Louisiana Law Review
Volume 60 | Number 3
The Western Legal Tradition in a Millennial
Perspective: Past and Future
Harold J. Berman
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Harold J. Berman,The Western Legal Tradition in a Millennial Perspective: Past and Future, 60 La. L. Rev. (2000)
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The Western Legal Tradition in a Millennial Perspective: Past
Harold J. Berman*”
It is a great honor for me to be added to the list of distinguished scholars who
have given the Edward Douglass White lectures during the past 65 years. My topic
is the Western legal tradition, viewed in a broad historical and philosophical
perspective, its past and its future.
In Part I, I shall discuss the development of the Western legal tradition from
its origins in the late eleventh and twelfth centuries through the great national
revolutions in Germany, England, France, and the United States. In Part II, I shall
discuss the crisis of the Western legal tradition in the twentieth century, including
the impact of the Russian Revolution and the World Wars, and the future of the
Western legal tradition as we enter a new millennium, in which a multi-cultural
West and East and North and South are beginning to forge a new tradition of world
law. Part I focuses on history, Part II on prophecy.
Let me say first what I mean by the three words “Western,” “legal,” and
“tradition”-especially when the three words are put together as a single concept,
a single phenomenon.
By “the West” I mean the historically developing culture of the peoples of
Western Europe, who from the late eleventh to the early sixteenth century shared
a common allegiance to the Roman Catholic papal hierarchy, and who from the
sixteenth century to the twentieth century experienced a series of national
revolutions, each of which had repercussions throughout Europe; and I include also
non-European peoples who eventually were brought within the historically
developing Western culture by colonization or, as in the case of Russia, by
religious and political and cultural affinity and interchange.
By “legal” I mean the systems of positive law and legal science that have
developed in the West since the twelfth century, legal systems that share common
historical foundations, common sources, common concepts. The first such legal
system was the canon law of the Roman Catholic Church. Enacted, in part, by the
papacy and church councils, and enforced by a hierarchy of ecclesiastical courts,
the canon law, prior to the rise of Protestantism, governed every person in Western
Christendom, from England to Poland and from Scandinavia to Sicily, and was a
Copyright 2000, by LOUISIANA LAw REVIEW.
The following article was delivered as the Edward Douglass White Lectures on Citizenship
at the Paul M. Hebert Law Center. Louisiana State University, on October 26 and 27, 1999. Footnotes
have been added. The assistance of Charles J. Reid, Jr., Research Associate in Law and History, Emory
University, is gratefully acknowledged.
** Robert W. Woodruff, Professor of Law, Emory University and James Barr Ames Professor
of Law Emeritus, Harvard University.
LOUISIANA LAW REVIEW
model, or a foil, in the contemporaneous origin and gradual development of secular
systems of royal law, feudal law, urban law, and mercantile law. For some four
hundred years these secular legal systems co-existed alongside the canon law, and
alongside each other, within every territory of Europe. With the national Protestant
Revolutions of the sixteenth and seventeenth centuries, the various co-existing
jurisdictions were, in effect, nationalized; nevertheless, the existence of plural
jurisdictions and plural bodies of law within each country has remained a
significant characteristic of the Western legal tradition at least until the latter part
of the twentieth century.
By “tradition” I mean the sense of continuity between past and future, the
partnership, as Edmund Burke put it, of the generations, the looking backward to
our ancestors for inspiration in moving forward to our posterity.’ Jaroslav Pelikan
has contrasted this allegiance to tradition with traditionalism: traditionalism, he
writes, is the dead faith of the living, tradition is the living faith of the dead.2 The
former is mere repetition of the past, adherence to the past for its own sake,
historicism, as contrasted with what I would call historicity, the adaptation of past
experience to the solution of new problems, a sense of historical continuity, of
You will ask-you should ask-first, why is it important to study the historical
roots of our legal institutions? And second, even if that is important, why is it
important to go back 900 years? And third, even if that is important, why go back
to the canon law of the Church and the development of the various European
national legal systems-why should we Americans not stick to the roots of
American law in the early English common law? I hope that the answers to these
questions will become apparent when we come to consider the crisis of the Western
legal tradition in the twentieth century and its future in the new millennium. But
let me give very brief answers to the three questions now.
First, it is important to know the historical development of our legal
institutions in order to know what they are. We cannot understand what they are
today if we do not know how they came to be what they are today, just as we
cannot know who we ourselves are if we do not know how we came to be who we
are. Let me quote Holmes’s once famous words, “In order to know what [the law]
is, we must know what it has been, and what it tends to become.”3 Like the
community of which they are a part, living legal institutions exist not only in space
but also in time, and in time they have both a past and a future, and the two-their
past and their future-are closely interdependent. Our history is our group
memory, without which we as a group are lost. If we live only in the present, we
suffer from memory impairment, a kind of social amnesia, not knowing whence we
came or whither we are going.
- Society. Burke wrote, is “a partnership not only between those who are living but between
those who ar living, those who art dead, and those who art to be born.” Edmund Burke, Reflections
on the Revolution in France (1790).
- Jaroslav Pelikan, The Vindication of Tradition 65 (1984).
- Oliver Wendell Holmes, Jr., The Common Law 1 (1938).
HAROLD J. BERMAN
Second, it is important for us today to go back nine centuries because it was
then that our legal institutions were first formed; it was then that the Western legal
tradition was conceived; it was then that the seeds of its future development were
planted; it was then that there began to unfold the story that in the twentieth century
has come to a crucial turning-point. We need a long time-perspective in order to
understand the long-term character of the fundamental changes that are now taking
place and in order to anticipate a long-term future.
Third, it is important for us to trace the development of our American law to
the origins in the twelfth century of the English common law, which America has
inherited; and also to trace the historical development of English common law from
those origins to the revolutionary changes of the seventeenth and eighteenth
centuries, when English law prevailed in the English colonies in America. But what
has been missing in both English and American legal historiography is the close
connection between the development of English and American law and the parallel
development of comparable legal institutions in the other countries of the West. As
late as 1765, Blackstone could write in his famous Commentaries on the Laws of
England that the following kinds of law prevailed in England: natural law, divine
law, the law of nations, the English common law, local customary law, Roman law
(governing Oxford and Cambridge Universities), ecclesiastical law, the law
merchant, statutory law, and equity.’ As the great English legal historian Frederick
Maitland wrote, “It was the idea of a law common to all the countries of Western
Europe that enabled Blackstone to achieve the task of stating English law in a
rational fashion.” I And I might add that Blackstone’s Commentaries was regularly
studied by American law students until the early twentieth century. Indeed, it was
required study at Yale Law School at least as late as 18976 and at least one other
American law school, Wake Forest, I have been told by a graduate of that school,
until the mid-1930s.
It is, of course, hardly necessary to remind a Louisiana audience that the
United States has inherited important parts of its law not only from England but
also from other countries of Europe. I think, for example, of Professor Shael
Herman’s recent book, The Louisiana Civil Code: A European Legacy for the
United States.7 And I note also the remarkable opinion of Supreme Court Justice
Edward Douglass White, in whose honor these lectures are given, in the case of
Hovey v. Elliott, in which he discusses at length, and relies on, canon law and
- William Blackstone, I Commentaries on the Laws of England 3-37 (1765) (reprinted 1966).
See Harold J. Bennan, Law and Revolution: The Formation of the Western Legal Tradition vii (1983).
- See F. W. Maitland, Why the History of English Law Has Not Been Written, in The Collected
Papers of Frederic William Maitland 480, 489 (H.A.L Fisher ed., 1911).
- See Arthur L Corbin, Sixty-Eight Years at Law, I I Yale L Rep. 20,21 (1965).
- See Shad Herman, The Louisiana Civil Code: A European Legacy for the United States
(1993). Professor Herman views the Louisiana Civil Code as primarily the product of French legal
thought. Others have demonstrated the substantial influence of Spanish law on the substance the code
provisions. See Robert A. Pascal, Book Review, Louisiana Civil Code: A European Legacy for the
United States, by Shael Herman (New Orleans: Louisiana Bar Foundation, 1993. Pp. vi, 80), 54 LA.
L Rev. 827 (1994).
LOUISIANA LAW REVIEW
Roman law doctrines relating to the right of a person to appear and be heard before
being punished for contempt of court.’
Yet with few exceptions we have been victims, in the last two centuries, of an
increasingly nationalistic legal historiography-not only in England and the United
States but also throughout the West. It is only within the last few years that
universities of Europe have begun to teach once again a transnational European
legal history. The nations of the West are coming together again! And when our
American law teachers teach American law, should they not at least mention
Louisiana’s Civil Code? Isn’t Louisiana part of the United States? And when we
teach so-called quasi-contracts should we not at least mention that this is a Roman
law term applied not to the Anglo-American common law of contracts but to canon
law and Roman law doctrines of unjust enrichment? And when we teach the
Federal Rules of Civil Procedure should we not trace its basic principles to English
equity jurisprudence derived by the English ecclesiastical chancellors from the
canon law of the Church of Rome? One could go on for a very long time with such
After this brief introduction let me now try to summarize-also much too
briefly-the story of the rise and decline of the Western legal tradition.
A. The Origin of the Western Legal Tradition in the Papal Revolution of
It is a story, in the first instance, of the separation of the ecclesiastical and
secular jurisdictions, accomplished originally by a revolutionary movement, in the
late eleventh and early twelfth centuries, to free the Church of Rome from
subservience to emperors, kings, and feudal lords, and to establish an independent
hierarchy of the priesthood, under the papacy, including a hierarchy of professional
ecclesiastical courts to resolve disputes and to enforce papal legislation. Led by
Pope Gregory VII, the Gregorian Reformation, as it was called at the time, or the
Investiture Contest, as it came to be called, or the Papal Revolution, as it has now
properly come to be called, was marked by civil wars throughout Europe during a
period of almost 50 years, from 1075 to 1122.’ The pan-European Church of
Rome became the first modern state. It established a body of law that was
systematized in Gratian’s great treatise of 1140, characteristically entitled A
Concordance of Discordant Canons.’ This was the first modern systematic
treatise on an entire body of law, and it was accepted as an authoritative statement
of the canon law. It was followed in the next century by authoritative treatises on
English, on German, and on French and other systems of territorial secular law.”
- See Hovey v. Elliott, 167 U.S. 409, 17 S.Ct. 841 (1897).
- See Berman, Law and Revolution, supra note 4, at 94-107. and 574-81 nn.1-26.
- Id. at 143-48. See also Gratian: The Treatise on Laws With the Ordinary Gloss (Augustine
Thompson, O.P. & James Gordley trans., 1993) (translating Gratian’s treatment of the nature and
functions of law).
- An early example of such a treatise was Glanvill. Tractatus de Legibus et Consuetudinibus
Regni Angliae (ca. 1187). Later examples include Bracton, De Legibus et Consuetudinibus Angliae
HAROLD J. BERMAN
The secular law covered chiefly matters of royal and feudal and local
jurisdiction, particularly matters involving property and violent crimes. The canon
law was much broader in scope, covering all matters directly involving the clergy,
including not only matters of ecclesiastical jurisdiction and ecclesiastical property
but also many matters involving specifically the laity, including marriage and
family relations, moral offenses, education, and poor relief. Indeed, laymen often
chose to litigate their contract disputes in the ecclesiastical courts, especially
because secular contract law was quite underdeveloped. There were many
overlapping matters giving rise to the concurrent jurisdiction of ecclesiastical and
secularcourts, as there was also concurrentjurisdiction among royal, feudal, urban,
and mercantile courts within the secular sphere.
The coexistence and competition of diverse autonomous legal systems and
diverse autonomous jurisdictions within a given political community helped to
make possible the supremacy of law within that community. The supremacy of law
both within the Church and within each of the kingdoms was supported also by the
rise in the twelfth century of a professionally trained class of people who engaged
in legal activities as a more or less full time occupation-professional lawyers,
professional judges, professional legal scholars, both ecclesiastical and secular.
The texts of Roman law compiled in the sixth-century under the Byzantine
Emperor Justinian, rediscovered in the West five centuries later-not
accidentally-at the height of the Papal Revolution, were now analyzed and
synthesized by a new method-later called scholasticism–of reconciling
contradictions in authoritative texts and deriving general concepts from the
disparate rules and cases set forth in those texts.
Finally, the concept of law as a coherent body or system of rules and principles
was given vitality by the accompanying belief in its ongoing character, its capacity
for continuous growth over generations and centuries-a belief that is uniquely
Western. The law, like the Gothic cathedrals, was intended to be built and rebuilt
over centuries. It was accepted that the body of law contains a built-in mechanism
for organic change; and further, that the growth of the law, its changes over time,
have an internal logic, are part of a pattern of changes. The law, it was thought,
develops by reinterpretation of past rules and decisions to meet present and future
The historicity of law, as it came to be understood in the West in the twelfth
century and thereafter, was linked with the concept of its autonomy and of its
supremacy over political rulers. The supreme political authority-the king, the
Pope himself-may make law, it was said, but he may not make it arbitrarily, and
until he has re-made it-lawfully-he is bound by it.” In Bracton’s famous words,
(ca. 1250), Eike von Repgau, Der Sachenspiegel (ca. 1225), Beaumanoir, Coutumes de Beauvaisis (ca.
1283), and the Liber Augustalis of the Norman Kingdom of Sicily (123 1). For discussion of these
treatises, see Berman, Law and Revolution, supra note 4, at 457-59, 503-05, 473-80, and 425-34.
- The late twelfth century canonist Huguccio, for instance, wrote that the Pope himself could
be tried and deposed for any notorious fornication, robbery, sacrilege, or other notorious and scandalous
crime. See Brian Tiemey, Foundations of the Conciliar Theory: The Contributions of the Medieval
Canonists From Gratian to the Great Schism 53-58 (enl. ed. 1998).
LOUISIANA LAW REVIEW
written in the early thirteenth century, England is “not under the king but under
God and the law.”‘ 3 And in the words of Bracton’s German counterpart, Eike von
Repgau, “God is law and therefore law is dear to him.”‘ 4
B. The Protestant Revolutions, (1) Lutheran Germany.
The twelfth century vision of what was called at the time the Gregorian
Reformation was a vision of the dialectical reconciliation of opposites: of the
spiritual and the secular, the papal and the royal, the priesthood and the laity-and
within the secular, the royal and the feudal, the feudal and the urban. The
realization of this vision depended on the faithfulness of the priesthood, in wielding
the powerful “spiritual sword,” as well as on the responsibility of the royal and
feudal and urban powers, in wielding the “secular sword.” In the course of time,
however, the “two swords” vision of the Papal Revolution underwent substantial
In the fifteenth century, the West experienced a widespread clamor for
additional so-called reformations, both of the spiritual and of the secular regimes.
However, religious revolts and humanist calls for more just, more humane
ecclesiastical policies met with only a weak response from the papal hierarchy,
which by that time had sunk into the deepest corruption. The demand for
reformation extended also to the secular realm, but again, little came of it. In
hindsight one can see that things were building up for an explosion. This was also
recognized by many at the time. None of the changes that were made in order to
forestall such an explosion, however, prior to the rise of Lutheranism in the early
sixteenth century, addressed the crucial problem of the time, namely, that the
Gregorian Revolution had finally failed. The secular world could no longer derive
its ultimate meaning from the tasks set for it by the Church of Rome. 5
In 1517, a German law-trained professor of theology, Martin Luther, broke the
evolutionary process, started a revolution, by proclaiming, in effect, the abolition
of the ecclesiastical jurisdiction. The church, Luther said, is not a lawmaking
institution; the church is the invisible community of the faithful, in which all
believers are priests, serving each other, and each is a “private person” in his
relation to God. Each is to respond individually to the Bible as the Word of God.
The secular political authority, the prince and his councilors, the high magistracy,
the Obrigkeit, must undertake the lawmaking responsibilities that previously were
within the jurisdiction of the Roman Catholic Church. 6
- Henry de Bracton, 2 De Legibus et Consuetudinibus Angliae (on the Laws and Customs of
England) 33 (George E. Woodbine. ed.. & Samuel E. Thome, trans., 1968).
- “Gott ist selber Recht, deshalb ist ibm Recht lieb.” This quotation is repeated often in
literature on the Sachsenspiegel. but without citation of the edition and page number, and copies of the
book itself am difficult to obtain. See. e.g., Justiz in Alter Zeit 10 (Hinckeldey. ed.. 1984).
- See generally Myron Gilmore, The World of Humanism (1952).
- See Harold J. Berman & John Witte, Jr., The Transformation of Western Legal Philosophy
in Lutheran Germany, 62 So. Cal. L Rev. 1573. 1594-95, 1599-1600 (1989) and sources there cited.
HAROLD J. BERMAN
Luther replaced the “two swords” theory of the Papal Revolution with a new
“two kingdoms” theory: the invisible Church, the priesthood of all believers, he
taught, belongs to the heavenly kingdom of grace and faith, which is governed by
the Gospel; the earthly kingdom, the kingdom of “this world,” including the visible
institutional church, is governed by law, which is in the exclusive competence of
the Christian prince.
Because Luther taught that the salvation of souls in the heavenly kingdom
comes only by the grace of God to those who have faith, and is not earned by
“works of the law,” it is often supposed that Luther and his colleagues did not have
a positive legal philosophy and a program of law reform. That is quite untrue.
They taught that in the earthly kingdom, in which God is present, though hidden,
law-including both the moral law of the Ten Commandments, the Decalogue, and
the positive law of the secular ruler based upon it-is needed: first, by its moral
principles to make sinners conscious of their sinfulness and thus help to bring them
to repentance; second, by its threat of sanctions to deter sinners from anti-social
conduct; and third, by its detailed combination of rules and doctrines to educate and
guide righteous people in the paths of justice and the common weal.17
To accomplish these three “uses of the law,” as they were called, Lutheran
rulers of German principalities enacted comprehensive statutes, called Ordnungen,
“ordinances,” regulating matters that previously had been within the competence
of the Roman Catholic hierarchy: These were called Church Ordinances governing
the structure and functions of the Lutheran Church within the principality,
Marriage Ordinances governing marriage and family relations, Disciplinary
Ordinances governing moral offenses, School Ordinances governing public
education of children, Poor Ordinances governing relief of the poor, the sick,
widows and orphans, the homeless, the unemployed. Most of these princely
ordinances were drafted by Lutheran law-trained theologians, including in some
instances Luther himself and his close friend and colleague Philipp Melanchthon.
In contrast to the scholastic method of the earlier Roman Catholic legal
science, Lutheran jurists emphasized the unity of the entire body of law and its
division into branches, first, of public and private law, and second, within private
law, of property and obligations and then, within obligations, of contract, tort, and
unjust enrichment.’ This classification was based on Philipp Melanchthon’s
topical method, which, in contrast to the earlier scholastic method, proceeded first
from general topics, or truths, applicable to all science, and then from special topics
- See id. at 1585-1595 and sources there cited. See also Frank S. Alexander, Validity and
Function of Law: The Reformation Doctrine of Usus Legis, 31 Mercer L Rev. 509 (1980); and John
Witte, Jr., & Thomas C. Arthur, The Three Uses of the Law: A Protestant Source of the Purposes of
Criminal Punishment?, 10 J. L & Religion 433 (1994).
- See Harold J. Berman & Charles J. Reid, Jr., Roman Law in Europe and the Jus Commune:
A Historical Overview with Emphasis on the New Legal Science of the Sixteenth Century, 20 Syracuse
J. Int’l L & Com. 1, 16-25 (1994). It was, for instance, the German Lutheran jurist Johann Apel, and
not, as is commonly supposed, the French jurist Donellus, who first separated the law of property
(ownership) from the law of obligations. See Robert Feenstra, Dominium and lus in re Aliena: The
Origins ofa Civil Law Distinction, in New Perspectives in The Roman Law of Property: Essays for
Barry Nicholas 111-22 (Peter Biks ed. 1989).
LOUISIANA LAW REVIEW
applicable to individual branches of science, of which legal science was one, and
subdivided each topic into genus and species. Melanchthon’s topical method was
applied by scholars throughout Europe, including England, in treatises on what was
conceived as a common law, a new jus commune, that embraced common
principles and doctrines and rules derived from all the earlier universal legal
systems-including canon law, Roman law, feudal law and mercantile law-as
well as common features of the various systems of royal law and urban and local
customary law. ‘9
This was a professorial legal science, well adapted to university teaching of
law, including, in Germany, the legal education of future councilors of princes as
well as future professional judges who would preside over secular tribunals of
laymen. It was also well adapted to the introduction of a new system of decision
of cases by the professors themselves. This was the famous system of “the sending
of the file”–Aktenversendung–of certain types of difficult cases by German
courts to university law faculties for final decision, an institution that lasted in
Germany until 1878. It was not only highly lucrative for the professors but also
had an enormous influence on the substance as well as the style of German law.
This was also Biblical law. As Roman Catholic jurists had systematized the
canon law on the basis of the sacraments, so Lutheran jurists used Melanchthon’s
topical method in basing the various branches of the law on the Ten
Commandments. Thus Johann Oldendorp, whose principal treatise three centuries
later was in the library of our Supreme Court Justice Joseph Story, founded
criminal law on the commandment “Thou shalt not kill,” property law on the
commandment “Thou shalt not steal,” family law on the commandment “Thou shalt
not commit adultery,” the law of contract and delict on the commandments “Thou
shalt not bear false witness” and “Thou shalt not covet.” He founded the law of
taxation, by the way, on Jesus’ summary of the law, “Thou shalt love thy neighbor
as thyself.”2 These were “topics” not only in the sense of categories or headings
but also in the sense of general principles-theologically based moral principles in
light of which subordinate species of legal rules were to be interpreted. This was
a new method of legal synthesis which transcended the earlier divisions among coexisting
legal systems within the same polity.
Repercussions of the German Lutheran Revolution were felt everywhere in
Europe. Where Protestantism triumphed, as in England and Holland, a state
church, headed by the monarch, was introduced, to which all persons in the
kingdom were required by law to belong. Also in countries that remained Roman
Catholic, such as France and Spain, and Austria, princely powers over the Church
within the kingdom greatly increased. Papal power declined everywhere, including
in the Italian city-states.
- See Berman & Reid, supra note 6, at 25-31.
- See Berman & Witte, supra note 18, at 1641 (discussing Oldendorp’s theory).
HAROLD J. BERMAN
C. The Second Protestant Revolution, (2) Anglo-Calvinist England
Both in Protestant and in Roman Catholic countries, however, many problems
came in the wake of the German Revolution and became acute in following
generations. A religious crisis arose from the spread of Calvinism as well as from
the continued antagonism of Roman Catholic and Protestant rulers, leading
eventually to the Thirty Years’ War that raged intermittently on the European
continent from 1618 to 1648. A closely related political crisis arose from the
emergence in Europe of “absolute” monarchs who, as supreme legislators, supreme
judges, and supreme executors of the laws, were themselves “absolved” from
subjection to such laws. Early in the sixteenth century Henry VIII, in inaugurating
the English Reformation, expressly claimed such absolute power, as did the Roman
Catholic French monarch Francis I. In the middle of the century Jean Bodin wrote
a treatise expounding the doctrine of absolute monarchy, and it became widely
accepted among the ruling circles of most countries of Europe. 11
In the seventeenth century, however, the concept of monarchical rule came
increasingly under attack, first, by international Calvinism, which taught an
aristocratic, as opposed to a monarchical, principle of government; and second, by
members of the landed gentry as well as by other classes that suffered from real or
imagined oppression at the hands of royal courts and their bureaucracies. In the
mid-seventeenth century, various countries of Europe experienced anti-monarchical
revolts roughly parallel, though on a smaller scale, to the massive English
Revolution that broke out in 1640, with its Civil War of 1642-1649, and its
subsequent periods of Puritan Commonwealth from 1649 to 1660, Restoration from
1660 to 1688, and finally the so-called Glorious Revolution of 1688-1689.
The English Revolution of 1640 to 1689 established the supremacy of
Parliament over the Crown. This is not to be confused with democracy: only some
two or three percent of the adult population were eligible to vote. It was in effect,
the rule of an aristocracy made up principally of some eight or ten thousand landed
gentry, who replaced the approximately 120 titled nobility as the most important
segment of the ruling class.’ In Parliament, the House of Commons now for the
first time assumed greater power than the House of Lords.
England remained Protestant Christian. However, the Church of England, now
under the control of Parliament, was reduced from a state church, to which all
Christian subjects were required to adhere, to an established church, that is, a
church supported by the state but co-existing, under the 1689 Act of Toleration,
with the Calvinist denominations that had initiated the Revolution in 1640. In fact,
- See Jean Bodin. On Sovereignty (Julian H. Franklin ed. & trans.. 1992). Bodin’s work
strongly influenced the thought of King James I of England. who authored a defense of absolute
monarchy. See Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale. 103
Yale L J. 1651, 1670-73 (1994).
- These numbers increased at the end of the seventeenth and throughout the eighteenth century.
See Gordon E. Mingay, English Landed Society in the Eighteenth Century 6 (1963); John A. Cannon,
Aristocratic Century: The Peerage of Eighteenth-Century England 10 (1984); and Michael L Bush,
The English Aristocracy: A Comparative Synthesis 40-41 (1984).
LOUISIANA LAW REVIEW
Anglicanism, as it came to be called, had absorbed much of the Calvinist belief
system that had motivated the Puritans, in the first phase of the Revolution, to rise
up against the state church.
The Revolution also produced a fundamental and lasting transformation of the
English legal system. Judges were no longer to serve at the will of the monarch but
were given independence and life tenure. The so-called prerogative courts
established by the Tudor monarchs, of which the High Court of Star Chamber and
the Court of High Commission were the most notorious, were abolished, and the
common-law courts were made supreme over the courts of Chancery and
Admiralty. Jury trial was transformed: the jury could no longer be dominated by
the judge, and witness proof and rules of evidence were introduced. The ancient
forms of action were preserved but were now used to help modernize the English
law of property, contract, and tort. The doctrine of precedent-the hallmark of the
English common law-was given its modem meaning by the introduction of the
distinction between holding and dictum. As the German emphasis on the
consistency of legal principles was related to the emergence of the monarchical
civil service state, the Prince and his councilors, so the English emphasis on the
historical continuity of the law was related to the emergence of the aristocratic
parliamentary state, with its party system of Whigs and Tories and its guilds of
judges and barristers. The conceptualism of the former led to a legal science in
which every question was to be “placed” within a system of genus and species.23
The empiricism of the latter led to a legal science in which the principles, being
drawn from cases, were subject to argument in an adversary procedure.
These seventeenth and early eighteenth century innovations in English law
were rooted partly in Anglo-Calvinist concepts. The belief that human history is
wholly within the providence of God, coupled with the belief that England is God’s
elect nation, destined to reveal and incarnate God’s mission for mankind-these
beliefs underlay both the movement to bring about the second Protestant
Reformation, what the great poet John Milton at the time called “a Reformation of
the Reformation,” and the movement to build that new Reformation on the
traditions of the English past. Pre-Tudor history was invoked-Magna Carta and
the early common law-to support revolutionary political change. Anglo-Calvinist
thought contributed to a new historical jurisprudence, which was added to the
diverse natural law theories of Roman Catholic and Lutheran legal philosophy.24
D. The French Revolution. Deist rationalism and individualism.
As the sixteenth century German Revolution produced a body of law that
reflected a Lutheran belief-system, and the seventeenth century English Revolution
produced a body of law that reflected a Calvinist belief system, so the French
- The Gennan word for “discussion,” Erdrterung, has as its root On, “place,” which is the
German translation of the Latin locus and the Greek topos.
- See generally Berman. Origins of Historical Jurisprudence, supra note 21. See also Harold
J. Berman, Toward an Integrative Jurisprudence: Politics, Morality, History, 76 Cal. L Rev. 779
HAROLD J. BERMAN
Revolution of 1789 to 1830 produced a body of law that reflected a Deist belief
Deism was an eighteenth century Western belief-system that was shared
outside of any organized church by people who did not believe in the divinity of
Christ, and were, indeed, in many cases avowed anti-Christians, but who did
believe that the universe was originally created by God, who appointed a purpose
for everything in it, and that human beings were given by God certain
faculties-above all, reason-to enable them to secure their own welfare.
Eighteenth century French philosophes such as Voltaire, Diderot, Rousseau, and
other “lights,” as they were called,Iumiares, taught that human beings are born free
and equal, with the capacity to achieve, by use of reason, both knowledge and
happiness.’ Deism’s faith in the natural goodness of man, in the purity and power
of reason, and in the promise of science, challenged Christian beliefs in the
inherent sinfulness of man, and in the providential character of human history,
beliefs emphasized by Lutheranism and Calvinism, as well as Christian beliefs in
ecclesiastical traditions and in the corporate character of faith, beliefs emphasized
by Roman Catholicism. Yet Deism was certainly a product of both Roman
Catholicism and Protestantism; it shared their common moral values, it shared their
confidence in law as a means of reforming the world.
The Deism of the eighteenth century French philosophes, including especially
its essential rationalism and individualism, was reflected in fundamental changes
in public and private law introduced as a consequence of the French Revolution.
In contrast to the emphasis of the German Revolution on monarchy and royal
prerogatives, and of the English Revolution on aristocracy and aristocratic
privileges, the emphasis of the partisans of the French Revolution was on
democracy and civil rights and liberties-in the words of the French Declaration
of 1789, “the rights of man and citizen.” Indeed, the French Revolution was
fought, in the first instance, to abolish the oppressive and irrational system of
customary privileges of the French aristocracy, and in the second instance, the
oppressive and irrational exercise of autocratic powers by the monarchy. Supreme
power was given to a democratically elected legislature charged with carrying out
policies reflecting the public opinion of the propertied middle class that elected it.
A series of written constitutions introduced a system of strict separation of powers,
by virtue of which the executive was only to execute and the judiciary was only to
apply in individual cases the law that the legislature alone had power to create.
Second, in addition to establishing a new constitutional system, the French
Revolution introduced a new legal science. As the Germans emphasized the
professorial “placing” of legal principles in a topical system of genus and species,
- Immanuel Kant was the first to use the term “Enlightenment” (die Auftldrung) to signify an
enlightened age. See Roland Mortier, Clartds et Ombres du Sibcle des Lumieres 22-26 (1969). Prior
to World War I1s,ch olars generally confined the use of the term “Enlightenment” to the eighteenth
century German movement which numbered Kant as its most prominent member. See John Lough,
Who were the Philosophes?, in Studies in Eighteenth-Century French Literature 139 (J.H. Fox et al.,
eds., 1975). Cf. Harold J. Berman. The Impact of the Enlightenment on American Constitutional Law,
4 Yale J. L & Human. 311, 311-12 (1992).
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and the English emphasized thejudicial “debating” of legal questions in the context
of historical precedents, so the French now came to emphasize the “clarification”
of legal doctrine through interpretation of comprehensive legislative codes.
Principles and precedents were subordinated, in France, to doctrines and rules laid
down by the legislature. The natural law theory that had predominated in the
sixteenth and seventeenth centuries and the historical jurisprudence that had been
placed alongside it in the seventeenth and eighteenth centuries yie)ded to a
positivist theory of law, which became increasingly accepted in the nineteenth
century and has virtually dominated Western legal science in the twentieth century.
E. The American Revolution
Turning now, in the remaining minutes of this presentation, to the impact of
the American Revolution on the Western legal tradition, I would add to
conventional historical scholarship only one point that places the American
Revolution in the context of the European Revolutions, namely, that the American
Revolution represents a compromise between the legacy of the seventeenth century
English Revolution and the eighteenth century Enlightenment philosophy that
prevailed in the French Revolution.’ The American Revolution had two
conflicting aspects. On the one hand, it was the War of Independence, a secession
from the mother country, fought to obtain for the colonists the traditional privileges
of their cousins in England, privileges won in the English Revolution of the
previous century but denied to the colonists, including the right to be represented
in Parliament, the right to elect their governors, life tenure for theirjudges, the right
to jury trial, the right to habeas corpus, the right to common law statutes enacted
before colonization. On the other hand, it was the Revolutionary War, a fight for
democracy and for inalienable civil liberties. The transformation of law that came
out of the American Revolution combined these two belief-systems-combined the
English Calvinist emphasis on tradition, on community, on aristocracy, and in law,
on historicity and the common law, with the Deist emphasis on rationalism,
individualism, and democracy, and in law, on a written constitution, on legislation
responsive to public opinion, and on civil liberties of religion and speech and press
If we take a stance in 1914, at the outbreak of the First World War, we can
look back upon the evolution of a legal tradition in the West, which, on the one
hand, was interrupted in the course of centuries by four violent total revolutions,
each directed against the existing legal system in the name of a new vision of a
transcendent justice; but which, on the other hand, survived those revolutions and
- See Berman, Impact of the Enlightenment on American Constitutional Law, supra note 25
HAROLD J. BERMAN
was reformed and ultimately renewed by them. The origins of the tradition date
from the Papal Revolution of the late eleventh and early twelfth centuries.
Surviving from these origins, in the early twentieth century, was the concept
of the co-existence of integrated legal systems, “bodies” of law; surviving also was
the technique, formerly called “scholastic,” of reconciling contradictions in
authoritative texts and deriving general concepts from the legal rules and cases
presented in those texts; surviving also was a belief in the ongoing character of law
in time, its capacity for growth over generations, its historicity; surviving also was
a belief in the capacity of law to resolve conflicts between competing political
authorities within a territory and its ultimate supremacy over political authorities.
These fundamental characteristics of the Western legal tradition were founded
ultimately on Christian faith, first in its Roman Catholic form, later in its Lutheran
and Calvinist forms. Deism, the religious faith of the French Enlightenment,
substituted for the Christian belief in a divine law a belief in God-given reason.
Nevertheless, in 1914 it continued to be widely believed, at least in the United
States, that the ultimate sources of positive law are divine law, especially the Ten
Commandments, and natural law as expressed in historical sources such as Magna
Carta and the constitutional requirement of due process.
The widespread belief in the religious sources of law underlay the belief in its
historical evolution as well as the acceptance of the historical necessity that had
arisen periodically in the history of the West to replace the existing legal system
violently, because of its abject failure to realize its transcendent goals. Every
nation of the West traced its legal system back to such a Revolution. The slogans
of each of the Great Revolutions were derived from Jesus’ reproach to the
Pharisees: “Woe unto you, lawyers, for you tithe mint and dill and cummin”-you
stick with the technicalities and formalities-“and neglect the weightier matters of
the law, which are justice and mercy and good faith.”
As of 1914, different forms of legal systems and different forms of legal
science co-existed in the West within a common tradition. The Roman Catholic
version of separation of Church and State co-existed with Lutheran, Calvinist, and
Deist versions. Monarchy co-existed with aristocracy and democracy. The
prerogatives of the German Kaiser co-existed with the privileges of the ruling
classes represented in the British Parliament and the rights of the citizen
represented in the French Estates General and the American House of
Representatives. Also within each country of the West there co-existed, in
different proportions, the Aristotelian concepts of the rule of the one, the rule of
the few, and the rule of the many.
In legal science, the scholasticism of what is miscalled the High Middle
Ages-but should be called the First Modern Age–coexisted in 1914, again in
various proportions in different countries, with German conceptualism, English
empiricism and French doctrinalism. Everywhere in the West, code law coexisted
with case law-again, in various proportions.
That was in 1914, at the end of the long nineteenth century that began in
America in 1776 and in Europe in 1789. I leave until Part II a discussion, first, of
the crisis of the Western legal tradition in what may be called the true twentieth
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century, inaugurated by the First World War and the Russian Revolution, and
second, of the future of the Western legal tradition in the third millennium of the
I would like to welcome back those who attended Part I of these lectures-I
congratulate you on your fortitude.
To those who are newcomers, I should explain that in the first part I discussed
the origin of the Western legal tradition in the Papal Revolution of the eleventh and
twelfth centuries and the impact on it of the successive national revolutions that
broke out in the sixteenth to eighteenth centuries-the German, the English, the
American, and the French. I focused principally on changes in constitutional law
from monarchy to aristocracy to democracy, from royal prerogatives to aristocratic
privileges to democratic rights; and on changes in legal science from German
professorial conceptualism to English judicial empiricism to French doctrinal
codification, and in the United States to a combination of the English legacy of
historicity and the French model of rationalism. I stressed the impact of evolving
belief systems on the evolving Western legal tradition-the successive impacts of
twelfth century Roman Catholicism, sixteenth century German Lutheranism,
seventeenth century Anglo-Calvinism, eighteenth and nineteenth century French
and American Deism. I stressed that the national revolutions that reflected those
belief-systems were not only national but pan-Western in their causes and
consequences, and in that context I should have quoted-and will quote now-the
statement of the great eighteenth-century English political philosopher and
statesman Edmund Burke, that “Europe is virtually one great State having the same
basis of general law. The whole of the polity and economy of Europe has been
derived from the same sources.” My theme was that only if we remember the
origins and historical evolution of our legal institutions, how they came to be, can
we know what they are and foresee what they will become.
Now I turn from history to prophecy. I turn first to the crisis of the Western
legal tradition in the twentieth century and second to the future of the Western legal
tradition as we enter a new millennium, in which a multicultural East and West and
North and South are beginning to forge a new tradition of world law.
A. The Crisis of the Western Legal Tradition
Our word “crisis” is derived from the Greek krisis, meaning “turning-point.”
It is rendered in Chinese by two characters, one meaning “danger,” the other
One does not have to be a prophet or a seer to know that following the two
World Wars the West, Western Man (as we used to be called), Western Civilization
(as we used to call it), has been at a sharp turning-point in its history, facing, on the
one hand, the danger of loss of identity and, on the other hand, the opportunity of
partnership in a new world order. Its identity, like the personal identity of each of
HAROLD J. BERMAN
us, is derived from its memory of the past, how it came to be what it is, and its
anticipation of the future, where it is headed. This time perspective is what has
been most seriously threatened in the twentieth century.
In the past millennium, Western Europe, through its military, its merchants,
and its missionaries, gradually made a world around itself. Now the West is
rapidly ceasing to be the center of that world. For the first time in the history of the
human race all peoples have been brought into more or less continual relations with
each other and are joined together in a common destiny through global
communications, global science and technology, global markets, on the one hand,
and, on the other hand, through challenges of global pollution and environmental
destruction, global disease, global poverty, and ethnic and territorial wars.
The emergence of a world economy, and with it, the gradual emergence of
elements of a world society and of a world law, might have strengthened our
awareness of the sources of the origin and evolution of Western law. In fact,
however, awareness of those sources, and awareness even of the existence of a
Western legal tradition, has diminished substantially in the twentieth century. This,
indeed, is the crisis-a crisis in conceptions of law, a crisis in legal thought, a crisis
of confidence in our law as an integral part of an ancient and ongoing heritage
linked with historically developing religious and philosophical belief-systems as
well as with historically developing political institutions. The crisis of our legal
tradition lies in our ignorance of it, and when we are confronted with it, our
repudiation of it.27 We want to know what the law is now, what changes in it
should be made now, not how it came to be what it is and how it should evolve in
the future. Increasingly, we have come to live only in the present. We suffer from
acute social amnesia.
Constitutional law, to be sure, is something of an exception; there it is required
that we remember the legacy of our forebears, since they put it in a written
document whose words, even after two centuries, must continuously be interpreted
and re-interpreted. Yet even in our constitutional law, the language of the framers
and the interpretations of their successors have become increasingly immaterial as
the doctrine of precedent has yielded to the shifting winds of so-called policy
science.2 Even the Constitution is seen increasingly solely in instrumental
- Rebecca Redwood French has borrowed the term “detraditionalization” from the social
sciences in depicting “modern society [asa) p ost- or detraditional world, a world that has gone beyond,
that has lost sight of tradition.” See Rebecca Redwood French, New Direction: Lamas. Oracles.
Channels, and the Law: Reconsidering Law and Society Theory, 10 Yale J. L Human. 505, 520
(1998). Although she generally approves “detraditionalization,” Professor French would not abandon
tradition entirely. Borrowing from Buddhist notions of the cyclical nature of time, she argues “that our
most stable tradition has become constant change and impermanence. This is a very Buddhist idea, a
stable religious canon advocating the concept of unceasing change and impermanence; but it has been,
and is becoming, very American.” Id. at 535. For an excellent survey of the current debate concerning
the role of tradition in the reaching of judicial decisions, see A. C. Pritchard & Todd J. Zywicki,
Finding the Constitution: An EconomicAnalysis of Tradition’s Role in Constitutional Interpretation,
77 N. C. L Rev. 409. 415-45 (1999).
- The interpretation of law as a “policy science” was advocated in the influential article by
Harold D. Lasswell & Myre S. MacDougal. Legal Education and Public Policy: Professional Training
LOUISIANA LAW REVIEW
terms-as a means of advancing political and economic and social ends and not as
a declaration of its own ends, ends of liberty, equality, and the pursuit of happiness,
which, as stated in the Declaration of Independence, are inherent in the human
nature with which we have been endowed by our Creator.
If we look for causes and consequences of the crisis of the Western legal
tradition, we may single out two major developments in the twentieth century. The
first is the emergence of the bureaucratic state. The second is the state’s use of law
to shape the beliefs and attitudes of the people who are its subjects.
In virtually all countries of the West, governmental bureaucracies in the
twentieth century have come to control directly and actively the economy,
communications, education, health care, conditions of work, and other aspects of
economic and social life. To a large extent these are governed by administrative
regulations. By no means entirely, of course, but nevertheless to a considerable
extent, administrative regulation has invaded the civil code in France, common law
precedents in England, and professorial principles in Germany, as a major source
of law. In the United States as well, though not to the same extent, both
legislatures and courts have yielded to governmental agencies much of the control
over large parts of economic and social life. At the same time, American courts
have themselves become to a certain extent agencies of active control of economic
and social life, as judicial activism has increasingly become openly accepted.
(I cannot help thinking of the recent headline in the New York Times above a
full-page article on the economic role of the Chairman of the Federal Reserve
Board: “He’s Got the Whole World in his Hands.” I cannot help also thinking of
the fact that I cannot lawfully prune a branch of a tree next to our summer house
on Martha’s Vineyard without the prior permission of the town’s Conservation
Commission. And let me add that I am not now either approving or complaining
about these twentieth century facts of life-I am only reporting them as such and
trying to understand their relation to the Western legal tradition.)
The use of law to implement state regulation of economic and social activities
has been linked in the twentieth century with the explicit use of law to influence
people’s beliefs and attitudes, to educate people to be socially responsible and to
treat each other equally regardless of differences in race or gender or age or class.
More and more we have seen the socializing functions of the family, the school, the
church, the factory, the commercial enterprise, and other voluntary associations,
subjected to direct legislative, administrative, and judicial controls. Again, this is
a necessary fact of twentieth century life. The law of the state has come to play the
role of parent or teacher in nurturing attitudes officially considered to be socially
In the words of the Polish-American poet and prophet Czeslaw Milosz, “In the
twentieth century the state has swallowed up society.”
in the Public Interest, 52 Yale L J. 203 (1943). The authors identified values drawn from economics.
political science, psychology, and other disciplines which, they argued, it should be the policy of law
to maximize. Legal values such as due process and equal protection were strangely absent from this
purely instrumental legal science. On the harmful influence of the Lasswell-MacDougal theory, see
Anthony T. Kronman. The Lost.Lawyer: Failing Ideals of the Legal Profession 201-08 (1993).
HAROLD J. BERMAN
B. The Russian Revolution: Atheist Socialism
Here the revolutionary change was first introduced by Soviet Russia, and the
extreme example of the Soviet total state remains an important lesson for us all.
Many would not agree that Russia is part of the West, or that Russian history is part
of Western history, or that the Russian Revolution belongs in the same series of
Great Revolutions as the German, the English, the American and the French.
Historically, Eastern Orthodox Russia strongly opposed the Papal Revolution of
the late eleventh and early twelfth centuries and its creation of a Church-State and
a system of canon law. Nor did Russia experience the Lutheran and Calvinist and
Deist Revolutions and the corresponding formations of a monarchical High
Magistracy and an aristocratic Parliament and a democratic separation of powers.
Until its demise in 1917, the Russian tsardom proclaimed itself to be an autocracy,
with supreme spiritual as well as supreme secular authority. Moreover, Russia first
came into close contact with the West only in the eighteenth century, when its
ruling classes came under the influence of the French Enlightenment. Its first
university was founded in Moscow in 1756, almost seven hundred years after the
founding of the first Western university in Bologna. And only in the nineteenth
century, after the Napoleonic Wars, did there gradually emerge in Russia legal
institutions similar to those that had existed in the West for seven centuries: a class
of learned jurists, the systematization of the laws, a body of legal literature, and
finally, in the 1860s, a hierarchy of courts with a professional judiciary and a
professional class of lawyers.
Nevertheless, Russia was, indeed, “Westernized” in the eighteenth, nineteenth,
and early twentieth centuries. Indeed, the Marxian socialist belief-system and
political program of the 1917 Russian Bolshevik Revolution itself was a Western
belief-system and a Western political program. Like Deism, Marxist atheism was
a Christian heresy. The Leninist Communist Party was a secular priesthood. Even
the utopian Marxist-Leninist vision of a future classless society that would have no
need for a state or for a body of law was a utopian Western vision, paralleling the
antinomianism of the earliest radical phases of the German, English, and French
Revolutions. There was much, indeed, that was purely Russian in twentieth
century Russian socialism, just as there was much that was purely national in the
earlier German, English, American, and French national revolutions, but there was
also much that had been foreshadowed in nineteenth century Western socialist
movements, and much that later spread to other countries in the West, including the
We usually draw very sharp contrasts between Western legal systems and
Soviet Russian law as it existed prior to the collapse of the Soviet Union. We
stress the absence in Soviet Russia of the concept of a law that is higher than the
state and that binds the top leadership of the state; the absence of private ownership
of land and of the means of production; the repression of freedom of speech and
press and religion and other basic civil liberties; the dictatorship of the Communist
Party and, within the Party, of the General Secretary and the Politburo. But if we
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study carefully the Soviet legal system as it developed in the course of seventy-five
years, and especially in the post-Stalin decades, culminating in the seven years
under Gorbachev, and if we look critically at the development of our own European
and American legal systems since the Great Depression of the late 1920s and
1930s, we can see many parallels.
The post-Stalin Soviet civil and criminal codes and judicial system had much
in common with contemporary Western civil and criminal codes and Western
judicial systems. Not rule of law but nevertheless rule by law came to play an
increasingly important role the Soviet Union in the late 1950s, 1960s, 1970s, and
1980s. There were some 300,000 university trained lawyers in the Soviet Union
when it dissolved in 1991. Until the end, however, two essential differences–even
apart from Communist Party domination-remained between Soviet law and the
law of Western countries: first, the far greater extent to which law, and especially
administrative regulation, was used by the Soviet state to operate and control
economic and social activities, and second, the far greater extent to which the
Soviet state used law to guide and train and discipline the beliefs and attitudes of
the Soviet people. This was what the Soviets called “the educational role of law,”
or more precisely, “the nurturing role of law.”” Fifty years ago Karl Liewellyn
called it “parental law,” and added that our own law “moves in a parental
Not only in Communist countries but elsewhere as well, the bureaucratic state
consciously uses law to educate the citizenry to accept, and to observe, the beliefsystem
on which it rests its authority. In 1961, the Soviet state issued and
circulated through all its institutions a document called the Moral Code of the
Builder of Communism, calling on all Soviet citizens to be altruistic, honest, hardworking,
loyal, cooperative, patriotic and atheist Marxist-Leninists. At the
foundation of Soviet socialist morality and law was an atheist vision that postulated
the fundamental goodness of human nature, the inherent ability of humankind to
build a society in which each person would now receive income according to his
work and eventually according to his needs, and the willingness of a people, when
freed from economic class exploitation and hence from addiction to the “opiate”
of religious beliefs, to respond positively to the will of its leadership.”‘
I believe that it was the loss of faith in this vision, more than any other factor,
that caused the collapse of the Soviet Union.
A major weakness of the twentieth century bureaucratic state is that its legal
controls of economic and social life often exceed, in Roscoe Pound’s telling
phrase, the limits of effective legal action. 2 Despite many experiments in the
balancing of state plan with state enterprise autonomy, the Soviet planned economy
- The same Russian word, vospitat’, means “to educate” and “to nurture or nourish.” On the
Soviet concept of the educational or nurturing role of law, see Harold J. Berman, Justice in the U.S.S.R.
- On Karl Uewellyn’s use of the term “parental law,” see id. at 284.
- See Harold J. Berman, Atheism and Christianity in the Soviet Union, in Freedom and Faith:
The Impact of Law on Religious Liberty 127 (Lynn Buzzard ed., 1982).
- See Roscoe Pound, The Limits of Effective Legal Action, 3 A.B.AJ. 55 (1917).
HAROLD J. BERMAN
eventually could not be made to work efficiently. Similarly, stringent Soviet legal
controls of voluntary associations, including the workplace, neighborhood
relations, schools, and the family, only contributed to the eventual weakening of
those associations. A similar, albeit lesser, weakening is threatened in the welfare
states of non-Communist countries.
That is the danger side of the crisis.
The opportunity, on the other hand, is to restore and renew. our legal
tradition-not by attempting to recreate a laissez-faire state but by creating a law
that will not dominate and thus weaken, but undergird and thus strengthen, the
voluntary associations that make up what has come to be called “civil society.”
Such law must come not only from the state but from the voluntary associations
themselves. Indeed, in the Western legal tradition, especially in its earlier phases,
it has been taken for granted that law comes not only, and not primarily, from the
lawmaking power of the state but also, and primarily, from relationships created on
the ground by individuals and groups in their interactions with each other. Not the
state, not the governmental authorities, but people, the community, has been
understood to be a primary source of law. People forming associations of various
kinds, employers and employees establishing reciprocal rights and obligations,
businessmen making agreements with each other, parents bringing up
children-establish unofficial legal relations, make what is properly called
customary law. In the past it has been understood that customary law, unofficial
law, is a primary source of state law, official law, and that one of the principal
functions of state law is to enforce the rights and obligations that arise from
C. The Formation of a World Legal Tradition
This leads to my final major point: that the danger presented by the crisis of
the Western legal tradition in the twentieth century is accompanied not only by the
opportunity to return to the sources of law that have constituted that tradition,
including its source in custom, but also by the opportunity to participate in a new
legal tradition that is now in its formative stage, namely, a world legal tradition that
is bringing together the diverse legal traditions of the various cultures of the world,
West and East, North and South.
In the twentieth century, for the first time in the history of the human race,
virtually all the peoples of the world have been brought into more or less continual
relations with each other. We speak without hesitation of a world economy, a
world technology, world wide communications, world organizations, world
science, world literature, world scholarship, world travel, world sports. We speak
almost as confidently of an emerging world society, despite the forces of ethnic and
- Cf. Francesco Parisi, Towarda Theory of Spontaneous Law, 6 Const. Pol. Econ. 211(1995),
and Francesco Parisi, Customary Law (Typescript).
LOUISIANA LAW REVIEW
territorial disintegration that threaten it. We have also begun to speak of world
World law is, in part, the customary law of the world economy. We live not
only in an “international” economy of “foreign” trade and “foreign” investment but
also in a “world” of interdependent economies. The law that governs a contract for
the sale of goods, say, by a business firm in New York to a purchaser in California
may be not only New York law or California law but also world law. For example,
the bill of lading issued by the carrier to the seller to be transferred to the buyer will
normally have the same legal character as a bill of lading in an export-import
transaction between enterprises in any two countries in the world: it will constitute
the carrier’s receipt for the goods, evidence of the contract of carriage, and a
transferable document of title. If payment for the goods (whether shipped by
vessel, by rail, or by air) is by letter of credit, such credit will normally be subject
to the same rules that govern letter-of-credit transactions throughout the world. If
payment is by a negotiable instrument, it is subject to the same rules of
negotiability that exist throughout the world. The exporters and importers of the
world, the shipowners of the world, the bankers of the world, the marine insurance
underwriters of the world, and others associated with them, including their lawyers,
form a world community that over the centuries has made, and continues to make,
the customary “law merchant” by which their various types of transactions are
governed.3 5 Formally, the law applicable to a commercial transaction may be
national law, but the national court will enforce the contract terms, which may be
the customary terms used throughout the commercial world and, in that sense, are
part of world law.
The law of world trade is, of course, also regulated in part by public
international law, including multilateral treaties and conventions such as that
establishing the World Trade Organization, as well as by the public controls of
national states. But so far as its strictly commercial aspects are concerned, its
primary source is in the patterns and norms of behavior or those who engage in it.
Blackstone and his predecessors called itjus gentium, the law of nations, “the law
of peoples,” which included, in addition to what we now call public international
law, not only mercantile and maritime law but also natural law, defined as rules of
law common to all civilized peoples. 6 It was Blackstone’s student Jeremy
Bentham who invented the word “inter-national”-at first with a hyphen-to refer
solely to the legal rules governing relations between and among national states.37
- On the use of the term “world law.” see Percy E. Corbett. From International to World Law.
Research Monograph No. 1, Department of International Relations, Lehigh Univ. (1969); Harold J.
Berman, World Law, 18 Fordham Int’l. L J. 1617-22 (1995). See also C. Wilfred Jenks, The Common
Law of Mankind (1958); Philip C. Jessup, Transnational Law (1956).
- The binding character of the law merchant to fill gaps and to resolve ambiguities is expressly
recognized in comments (1-203), (2-103b) and (2-301) of the Uniform Commercial Code.
- See Mark W. Janis, Jeremy Bentham and the Fashioning of “International Law,” 78 Am.
J. Int’l L 405 (1984).
- See Jeremy Bentham, An Introduction to the Principles of Morals and Legislation 296 (J.
H. Bums & H.L.A. Hart eds., 1970). Cf., Berman, World Law, supra note,34. at 1617-18 and note 2.
HAROLD J. BERMAN
To speak of “world law” is to go back to the older concept, thejus gentium, the
common law of the peoples of the world.
The law of transfer of goods is only one part of world economic law. The law
governing transfer of currencies and related financial transactions is another. Parts
of the law governing direct foreign investment is a third. Public international law
and national law play a greater role in the regulation of foreign exchange
transactions and direct foreign investment than in the regulation of world trade
transactions. Yet a customary world law based on the contract practices of
economic actors plays an important role even with respect to money and direct
investment. In addition, parallel developments in the national legislation of
different countries as well as the adoption of intergovernmental agreements have
made substantial contributions to world law in those areas, as they have also in the
area of transfer of goods. When one speaks of world law, therefore, one must
include within it not only world customary law but also public international law in
the conventional sense of the treaty law and customary law agreed to by national
In addition to the world communities of persons engaged in world trade,
finance, investment, and other economic activities, there are many other types of
world communities, including those represented by some thousands of voluntary
not-for-profit non-governmental world organizations registered with the United
Nations, so-called INGOs, often with members from many countries.” These
include organizations engaged in the world-wide advancement of medicine and
health, human rights, world peace, world science, civil and political rights, charity
and relief, environmental protection, world travel and tourism, world sports, and
a large number of other activities. The interests that these associations represent
constitute a vast infrastructure of world intercourse, involving patterns and norms
of behavior that give rise to universally recognized rights and duties. It is not mere
coincidence that the rules of air traffic control, to take one example, are identical
at every major airport in the world. This, surely, is customary world law.
Yet the questions remain: Do these and other examples of customary world
law constitute the emergence of a world legal tradition? And if so, what is the
relationship of an emerging world legal tradition to the Western legal tradition?
These questions are too big to answer fully in a few minutes. We can nevertheless
begin an answer by returning to a millennial perspective, in which we may foresee
the gradual development of the world economy into a more just world society and
eventually the gradual development of the world society into a world community.
The Western legal tradition has already come to play a leading role in the
emergence of the body of world economic law. Western businessmen and their
lawyers, in participating in cross-cultural economic relations, will often, to be sure,
accept-indeed, must accept-practices and standards of their partners who come
- John Boli estimates there to be about 6,000 INGOs that have an international presence and
an international membership. See Berman. World Law, supra note 34, note 37 and accompanying text.
If all so-called INGOs are counted, including those with purely national memberships, the number is
approximately at 35,000.
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from Islamic, Chinese, Japanese, African, and other cultures. On the whole,
however, the commercial law of sales, the law of business associations, the law of
financial transactions, and other branches of economic law, have been more highly
developed, more thoroughly and precisely articulated, in the West than in any of
the other great cultures, and they have been very largely received in those cultures,
at least insofar as cross-border transactions are concerned. Even the Chinese, with
aConfucian legal tradition, on the one hand, that distinguishes sharply between law
and morals and between legal norms and social rituals, betweenfa and li,39 and, on
the other hand, a Communist legal tradition that distinguishes sharply between
public interests and private interests, are, like the Soviet Russian Communists
before them, glad to accept customary Western legal terms in their cross-border
Yet if we speak of a legal tradition, we speak not only of the law applicable to
certain types of transactions but also of law as a whole. Also we speak not only
of means of ordering relationships through the application of legal rules and
procedures but also of means of doing justice, which in the West since the twelfth
century has been identified partly with enforceable rights-rights of persons not
only in their economic and social relationships with each other but also in their
relationship to the lawmaking authority itself.” Moreover, since the late eighteenth
century the West has spoken of universal human rights to be guaranteed by national
states-“the rights of man”–and in the twentieth century these have been
expanded to include the provisions of the two United Nations Conventions on Civil
and Political Rights and on Economic, Social, and Cultural Rights. The latter
Convention speaks of “the inherent dignity and the equal and inalienable rights of
all members of the human family” as “the foundation of freedom, justice and peace
in the world.”
Some representatives of non-Western cultures have challenged the very
concept of human rights presented in the U.N. Covenants as a Western concept that
is alien to them.4′ -They emphasize duties rather than rights, mutual trust rather than
elaborate rules, mediation of disputes rather than formal judicial remedies.
Nevertheless, the fact that the United Nations Conventions have been ratified by
most nations of the world, and the fact that there is debate among and within the
nations of the world concerning the-meaning and the validity of the concepts of
human rights contained in them, testify to the emergence in the twentieth century
of a world society that has begun to establish a body of world law. As President
Roosevelt said shortly before his death in April 1945, in speaking of the larger
- See Frederick Tse-Shyang Lee, The Confucian View of World Order, in The Influence of
Religion on the Development of International Law 31, 35-37 (Mark W. Jonis ed., 199 1).
- See Brian Tierney, The Idea of Natural Rights: Studies on Natural Rights, Natural Law, and
Church Law, 1150-1625 (1997); Chatles i. Reid, Thirteenth.Century Canon Law and Rights: The
Word ius and Its Range of Subjective Meanings, 30 Studia Canonica 295 (1996); and Charles J. Reid.,
The Canonistic Contribution to the Western Rights Tradition: An Historical Inquiry, 33 B.C. L Rev.
- See Raimundo Pannikar, Is the Notion of Human Rights a Western Concept?. 120 Diogenes
HAROLD J. BERMAN
meaning of the Second World War, “[T]he whole world is one neighborhood. 42
That all the neighbors do not share the same belief-system, and that theysometimes
quarrel with each other, is not surprising. What makes it a neighborhood is that
they live side by side, they recognize their mutual interdependence, and they accept
a common body of norms of behavior. To that extent they constitute a society.
. -To become a community, however, and to have an evolving common legal
tradition, requires more. It requires a common set of spiritual values, common
concepts of human nature, of the relation of persons to society, of the purpose of
life-a common language, a common belief-system. And by definition, the
various great cultures of the world have different languages and different beliefsystems.
That, of course, is the extraordinary fact: that in the twentieth century the
diverse cultures of the world have been joined together in a world economy and in
an emerging world society, with branches of a common world law and the
beginnings of a world legal tradition. And that is the great challenge to humanity
in the third millennium of the Christian era: to transform the world society into a
world community and to transform the branches of world law into an evolving
world legal tradition.
There are, indeed, among the different major cultures of the world common
spiritual beliefs that can support the gradual development of a world community
and a world legal tradition. The great theist religions-Christianity, Judaism, and
Islam-share with each other a common foundation in the Hebrew Bible, and
together with Deism, a common belief in one God. Other great religions, especially
Hinduism and Buddhism, as well as philosophies such as Taoism and
Confucianism, share with Theism and Deism a belief in spiritual realities that
transcend material self-interest, that are higher than economic wealth and political
power.43 Many forms of humanism also share such a belief in transcendent
spiritual values. A Christian may say that the world society and world law have
been created by the Holy Spirit. Indeed, for the believing Christian, for the
believing Jew, and for the believing Muslim, the fact that all inhabitants of Planet
Earth have come to be in communication with each other and to share a common
destiny is a manifestation of divine providence. The truth of St. Paul’s prophetic
statement that God has created all nations of one blood has been proved
scientifically and is now being tested in the flesh, so to speak.
To be sure, despite similarities among them, the spiritual values of the different
religions and different cultures of the world differ from each other, and
- Quoted in the Franklin D. Roosevelt Monument, Room Four, “Unless the peace that follows
recognizes that the whole world is one neighborhood and does justice to the whole human race. the
germs of another world war will remain as a constant threat to mankind.”
- In recognition of the universality of certain spiritual realities, a Parliament of World Religions
that met in 1993 issued a declaration, drafted by Hans Kong, stating that “[bly a global ethic we do not
mean a global ideology or a single unified religion beyond all existing religions,” but rather “a
fundamental consensus on binding values, irrevocable standards, and personal attitudes.” See
Parliament of World Religions’ Global Ethic, Nat’l Cath. Rep. Sept. 24, 1993, at II. See also sources
cited infra note 47.
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commitment to the spiritual integration of the world has not matched commitment
to its economic integration. The flesh is willing but the spirit is weak! Despite the
material forces of integration, the worship of ethnic and national gods may
eventually destroy us all. On the other hand, there is also a legitimate concern that
the creators of a world economy may be in the process of constructing a global
Tower of Babel. Do we want a McDonald’s in every village and the personal data
of every inhabitant of the world on the Internet?
True spiritual integration, however, involves not suppression of loyalties of
blood and soil, and surely not the homogenization of diverse local and regional and
national communities, or their subordination to some sort of world state, but rather
their transcendence by a common faith in a sacred spiritual reality that will guide
the processes, including the legal processes, by which all the cultures of the world
are gradually being brought together and their common concerns met.
C. Interaction of Western and World Legal Traditions
I turn finally to the question of the contribution which the Western legal
tradition can make to the origin and evolution of a world legal tradition and,
conversely, the question of the contribution which the formation of a world legal
tradition can make to the revitalization of the Western legal tradition.
With regard to the first of these two questions, perhaps the greatest
contribution which the Western legal tradition can make to a world legal tradition
is the Western concept of the nature of a legal tradition. The West is accused of
“legalism” by representatives of other cultures; what is uniquely Western, however,
is the conscious historical evolution of law over generations and centuries, the
historicity of law, its conscious balancing of continuity and change, its concept of
an ongoing autonomous legal tradition that can even survive great revolutions and
be renewed by them. If there is to emerge from the present elements of a world
society a world community, it must accept the concept of such an ongoing,
evolving legal tradition.
It should be added that the Western concept of a legal tradition rests on the
integration of the three main schools of legal philosophy-positivism, natural law
theory, and historical jurisprudence–which trace law respectively to political will,
to moral reason and conscience, and to historical experience.” Only in the
twentieth century has natural law theory in the West been almost wholly
subordinated to positivism, and the historical school almost entirely eliminated.”
Second, the greatest contribution that the evolution of a world legal tradition
can make to the Western legal tradition is to challenge it to rediscover its religious
roots and its threefold source in–once again-politics, morality, and history. The
present domination of a positivist theory of law, which reduces law to rules now
- See Berman, Toward an Integrative Jurisprudence, supra note 24.
- In a work dedicated to examining the historical development of law, Alan Watson examined
positivist and natural law theories of law but expressly declined to discuss historical jurisprudence,
stating that it “is today universally rejected.” See Alan Watson, The Evolution of Law 48 (1985).
HAROLD J. BERMAN
in effect that have been laid down by the lawmaking authorities, the state, and
which sharply separates the “is” of political will from both the “ought” of moral
reason and the “was and is becoming” of historical memory, cannot survive
juxtaposition of the Western legal tradition with other legal traditions. The moral
and historical basis of law in other cultures challenges the West to re-examine the
moral and historical basis of its own legal tradition and to reconcile the various
religious influences that in the past have played significant roles in the formation
of that tradition.
The formation of a world legal tradition, combining the Western legal tradition
with that of other cultures, will inevitably challenge each legal tradition to examine
the belief-system that it reflects and to compare that belief-system with the beliefsystems
underlying the others. All such belief-systems share a common
commitment to a spiritual reality that guides the process by which love of neighbor
is to be practiced.’ Such a commitment is necessary if the forces of world
integration are to overcome the forces of disintegration, and if the integration is to
take place not in the unholy spirit of the Tower of Babel but with full respect for
the pluralism of its constituent elements.
I believe that the third millennium of the Christian era will be the age of the
Holy Spirit and ultimately the transformation of the emerging world society into a
world community. I believe that the gradual creation of a world legal tradition will
be an important part of that transformation.
A skeptic may say, “Let him believe what he wants, but where’s the proof?”
Of course, no one can prove scientifically what will happen in the future. A
nuclear war may break out and disprove all predictions except the prediction of a
nuclear war. But if my analysis of the origin and evolution of the Western legal
tradition during the past millennium is correct-and that is something that can be
proved-then that is some evidence that the forecast of the future millennium that
I have presented is also correct. And if, on the other hand, the forecast of the
future that I have presented is plausible, then that is some evidence that the analysis
of the past that I have presented is also plausible. Of one thing there is no doubt,
and here I have the latest researches in cognitive psychology to support me: what
we remember of the past is based on our anticipations of the future, and our
anticipations of the future are based on our memories of the past.47
- See Wilfred Cantwell Smith. Toward a World Theology (1989).
- See supra note 43. See also M. Darrol Bryant, Woven on the Loom of Time: Many Faiths and
One Divine Purpose (1999); Mircea Eliade, Sacred and Profane (1961); S. G. McKeever, Paths are
Many Truth is One (2d ed. 1998); Ulrich Neisser, Five Kinds of Self-Knowledge, I Phil. Psychol. 35,
46-50 (1988). Neisser defines “the extended self” as “the self as it was in the past and as we expect it
to be in the future, known [to itself) primarily on the basis of memory.” Id at 46. “What we recall
depends on what we now believe as wil as on what we once stored.” Id at 49. For a more extended
discussion of this point, see Harold J. Berman, Law and Logos, 44 DePaul L Rev. 143, 152-53 (1994).