Law and Revolution

The Formation of the Western Legal Tradition

Harold J. Berman

• Publisher: Harvard University Press
• Year: 1985
• ISBN:
  9780674252479
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

The roots of modern Western legal institutions and concepts go back nine centuries to the Papal Revolution, when the Western church established its political and legal unity and its independence from emperors, kings, and feudal lords. Out of this upheaval came the Western idea of integrated legal systems consciously developed over generations and centuries. Harold J. Berman describes the main features of these systems of law, including the canon law of the church, the royal law of the major kingdoms, the urban law of the newly emerging cities, feudal law, manorial law, and mercantile law. In the coexistence and competition of these systems he finds an important source of the Western belief in the supremacy of law.Written simply and dramatically, carrying a wealth of detail for the scholar but also a fascinating story for the layman, the book grapples with wide-ranging questions of our heritage and our future. One of its main themes is the interaction between the Western belief in legal evolution and the periodic outbreak of apocalyptic revolutionary upheavals.Berman challenges conventional nationalist approaches to legal history, which have neglected the common foundations of all Western legal systems. He also questions conventional social theory, which has paid insufficient attention to the origin of modern Western legal systems and has therefore misjudged the nature of the crisis of the legal tradition in the twentieth century.

PART I

The Papal Revolution
and
the Canon Law

1

The Background of the Western Legal Tradition: The Folklaw

AN HISTORIAN IS KEENLY AWARE of the danger of speaking about “origins.” Wherever one starts in the past, there are always earlier beginnings — a fact which may testify to the continuity of the entire history of the human race. In the famous words of Maitland’s opening paragraph in Pollock and Maitland’s History of English Law, “Such is the unity of all history that anyone who endeavors to tell a piece of it must feel that his first sentence tears a seamless web. The oldest utterance of English law that has come down to us has Greek words in it; words such as bishop, priest, and deacon. If we search out the origins of Roman law we must study Babylon . . . A statute of limitations must be set; but it must be arbitrary. The web must be rent.”

Despite this warning, I am prepared to argue that there are seams, there are new things under the sun, and where one starts is not necessarily arbitrary. More particularly, it is a principal thesis of this book that there was a time when what is known today as a legal system — a distinct, integrated body of law, consciously systematized — did not exist among the peoples of Western Europe, and that at the end of the eleventh century and in the early twelfth century and thereafter legal systems were created for the first time both within the Roman Catholic Church and within the various kingdoms, cities, and other secular polities of the West.

The term legal system is used here to mean something narrower and more specific than law in general, or what may be called a “legal order.” There was a legal order in every society of the West prior to the eleventh and twelfth centuries, in the sense that there were legally constituted authorities that applied law. Indeed, at no time in their history did the peoples of Western Europe lack a legal order: the earliest written records are collections of laws, and Tacitus, writing in the first and second centuries A.D., describes Germanic assemblies that acted as courts. Also the church from very early times had declared laws and had established procedures for deciding cases. Yet, 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. Very little of the law was in writing. There was no professional judiciary, no professional class of lawyers, no professional legal literature. Law was not consciously systematized. It had not yet been “disembedded” from the whole social matrix of which it was a part. There was no independent, integrated, developing body of legal principles and procedures clearly differentiated from other processes of social organization and consciously articulated by a corps of persons specially trained for that task.

In the late eleventh and early twelfth centuries all this changed “with marvellous suddenness,” to use Maitland’s phrase. In every country of the West there were created professional courts, a body of legislation, a legal profession, a legal literature, a “science of law.” The primary impulse for this development came from the assertion of papal supremacy over the entire Western church and of the independence of the church from secular control. This was a revolution, declared in 1075 by Pope Gregory VII; the papal party and the imperial party fought it out in bloody wars for almost fifty years, and it was only after almost one hundred years, in 1170, that the martyrdom of Thomas Becket sealed the final compromise in England.

In the following centuries the folklaw of the peoples of Europe seemed to disappear almost completely. New sophisticated legal systems were constructed, first for the church and then for the secular political orders — canon law, urban law, royal law, mercantile law, feudal and manorial law. Eventually, in the period from the sixteenth to the twentieth centuries, a series of great revolutions — the German Reformation, the English Revolution, the American Revolution, the French Revolution, the Russian Revolution — transformed the Western legal tradition, leaving its Germanic “background” farther and farther behind.

Nevertheless, Western concepts of law — and perhaps more important, Western attitudes toward law — cannot be understood unless they are seen partly in terms of what they first emerged from and reacted against. Especially now, in the last part of the twentieth century, when the West is less sure of its legal tradition than ever before, it is important to recall what that tradition originally replaced. Surely if new ways are being sought to overcome or supplement Western “legalism,” they should be considered in the light of the Germanic alternative, which, although it was once rejected, still remains beneath the surface of our historical memory.

Moreover, although the jurists of the new era denounced the “irrational” features of the old customs and subjected them to drastic revision, Germanic law was not wholly rejected, and the parts that were rejected were not dropped all at once. The new jurisprudence was not a creation ex nihilo. It was a conscious reaction against the past (often in the name of a still older past), but it was also a re-creation of preexisting institutions and ideas.

More than that, Germanic law provided a necessary foundation for the new legal tradition that superseded it. Perhaps the clearest evidence in support of this paradoxical truth may be found in the new legal developments within the church. In the late eleventh and early twelfth centuries the church in the West achieved for the first time a legal identity independent of emperors, kings, and feudal lords. There was a separation of the church from the secular authorities and a separation of ecclesiastical law from other modes of ecclesiastical control. A hierarchy of ecclesiastical courts was established, culminating in the papal curia. All this was quite new, as was the emergence within the church of a legal profession, legal scholarship, legal treatises, and a body of legislative and judge-made law. Yet all this would have been impossible if a preexisting community, the populus christianus, had not been formed in Europe between the fifth and eleventh centuries. During that time Europe consisted of a multiplicity of tribal, local, and feudal (lordship) units, which, however, came to share a common religious faith and a common military loyalty to the emperor, and, outside the empire, to kings. The emperor or king was considered to be the sacred representative of the faith among all the peoples of his empire or kingdom. He was called the vicar of Christ. (The pope did not then claim that title but called himself the vicar of St. Peter.) The preexisting community of faith and loyalty was not only a necessary precondition for the later emergence of the new separate legal identity of the church under the papacy; it was also a necessary foundation for that legal identity, since without it there would have been no underlying social reality to be legally identified.

Similarly, the Germanic folklaw, which was basically tribal, local, and feudal (or protofeudal), based on blood feud and composition of blood feud, with ordeals, oath-helping, and other procedures — all of which came under attack in the late eleventh and early twelfth centuries — was a necessary foundation for the secular legal systems which replaced it. The necessary foundation was, once again, the communitarian character of the society which the older folklaw had helped to maintain. The new law, in contrast to the old law, was learned, sophisticated, systematized; but it could not have come into being, and it could not have continued to exist, without the foundation of structured, close-knit Germanic communities, with their strong emphasis on interdependence, comradeship, mutual responsibility, and other communitarian values.

Tribal Law

The earliest known legal orders prevailing among the peoples of northern and western Europe were mainly tribal in character. Every tribe or “stem” (Stamm) had its own law: the Franks, Alemanns, Frisians, Visigoths, Ostrogoths, Burgundians, Lombards, East Saxons, Vandals, Suevi, and other peoples that were eventually combined in the Frankish Empire, embracing much of what later became Germany, France, and northern Italy; the Angles, West Saxons, Jutes, Celts, Britons, and other peoples of what later became England; the Danes, Norwegians, and other Norsemen of Scandinavia and later of Normandy, Sicily, and elsewhere; and many others, from Picts and Scots to Magyars and Slavs. In the period from the sixth to the tenth centuries, the legal orders of all these peoples, though largely independent of one another, were nevertheless remarkably similar. On the one hand, the basic legal unit within the tribe was the household, a community of comradeship and trust based partly on kinship and partly on oaths of mutual protection and service. Violation of the peace of the household by an outsider would lead to retaliation in the form of blood feud, or else to interhousehold or interclan negotiations designed to forestall or compose blood feud. On the other hand, there were territorial legal units consisting typically of households grouped in villages, villages grouped in larger units often called hundreds and counties, and hundreds and counties grouped in very loosely organized duchies or kingdoms. In the local territorial communities, the chief instrument of government and law was the public assembly (“moot,” “thing”) of household elders. Besides kinship and local territorial communities, there were also various kinds of lordship (feudal) bonds, often formed by households “commending” themselves to great men for protection.¹

At the head of the tribes and of the local and feudal communities stood royal and ecclesiastical authorities. In the course of time the larger territorial and religious units represented by these higher authorities became more and more important. Kings continued to be called kings of a people — Rex Francorum (“King of the Franks”), Rex Anglorum (“King of the Angles”) — until the twelfth century, but similar terms were also used to refer to vaguely defined political territories, such as Francia and Anglia. Also the church, though ultimately subject to emperors, and to kings within their respective domains, was recognized as a wider spiritual community which, though wholly without organizational unity, transcended all secular boundaries. Nevertheless, prior to the latter half of the eleventh century royal and ecclesiastical authorities did not attempt to alter in any fundamental way the essentially tribal and local and feudal character of the legal orders of Europe. This may seem less strange if it is understood that the economy of Europe at the time was also almost wholly local, consisting chiefly of agriculture and cattle-raising, with subsidiary hunting; population was sparse, and there were virtually no towns with more than a few thousand people; commerce played only a small role, and communications were very rudimentary. What is strange from an economic or geopolitical point of view is not the weakness of central royal and ecclesiastical law, but the strength of central royal and ecclesiastical authority.

It was the central royal authority, inspired by ecclesiastical counselors, which was responsible for issuing the written collections (or “codes,” as they later came to be called) of tribal and local laws that provide a great deal of what is known today about the folklaw of that period.

With the final disintegration of the Western Roman Empire in the fifth century, what little there had been of the great fabric of Roman law in the Germanic kingdoms diminished and in many places virtually disappeared. In other places, however, notably among some of the peoples in northern Italy, in Spain, and in southern France, the memory as well as some of the terminology and rules of Roman law survived. This was a simplified, popularized, and corrupted Roman law, which modern scholars have called “Roman vulgar law” to distinguish it from the more sophisticated Roman law of the earlier classical and postclassical periods. Roman vulgar law has been described as “a law averse to strict concepts and neither able nor inclined to live up to the standards of classical jurisprudence with respect to artistic elaboration or logical construction.”² Even the most advanced “Romanist” legal collections of the time, such as that of the seventh-century Visigothic kings, consisted only of miscellaneous provisions, grouped together broadly according to subject but lacking both conceptual unity and the capacity for organic evolution.³ Perhaps the chief historical importance of these scattered survivals of Roman law is that they helped preserve the idea that law should play a role in the ordering of political and social relationships.⁴ Also the church retained many remnants of Roman law as well as of biblical law; and consequently upon his conversion to Christianity a Germanic tribal leader would often promulgate a set of laws consisting largely of the customs of his people.

The earliest of the surviving leges barbarorum (“laws of the barbarians”), as they are called by historians to distinguish them from leges Romanae, was the law of the Salic Franks, the Lex Salica, issued by the Merovingian king Clovis shortly after his conversion to Christianity in 496.⁵ It starts by listing monetary sanctions to be paid by a defendant to a plaintiff for failure to respond to the plaintiff’s summons to appear in the local court. It also lists monetary sanctions to be paid by wrongdoers to injured parties for various kinds of offenses, including homicides, assaults, thefts. These are typical provisions of primitive law; one of their principal purposes was to induce the parties to a dispute to submit to a decision of the local assembly (the hundred court) instead of resolving their dispute by vendetta, or else to provide a basis of negotiations between the household of the victim and that of the offender. Sometimes, however, they did not have even that effect. The injured party, in the words of one of the Anglo-Saxon laws, might either “buy off the spear or bear it.” The prevalence of private warfare was connected with the great difficulty of bringing a person accused of wrongdoing to trial or getting witnesses to testify or enforcing a judgment.

The earliest of the Anglo-Saxon legal compilations was the Laws of Ethelbert, promulgated about 600 A.D. Ethelbert, ruler of Kent, had married a Christian and, according to tradition, had been converted to Christianity by Pope Gregory’s emissary, the monk Augustine, in 597. Ethelbert’s laws are remarkable for the extraordinarily detailed schedules of tariffs established for various injuries: so much for the loss of a leg, so much for an eye, so much if the victim was a slave, so much if he was a freeman, so much if he was a priest. The four front teeth were worth six shillings each, the teeth next to them four, the other teeth one; thumbs, thumbnails, forefingers, middle fingers, ring fingers, little fingers, and their respective fingernails were all distinguished, and a separate price, called a bot, was set for each. Similar distinctions were made among ears whose hearing was destroyed, ears cut off, ears pierced, and ears lacerated; among bones laid bare, bones damaged, bones broken, skulls broken, shoulders disabled, chins broken, collar bones broken, arms broken, thighs broken, and ribs broken; and among bruises outside the clothing, bruises under the clothing, and bruises which did not show black.⁶

If the act of the defendant caused death, the price to be paid to the kin of the deceased was called wer (or wergeld). Much of the written Germanic (including Frankish and Anglo-Saxon) law was concerned with setting different measures of wergeld for different classes of people.

Somewhat more sophisticated than the Laws of Ethelbert was the so-called Edict of the Lombard chieftain, or king, Rothari, written down in 643, seventy-five years after the Lombards had moved from what is now Hungary and Yugoslavia to what is now northern Italy. Of the 363 articles in the edict almost 140 deal with penal measures. For the murder of a free man or free woman by a free person, compensation of 1200 shillings (solidi) was required, whereas the price for the death of a household servant was only 50 solidi, and for a slave 20. (Murder of a free person by an unfree person was “compensated” by death.) Various prices were stated for hitting someone on the head, cutting off someone’s hair, breaking various named parts of the skull, gouging out the eyes, cutting off a nose, breaking a nose, boxing an ear, breaking arms (with distinction made between simple and compound fractures), cutting off arms, fingers, toes. The little finger of a free man was worth 16 solidi, that of the half-free four, and that of a slave only two.⁷

The institution of fixed monetary sanctions payable by the kin of the wrongdoer to the kin of the victim was a prominent feature of the law of all the peoples of Europe prior to the twelfth century, and indeed of every Indo-European people at some stage of its development, including the peoples of India, Israel, Greece, and Rome. It is also an important part of the law of many contemporary primitive societies.⁸

It is, in many respects, a very sensible system. The threat of heavy financial burdens upon the wrongdoer and his kin is probably a more effective deterrent of crime than the threat of capital punishment or corporal mutilation (which succeeded pecuniary sanctions in Europe in the twelfth and thirteenth centuries), and at least e...