Law and Revolution--The Formation of the Western Legal Tradition

Author: Harold
Publisher:
Publication Date: 1993-09-01
Features: Introduction to the Book This is a monumental work written by Harold J. Berman, a Harvard professor, which has been the culmination of 40 years of his life's work. It focuses on 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, and the second part 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 depicted, and the overall atmosphere is grand, integrating 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 author also provides unique critiques of Marxism and Max Weber's theories. This book is not only a must-read for legal scholars but also greatly 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 Maitland called an "inexplicable sudden change." Specialized courts, legislative bodies, legal professions, legal writings, and "legal science" emerged in various parts of Western Europe. The main 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 imperial party for about 50 years to determine the victor. 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 peoples of Europe 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, in 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 according to what they originally derived from and what they were relatively to. Especially in the present era, in the post-20th century, when Western Europe no longer has the same confidence in its legal tradition as before, it is particularly important to look back at what this tradition originally replaced. Indeed, if people seek new methods to overcome or remedy the shortcomings of Western "legalism," they should consider them in light of German-style choices, even though such choices were once rejected but still linger in the behind our historical memory. Moreover, although modern jurists have criticized the "irrational" characteristics of ancient customs and thoroughly revised them, German law was not entirely negated, and the parts that were negated did not immediately disappear. New law was not created out of thin air. Although it is a conscious reaction to the past (often in the name of an earlier past), it is also a re-creation of existing institutions and ideas. Moreover, 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 gained 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 system 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 (populuschristianus) 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 called himself the agent of Saint Peter.) Postscript: Postscript for Chinese Readers 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 his edited work, American Law Lectures, 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 various legal journals in China. Law and Revolution—The Formation of the Western Legal Tradition is already his third book translated into Chinese and published. 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 law degree, and later studied legal history at the London School of Economics. He taught at Stanford University and Harvard University successively, 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 a professor at Emory University. He is one of the world's most renowned experts on socialist law. This book is the culmination 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 already widely known, it was Berman's unique contribution to locate the formation period of the Western legal tradition in the two hundred years 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 support 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 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 that reforms criminals, and the three major principles of modern equity law). The author's description 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 of previous works on the subject. 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 codified law and case law. They all clearly distinguish between criminal and civil law. They all analyze various crimes in terms of concepts such as intent or negligence, causation, and obligation (as early as the 12th century, Abelard first analyzed them this way). 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 an unavoidable question: why could the so-called Western legal tradition only form 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 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 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 many comments. 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 and argued so extensively and deeply that the formation period of the Western legal tradition was located around the 12th century when the Papal Revolution occurred. However, others believed that the author'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. 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 hope to find ways to overcome it by tracing its roots 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 various symptoms and causes of the crisis. His central argument is that in our century, the Western legal tradition, which has thrived through several revolutions since the 11th century, is experiencing an unprecedented crisis. The integrity of its legal structure, its developmental characteristics, its religious foundation, and its transcendent nature have all been completely lost. The law, stripped of these basic 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 people's loss of faith in the West itself as a civilization and a social community, and the universal 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 provoke fierce controversy. David Ibbetson, a researcher at Magdalen College, Oxford, expressed dissent with Berman's crisis theory. He argued that the "Western legal tradition" is not an organic body that can be clinically verified for dysfunction; it can only be intuitively understood (which is also frankly acknowledged by Berman). Individuals feel alienated and bewildered in the face of rapid social changes, some of the past unquestioned values are questioned or even attacked, and since these values are identified as the core of the tradition, it is concluded that the tradition itself is in crisis. Such a judgment is perhaps too hasty. Despite this, the important value and vast scope of Law and Revolution—The Formation of the Western Legal Tradition have been unanimously recognized by the critics. Ibbetson pointed out: "Regardless of our views on Berman's 'Western legal tradition' and its crisis, we must seriously consider 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 vast scope leaves a deep impression. In analyzing and comparing the different legal systems of different countries, Berman is truly unparalleled." The professor Basset, whom we have previously quoted, evaluated the book as follows: "Berman's immortal contribution to this work is not only due to his thorough critique of traditional legal history research methods, but more importantly, as a necessary result of this critique, Berman has successfully rekindled interest among legal scholars in the most fundamental questions of our legal heritage. He calls this a 'highly polemical and deeply historical work.' Berman is a recognized 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 challenging historical chronicle." The brief introduction above may help readers understand the academic and intellectual value of this book and the value 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 taken the path of Western law. This great catastrophe and transformation in China over thousands of years has indeed greatly surpassed Berman's "revolution" model—according to Berman's definition, a revolution is indeed a radical transformation, a movement to create a new legal system, but it does not mean breaking 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. Looking back at China, the revolutions since modern times have completely aimed to destroy the old tradition. This has brought 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 harmonious but often mismatched or even at odds with each other. A law that lacks popular support cannot become a living law; it is like putting a fish in a basket—where would there be the elegance of "the river like a mirror, casting jade scales"? 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 truly 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 those years, 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 study report that helps people understand the history, character, and especially the early experiences of the Western legal tradition and how these early experiences have 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 view in this book is one we can accept). Several years ago, we had the intention of translating this book, but since we had the will to translate but no place to publish, we had to postpone this plan time and again. 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 this monumental work, which has consumed the author's nearly half a century, 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, that is, another cultural symbol—modern translation norms, especially those for social science works, increasingly emphasize that the translation should be faithful to the author and the original work; the translator can only adhere to the role of "annotating the Six Classics" and follow the author step by step. While we tried to follow such norms in the translation process, the fields Berman covers are so vast, his research in each field so specialized, and the cultural differences between Chinese and Western languages so great, as well as the gap between the goals and actual abilities of our several translators, that we have also felt the sentiments expressed in Liu Yuxi's poem: "I often hate that my words are too shallow, not as deep as people's wishes." We sincerely hope that experts in the various fields covered by this book, translation professionals, and other readers will criticize the translation so that it can be revised for the second edition. Professor Zhou Yeqian of the Institute of Law, Chinese Academy of Social Sciences, carefully reviewed part of the translated manuscript and put forward valuable suggestions. We sincerely thank him for his kind cooperation. Translators, Spring 1993, Beijing