Law and Revolution: The Formation of the Western Legal Tradition

Author: Harold J. Berman (USA)
Translator: He Weifang / et al.
Editor-in-Chief: Jiang Ping
Publisher:
Publishing Date: 1996-08-01
Features: Introduction to the Book
This is a monumental work by Harvard University Professor Harold J. Berman, the culmination of 40 years of his life's work, focusing on the factors that shaped the "Western Legal Tradition." The book is divided into two parts: Part One discusses the Papal Revolution and Canon Law, and Part Two discusses the formation of Western secular legal systems, including feudal law, manorial law, commercial law, urban law, and royal law. The author paints a panoramic picture of the formation and evolution of the Western legal tradition on a vast canvas. The details are meticulously portrayed, and the overall atmosphere is grand, integrating institutions and ideas. It offers incisive discussions on the characteristics of the Western legal tradition, its relationship with society, and the severe crises it faces. The book also provides unique critiques of Marxism and Max Weber's theories. It is not only a must-read for legal scholars but also highly beneficial for readers in philosophy, history, sociology, theology, cultural studies, and other fields.
Excerpt:
In the late 11th century and early 12th century, the aforementioned situation underwent what Metternich called the "inexplicable sudden change." Specialized courts, legislative bodies, legal professions, legal writings, and "legal science" emerged across Western Europe. The primary driving force behind this development was the assertion of the Pope's supreme authority over the entire Western Church and the assertion of the Church's independence from secular rule. This was a revolution initiated by Pope Gregory VII in 1075, which led to a bloody struggle of about 50 years between the papal party and the imperial party to determine the victor. It was not until around 1170—Thomas Becket's martyrdom—that a final compromise was reached in England. In the centuries that followed, the folk laws of the European nations almost vanished without a trace. New, complex legal systems—Canon Law, Urban Law, Royal Law, Commercial Law, Feudal Law, and Manorial Law—were successively created by the Church and secular political bodies. Finally, during the period from the 16th to the 20th century, a series of great revolutions—the German Reformation, the English Revolution, the American Revolution, the French Revolution, and the Russian Revolution—changed the Western legal tradition, leaving its German "background" far behind. However, the Western legal concept—or perhaps more importantly, the Western legal attitude—cannot be understood unless it is viewed, to some extent, in terms of what it replaced.
Especially in the current era, in the post-20th century, when Western society no longer has the same confidence in its legal tradition as before, it is particularly important to look back at what this tradition initially replaced. Indeed, if people seek new methods to overcome or remedy the shortcomings of Western "legalism," they should consider them in light of the German-style choices, even though such choices were once rejected but still linger in the of our historical memory.
Moreover, although modern jurists have criticized the "irrational" characteristics of ancient customs and have thoroughly revised them, German law was not entirely rejected, nor were the parts that were rejected immediately eliminated. New law was not created out of thin air. Although it was a conscious reaction against the past (often in the name of an earlier past), it was also a re-creation of existing institutions and ideas. Beyond that, German law provided the necessary foundation for the new legal tradition that replaced it. Perhaps the most obvious evidence supporting this seemingly paradoxical fact can be found in the various new legal developments within the Church.
In the late 11th century and early 12th century, the Western Church first achieved legal independence from emperors, kings, and feudal lords. The Church became separated from various secular authorities, and Canon Law was separated from other forms of Church governance. Hierarchical Church courts were established, with the Papal Court at the top. Like the emergence of legal professions, legal scholarship, legal writings, and the system of statutes and judge-made law within the Church, the establishment of these courts was also entirely new. However, had the previously existing Christian community (populus christianus) not formed in Europe between the 5th and 11th centuries, the establishment of these courts would have been impossible. At that time, Europe was composed of numerous tribal, local, and feudal (lordship) entities, but they gradually developed a common religious belief and a shared military loyalty to emperors and kings outside the empire. The emperor or king was considered the sacred representative of faith in all the peoples of his empire or kingdom. He was called the agent of Christ. (Thus, the Pope no longer demanded this title and instead called himself the agent of Saint Peter.)
Postscript:
Afterword
For readers in China's legal community, Harold J. Berman is not an unfamiliar name. The two books he edited—The American Legal System① and his shorter work, Law and Religion②—have already been translated into Chinese and published previously. In recent years, several chapters of his works, including the one we have translated, have appeared in several domestic legal journals. Law and Revolution—The Formation of the Western Legal Tradition is now his third book to be translated into Chinese. It is rare for the works of a single American legal scholar to be translated into Chinese repeatedly, apart from R. Pound and the author of this book.
Born in Connecticut in 1918, Berman earned a master's degree in literature and a law degree, studied legal history at the London School of Economics, and taught at Stanford University and Harvard University. He later served as a visiting scholar at the Institute of State and Law of the Soviet Academy of Sciences and even held a teaching position at Moscow University. He is now a professor emeritus at Harvard University and Emory University. He is one of the world's most renowned experts in socialist law. This book is the fruit of long-term research, with the author stating that his writing began in 1938 and was published in 1983, spanning 45 years.
In terms of its research subject, it is undoubtedly a work of legal history. In the book, the author's excavation and analysis of the important factors in the formation of the Western legal tradition have reached an unprecedented height. Although the famous British historian F.W. Maitland's remark that the 12th century was "a century of law" is already widely known, it was Berman's unique contribution to pinpoint the formation period of the Western legal tradition to the two centuries from the late 11th to the late 13th century and to identify the Papal Revolution and the series of major changes it triggered in both the Church and the secular world as the fundamental factors that gave rise to the Western legal tradition.
To substantiate his argument, the author describes the folk law that served as the background of the Western legal tradition, reviews the birth and development of new legal science and new legal systems that emerged with the Papal Revolution—such as the nurturing and flourishing of legal science in universities like Bologna, the formation of specialized legal professions, and a series of new legal institutions (contract law, trusts, corporate law, the rights of debtors and bankruptcy rules, agency and delegation, inheritance and probate procedures, evidence law, criminal law for the reform of criminals, and the three major principles of modern equity law). The author's descriptions of the development of medieval Canon Law, the interaction between Canon Law and secular law, the formation and characteristics of various types of secular legal systems, and the like, are more detailed and thorough than those in previous works of a similar nature.
In this process, the author criticizes the tendency of earlier legal historians to overemphasize the uniqueness of English legal development. He emphasizes and proves, with evidence, that medieval England shared legal concepts, principles, and values with continental Europe. He points out that the legal systems of all Western countries "share certain fundamental classification models. For example, they all maintain a balance between legislation and adjudication. In adjudication, they maintain a balance between codified law and case law. They all clearly distinguish between criminal law and civil law. They all analyze various crimes in terms of concepts such as intent or negligence, causation, and obligation (as Abélard first analyzed them in the early 12th century). They all divide civil debts into contracts, torts, and quasi-contracts, either explicitly or implicitly. Behind these and many other shared classification categories lie shared policies and shared values."①
For works like Law and Revolution, there is an unavoidable question: why could the so-called Western legal tradition form only in Western countries? The effort to answer this question inevitably leads the author beyond the field of law and into the study of social development history. Berman clearly dissatisfied with Marxist, Weberian, and some anthropological theories about law and social development, proposed the slogan "Beyond Marx, beyond Weber." The main historical and social factors that he lists and elaborates on, which contributed to the formation of the Western legal tradition in 11th- to 13th-century Europe, include the appearance of a centralized, systematized legal Church before the modern secular state, the cooperation and competition between ecclesiastical and secular power, the dialectical tension between theology, science, and law, and the dialectical interaction between revolution and evolution in Western society over several centuries. These factors, however, are not present or cannot be simultaneously present in non-Western societies.
Among Berman's discussions of legal development, what is most striking is his use of the "revolution" model to explain the historical process of Western legal development and his theory on the role of the Christian Church and theology in the formation of the Western legal tradition.①
After the English edition of this book was published, Western academia offered numerous reviews. Some praised Berman's use of the "revolution" model itself as revolutionary, because before this, although theories about "revolution" were diverse and complex, no one had clearly defined the concept, pinpointed the formation period of the Western legal tradition to the 12th century when the Papal Revolution occurred, and conducted such extensive and in-depth arguments. However, others argued that Berman's "revolution" model limited his perspective, led him to underestimate the development of legal concepts and institutions before the 11th century, and made some debatable historical generalizations.①
Regarding the extent of the influence of the Church and theology on the formation of the Western legal tradition, critics have both praised and criticized Berman's views. However, perhaps the most controversial aspect of this book is whether the Western legal tradition, which originated in the 12th century and now influences every corner of the world, is currently in the crisis that Berman refers to. Berman's deep sense of this crisis and his hope to find ways to overcome it by tracing its roots and exploring paths beyond the crisis are the fundamental motivation and driving force behind his writing of this book. In the substantial introduction and conclusion of the book, the author provides more descriptions and analyses of the various symptoms and causes of the crisis. His central argument is that the Western legal tradition, which has thrived through several revolutions since the 11th century, is now experiencing an unprecedented crisis. The integrity of its legal structure, its developmental characteristics, its religious foundation, and its transcendent nature have all been lost.
The law, stripped of these fundamental beliefs and value premises, is increasingly fragmented, detached from morality, and closer to ad hoc measures like "treating the head for a headache and the foot for a footache." Moreover, the collapse of the fundamental foundation of the Western legal tradition cannot be mended: the greatest challenge to these foundations is the loss of faith in Western civilization as a whole and in the legal tradition that has sustained it for nine centuries.②
Such remarks inevitably bring to mind Spengler's The Decline of the West, and it is inevitable that they will provoke fierce controversy. David Ibbetson, a researcher at Magdalen College, Oxford University, disagrees with Berman's crisis theory. He argues that the "Western legal tradition" is not an organic body that can be clinically verified for dysfunction; it can only be understood intuitively (which Berman frankly acknowledges). Individuals feel alienated and bewildered in the face of rapid social changes, and some of the past values that were once unquestioned are now questioned or even attacked. Since these values are recognized as the core of the tradition, it is concluded that the tradition itself is in crisis. Such a judgment is perhaps too hasty.①
Nevertheless, the importance and vast scope of Law and Revolution—The Formation of the Western Legal Tradition have been unanimously recognized by the critics. Ibbetson points out: "Regardless of our views on Berman's 'Western legal tradition' or its crisis, we must take seriously his analysis of the legal changes that occurred from the late 11th to the late 13th century. No matter how much one disagrees with his certain interpretations, the book's immense scope leaves a deep impression. In analyzing and comparing the different legal systems of various countries, Berman is unmatched."②
The professor we previously quoted, Professor Bassett, evaluates the book as follows: "The immortal contribution of Berman's work is not only due to his thorough critique of traditional legal history methods but, more importantly, as a necessary result of this critique, Berman has successfully rekindled legal scholars' interest in the most fundamental questions of our legal heritage." He calls it "a highly controversial and deeply historical work. Berman is an acknowledged authority in socialist law, especially in Soviet legal systems, contemporary jurisprudence, and commercial law, and he wrote this book with such advantages. Among the existing American legal scholars, it is rare to find someone as broadly knowledgeable in practical, comparative, and philosophical learning as Berman to undertake such a monumental historical task."
The brief introduction above may help readers understand the academic and intellectual value of this book and the significance of publishing its Chinese edition. Since the late Qing Dynasty, China's law has moved away from the long-standing tradition of the Chinese legal system and has taken the path of Western law. This unprecedented catastrophe in the history of Zhongguo has greatly surpassed Berman's "revolution" model—in Berman's definition, a revolution is indeed an intense transformation, a movement to create a new legal system, but it does not mean a break with tradition; after the revolution, the law remains within the tradition. It is precisely in this sense that the great revolutions in Western history became the source of life for the Western legal tradition.
In contrast, the revolutions since modern times in China have completely aimed to destroy the old tradition. This has led to a series of severe problems, the most acute of which is that our legal system and legal culture, as well as the attitudes, concepts, and beliefs of the general public toward law, judicial institutions, and legal professionals, are not in harmony but often at odds or even in mutual opposition. Law stripped of popular support cannot become a living law; it is like placing a fish in a basket—where would there be the elegance of "the river like a silk measuring tape cast with jade"?
To solve such dilemmas, we need to understand whether the fundamental values of our own legal tradition can serve as a cultural foundation for modern legal systems, and we need to genuinely grasp the spirit and form of the Western legal tradition. On this basis, we can explore ways to forge a new legal system that transcends both Eastern and Western traditions.
Back then, Yang Honglie once called Shen Jiaben, the legal reformer of the late Qing Dynasty, the "icebreaker" that mediated between Eastern and Western legal traditions. Today, it seems that this "marriage" between the two cultures is not harmonious or blissful, one reason being that both parties lack an understanding of each other's backgrounds, experiences, and personalities. We might consider this book as a case study that helps people understand the history, character, and especially the early experiences of the Western legal tradition and how these early experiences have shaped its character.
The four translators of this book have largely been engaged in studying Western legal thought and legal systems and have made some comparative analyses with China's traditional thought and institutions. Berman's works naturally hold great appeal for us (although not every point in this book is one we fully accept). Several years ago, we had the intention to translate this book, but since translation was willing but publication was uncertain, we had to repeatedly postpone the plan. The establishment of the "Foreign Legal Classics Series" finally made the publication of this book possible. After more than a year of translation and mutual proofreading, we have completed this project. For us, the translation of this book has undoubtedly been a memorable collaboration.
Needless to say, translating this monumental work, which consumed the author's nearly half a century of effort, into Chinese is a considerable challenge. One trend in modern hermeneutics is to continuously weaken the author's authority in interpreting a work. Although translation is, to some extent, also an act of interpretation—expressing the meaning of the "text" in another language, or another cultural symbol—but modern translation norms, especially those for social science works, increasingly emphasize that the translation should be faithful to the author and the original work; translators can only adhere to the principle of "I annotate the Six Classics" and follow the author step by step.
While we tried to follow such norms during the translation process, Berman's involvement in such a wide range of fields, his expertise in each, and the vast cultural differences between Chinese and Western languages, as well as the gap between the goals of our translators and our actual capabilities, led us to feel, much like Liu Yuxi's poem, "I often hate my words are too shallow, not as deep as people's wishes."
We sincerely hope that experts in the various fields covered in this book, translation professionals, and other readers will criticize the translation so that it can be improved in the second edition. Professor Zhou Yequan of the Institute of Law, Chinese Academy of Social Sciences, carefully reviewed part of the translated manuscript and proposed valuable suggestions. We would like to express our heartfelt gratitude to him.
Translators
Spring 1993, Beijing