudence
• 5. A New Concordance of Discordant Canons Harold J. Berman on Law and Religion
• Bibliography: Harold J. Berman 1946 to Present
• About the Book and Editor