Law and Revolution

Harold J. Berman

• Publisher: Belknap Press
• Year: 2006
• Print ISBN: 9780674022300, 9780674011953
• eBook ISBN: 9780674252516
• Topic: Law
• Subtopic: European History
• Index: Law

Harold Berman's masterwork narrates the interaction of evolution and revolution in the development of Western law. This new volume explores two successive transformations of the Western legal tradition under the impact of the sixteenth-century German Reformation and the seventeenth-century English Revolution, with particular emphasis on Lutheran and Calvinist influences. Berman examines the far-reaching consequences of these apocalyptic political and social upheavals on the systems of legal philosophy, legal science, criminal law, civil and economic law, and social law in Germany and England and throughout Europe as a whole.

Berman challenges both conventional approaches to legal history, which have neglected the religious foundations of Western legal systems, and standard social theory, which has paid insufficient attention to the communitarian dimensions of early modern economic law, including corporation law and social welfare.

Clearly written and cogently argued, this long-awaited, magisterial work is a major contribution to an understanding of the relationship of law to Western belief systems.

NOTES

The following abbreviations are used in the notes.

CCC	Constitutio Criminalis Carolina
CR	Corpus Reformatorum, 28 vols. (Frankfurt am Main, 1834–1860)
LW	Luther’s Works, ed. Jaroslav Pelikan, 55 vols. (St. Louis, 1956)
WA	Martin Luther, Werke: Kritische Gesamtausgabe (Weimar, 1883)

Introduction

1. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass., 1983) (hereafter Berman, Law and Revolution).

2. See Jaroslav Pelikan, The Vindication of Tradition (New Haven, 1984), p. 65.

3. See Edward Shils, The Virtue of Civility: Selected Esays on Liberalism, Tradition, and Civil Society (Indianapolis, 1997), p. 107. Cf. idem, Tradition (Chicago, 1981).

4. See Ilan Rachum, “Revolution”: The Entrance of a New Word into Western Political Discourse (Lanham, Md., 1999), p. 230. Rachum traces to Italian sources of the fourteenth and fifteenth centuries the use of the word “revolution” to signify important abrupt changes, including important abrupt political changes. His principal thesis is twofold: first, that long before the seventeenth and eighteenth centuries, contrary to what many have maintained, “revolution” came to mean change forward, not a cyclical return—not a “revolving”—to a previous position; and second, that many such changes in the political sphere were called revolutions. Rachum ignores, however, the very strong evidence presented by Eugen Rosenstock-Huessy that the first use of the word to represent not just “a” political change but a fundamental transformation of the entire political and social order was in England in 1688, when not just “a” revolution but “the Glorious Revolution” was understood by the Whigs, who effectuated it and named it, as the inauguration of a new era in English history, though disguised in the terminology of a “restoration” of the ancient rights and liberties of Englishmen. See Eugen Rosenstock-Huessy, Out of Revolution: The Autobiography of Western Man (1938; reprint, Providence, 1993), pp. 304–305, 340–341. See also W. A. Speck, Reluctant Revolutionaries: Englishmen and the Revolution of 1688 (Oxford, 1988), p. 1 and n. 1. Rosenstock-Huessy’s great work has been almost totally ignored by historians of the European Revolutions. Norman Cantor counted four “world revolutions,” namely, the Papal Revolution, the Protestant Reformation, the French Revolution, and the Russian Revolution, but omitted the English Revolution and the American Revolution. See Norman Cantor, Medieval History: The Life and Death of a Civilization (New York, 1968). Crane Brinton, in The Anatomy of Revolution, rev. ed. (New York, 1965), analyzed the English Revolution, the American Revolution, the French Revolution, and the Russian Revolution, but omitted both the Papal Revolution and the German (Protestant) Revolution. More recently, Charles Tilly, in European Revolutions: 1492–1992 (Oxford, 1993), examines causes and outcomes of “abrupt wide-reaching, popular change in a country’s rulers” in Spain and the Netherlands in the sixteenth century, Britain in the seventeenth century, France in the eighteenth century, and Russia in the twentieth century. Theda Skocpol, in States and Social Revolutions: A Comparative Analysis of France, Russia, and China (Cambridge, Mass., 1999), focuses on the causes and consequences of the outbreak of the French, the Russian, and the Chinese Revolutions in the first few years, that is, in their most radical phases. R. I. Moore, by contrast, in The First European Revolution: c. 970–1215 (Oxford, 2000), portrays political, economic, and social changes, including changes in law, that took place during the century before the Papal Revolution and the century after it. At the same time he minimizes the significance of the violence and rapidity that characterize the climax of the revolutionary upheaval and that establish it in the historical memory of the society. None of these other authors trace, as Rosenstock-Huessy does, the continuity of European history from the twelfth to the twentieth century, preserved and transformed by periodic revolutionary upheavals that take two or three generations to run their course.

5. Reference here and throughout is to the Bolshevik Revolution of October 1917, as contrasted with the peaceful establishment in Russia of the so-called Provisional Government in February 1917, after the tsar’s abdication, which is called “the February Revolution,” and the uprising of the populace in 1905, leading to the establishment of the first Russian parliament (Duma), which is called “the 1905 Revolution.” The first two upheavals, though called revolutions, turned out to be preludes to the third, which alone of the three had substantial European and, indeed, worldwide repercussions.

6. See Berman, Law and Revolution, pp. 94–107.

7. “Rex non debet esse sub homine sed sub deo et sub lege, quia lex fecit regem.” Henry de Bracton, De Legibus et Consuetudinibus Angliae (On the Laws and Customs of England), vol. 2, ed. George E. Woodbine, trans. Samuel E. Thorne (Buffalo, N.Y., 1968), p. 33.

8. “Gott ist selber Recht, deshalb ist ihm Recht lieb.” This quotation is repeated often in literature on the Sachsenspiegel but without citation of the edition and page number, and copies of the book itself are difficult to obtain. See, for example, Christoph Hinckeldey, ed., Justiz in alter Zeit (Rothenburg ob der Tauber, 1984), p. 10.

9. Myron Gilmore, The World of Humanism, 1453–1517 (New York, 1952), p. 135.

10. More general ordinances, covering various fields, were called Polizeiordnungen, “policy ordinances.”

11. See Jean Bodin, On Sovereignty, ed. and trans. Julian H. Franklin (Cambridge, 1992). Bodin’s work strongly influenced the thought of King James I of England, who himself authored a defense of absolute monarchy.

12. The term “aristocracy” is used here, as elsewhere in this book, to refer to what Aristotle called “the rule of the few,” as contrasted with monarchy, “the rule of one,” and democracy, “the rule of the many.” In England, however, the term is generally applied to the titled nobility, called “the peerage,” but not to the landed gentry, called “the squirearchy.” Cf. Lawrence Stone, The Crisis of the Aristocracy: 1558–1641 (Oxford, 1965), p. 13.

13. The first use of the term is generally ascribed to Immanuel Kant, who called the philosophy of the French “lights” die Aufklärung, “the Enlightenment.”

14. See James F. Traer, “From Reform to Revolution: The Critical Century in the Development of the French Legal System,” Journal of Modern History 49 (1977), 73–88; idem, Marriage and the Family in Eighteenth-Century France (Ithaca, N.Y., 1980). For a general survey of private law legislation of the period preceding the drafting of the “Code civil,” see Phillippe Sagnac, La legislation civile de la révolution française (Paris, 1989).

15. See Declaration and Resolves of the First Continental Congress, in Documents of American History, vol. 1 (to 1898), ed. Henry S. Commager and Milton Cantor, 10th ed. (New York, 1988), pp. 82–85. In the Resolutions of the Stamp Act Congress (1765), a similar demand had been made on the British Government: “His Majesty’s liege subjects in these colonies are intitled to all the inherent rights and liberties of his natural born subjects within the kingdom of Great Britain” (ibid., p. 58).

16. French ministers writing of the American situation in the mid-1770s spoke of “les révolutions des empires” in referring to colonial agitation in the New World. This term was taken up by Gouverneur Morris in 1776, who wrote to his mother concerning the American Revolution that “great revolutions of empire are seldom achieved without much human calamity.” See Rosenstock-Huessy, Out of Revolution, p. 646. Subsequently the term “Revolution” was invoked to compare and contrast the American and French experiences. See Friedrich von Gentz, The Origin and Principles of the American Revolution Compared with the Origin and Principles of the French Revolution (Delmar, N.Y., 1977), published in German in 1800 and translated soon after into English by John Quincy Adams, who made use of the work as a pamphlet in his father’s reelection campaign. Cf. Robert R. Palmer, The Age of the Democratic Revolution: A Political History of Europe and America, 1760–1800, vol. 1 (Princeton, 1959), pp. 187–188 (discussing the significance of this pamphlet in American politics). Historians continue to be divided between those who treat the American Revolution as a revolutionary upheaval and those who see it as a War of Independence to gain for the colonists the ancient rights of Englishmen. Thus, Gordon Wood—who classifies himself with the former—distinguishes between progressive historians, such as Carl Becker, who stress the class tensions and social struggle inherent in the Revolution, and conservatives, such as Bernard Bailyn, who see the Americans as concerned “not with the need to recast the social order but with the need to purify a corrupt constitution and fight off the apparent growth of prerogative power.” See Gordon S. Wood, The Radicalism of the American Revolution (New York, 1992), pp. 3–5, quoting Bernard Bailyn, The Ideological Origins of the American Revolution (Cambridge, Mass., 1967), p. 283.

17. Quoted in Joseph Story, Commentaries on the Constitution of the United States, vol. 1, 3rd ed. (Durham, N.C., 1858), p. 105 n. 1.

18. “Society is indeed a contract. . . . [B]ut the state ought not to be considered as nothing better than a partnership agreement in a trade of pepper and coffee, calico, or tobacco . . . to be dissolved by the fancy of the parties. . . . It is a partnership in all science, a partnership in all art; a partnership in every virtue and in all perfection. As the ends of such a partnership cannot be obtained in many generations, it becomes a partnership not only between those who are living, but between those who are living, those who are dead, and those who are to be born.” Edmund Burke, Reflections on the Revolution in France (1790), ed. J. G. A. Pocock (Indianapolis, 1987), pp. 84–85.

19. In the 1770s, Benjamin Franklin proposed that the Deistic Society of London, which he had been instrumental in creating, be transformed into a “church” replete with liturgy and a “priest of nature.” The Society flourished throughout much of the late 1770s and early 1780s, and included as participants such figures as Thomas Paine, Dupont de Nemours, and, in all likelihood, the English radicals Richard Price and Joseph Priestley. David Williams, who served as a “priest of nature,” preached regularly in the Society’s “chapel.” On the activities of this Society, see Nicholas Hans, “Franklin, Jefferson, and the English Radicals at the End of the Eighteenth Century,” Proceedings of the American Philosophical Society 98 (1954), 406.

20. The surprising fact that both sides in this great religious-philosohical and politicallegal debate could appeal to the writings of John Locke is due to the neglected fact that those writings could be construed either as a justification for the aristocratic, traditionalist, and communitarian English Revolution or as a foundation of the democratic, rationalist, and individualist program eventually embodied in the French Revolution.

21. See Vincent Ostrom, The Meaning of American Federalism: Constituting a Self-Governing Society (San Francisco, 1991). Ostrom shows the depth of the meaning of federalism as understood in late-eighteenth-century America, including its basis in the religious concept of covenant (foedus). The theory of federalism reflected in The Federalist, he writes, challenged traditional concepts of sovereignty and reflected instead “a theory of concurrent, compound republics that enables democratic societies to reach out to continental proportions” (p...

Table of contents

• Cover
• Title
• Copyright
• Dedication
• Contents
• Preface
• Introduction
• I The German Revolution and the Transformation of German Law in the Sixteenth Century
• II The English Revolution and the Transformation of English Law in the Seventeenth Century
• Conclusion
• Notes
• Acknowledgments
• Index