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Published online by Cambridge University Press: 24 April 2015
The Western legal tradition was formed in the great revolutionary upheaval of the late eleventh and early twelfth century, when the papacy established its independence from imperial and royal control and its political and legal supremacy over the clergy of Western Christendom. It was then that there was first developed the modern Western belief in the autonomy of law, its professional character, its integrity both as a system of institutions and as a body of learning, its capacity for organic growth over generations and centuries, its conscious historicity, and its ultimate supremacy over political authorities. It was then, too, that the modern Western concept of subjective rights was first adumbrated—the rights of corporate bodies and persons to property and to liberties against other corporate bodies and persons, and even against superiors.
Politically, the Western legal tradition was rooted in the dualism of ecclesiastical and secular authorities and in the pluralism of secular polities—kingdoms and principalities, feudal domains, autonomous cities—within the ecclesiastical unity. Theologically, it was rooted in a concept of salvation, and of law as part of God's plan of salvation.
© 1988 Harold Berman
1. This is the main theme of Berman, H., Law and Revolution: The Formation of the Western Legal Tradition (1983)Google Scholar.
2. Id. at 1-10, 85-87, 113-64, 273-94.
3. Id. at 91-99, 275-88, 504.
4. Id. at 143-51.
5. Id. at 503-05.
6. Strauss, G., Manifestations of Discontent in Germany on the Eve of the Reformation 52–63, 130–38, 142–44, 196–207 (1971)Google Scholar.
7. Gilmore, M., The World of Humanism 1453–1517 135 (1952)Google Scholar. Gilmore adds: “Given that problem, the thinkers of the age occupied themselves with finding a new justification and meaning for the secular world. This is the theme that not only united Luther, More and Machiavelli, but it is also the theme that gives their writing its ‘modern’ tone.” Id. On the Papal (“Gregorian”) Revolution, see Berman, supra note 1, Chap. 2 and sources there cited.
8. For discussion of Luther's conceptions of politics and law see Cranz, F.E., An Essay on the Development of Luther's Thoughts on Justice, Law, and Society (1959)Google Scholar; Hertz, K., Two Kingdoms and one World (1976)Google Scholar; Lang, A., The Reformation and Natural Law in Calvin and the Reformation 63 ff.(1959)Google Scholar; Mueller, W., Church and State in Luther and Calvin 1–59 (1954)Google Scholar; Tonkin, J., The Church and the SecuLar Order 37–72 (1971)Google Scholar; Skinner, Q. II, The Foundations of Modern Political Thought 3–20, 81–112 (1978)Google Scholar; McDonough, T., Law and Gospel in Luther (1963)Google Scholar; Bornkamm, H., Luther's Doctrine of the two Kingdoms in the Context of his Theology (2d ed. 1966)Google Scholar; Holl, IK., Gesammelte Aufsätze zur Kirchengeschichte (Luther) 155–419 (1932)Google Scholar; Joest, W., Gesetz und Freiheit: Das Problem des Tertius usus Legis bei Luther und die Neutestamentliche Parainese (2. Aufl., 1956)Google Scholar. Many of Luther's writings to which this discussion refers are found in Dillenberger, J., Martin Luther: Selections from his Writings (1961) [hereinafter Dillenberger]Google Scholar.
9. Sohm, R., Weltliches und Geistliches Recht 69 (1914)Google Scholar.
10. Rudolph Huebner, for example, characterizes the German law of the Reformation period and before as “much disintegrated and lacking in unity,” “particularistic,” “disjointed,” “parochial,” due in part to the multiple sources of law and the lack of an integrated court system and an integrated legal science. Huebner, R., A History of Germanic Private Law 1–40 (1918)Google Scholar. From a similar perspective one might say the same about American law in the nineteenth century or perhaps even today.
11. See Berman, supra note 1, at 199-254.
12. Id. at 303-15, 371-79, 482-509; and Berman, , Law and Belief in Three Revolutions, 18 Val. U.L. Rev. 569, 578 (1984) [hereinafter Berman]Google Scholar.
13. Wieacker, F., Privatrechtsgeschichte der Neuzeit 131ff. (2d ed. 1967)Google Scholar. A standard text defines the legal reformation of this period as the “gelehrte Bearbeitungen des einheimischen Rechts.” Hattenhauer, H. & Buschmann, A., Textbuch der Privatrechtsgeschichte der Neuzeit 11 (1967)Google Scholar.
14. Cf. Rosenstock-Huessy, E., Out of Revolution: The Autobiography of Western Man 402–03 (1938)Google Scholar. A vivid account of the institution of Aktenversendungen is found in Dawson, J.P., The Oracles of the Law 198–213, 240–41 (1968)Google Scholar. A precursor of the sixteenth century German development is to be found in the practice of courts in Italy and other parts of Europe to consult individual learned jurists about difficult cases. This practice became formalized in some Italian cities in the fourteenth century. Cf. Kisch, G., Consilia: Eine Bibliographie der Juristischen Konsiliensammlungen (1970)Google Scholar.
15. Wieacker, supra note 13, at 188.
16. See sources cited in Berman, supra note 12, at 577-85.
17. Rosenstock-Huessy, supra note 14, at 392-95. Rosenstock-Huessy's entire chapter on the German Reformation is filled with important insights.
18. Berman, supra note 12, at 582-85.
19. Id. at 583.
20. Peter Macke, Das Rechts- und Staatsdenken des Johannes Oldendorp, Inaugural Dissertation zur Erlangung der Doktorwürde einer Hohen Rechtswissenschaftlichen Fakultät der Universität zu Köln 165 (n.d.; date of oral examination 25 May 1966), [hereinafter Macke]. Most of the biographical information presented below is derived from Dietze, H., Johann Oldendorp als Rechtsphilosoph und Protestant 44–84 (1933) [hereinafter Dietz]Google Scholar; Wolf, E., Grosse Rechtsdenker Der Deutschen Geistesgeschichte 129–32 (3. Aufl. 1951)Google Scholar; Landberg, E., Oldendorp, Johann, 24 Allgemeine Deutsche Biographie 265 (1970; facsimile of 1887 ed.)Google Scholar; and Macke's dissertation.
21. Stintzing, R., Geschichte der Deutschen Rechtswissenschaft, Erste Abtheilung 311 (1880)Google Scholar. Stintzing also calls Oldendorp “the most significant of the German jurists of the middle of the 16th century.” Ernst Troeltsch describes him as the “most influential jurist” (massgebendster Jurist) of the age of the Reformation. Troeltsch, I E., Die Sozballehren der Christlichen Kirchen und Gruppen, Gesammelte Schriften 545, n.253 (1912)Google Scholar.
22. The year of Oldendorp's birth remains a point of controversy. The date 1480 is ac־ cepted by Stintzing, supra note 21, at 311, as well as by many later historians. More recently, however, Wieacker, supra note 13, at 283, has given Oldendorp's birthdate as 1486; Macke, supra note 20, has adopted the date 1488. Even later dates have been argued by other historians. 1486 or 1488 seems more plausible in light of Oldendorp,s career.
23. Macke, supra note 20, at 9. Dietze, supra note 20, at 59. See also Freyb, A.e, “Johann Oldendorps Schrift über Billigkeit,” 13 Zeitschrift der Savigny-Stiftung, Ger Abt. 97 (1893)Google Scholar.
24. Stintzing, supra note 21, at 323.
25. Oldendorp wrote at least 56 separate tracts, of which three are in old German and the rest are in Latin. The German writings are among the earliest. The fullest bibliography of Oldendorp's writings is given in Dietze, supra note 20, at 18-21. Macke's bibliography, supra note 20, at viii-xi, while not as exhaustive as Dietze's, includes six works not found in Dietze.
Two of Oldendorps German works have been translated into modern German: Oldendorp, was Billig und Recht ist, in Quellenbuch zur Geschichte der DeutSchen Rechtswissenschaft 29 (Wolf, E. ed. & trans. 1949)Google Scholar (Oldendorp originally published this work in 1530) and Ratmannspiegel, in id. at 69, (originally published in 1530). The latter work is also published separately as Ein Ratmannenspiegel Oldendorp, Von Joh., Doctor und Stadtsyndicus zu Rostock (1971)Google Scholar. Two of Oldendorp's Latin works, Isagoge Iuris Naturalis Gentium et Civilis (1539) [hereafter Isagoge] and DivĪNae TabuLae X Praeceptorum (c. 1540) [hereafter Divinae Tabulae], are reproduced in edited form in von Kaltenborn, Carl, Die Vorläufer des Hugo Groti us auf dem Gebiete des lus Naturae et Gentium, Zweite Abtheilung 1–25 (1848)Google Scholar. (Kaltenborn mistakenly identifies the Divinae Tabulae as Title V of the Isagoge, though the two works were written separately.) More than twenty of Oldendorp's works are to be found in the Treasure Room, Langdell Library, Harvard Law School.
26. Oldendorp wrote: “lus … idem est quod lex.” Isagoge, supra note 25, at 7. Yet he also put customary law on an equal level with enacted law. “Law (Recht), or laws (Gesetze), is [sic] twofold: written and unwritten,” Quoted in Macke, supra note 20, at 12. Under written law he included the civil law (Roman law) and positive law and under unwritten law he included custom, the law of nations, and natural law.
27. Cf. Was Billig Und Recht ist, supra note 25, at 56-65.
28. “Natura: hoc est, Deus creator omnium.” [Nature: that is, God the creator of all things.] Macke, supra note 20, at 30-31.
29. Was Billig Und Recht ist, supra note 25, at 57. I have substituted “natural law” for the word “equity” (Billigkeit) in the original quotation; Oldendorp uses the two synonymously, as is explained below.
30. Cited by Dietze, supra note 20, at 81.
31. Oldendorp, Divinae Tabulae, supra note 25, at 15-25. See the excellent discussion in Krause, O., Naturrechtler des Sechszehnten Jahrhunderts, Ihre Bedeutung für die Entwicklung eines Natür Lichen Privatrechts, 118ff., 327ff. (1982)Google Scholar.
32. Quoted in Macke, supra note 20, at 47.
33. See id. at 49-50. Of slavery, Oldendorp wrote: “cum servi utique homines, ad imaginem Dei creati, cogerentur in brutorum animalium ordinem”; … haec omnia de praedura servitute introducta sunt iure civili contra ius naturale. Ergo non sunt observancia.” [although slaves are by all means men, created in the image of God, they are driven into the ranks of brute beasts;… all these [rules] concerning strict servitude were introduced into civil law against natural law. Therefore they are not to be obeyed.] Quoted id. at 50.
34. Id. at 49.
35. See infra at 1323-1324.
36. “Aequitas est iudicium animi, ex vera ratione petitum, de circumstantiis rerum, ad honestatem vitae pertinentium, cum indicunt, quid fieri aut non fieri oporteat.” [Equity is the judgment of the spirit, sought from true reason, according to the circumstances of things, [and] taking into account the character of life of those who are involved, since [all these factors] indicate what ought or ought not to be done.] Oldendorp, de Iure et Aequitate, Forensis Disputatio 13 (1541)Google Scholar.
37. Oldendorp identifies “summum ius … alias lus simpliciter, alias apex iuris, lus inflexibile, generalis definitio, subtilitas verborum, praedurum lus, strictum Ius,” [the highest law [as] sometimes simply Law, at other times as the apex of law, inflexible Law, general definition, subtlety of words, firm Law, strict Law] contrasting them all with aequitas, bonum et aequum, epieikeia seu convenientia, bona fides, naturalis Iusticia, etc. [equity, the good and equitable, epieikeis, or suitability, good faith, natural Justice, etc.] Id. at 72.
38. Cf. Wolf, supra note 25, at 161. Guido Kisch hails Oldendorp as the first great humanist-jurist to transform traditional Aristotelian concepts of equity. Kisch, G., Erasmus und die Jurisprudenz Seiner Zeit: Studien zum Humanistischen Rechtsdenken 228 (1960)Google Scholar. Kisch's exposition of Oldendorp's theory of equity does not make clear, however, the nature of that transformation. Dietze writes that in Oldendorp, “thesis and antithesis stand over against each other unreconciled: the thesis [that] equity and law are two types of value, the antithesis [that] both are one and the same.” Dietze, supra note 20, at 88-89. It would be more accurate to say that Oldendorp in fact reconciles these contradictory propositions by stating that law and equity are two antagonistic parts of a single whole.
39. Macke, supra note 20, at 63-66.
40. Here, too, Oldendorp's concept of natural law is sharply distinguished from that of Aquinas, who speaks of natural law as a middle stage between divine and human law. See infra note 41and accompanying text.
41. Macke, supra note 20, at 151 ff., rightly charges both Erik Wolf and Franz Wieacker with oversimpiiiying Oldendorps conception of natural law (or equity). The same charge can be levelled against Kaltenborn, supra note 25, at 233-36, on whom both Wolf and Wieacker partly rely. Wolf says that natural law for Oldendorp consists of unchangeable principles derived from natural reason, which are above human law; this characterization is derived from Was Billig und recht ist, and does not take into account Oldendorp's other writings. Wieacker, relying on Oldendorp's Isagoge, characterizes his conception of natural law as a source of legal norms, equivalent to the Decalogue. Wieacker, supra note 13, at 283-84. Kaltenborn, also relying on the Isagoge, describes Oldendorp's natural law as a divine source of legal principles from which the positive law is derived and by which it is tested. In this view, the Decalogue merely aids the human reason to understand and apply the natural law. Such a misunderstanding of Oldendorp stems, in part, from Kaltenborn's unwarranted reduction of Oldendorp's Divinae tabulae X praeceptorum to a mere title of the Isagoge. See supra note 25. Macke, relying on the totality of Oldendorp's writings, argues convincingly that his complete conception of natural law can be derived only from his concept of nature as deus creator omnium. Natural law, therefore, includes both God-given legal norms (the Decalogue), from which civil legal norms are derived, and principles derived from God-given reason; but it also includes much more, namely, the capacity of conscience, implanted in man by God, equitably to apply norms and principles to concrete circumstances. See infra note 42.
42. Oldendorp drew on an earlier scholastic conception of conscience, in so far as he defined it as an aspect of practical reason through which general moral principles are applied to concrete circumstances. Thomas Aquinas had developed the conception of conscience as an act of applying knowledge of good and evil to a particular case. See D'Arcy, E., Conscience and its Right to Freedom 42ff. (1961)Google Scholar [hereinafter D'Arcy]. Aquinas, however, had not translated—as Oldendorp did—this moral concept into alegal concept. Moreover, Oldendorp, in contrast to Aquinas, followed the Lutheran conception of conscience as pertaining to the whole person of man, that is, his faith, and not simply his intellectual and moral qualities. Thus for Luther the conscience of sinful man can be redeemed by faith, through God's grace. “Faith redeems, protects and preserves our consciences,” Luther wrote. On the Freedom of the Christian (1522), quoted by Baylor, M., Action and Person: Conscience in Late Scholasticism and the Young Luther 247 (1977)Google Scholar.
43. Oldendorp, supra note 36, at 15; see also Dietze, supra note 20, at 81.
44. Macke, supra note 20, at 121. Luther had announced at the Diet of Worms: “I am bound by the scriptures I have quoted and my conscience is captive to the Word of God. I cannot and will not retract anything, since it is neither safe nor right to go against conscience. I cannot do otherwise, here I stand, may God help me. Amen.” See Bainton, R., Here I Stand: A Life of Martin Luther 144 (1950)Google Scholar.
45. In his Lectures on Galatians (1531), excerpted in Dillenberger, supra note 8, at 100-01, Luther contrasts active and passive virtues. “St. Paul goeth about to [distinguish]. … divers sorts of virtue. There is political or civil virtue, which emperors, princes of the world, philosophers, and lawyers deal withal. There is also a ceremonial virtue, which the traditions of men do teach … [and which] parents and schoolmasters may teach without danger, because they do not attribute to it any power to satisfy for sin, to placate God or to deserve grace; but they teach such ceremonies as are only necessary for the correction of manners, and certain observations concerning this life. Besides these there is another virtue called the virtue of the law which Moses teacheth.
“There is yet another virtue which is above all these: to wit, the virtue of laith or Christian virtue, … which we must diligently discern from the other aforerehearsed. The other virtues] consist in our works, and may be wrought of us either by our pure natural strength … or else by the gift of God.…
“But this most excellent virtue, ot taith … is clear contrary: that is to say, a mere passive virtue, as the other above are active. For in this we work nothing, we render nothing unto God, but only we receive and suffer another to work in us, that is to say God.” Cf. id. at 19-35, 86-99.
Neither Luther nor Oldendorp refer explicitly to conscience as a “passive virtue.” Both agree that conscience, like will and reason, is God-given and both imply that it is a virtue when “redeemed, protected, and preserved by faith.” D'Arcy, supra note 42. Its passivity consists in its independence of both will and reason. The scholastic writers on conscience were fond of quoting St. Jerome's reference to “that spark of conscience which was not quenched even in the heart of Cain.” Cf. D'Arcy, supra note 42, at 15ff.
46. Macke, supra note 20, at 79.
47. Id.
48. Id. at 85.
49. Id. at 85-92.
50. Id. at 92.
51. Id, at 92-94.
52. Id, at 80-82.
53. Id. at 110 ff.
54. Id. at 13.
55. Id.56. Id. at 19.
57. “If he had not given Scripturally based religious foundations to his teachings, Oldendorp would have had no prospect of finding an audience for them.” Macke, supra note 20, at 140.
