Law and Revolution, I: The Formation of the Western Legal Tradition

Law and Revolution, I: The Formation of the Western Legal Tradition

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.

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 modem Western legal systems and has therefore misjudged the nature of the crisis of the legal tradition in the twentieth century.

Reviews of the Law and Revolution, I: The Formation of the Western Legal Tradition

In this period, the church and the papacy struggled for independence from the different governments of Europe, and through the efforts of great reformers like Pope Gregory VII, largely succeeded. Likewise, newly emergent kings, like Henry II in England, Philip Augustus in France, and importantly, Roger II of Sicily, used law to unify their power over their aristocratic vassals and create a direct relationship between them and the common people based on abstract, universal principles that strengthened their monarchy. The long story, though, is that law in a sense captured both popes and kings, since even in its inception its universalist principles meant even they could be held to account (and the author has some great quotes here from legal minds like John of Salisbury arguing that, even in the 12th century, a king's disobeyal of a fundamental law implied a right of disobedience from his subjects). The fact that much of the legal work of the era came from priests and monks who formed a "science" of canon law principles based on older Roman and Greek examples, like the Bolognese monk Gratian, does lend his theory credence, and the ability of these semi-religious officials (often through offices of Chancery as in England) to also bring law to newly empowered monarchs also gives it weight, but sussing out the different influences remains difficult and perhaps impossible.

As a tour-de-force history of the foundations of Western law, Berman offers an extremely detailed and erudite analysis of the theological, economic, and political foundations of the Western legal apparatus which he primarily credits to Gregory VII's revolutionary reform programme. However, he does not blame Gregory VII and the subsequent Investiture Controversy with starting modernity. If one actually pays attention to the historical evidence, it is clear that law is not derived from the economically privileged (Marx) or an ideological elite (Weber), to reduce law to power does a major disservice to the actual history of law (even if it is a rather convenient myth for the postmodern media machine to propagate).

Harold Bermans Law and Revolution: The Formation of the Western Legal Tradition is one such book. Magisterial in its development, prodigious in its documentation, brilliant in its insight, Bermans 550-page work traces the history of the Western legal tradition with erudition. Berman claims these orders were not systems but collections of rules and concepts embedded inside social custom, which failed to form a conscious body of law. On the contrary, Berman explodes this myth by citing, with ample evidence, the dynamic nature of medieval legal studies that are the foundation for modern Western law. For the Catholic, it is a pleasant surprise to find Berman, a non-Catholic, unexpectedly citing the Roman Catholic Churchs canon law as the first systematized legal system in history. It becomes evident that it was not only law that progressed inside this order but a whole civilization and its economy benefited from a solid legal foundation never before seen in history. Law and Revolution is a splendid contribution toward this return to order since, as Berman notes, at the most crucial turning points of Western history a projection into the distant past has been needed to match the projection into the distant future.

He traces the root to the Gregorian Reforms where the canons of the Roman Church were universalized in conflict with the secular power of the monarchs or nobility. Berman ties everything together with modern concerns regarding the meaning of recent revolutions in legal systems from the Bolsheviks, to National Socialism, to the French Revolution, or the present bureaucratic State.

Berman thesis presents how the seeds of the Enlightenment, the Industrial Revolution and the Capitalist society were planted in the Middle Ages after the Papal Revolution.

Clearly evangelical in a rather non-traditional (aka academic) sense, I was nonetheless inspired to pick up his sole recommended reading choice. In this very fast-paced world, it can help to create foundations and legal schematics that will benefit the reader long-term.

This is one of those books that makes you wish you understood it....

  • English

  • Law

  • Rating: 4.38
  • Pages: 672
  • Publish Date: January 1st 1985 by Harvard University Press
  • Isbn10: 0674517768
  • Isbn13: 9780674517769