So far, I have considered Harold Berman’s overall project, explained the basic ideas in Law and Revolution, Volumes I and II, and examined Berman’s investigations of polycentric liberty. This last post will review the questions Berman’s second book raises about the long-term effects of the Protestant revolution on liberty. I believe the Reformation had two positive effects as it played out over centuries. The Protestant Reformation helped liberty by creating more and more religious sects. This multiplication of sects led directly to the need for structures of political pluralism, which have provided substantial protection for liberty. To be sure, structures that allow easy expression of particularistic interests have their downsides. While the numerosity of factions makes tyranny less likely, such special interests tend to use their power to get benefits from the state. Indeed, a fundamental problem of modern pluralistic democracy is that it can energize special interests to gain advantages at the expense of the diffuse citizenry. The Constitution’s answer to the danger posed by religious faction was the Establishment Clause, which precluded the federal government from providing advantage to sectarian groups. We need to find similar solutions to protect against the power of secular factions, whether these solutions are new supermajority rules for approving government spending or the revival of constitutional norms against class legislation.
Luther’s attack on the institutional basis of religious knowledge also had profound effects. In the years since, all institutions have struggled to assert their authority to determine the content of law and governance. I think the separation of powers and the privileges accorded to dissent have been legacies of Protestantism’s fundamental challenge to institutional authority. The separation of powers rests in part on skepticism about giving any one institution a monopoly on the interpreting our own secular scripture—the Constitution. As Professor Sandy Levinson has observed, departmentalism—the notion that each branch is authorized to interpret the Constitution—is a very Protestant notion.
Luther’s undermining of institutional authority legitimated not only dissent within government but dissent outside. If the medieval world consisted of fragmented but authoritative institutions, the modern world that Protestantism helped created consists of fragmented individuals with institutions that must maintain their authority by generating results that a substantial percentage of people think are good. Government authority in democracies is now always provisional. The diffuse institutional skepticism that today surrounds authority in the West may be Protestantism’s greatest legacy for the liberty.