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John M. Balouziyeh
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This is a seminal books that continues in the tradition of the first volume of Law and Revolution. As the first volume did with the Catholic Church and the papal revolution, this second volume explores the Protestant Reformation of Lutheran Germany and Calvinist England and its influence in the formation of the Western legal system. The following is a brief overview of the main themes explored in the book.
In his preface, Berman alludes to the first volume of Law and Revolution, which argued that "the Western legal tradition was formed in the twelfth and thirteenth centuries under the impact of the Papal Revolution, which liberated the hierarchy of the Roman Catholic Church from control by emperors, kings, and feudal lords, and resulted in the creation of the first modern Western legal system, the Roman Catholic canon law" (p. ix). In the present volume, Berman explores the impact of the Protestant Reformation in Germany and in England on the Western legal tradition.
2. The Papal Revolution
The Western legal tradition originated in the efforts of Pope Gregory VII (ca. 1030-85) to liberate the hierarchy of the Roman Catholic Church from the control of temporal rulers and to subject them to the authority of the Church. This revolution, which came to be called the Papal Revolution or the Investiture Contest, spanned from 1075 to 1122. Gregory VII sought to establish Rome's unrivaled authority over both secular and rulers and the clergy and the laymen. In the wars that followed, the Roman Catholic Church emerged as the first modern state with a body of law titled A Concordance of Discordant Canons. In this new state, the ecclesiastical courts resolved disputes and the Church's canon laws ordered society.
3. The Protestant Reformation of Lutheran Germany
Berman begins Part I of his book with a detailed account of the Reformation and its spread throughout the German territories from 1517 to 1555. Berman recounts the Reformation as a popular movement that spread by its own force, but that would become accompanied by the emergence of the radical Anabaptists and Spiritualist sects, which, coupled with the Peasants' War, would threaten peace and stability and would result in more than three decades of war that would finally come to a head in 1555, when an imperial diet was held to enact the Peace of Augsburg, bringing an end to the German civil wars by "permitting the prince of each territory to determine the religion of that territory"--Roman Catholic or Lutheran (p. 50).
The Western legal tradition was impacted by these developments. Luther would replace the "two swords" theory of Gregory VII in the Papal Revolution with a "two kingdoms" theory comprised of the invisible church of the heavenly kingdom governed by the Gospel and an earthly kingdom of this world governed by law. As a result of these new ideas, national legal systems in countries that remained Catholic began to develop and the powers of monarchs grew. In territories that split from Catholicism, princes became the temporal heads of their churches and states.
Berman goes on to discuss the effects of the Reformation on the law. In Luther's legal philosophy, the role of the positive law was to make sinners conscious of their sinfulness, to deter sinners through threatening them with sanctions, and to educate and guide the righteous towards justice. In Germany, the abolition of Roman Catholic jurisdiction in Protestant principalities left gaps in German law, thus calling for a systematization of the laws, which Luther's followers thus developed.
4. The Protestant Reformation of Calvinist England
In Part II of the book, Berman begins his discussion of the English Revolution with the Thirty Years' War (1618-1648) between Catholics and Protestants in Europe. The war, which was triggered by the Augsburg Confession, involved most European nations and was finally resolved in 1648 by the Peace of Westphalia, which "asserted the sovereignty and equality of each constituent principality within the empire as well as of each of the other European states that were involved" (p. 203). It granted Catholics, Lutherans, and Calvinists freedom of conscience and the right of private worship.
As the Thirty Years' War was coming to a close, England was cast into a civil war between King Charles I and parliamentarians who would ultimately raise an army to bring down the Monarchy. King Charles was publicly tried and executed, leading to a commonwealth led by Oliver Cromwell and later by his son Richard. A few years after the death of Oliver Cromwell, the Commonwealth descended into disorder under Richard Cromwell's rule. General Monck, commander of troops in Scotland, believing the only way to restore order was to restore the Stuart Monarchy, brought the formerly purged members of Parliament back to their seats to set up a Council of State and invite Charles II back to the throne. The period from 1660 to 1688, when the House of Stuart was reinstituted under Charles II and later under his brother James II, was known as the Restoration, since it restored of the Stuart monarchy.
Some may argue that the English commonwealth under Cromwell was but a mere aberration and that the Restoration of the English Monarchy simply returned the nation to its pre-1940 state of affairs. Berman, however, contends that the commonwealth had substantial lasting effects into the restored monarchy. For example, prior to 1640, the king ruled as an absolute monarch, only with parliament when he summoned it. After 1689, however, a constitutional monarchy was formed and Parliament was the supreme head of the nation. Under the Instrument of Government, a written constitution, separated the executive and legislative branches and other legislated established an independent judiciary. Although this system would ultimately fail, it set up a precursor for a future French Republic with separate powers.
Furthermore, prior to 1640, only the Church of England was a legitimate church in England, but after 1689, various dissenting Protestant churches were recognized and tolerated. Even Jews, who were expelled from England by King Edward I three centuries earlier, were invited to return in 1655. Moreover, whereas the pre-Revolution head of church was the king, by 1689, Parliament was the de facto head of the church.
Moreover, the Protestant Reformation of England led to many changes in the area of law. Judges were no longer to serve at the arbitrary will of the monarch; rather, they were given independence and life tenure. The Common law courts were made sovereign over the notorious prerogative courts of the House of Tudor. Juries became independent of judges and evidence law was introduced.
One further finds a shift in English legal philosophy during the English Reformation. Before the English Revolution, the views of James I on absolute monarchy can be said to have been the status quo among the rulers of England. James considered the king to be as the head of a body, the father in a family, and a god (resembling divine power on earth) and argued that God appoints monarchs to carry out his will on earth. Their power stems not from the social contract, but rather, from God directly.
On the opposite of this spectrum is the voice of Sir Edward Coke, an English jurist of the Seventeenth Century, who believed that the natural law was written on the heart of every man, for his preservation and direction. Though it precedes human laws, it is a part of the English common law, which is based on immemorial custom. It was "immutable" and "universal," applying to all people, and even rulers were subject to it. Firmly maintaining that the king's proclamations could not change the law and openly disobeying royal injunctions that he believed to be unjust, Coke Persisted in his writings and other activities, and helped frame the Petition of Right by 1628, a defense of the supremacy of the common law over the king.
After the English Revolution, one would find a new tone in the English monarchy. No longer was the king viewed as equal to the law, but rather, he was considered subject to it. William of Orange was therefore bound to the Declaration of Rights and Liberties of the Subject, which would in 1689 be enacted as a statute entitled the "Bill of Rights." Thus, although the English monarchy was technically restored, its character was vastly different from that of the pre-1940 monarchy.
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The two Law and Revolution books are indispensable to the list of must-reads for becoming truly educated, taking oneself beyond the usual litany of state-supportive propaganda found in textbooks and standard-issue academic output.
Berman is no ideologue, but he has great respect for the power of ideas. His agenda is to provide us with his best take on what he has found out about legal history on the basis of a tremendous grasp of the relevant historical material he has acquired. He also wants us to ask questions about where the Western Legal Tradition has come from and where it is going.
The level of depth, detail, clarity, and organization of this book is astounding. The author was a true teacher and clear researcher and thinker, and his deep knowledge of and reference to the original sources is impressive. His conclusions are not merely things he wanted to say anyway; they are rather thoroughly informed by the research and patterns presented and documented; he does not merely state his case; in good legal form, he makes his case.
The biggest takeaway for me is the thesis that the German and English revolutions coincided with comprehensive changes to legal philosophies, legal science, and substantive and procedural law (though all ultimately staying within the broad Western Legal Tradition) and that many of these changes were in harmony with the theological doctrines of the major Protestant reformations of the period, if not literally authored by some of their leaders, especially in the German case.
In contrast to Marxian and Weberian perspectives, religious changes begat legal changes, which begat, ultimately economic development to the extent that the legal changes enabled greater predictability and security of property and investments. Thus the "ideology" was not merely an apologetic excuse for economic changes, but was among their driving forces. Also, Berman argues that the impact of Protestantism on economic law came not primarily from an alleged "individualism," by rather precisely from the communitarianism of Calvinist belief. For example, wide participation in subscriptions to the new format of the joint stock company was understood by many of the people actually engaged in it a form of mass action for the betterment of the world. One of Berman's wider approaches is to take seriously what the people who were involved actually stated they were doing and what their own objectives were.
Another key point that I derived as I read was the degree to which these legal changes in the 16th and 17th centuries in Germany and England might be described as the institution of theocracies. Berman's own thesis is that much more than a "secularization" of the formerly spiritual jurisdictions, as many historians would have it, these periods were characterized by a "spiritualization of the secular." Indeed, the "secular" authorities took on, through their new laws and administrations, the religious tasks of enforcing religious morality and forwarding their view of what was needed in the secular world for the greater promotion of salvation, according to their Lutheran or Calvinist belief systems.
As I read this, I connected it with what I call do-gooder government, which survives to this day. This was a strong impulse in the direction of using the powers of the state to "do good" for people, to try to make them be better, etc. and even to explicitly reform society in a particularly religiously inspired image.
I would add that while these religious changes certainly inspired legal changes, there would also still have been a certain process of selection of viewpoints. The princes had to take up these changes to some extent. I would submit that only those religious beliefs that would serve certain power interests, particularly those who could help incubate them and use them to their own advantage, could have been taken up in this particular story. Other ideas would be ignored or worse. In other words, though these were revolutions, the parasitic apparatus of the proto-state was doing some evolutionary selection of ideologies. I do not take this to mean that these religious/legal innovators did not actually believe what they were teaching (Indeed, the scary thing reading this at times was the realization that they actually did believe many of these things!), rather that the tradition that grew and survived had to do so in a certain power context. To become part of a state religion, for example, a religious viewpoint would certainly have to be supportive of...well...the state. In pathetic joke form: Did you hear the one about the anti-state religion that become the official state religion? No punch line required.