Harold J. Berman – Law and Revolution, The Formation of the Western Legal Tradition
Berman’s thesis is beyond my ability to state succinctly. This is in part because he thinks in a spectrum of grays and colors rather than a simple binary black-and-white. Unlike many scholars, Berman admits that many things are multi-causal, and defy simplistic explanation. His goal is to explain why legal systems look the way they do, and where they come from. Berman’s thesis ties into the larger rise of modernity itself and the modern economy we enjoy today, but intentionally confines himself to the law, his area of expertise. To highlight some of Berman’s main themes, which all intertwine:
- Modern legal systems are a result of competing jurisdictions. Just as the U.S. has separation of powers and federalism, Europe had church and state competing against each other, as well as kings and nobles squabbling among themselves, free cities adding another sovereign unit to the mix. Eventually, nation-states emerged as a major unit as well.
- The rise of trade also played a role. If two traders had a dispute, it was difficult to determine which legal authority had jurisdiction. The king of the origin country? The destination country? Traders responded by developing their own mercantile law over time. This spontaneous order competed with both church and state laws, adding another element of competition.
- Berman doesn’t use the term, but scholars from Elinor Ostrom to David Friedman call such legal systems “polycentric” (many-centered).
- This process pre-dates the Reformation, which is where most scholars place the beginning of modern legal systems as we know them today. Berman instead dates the key event as the Papal Revolution, a multi-generation movement which peaked in the 1170s.
- This marked the rise of the church as a major source of trans-national legal authority. For the first time, it competed directly against kings and nobles, and on equal footing. Church and state had separate but overlapping jurisdictions, and competed with each other to attract “clients” and patronage.
- The competition was not always peaceful.
- Berman doesn’t operate on a strict back-and-white, church-vs.-state axis. Nothing in history is that simple. There are many other important factors in play.
- This isn’t quite a market process in action, but there are similarities.
- This was a process, not an on-off switch. Even when change was at its fastest, the change would only be noticeable over the course of an entire lifetime. It was not centrally directed or planned, and it did not happen suddenly.
- Nor was the process unidirectional. There were reactions against it, and there were countless other factors in play. Berman doesn’t go this far forward in history, but the French Revolution is an excellent example of such a reaction. The Revolution swept away the ancien regime and was secular, so on the surface it appeared to weaken both church and state. Its intellectual underpinnings rejected hodge-podge evolutionary polycentrism in favor of a more orderly, centralized, and aesthetic top-down legal ethos. Think the Napoleonic Code-vs.-common law debate that continues today.
This is a deep and dense work, and I have almost certainly not done it justice in this capsule review. But it is a rewarding read, and as someone who works on regulatory issues and institution-level reforms, this book was a game-changer. It changes how I view where today’s debates, legal conventions, and implicit assumptions come from, how they evolve over time, and where needed reforms might fit into larger historical trends.
Berman, who passed away in 2007, also wrote a sequel, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. When I am feeling ambitious, I hope to one day attempt it.