Legal and Revolution (The Formation of the Western Legal Tradition)

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Features: This is a monumental work written by Professor Harold J. Berman of Harvard University, dedicating 40 years of his life to studying the factors that shaped the "Western Legal Tradition." The book is divided into two parts: the first part discusses the Papal Revolution and Canon Law, while the second part examines 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 crafted, and the overall tone is grand, blending institutions and ideas. It offers insightful 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 "incredible 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 between the Papal party and the Emperor party for about 50 years. It was not until around 1170—Thomas Becket's martyrdom—that a final compromise was reached in England. In the following centuries, the folk laws of the European nations almost disappeared 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—and perhaps even more importantly, the Western legal attitude—cannot be understood unless they are viewed, to some extent, in relation to the very thing from which they were derived and in contrast to it. Especially in the present era, in the post-20th century, when Western society no longer has the same confidence in its legal tradition as before, it becomes 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, they 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 pre-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 Church in Western Europe first achieved a legal status independent of emperors, kings, and feudal lords. The Church became separated from various secular authorities, and Canon Law became 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 systems of statutes and judge-made law within the Church, the establishment of these courts was also entirely new. However, if the pre-existing Christian community (populus christianus) had 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 common 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.)
Afterword: Postscript For readers in China's legal community, Harold J. Berman is not an unfamiliar name. The two books edited by this renowned Harvard professor have already been translated into Chinese and published previously—one is American Law Lectures, which he edited, and the other is his shorter work, Law and Religion. In recent years, several chapters of his works, including the one we have translated, have appeared in several legal journals in China. Law and Revolution—The Formation of the Western Legal Tradition is already his third book 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. Berman was born in Connecticut in 1918, earning a master's degree in literature and a bachelor's degree in law, and later studied legal history at the London School of Economics. He taught successively at Stanford University and Harvard University, 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 State University. He is now a professor emeritus at Harvard University and a professor at Emory University. He is one of the world's most renowned experts on 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 unprecedented heights. Although the famous British historian F.W. Maitland's remark that the 12th century was "a century of law" is well-known, it was Berman's unique contribution to locate the formation period of the Western legal tradition between the late 11th and late 13th centuries 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 in the emergence of the Western legal tradition. To support his argument, the author describes the folk law that served as the background to the Western legal tradition, reviews the birth and development of new legal sciences and new legal systems that emerged with the Papal Revolution—such as the incubation and flourishing of legal science in universities like Bologna, the formation of specialized legal professions, and a series of new legal institutions (such as contract law, trust, 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 the process, the author criticizes the tendency of earlier legal historians to overemphasize the uniqueness of English legal development, stressing and proving, 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 statutory law and case law. They all clearly distinguish between criminal and civil law. They all analyze various crimes in terms of intent or negligence, causation, and obligations, as early as the 12th century when Abelard first analyzed them. They all divide civil debts into contracts, torts, and quasi-contracts, either explicitly or implicitly. Behind these and many other common classification categories lie common policies and common values."
For works like Law and Revolution, there is one question that cannot be avoided: why did the so-called Western legal tradition form only within 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 dissatisfies with Marxist, Weberian, and some anthropological theories about law and social development, proposing the slogan "Beyond Marx, Beyond Weber." The main historical and social factors that he lists and explains asing the Western legal tradition to form 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 papal and secular authority, 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 possessed by or simultaneously possessed by 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.
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, as it was unprecedented to clearly define the concept of "revolution," locate the formation period of the Western legal tradition in the 12th century when the Papal Revolution occurred, and conduct such extensive and in-depth arguments. However, others believed 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 historical generalizations that were open to debate.
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 point in 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 desire to find ways to overcome it by tracing its roots and exploring paths beyond the crisis are the basic 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 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, with the integrity of its legal structure, its developmental characteristics, its religious foundation, and its transcendent nature completely lost. The law, stripped of these fundamental beliefs and value premises, is becoming 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 reconciled: the greatest challenge to these foundations is the loss of faith in Western civilization itself as a civilization and a social community, and the loss of confidence in the legal tradition that has sustained Western civilization for nine centuries.
Such remarks inevitably bring to mind Spengler's The Decline of the West, and it was bound to spark controversy. David Ibbetson, a fellow at Magdalen College, Oxford, disagrees with Berman's theory of crisis. 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, some of the past values they once held unquestionably are now questioned or even attacked, and since these values are recognized as the core of tradition, it is concluded that the tradition itself is in crisis. Such a judgment is perhaps too hasty.
Nevertheless, the significant value and vast scope of Law and Revolution—The Formation of the Western Legal Tradition have been unanimously recognized by critics. Ibbetson points out, "Regardless of our views on Berman's 'Western legal tradition' or its crisis, we must seriously consider his analysis of the legal changes that occurred between the late 11th and late 13th centuries. No matter how much we disagree with some of his interpretations, the book's immense scope leaves a deep impression. Berman is unmatched in analyzing and comparing the different legal systems of different countries."
The professor we previously cited, Professor Bassett, evaluates the book as follows: "Berman's immortal contribution to legal history is not only due to his thorough critique of traditional research methods but, more importantly, as a necessary result of this critique, Berman successfully rekindled lawyers' interest in the most fundamental questions of our legal heritage. He calls this a 'highly polemical and historically profound work.' Berman is recognized as an 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, few can match Berman in terms of the breadth of practical, comparative, and philosophical knowledge required 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 Chinese law and has adopted the Western legal track. This unprecedented catastrophe in the history of China's law 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 complete 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 in modern China were entirely aimed at destroying the old tradition, which has led to a series of severe problems, the most acute of which is the disconnection between our legal system and legal culture—the attitudes, concepts, and beliefs of the general public toward law, judicial institutions, and legal professionals—not being harmonious or complementary but often mismatched or even in conflict. A law that lacks popular support cannot be a living law; it is like putting a fish in a basket—where would there be the elegance of "a tranquil river like a silk measuring tape"?
To solve such problems, we need to understand whether the fundamental values of our national legal tradition can serve as a cultural foundation for modern legal systems, and we need to genuinely understand and 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. In the past, Yang Honglie once called Shen Jiaben, a legal reformer during the late Qing Dynasty, the "icebreaker" mediating between Eastern and Western law. 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 experiences, personalities, and backgrounds. We might consider this book as a report that helps people understand the history, character, and especially the early experiences of the Western legal tradition, and how these early experiences influenced 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 keep postponing 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 is undoubtedly a memorable collaboration. It is needless to say that translating a work that has 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 authority of the author in the sense of interpreting the work. Although translation is, to some extent, also a form of interpretation—expressing the meaning of the "text" in another language, or another cultural symbol—it is increasingly emphasized in modern translation norms, especially in the translation of social science works, 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.
Although we tried to follow such norms during the translation process, Berman's involvement in such a wide range of fields and his expertise in each area, combined with the vast cultural differences between Chinese and Western languages and the gap between the goals and actual capabilities of our several translators, led us to feel the same frustration as Liu Yuxi's poem: "I often hate my words for being too shallow, not as deep as people's thoughts." We sincerely hope that experts in the various fields covered in this book, translation professionals, and other readers will offer criticism on the translation so that it can be revised for a future edition. Professor Zhou Yeqian of the Institute of Law, Chinese Academy of Social Sciences, carefully reviewed part of the translated manuscript and provided valuable suggestions. We would like to express our heartfelt gratitude to him.
Translators
Spring 1993, Beijing