The Revolution Harold Berman Made, Part II

Law and Revolution

In the first post I introduced Berman’s overall project. Now I would like to explore Berman’s volumes in Law and Revolution which critique dominant views of the relation between law and society.  Berman saw law as a reflection of society’s most profound beliefs rather than simply a mirror of its economic or technological structure. Because the most fundamental beliefs in the West were Christian, law thus necessarily depended on developments in Christianity.  As law is refracted through such beliefs, it then shapes the structures that define the exercise of political power. Thus, Berman turns Marxist analysis on its head.  It is not the social and economic structure that determines beliefs through power relations.    Fundamental beliefs shape the social and economic structure through law.  

Another general theme of importance to lawyers is Berman’s endorsement of historical as opposed to positive or natural law jurisprudence.  He identifies positivism with a theory of law that   depends on the will of the sovereign and natural law with a theory that elevates reason as dominant.  Historical jurisprudence, in contrast, sees people’s experience, social and religious as well as economic, as directing the path of law.    Thus, to give a contemporary example of this perspective,   the strongest arguments against the individual mandate of Obamacare ultimately rest not so much on a literal reading of the Constitution or a calculus of reason, but on a felt sense that ordering Americans to enter a market and purchase insurance is incompatible with our most enduring traditions of liberty.

Berman’s book Law and Revolution: The Formation of the Western Tradition, focuses on the so-called investiture controversy. Gregory VII as well as several of his predecessors believed that they and not the secular rulers, like the Holy Roman Emperor, should make ecclesiastical appointments. In successfully gaining this authority, Popes freed the clergy from the control of Kings and established the Catholic Church as sovereign within its spiritual realm. The famous struggle between Henry II and Thomas A Beckett reflected a similar attempt by the Church to preserve its independence. Berman suggests the Church’s corporate independence paved the way for other kinds of independent jurisdictions that led to distinct if overlapping forms of law, like the manorial law and the law merchant. The legal world created though this controversy was a fragmented and polycentric one, with no single integrated authority controlling all of human life.

Berman’s second book, Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition, looks at the manner in which the inflection of belief represented by Protestantism changed law and politics. One theme is the reverse of his first book.  Because Protestants ended the institutional role for the Catholic Church, states consolidated their power over both secular and spiritual matters. As a counterpoint to such consolidation, however, Protestantism radically challenged the nature of institutional authority over the interpretation of text and this development made it easier for judges to challenge the king, and for juries to enforce their verdicts against the contrary opinions of judges.   If polycentric forms of order presaged our federalism, the interpretive pluralism of Protestantism made thinkable a system of separated powers within a single government  where no one branch has a monopoly of substantive or interpretive authority.