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Book Review
| Harold J. Berman. Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition, Cambridge, Mass.: Harvard University Press, 2003. Pp. xii + 522 (ISBN 0-674-01195-3).
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| A heavy mood of foreboding pervades Harold Berman's study of Western law in some of its most dramatic phases of development. As explained at length in the introduction to the 1983 first volume of Law and Revolution (and briefly recapitulated in the opening pages of volume two), Berman sees the Western legal tradition subjected in our own day to a revolutionary onslaught so fierce that its most basic moral imperatives, and especially its religious impulse, are called into question. To make us aware of this assault, and understand the context in which it is happening, Berman points to five prior revolutions that have in time substantially altered law and all that it touches in society—the Russian, French, American, Protestant, and Papal revolutions. Berman concentrated on the earliest of these—the titanic church-state conflict in the twelfth and thirteenth centuries—in his first volume. The second volume, reviewed here, examines the Lutheran and Puritan reformations. |
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In advancing this historical scheme and working it out with respect to the church-state issue and the reformation struggles, Berman is insistently present-minded. His object, in view of the current crisis as he sees it, is to reconnect law to the core beliefs—chiefly religious faith—that, he argues, once animated it. The significance of this vital connection has, he says, been consistently ignored by scholars. Hence the missionary tone of the book, which enlivens what is in other respects a rather conventional account of well-known historical matters, based on a huge amount of reading in largely secondary sources about the sixteenth-seventeenth century reformations, copiously annotated, somewhat plodding but strong in its analysis of the interpenetration of religion and law. Both the Lutheran and the Puritan reformations (they are "revolutions" because they altered the fabric of society in fundamental ways) transformed legislation and jurisprudence by conceptualizing law as the direct expression of God's will. How this bond was severed in subsequent centuries will be the subject, perhaps, of further studies of the Deist, communist, and our own radically antinomian revolutions. Berman, a distinguished and prolific legal comparatist and forceful ethicist, will have much to say on each of these. The present volume, offering largely familiar historical material, will be of interest mainly to the general reader seriously concerned about the moral direction of our troubled time. |
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For such a reader there is much to learn and ponder in this compendious book. Berman gives close attention to the efforts of Lutheran theologians, jurists, and politicians to reconcile divine law and natural law, the former revealed in Scripture, the latter accessed by reason. This endeavor was not without its inherent paradox. Lutheran and Calvinist doctrine taught the irremediable corruption of human reason by sin. How, then, are we to trust our rational perceptions? Berman traces Lutheran attempts to solve this dilemma in the writings of Melanchthon and the jurist Johann Oldendorp, as well as of other prominent Lutheran theologians and practitioners of law. Their most lasting achievement was to bring together into a single body of jurisprudence the formerly disparate branches of canon, Roman, and feudal law, and to turn this corpus into positive legislation to govern princely and urban states. Berman gives detailed accounts of the creation of new criminal and civil codes in sixteenth- and early seventeenth-century Germany and of the legal institutions, procedures, and practices through which the usus modernus protestantorum structured German society. In the aftermath of the Reformation, Berman contends, the German polity came to express not merely the efficient cause of the law—answering the question, who made it?—but also its final cause: what are its purposes? Lutheranism delegitimized the pope and his church. But the "modern" secular order that resulted from this disempowerment was a "secularism in which God is present" (194). Berman examines in detail how poor laws, marriage laws, education laws, moral discipline, and so forth, embodied and enacted this omnipresence. |
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In the same way, the Puritan revolution in seventeenth-century England, having successfully challenged absolute monarchy on the strength of Calvinist ideas, transformed English law to reflect the working out of God's purposes on earth. Berman traces this trend in the jurisprudence of Coke, Selden, and Hale, and shows its eventual institutional establishment in the supremacy of common law courts, the independence of judges, and the doctrine of precedence. Animating all this, Berman suggests, was a mainly a religious undertaking to govern the world well. Absent this commitment, he insists, law—the moving and restraining force in society—has no more than a feebly pragmatic authority. |
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| Gerald Strauss
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| Amherst, Massachusetts |
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