Harold Berman’s Revolution in Western Legal Thought, Part I

In a series of posts, I will discuss the great enterprise of the late professor Harold Berman.  That enterprise was nothing less than to relate fundamental developments in Christianity and other core beliefs to fundamental developments in law. In this post I will introduce Berman and his project.   In the second, I will summarize some of the most important themes of his books. In the third and fourth, I will offer my own views on some of the implications of his narrative for liberty.

   Harold Berman was a professor of law for approximately sixty years, first at Harvard, then at Emory. When I was a student at Harvard, he was known around campus mostly as a specialist in Soviet law—a legal system now happily defunct.  Nevertheless his work on the history of the West reflects his experience of Soviet law in two important ways.  First, Soviet law reflected an ideology and Berman sought to show that law throughout history was not simply functional but always reflected far-reaching worldviews.  Second, Berman thought the Western tradition was worth defending—both against the external threat of communism and the internal threat of nihilism, which Berman saw represented in law by the Critical Legal Studies Movement growing up around him at Harvard.

The canvass on which he labored was enormous.  His first book Law and Revolution: The Formation of the Western Legal Tradition wound a course through the German folk traditions to the papal investiture controversy under Pope Gregory VII to Henry II’s confrontation with Thomas A Becket.  His second book, Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition considered how the reformation theology of Luther and Calvin transformed law in both Germany and England. He was at work on a third volume that would have extended his history of law’s development through the French Revolution.

No sketch of Harold Berman can be complete without a reference to an epigram in which he summarized children’s natural grasp of natural law:   A child says, ‘It’s my toy.’ That’s property law,” he said. “A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.”

 

John O. McGinnis is the George C. Dix Professor in Constitutional Law at Northwestern University. His recent book, Accelerating Democracy was published by Princeton University Press in 2012. McGinnis is also the co-author with Mike Rappaport of Originalism and the Good Constitution published by Harvard University Press in 2013 . He is a graduate of Harvard College, Balliol College, Oxford, and Harvard Law School. He has published in leading law reviews, including the Harvard, Chicago, and Stanford Law Reviews and the Yale Law Journal, and in journals of opinion, including National Affairs and National Review.

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