The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken.
Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. “We are a religious people,” wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, “whose institutions presuppose a Supreme Being.” Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called “the laws of Nature and Nature's God.”
Parts I, IV, and V of this article are based largely on H. Berman, Law and Revolution: The Formation of the Western Legal Tradition, scheduled for Fall publication, 1983 by the Harvard University Press, to which grateful acknowledgement is made for permission to reproduce substantial portions of pages 31-33, 37-40, and 558. Several paragraphs are also reproduced from H. Berman, The Interaction of Law and Religion (1974). With respect to the rest of the article, copyright is reserved by the author. © Harold J. Berman.
1. This is attested by nonbehevers as well as beUevers. Thomas Jefferson, who was perhaps the most freethinking of the Founding Fathers, nevertheless stated that the “only firm basis” of a nation's liberties is “a conviction in the minds of the people that their liberties are the gift of God.” Many state courts in the nineteenth and early twentieth centuries, in upholding laws against blasphemy, Sunday laws, compulsory attendance at chapel exercises at a state university, religious exercises in elementary and secondary schools, and comparable laws, reiterated the sentiment expressed in 1811 by Chief Justice Kent of New York that “we are a Christian people, and the morality of the country is deeply ingrafted upon Christianity.” Citations to these and similar quotations may be found in Berman, , The Interaction of Law and Religion, 8 Capital U.L. Rev. 346 (1979).
2. Zorach v. Clauson, 343 U.S. 306, 313 (1951).
3. Blackstone, W., Commentaries on the Laws of England 40–41 (1807).
4. Id. at 38-92.
5. The portrayal of the Papal Revolution as a fundamental break in the historical continuity of the church, and as the first of the great revolutions, was pioneered by Rosenstock-Huessy, Eugen in Die europäischen Revolutionen (1931; 3d ed. rev., 1960), and in Out of Revolution: The Autobiography of Western Man (1938). See also Tellenbach, , Church, State, and Christian Society at the Time of the Investiture Contest 111, 164 (Bennett, R. F. trans. 1959); 2 Knowles and Obolensky, The Christian Centuries: The Middle Ages 169 (1968); Southern, R. W., Western Society and the Church in the Middle Ages 34 (1970); Strayer, , On the Medieval Origins of the Modern State 22 (1970).
6. The Dictates of the Pope (Diciatus papae) may be found in English translation in Tierney, , The Crisis of Church and State, 1050-1300, with Selected Documents 49–50 (1964).
7. Abelard (1079-1142), one of the great geniuses of all time, made important lasting contributions to logic, epistemology, theology, and ethics (including law), which antedated the discovery and translation of Aristotle's major works in the West. Students nocked to him from all over Europe; he was the teacher of Gratian, John of Salisbury, and many other outstanding thinkers of the mid-twelfth century. He was the first to use the word “theology” in the modern sense of the systematic study of evidence of the existence and nature of the divinity. He was apparently the first to identify and analyze natural causes as a category distinct from supernatural causes (miracles). He is considered, together with Aristotle, Leibniz, and Frege, to be one of the four greatest logicians in the history of the West. He invented the term “positive law” to refer to enacted law as distinct from natural law or customary law. His short books on ethics and on theology are available in English translation. See, Peter Abelard's Ethics (Lunscombe, D. E., ed., 1971); McCallum, J. R., Abelard's Christian Theology (1948; reprinted 1976). A moving biography of this extraordinary man, whose love songs were known all over Europe, is Lloyd, R., The Stricken Lute (1932).
8. Gratianus, , Concordantia discordantium canonum (Decretum), in I CORPUS IURIS CANONICI (Friedberg, E. ed. 1897).
9. The concept “natural law” in Gratian's time was quite different from the concept “laws of Nature” in the Declaration of Independence, referred to earlier. Gratian's natural law was more akin to fairness, reasonableness, common sense, the spirit of the laws, what is right.
10. The founding of some thousands of chartered cities in the eleventh, twelfth, and thirteenth centuries and the development of urban law as a special type of legal system are described in Chapter 12 of Berman, H., Law and Revolution: The Formation of the Western Legal Tradition (1983).
11. Eckhardt, K. A., ed., Sachsenspiegel V: Landrecht in hochdeutscher Übertragung, prolog (1967).
12. A characteristic example is Langbein, John H., Prosecuting Crime in the Renaissance: England, Germany, France (1974), where sixteenth-century European legal developments are treated as part of “the Renaissance,” with no reference at all to the Reformation. “Renaissance” was a term invented a little over a hundred years ago by Michelet and Burckhardt to characterize fifteenth- and sixteenth-century Europe. Use of the term “Renaissance” makes it easier to dissociate legal changes not only from the religious aspects of the Reformation but also from its political aspects. Dawson, John P., The Oracles of the Law (1968), also analyzes sixteenth-century German legal developments without mentioning Lutheranism or the Reformation. Dawson does note that Baron von Schwarzenberg, the chief author of the great sixteenth-century German code of criminal law, the Constitutio Criminalis Carolina, was “inspired by piety and idealism” (p. 197). In fact, Schwarzenberg was a convert to Lutheranism and wrote pamphlets defending it. He also knew Luther personally.
13. Luther considered his doctrine of the distinction between the earthly and the heavenly kingdoms—one of law, the other of Gospel—to be revolutionary. “Of this difference between the law and the Gospel,” he wrote, “there is nothing to be found in the books of the ancient fathers. Augustine did somewhat understand this difference and showed it. Jerome and others knew it not. …” Luther, , A Commentary on St. Paul's Epistle to the Galatians, translated in Dillenberger, John, Martin Luther: Selections from His Writings 144–145 (1961), See generally Hertz, Karl, ed., Two Kingdoms and One World (1976). Thomas Shaffer, in an otherwise excellent essay, identifies Luther's heavenly kingdom with love. Shaffer, , The Legal Ethics of the Two Kingdoms, 17 Val. U.L. Rev. 3 (1983). This would lead Luther to an antinomian position similar to the one which he in fact denounced in the Anabaptists and other radical reformers. Luther treated love, like other works of the law, as an active virtue of a person, whereas he viewed faith as a passive virtue, being received as a gift of grace from God.
14. Cf. Cranz, F. Edward, An Essay on the Development of Luther's Thought on Justice, Law and Society 102–103 (1959).
15. If the Protestant Reformation were to be viewed simply as a protest against abuses within the church, coupled with proposals for drastic reform, one could trace it back to the Reformatio of Emperor Sigismund of 1415 and the Conciliar movement. The entire fifteenth century was a time of bitter complaints and of proposals for radical change. See Strauss, Gerald, ed., Manifestations of Discontent in Germany on the Eve of the Reformation (1971).
16. The phrase “two swords” is derived from a letter of Pope Gelasius I to Emperor Anastasius at the end of the fifth century, in which the pope attributed to the imperial office the sphere of public order and lawmaking and to the priestly office the administration of the sacred mysteries. The Papal Revolution changed the meaning of the phrase, applying it to the secular (“temporal”) and the ecclesiastical (“spiritual”) jurisdictions—the latter now being concerned not only with the sacraments but also with a large number of political, economic, social, doctrinal, and moral matters. This opened the way for Pope Boniface VIII to declare in 1302 that not only the spiritual sword but also the secular sword is in the power of the pope. More characteristic, however, was the recognition that the ecclesiastical authority and the secular authority had different, albeit overlapping, jurisdictions and that each ought to cooperate with the other.
17. On “the uses of the law” in Lutheranism, see Cranz, supra note 14, pp. 99-111. A useful comparison of Lutheran and Calvinist positions may be found in Long, Edward, A Survey of Christian Ethics 82 ff. (1967).
18. Luther taught that the prince “must really devote himself” to his subjects and must “protect and maintain them in peace and plenty.” He must foster true religion among them, although he must not exceed his authority, and in particular he must never “command or compel anyone by force to believe this or that,” since such a “secret, spiritual, hidden matter” is beyond his competence. His main duties are to “bring about external peace,” to “prevent evil deeds,” and to ensure that “external things” are “ordered and governed on earth” in a decent and godly way. These quotations from Luther's tract of 1523, The Secular Authority: To What Extent It Should Be Obeyed, are brought together in Quentin Skinner, The Foundations of Modern Political Thought, vol. II: The Age of Reformation 16 (1978).
19. Sohm, Rudolph, Weltliches und geistliches Recht 69 (1914).
20. On the one hand the subject must disobey any command to act in an evil or ungodly way, since that is a perversion of the authority God has granted to princes; on the other hand, the ruler must never be actively resisted—tyranny is not to be resisted but endured. Luther's views on this subject changed somewhat as the fortunes of the Reformation ebbed and flowed. See Skinner, supra note 18, at p. 17. Mainly he insisted on absolute obedience.
21. See, Boehmer, H., Luther im Lichte der neueren Forschung 160 (3d ed., 1914). Calvin used the same language.
22. Von Kaufshandlung und Wucher, in Luther, , Werke, vol. XV, p. 302 .
23. The conception of retributive justice that is presented in much of the American literature mistakes retribution for private vengeance. The gist of the traditional retributive theory as it has developed in the West since the late eleventh century is that society requires a penalty—a “tribute”—as satisfaction for the breach of the law. One might call private vengeance “special retribution” and public satisfaction “general retribution.” The Western theory of general retribution is traced to St. Anselm's doctrine of the atonement in Berman, , The Theological Sources of the Western Legal Tradition, 46 Puerto Rico L. Rev. 371 (1977).
24. See Cranz, supra note 14, at 109.
25. The level of development of German law from the twelfth through the fourteenth centuries has been underestimated by many historians because of their concentration on the weakness of the German imperial authority and their consequent neglect of the strength (a) of the princely authority in the various territories (Bavaria, Saxony, Austria, and others) and (b) of the independent cities. The territorial princes headed sophisticated governmental bureaucracies and established sophisticated legal procedures comparable to those of the kings of France and England, the Count of Flanders, and other monarchs of the time. Also German city law was very highly developed. See Berman, supra note 10, Chapters 12 and 14.
26. Most of the Carolina is translated by Langbein, supra note 12, at 261-308. It is analyzed by him at 129-209 and is discussed by Dawson, supra note 12, at 197 ff., 212 ff.
27. The dispatch of the record of the case to the university law faculty was called Aktenversendung. The history and implications of this remarkable institution, which lasted in Germany until 1879, are explored in Dawson, supra note 12, at 198-213, 240-241. See also Rosenstock-Huessy, Eugen, Out of Revolution: The Autobiography of Western Man 402–403 (1938).
28. Dawson, supra note 12.
29. Langbein, J., Torture and the Law of Proof: Europe and England in the Ancien Regime (1977), takes the view that “The Roman-canon system … was simply unworkable without torture.” (p. 11). (What he calls “the Roman-canon system” was the system of investigation and interrogation developed in the church courts in the twelfth and thirteenth centuries, which was assimilated by various royal, ducal and urban courts in various countries of Europe, especially in the fourteenth to sixteenth centuries. There was nothing particularly “Roman” about it.) Langbein's argument is that torture was needed to extract confessions from recalcitrant defendants, and that confessions were needed because of distrust of circumstantial evidence once the ordeals had been abolished. (The rule was: confession or two eye-witnesses; if there were two eye-witnesses, there was no need for confession and no ground for torture.) If, however, one were to start by questioning the necessity of a confession, rather than by questioning the necessity for torture, one would see immediately that a confession under the Carolina was not required in non-capital cases. The system worked quite well without a confession, and hence without torture, when the crime was one for which mutilation or exoculation or a monetary fine was the established penalty. (Imprisonment as punishment was not widely used until much later.) The question, then, is, What was there about capital crimes that made even the most convincing circumstantial evidence an insufficient basis for a finding of guilt?
Langbein's formulation of the question leads him to the conclusion that the abolition of torture in the eighteenth century must have followed, rather than preceded, the transformation of the “Roman-canon” system of proof (since by hypothesis, that system was “unworkable” without torture). Mirjan Damaska has challenged this conclusion in The Death of Legal Torture, 87 Yale L.J. 860 (a review of Langein's book).
30. Calvin, John, Institutes of the Christian Religion, ed. McNeill, J. T. bk. 4, ch. 20, para. 31 at 1518–1519 (Battles, F. L., transl., 1960). In a footnote on page 1519, the editor quotes another passage in which Calvin stated that “when [earthly princes] rise up against God … [we] ought rather to spit on their heads than obey them.” As far as Calvin himself is concerned, these passages must be read with great caution, since in general he followed Luther in arguing that Christians must endure tyranny patiently and must respect even the most cruel monarch as a power appointed by God. What was new in Calvin's doctrine was the bestowing of the extraordinary right of resistance upon “magistrates,” that is, leading representatives of the community, as contrasted with citizens acting in their private capacity. In subsequent generations Calvin's followers throughout Europe, including England, developed his doctrine of resistance to tyranny far beyond its original meaning. Among the books that influenced the English Puritans in this regard were the French Huguenot Francis Hotman's Franco-Gallia (1573), which demanded a meeting of the estates of France to counter royal absolutism; Vindiciae contra Tyrannos (1579), written under the pen-name “Junius Brutus,” probably by Hubert Languet and Philip du Plessis-Mornay; and the Scot Reformer George Buchanan's De jure regni apud Scotos (1579), which argues that there is a mutual pact between the king and his subjects entitling the latter to take up arms against a ruler who breaks the terms of the contract under which he holds his authority.
31. “Calvin's Institutes, containing this theory of constitutional resistance through representative magistrates, remained for centuries a standard book among Protestants. Probably no other theological work was so widely read and so influential from the Reformation to the American Revolution. At least seventy-four editions in nine languages, besides fourteen abridgements, appeared before the Puritan exodus to America, an average of one edition annually for three generations. Huguenots, Scots, Dutchmen, Walloons, Palatines, and other Germans, and an overwhelming majority of the American colonists of the seventeenth century were bred on its strong political theories as well as on the strong meat of its theology. In England the Institutes was considered the best and perfectest system of divinity’ by both Anglican and Puritan, until Laud's supremacy [in the 1630s]. In 1578 (with Calvin's Catechism) it was required of Oxford undergraduates. Curious witness to its grip among men was borne by Laud in 1636. Admitting that the Institutes ‘may profitably be read as one of their first books of divinity,’ Laud secretly endeavored to dissuade New College students from reading it ‘so soon.’ ‘I am afraid it … doth too much possess their judgment … and makes many of them humorous in, if not against the church.’” Foster, Herbert D., Collected Papers 78 (privately printed, 1929). Foster also notes that six editions of the Institutes were published in America between 1763 and 1863. Id., at 79.
32. Calvin, supra note 30, at bk. 4, ch. 20, paras. 8, 31.
33. Id. at bk. 2, ch. 7, para. 12.
34. In a sermon preached in 1630 on the deck of his flagship Arabella Governor John Winthrop said to his fellow Puritans crossing the Atlantic Ocean, “We must consider that we shall be as a City upon a Hill, the eyes of all people are upon us; so that if we shall deal falsely with our god in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a by-word through this world.” Winthrop, John, A Model of Christian Charity, Winthrop Papers II, 295, (1931).
35. Hooker's concept of the Church of England anticipated a reconciliation of opposing Roman Catholic and Calvinist (he never used the then pejorative term “Puritan”) concepts. His great work, The Laws of Ecclesiastical Polity, was eventually relied on in the seventeenth and eighteenth centuries not only by Anglicans but also sometimes by Puritans and Roman Catholics. See Thompson, W. D. J. Cargill, The Philosopher of the ‘Politic Society’: Richard Hooker as a Political Thinker, in Hill, W. Speed, ed., Studies in Richard Hooker 3, 29-32, 44-45, 53–64 (1972), Egil Grislis, The Hermeneutical Problem in Hooker, mid., 159, 161, 173, 202-203; John E. Booty, Hooker and Anglicanism, in id., 207, 211, 220 ff.
36. “Locke's political views were little more than a distillation of concepts that had long been current coin in Calvinist political theory. …” Hudson, W. S., Religion in America: An Historical Account of the Development of American Religious Life 94 (3d ed., 1981). See Hudson, , John Locke: Heir of Puritan Political Theorists, in Hunt, G. L., ed., Calvinism and the Politcal Order 108–129 (1965), where it is pointed out that Locke followed the Calvinist “two kingdoms” doctrine, applying the term “civil” to the earthly kingdom and the term “religious” to the heavenly. Almost every argument later used by Locke in the late 1680s and 1690s had been used before, Hudson points out, by the Presbyterian Samuel Rutherford in Lex, rex (1644), including an appeal to the law of nature, the ultimate sovereignty of the people, the origin of government in a contract between the governor and the governed, and the right of resistance when that contract was broken. See also Foster, supra note 31, at pp. 153-160, arguing that Locke was indebted to the influence of his Puritan father, his Puritan teachers at Westminster School and Oxford, French Huguenots during his four years' residence in France 1675-1679, and Dutch Calvinists during the period of his exile in 1683-1689. Foster traces Calvinist elements in Locke's writings, noting the importance of “careful discrimination as to time and phases of Calvinism.” (p. 160). Foster uses the term “Calvinism” in a broad sense, embracing many different branches of Protestant thought that were strongly influenced by Calvin's writings. He sometimes refers to “liberal Calvinism” or to “international Calvinism” to indicate the breadth of the concept.
37. See Walzer, Michael, The Revolution of the Saints: A Study in the Origins of Radical Politics 12 (1965).
38. Quoted in Rosenstock-Huessy, , Out of Revolution: The Autobiography of Western Man 291 (1938).
39. Quoted in Walzer, supra note 37, at 10-11.
40. The Address to the General Laws of New Plymouth (1658), 11 Records of the Colony of New Plymouth Laws, 1623–1682, 72-73 (Pulsifer, , ed. 1861).
41. See The “Capital! Laws” of the Body of Liberties (1641) of Massachusetts Bay, The Colonial Laws of Massachusetts, 1660, 55 (Whitmore, , ed. 1889).
42. See supra note 36.
43. Cf. McNeill, J. T., The History and Character of Calvinism 135–142 (1957). The sources of social contract in the practice of the West go back to the formation of chartered cities as sworn communes in the eleventh and twelfth centuries. Typically the town charter was read aloud and sworn to by the entire citizenry assembled in the town square. The experience of Geneva in Calvin's time may be said to be, in part, a renewal of that tradition. It differed, however, in that it represented a conscious break with the Roman Catholic Church and an assertion of a local, dissenting faith—a model for others. In the Roman Church, baptism in infancy was the usual basis of membership; in Geneva, in contrast, each adult was required to make “a personal affirmation of a body of teachings.” McNeill, id., at 141.
44. See, for example, Le Roy v. Sr. Charles Sidley, 1 Sid. 168, 82 Eng. Rep. 1036 (1664), involving an indictment to the effect that the defendant had shown his nude body in a balcony in Covent Garden to a great multitude of people, and had said and done certain things “to the great scandal of Christianity.” The Court of King's Bench took jurisdiction, stating that “since at this time there is no longer a Star Chamber … this Court is the custos morum of all the subjects of the King, and it is now high time to punish such profane actions done against all modesty. …” The Court stated further that since the defendant was “a gentleman of a very old family (of the county of Kent) and his estate was encumbered (not intending his ruin but in order to reform him)” he was to be fined 2000 marks and imprisoned for a week and placed on good behavior for three years.
45. The leading case is Paradine and Jane, Style 47, 82 Eng. Rep. 519 (1647), also reported in Aleyn 26, 82 Eng. Rep. 897. This was an action of debt for rent. The defendant lessee had been ousted from the land by military forces. In the Style report it appears that the defendant had argued that he was excused under the civil law, the canon law, natural law, and military law. The court held him liable, stating (in the Aleyn report) that where a duty or charge is created by law, the party will be excused if he is not at fault, “but when the party by his own contract creates a duty or charge upon himself he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” “Another reason was added, that as the lessee is to have the advantage of casual profits, so he must run the hazard of casual losses. …” It is of special interest that this was an action of debt for rent under a lease for a term of years; that it was treated as a contract action; and that the court stressed the point that since there would have been absolute liability if there had been a covenant under seal, there should be such liability “much more here.” (Style 47). The case marks the transition from feudal and post-feudal concepts of landlord-tenant relations to a contractual concept.
46. Calvin, supra note 30, at bk. 4, ch. 12, para. 1.
47. Pound, , Jurisprudence III, 8–15 (1959).
48. The Moral Code of the Builder of Communism is part of the Program of the Communist Party of the Soviet Union adopted by the twenty-second Party Congress in 1961. It may be found in Jacobs, Dan N., ed., The New Communist Manifesto and Related Documents 35 (3d rev. ed. 1963).
49. See The Laws and Liberties of Massachusetts (1929).
50. This is the theme of Chapter I of Berman, H. J., The Interaction of Law and Religion (1974).
* Parts I, IV, and V of this article are based largely on H. Berman, Law and Revolution: The Formation of the Western Legal Tradition, scheduled for Fall publication, 1983 by the Harvard University Press, to which grateful acknowledgement is made for permission to reproduce substantial portions of pages 31-33, 37-40, and 558. Several paragraphs are also reproduced from H. Berman, The Interaction of Law and Religion (1974). With respect to the rest of the article, copyright is reserved by the author. © Harold J. Berman.
** James Barr Ames Professor of Law, Harvard Law School. This article was written during spring semester, 1983, while the author was the Frances Lewis Scholar in Residence at Washington and Lee Law School. The author gratefully acknowledges the cooperation of the Washington and Lee faculty and staff, and especially of Professor Thomas L. Shaffer, Director of the Lewis Center.
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