state — Blog — Konrad S. Graf

I just finished Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition by Harold J. Berman (Harvard, 2003), published 20 years after Law and Revolution: The Formation of the Western Legal Tradition (Harvard, 1983).

The two Law and Revolution books are indispensable to the list of must-reads for becoming truly educated, taking oneself beyond the usual 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 legal history based on a tremendous grasp of the historical and theoretical material. 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 high. The author was a true teacher and clear researcher and thinker, and his deep knowledge of and reference to the original sources are both impressive and easy to follow. His conclusions are not merely things he wanted to say anyway; they are thoroughly informed by the patterns documented. He does not merely state his case; in good legal form, he makes his case.

The biggest takeaway for me was the power of ideas in shaping institutions. He argues that the German and English revolutions included 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 not only in harmony with the theological doctrines of the major Protestant reformations of the period, but were in some cases literally authored by some of the Protestant leaders, especially in the German case.

In contrast to Marxian and Weberian perspectives, Berman shows religious changes bringing about legal changes, which then ultimately brought about economic development to the extent that the changes enabled greater predictability and security of property and investments. Thus, Protestant "ideology" was not merely an "apology" 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," as in Weber, but rather from the communitarian elements 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 as form of mass action for the betterment of the world. This illustrates one of Berman's wider and refreshing (in modern academia) approaches: 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 constituted the establishment 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.

In the event, the felt need to have one state religion or another led to a couple of centuries of horrific religious warfare, with genocides, massacres, terrorism, the whole package. The idea of "toleration" during this period of the idea's early development was to grudgingly refrain from burning at the stake the adherents of a few approved select denominations, even though they were not the state religion at the time.

As I read, I connected the theocratic character of the legal changes of this era with the genesis of what I call do-gooder government, which thrives to this day. The Reformations provided strong impulses in the direction of using the powers of the state to "do good" for people, to try to make them be better in a particular religious context, to explicitly reform society in a religiously inspired image. [Update: For a brilliant sci-fi film treatment of do-gooder government in action, don't miss Serenity.]

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. In other words, not just any set of new religious ideas, at least in their relation to state power, could have had the same influence. The princes had to take up these changes to some extent. I would submit that only those religious belief systems that would serve certain power interests, particularly those powers positioned to help incubate the systems while using them to their own advantage, could have been taken up in this particular story. Other ideas would have been ignored or worse.

In other words, though these were revolutions, the parasitic apparatus of the proto-state was doing some evolutionary selection of the ideologies leading the revolution. I do not take this to mean that these religious/legal innovators did not believe what they were teaching (in the way that cynical Marxians inevitably discount people's own accounts of their own motivations). Indeed, one of the disturbing things as I read Berman's accounts of original sources was sometimes the realization that these figures actually did deeply believe in many of the things they were writing! My point is rather a metaphorical application of the anthropic principle: the religious traditions that grew and survived also had to do so in the given power context. To become part of a new state religion, for example, a religious opinion would certainly have to be supportive of...well...the state. Just think of all those anti-state religions that were adopted as official state religions! (Well, Christianity, perhaps, but it had to shed its initial anti-state character well before it could serve as state religion).

As was the case in the first Law and Revolution book, Berman again notes numerous instances throughout Volume II in which the presence of legal competition of various kinds in Europe tended to improve the quality of legal procedure and content over time. For example, the competition for cases among the various courts in England, each with different sets of both substantive and procedural law; or the competition of German princes to hire a limited pool of qualified civil officials and judges, each of whom was free to work for any of the various German states.

There is so much detailed richness from the past in this book. So many personalities, legal cases, stories, come to life. It just has to be read to get the full effect. Don't miss it.