Law and Revolution. Vol. 2, The Impact of the Protestant Reformations on the Western Legal Tradition (review)

The first volume of Harold J. Berman's Law and Revolution, published in 1983, was an impressive study of the origins of the Western legal tradition. Synthesizing the work of Brian Tierney, Walter Ullmann, Joseph Strayer, and many other medievalists, Berman presented the "papal revolution" of the late eleventh and early twelfth centuries as the root of the modern state and the key to the emergence of modern systems of law. The papacy's sudden assertion of the independence of the Church, he argued, triggered a tremendous upheaval in society and politics that left legal authority divided and contentious; moreover, the popes' continuing employment of Roman and canon law both to justify their claims and tighten their hold over the ecclesiastical structure insured that law would develop into a dominant force in subsequent European intellectual, social, economic, and governmental systems. Both these developments made law a major force for change in the West. Each of the five great shifts in Western society after the twelfth century — the Protestant Reformation and the English, American, French, and Russian revolutions — was caused in significant part by disjunctions between law and belief, and each produced, in its turn, dramatic shifts in the conception of law.

Berman's new volume treats the impact of the Reformation on the legal systems constructed in the wake of the papal revolution. The Lutheran religious revolt was accompanied by a rejection of the plurality of jurisdictions in late medieval society. As the papal revolution had dispersed legal authority in society, Luther sought to unite and clarify it. He rejected ecclesiastical jurisdiction and affirmed the Church as an invisible community of the faithful, placing control of the visible earthly community in the hands of secular rulers. But because even the positive law administered by princes served a religious purpose — guiding sinners to repentance and righteous behavior through its strictures and sanctions — Lutheran thinkers such as Melanchthon also called for the review and reorganization of legal systems by theologians trained as jurists. These theorists sought to construct a unified framework for all types of law based on the synthesis already begun by legal humanists and the new "topical" method of analysis that was gaining popularity among theologians. The topical method allowed the creation of a pan-European common law from the doctrines of Roman and canon law as well as feudal, royal, commercial, and urban law. As the new legal science settled into the universities of Lutheran states, it quickly came to dominate the thinking of future judges and royal councilors. Soon law professors themselves were incorporated into the legal system as the arbiters of difficult cases. The result was a conception of law in Lutheran countries that fused a positivist emphasis on the will of the lawmaker with a reliance on the expertise and divinely guided conscience of the Lutheran judge.

The religious revolts in England during the sixteenth and seventeenth centuries drew law in quite different directions. The first Protestant revolution under Henry VIII put the kingdom on a course toward absolute monarchy, while the second, initiated by the Calvinists, resulted in a series of experiments in constitutional government. Berman gives most of his attention to the Calvinist revolution. In addition to establishing the supremacy of Parliament, the Calvinist revolution made common-law courts supreme. It occasioned Coke and Selden's articulation of a theory of English common law, with its strong historical consciousness, and modernized the English law of property, contract, and tort. It also promoted the adversarial system in law by giving the doctrine of precedent its modern form, reducing the authority of the judge in trials, and introducing witness proof and rules of evidence into jury trials. A major force behind this process, Berman argues, was the Anglo-Calvinist notion of covenant, the sense that England was an elect nation divinely chosen to guide the...