header
Facebook Twitter Google Plus
How Popes and Reformers Gave Us the Rule of Law
Jarett Carty

Whenever I teach medieval thought or history, I begin with my usual caveat on the Middle Ages: this broad period between “antiquity” (ending with the Roman Empire and Augustine of Hippo) and “modernity” (beginning with the Italian Renaissance, or the Reformation, or the Enlightenment) was not—despite the insinuating label—an ­interregnum of unreason characterized only by crusades, superstition, and despotic rule. To any medievalist this point is so elementary it deserves no further elaboration: no serious overview of the history of ideas in the West can overlook, for example, the achievements of the twelfth century “renaissance.” Yet for students unacquainted with Thomas Aquinas, Dante Alighieri, or Peter Lombard, the caveat is a necessary antidote to their usual prejudices against all things medieval. Even the best of students often see the Middle Ages as something like Bugs Bunny meets The Da Vinci Code: an age led by cartoon-like chivalrous knights and kings, alongside an oppressive, conspiring church.

Yet another more serious problem remains. If these same students read the great works of the Renaissance, Reformation, or Enlightenment (which in a broad survey course they undoubtedly will do), these “modern” works will disparage the Middle Ages as the ages of unreason, superstition, and darkness. Martin Luther, for example, called the period between the early church and his “discovery” of grace by faith alone as the Mittelalter, the Middle Ages of darkness whence the erroneous teachings of grace by works misled many souls to perdition. The teacher’s task thereby becomes not only to treat medieval thought with the respect and attention it deserves, but to understand the objections of the “modern” thinkers as fully and completely as possible without accepting wholesale their vision (or revision) of the previous age. Optimally in this way, a historical perspective is fostered; we learn to rethink and respect the ideas from ages past while developing a critical eye to the state of things in our own world.

In contemporary law and politics in the Western world, and perhaps most acutely in the United States, the separation of church and state is a principle that has become so ­commonsensical in our public lives as to be assumed and unquestioned. An examination of medieval political thought helps us be critical of our own assumptions and gives us fresh perspective on our predicaments. The European medieval and Reformation worlds could scarcely conceive of the separation of church and state as we do, but this does not mean they were hopelessly governed by theocracies and fundamentalist clerics.

Fortunately, amongst the many superficial and erroneous accounts of law and politics of previous ages, a few jewels of intellectual history emerge, making past ideas come alive and deepening our understanding of our own age. Harold J. Berman’s monumental study of the influences of two Christian revolutions on the Western legal tradition is such a jewel. His first volume, Law and Revolution: The Formation of the Western Legal Tradition (Harvard 1983) meticulously traces the impact of the eleventh and twelfth century papal revolution (also known as the Gregorian Revolution or the Investiture Contest) upon the formation of integrated legal systems in the West. His more recent second volume, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition (Belknap 2003) authoritatively demonstrates the impact of the German Reformation of the sixteenth century (from Luther’s indulgence controversy beginning in 1517 to the Peace of Augsburg in 1555) and the English Revolution of the seventeenth century (the Stuart crisis of 1640 to the “Glorious Revolution” of 1689) on Western law.

In both volumes, Berman’s argument is consistent and forceful: the influence of the papal and Protestant revolutions upon the formation and rule of law in the West was formidable. The independence of law, the integration of different legal systems, the science of law, the establishment of law schools, even the separation of law from morality and the supremacy of secular law in a nation-state were, in Berman’s convincing account, due to the impact of the two Christian revolutions. Against the prevailing scholarship in legal history that has hitherto neglected the foundations of law in the Gregorian and Reformation movements, Berman’s study serves a larger purpose: to show the importance of Christian ideas in the formation and development of our own legal and political world, even when these Christian roots have long been superseded by later influences. Berman’s project is not in any way an apology or evangelism for the revival of Christian ideas in contemporary law and politics; rather, it is a study of the sheer impact that two church revolutions had in the past, and how much these revolutions have shaped our own legal ideas and practices.

The idea that a papal revolution influenced the rule of law in the West will no doubt first appear odd. Yet in Law and Revolution, Berman goes even further. Like many prominent scholars before him, he argues that the Gregorian revolution transformed the papacy into the first modern state. After this revolution, the papal state was sovereign and independent; the popes legislated new laws; a large administrative hierarchy executed them, and a judicial hierarchy interpreted and adjudicated them. Moreover, the papal state fostered a rational system of jurisprudence in canon law. It formed law schools. It taxed its subjects. It maintained records on its subjects and defined citizenship. It even waged war (though through proxy and mercenary armies that often brought unintended consequences).

Berman argues that while the papal state was not secular—one of the hallmarks of the modern state—it caused the growth of the secular state. Beginning with Pope Gregory VII’s Dictatus Papae of 1075, the medieval papacy wrested control of the episcopacy from the civil authorities of Europe, gained control of the clergy in general, consolidated church properties (which were vast), and oversaw all criminal proceedings involving church holdings, clerics, doctrines, and several types of moral offences. The effects of this revolution were manifold; decades of bloody wars, civil unrest, even scandal (like the infamous murder in England of the Archbishop of Canterbury Thomas à Becket by King Henry II’s men in 1170) accompanied the papal revolution in eleventh and twelfth century Europe. More to Berman’s argument, however, is that the revolutionized papacy, by claiming sovereignty over all spiritual affairs, left sovereignty in all secular and civil matters to the kings and princes of Europe.

For Berman, what ultimately resulted in the West was the rule of law in both the civil and ecclesial realms. In the church, canon law became rationalized and standardized. Though the popes were the chief legislators of canon law, and their decretals became a major source of this law, they were all the same subject to it. Popes after the Gregorian revolution were not clerical dictators, but the main legislators amongst a large machine of administrative and judicial functionaries, each working toward a universal church governed by its own independent, rationalized, and systematized law.

Just as the papacy asserted itself in spiritual matters and in the church, the civil authorities—largely in reaction to the strengthened papacy—asserted their sovereignty over all other matters. Thus Berman argues that the papal revolution modernized not only the papal state, but also the civil authorities. These kingdoms and principalities (including the Holy Roman Empire) began to systematize their laws and transform the foundations for their authority and legitimacy. The kingdoms, principalities, feudal lords, cities, and guilds founded themselves on the rule of their own particular laws, charters, and constitutions. Laws specific to certain areas of civil rule developed and grew. Feudal law became, for the first time, systematized and universalized, defining the rights and obligations of both lords and vassals, and the rights and obligations associated with land tenure. Manorial law formed a legal system defining the rights and obligations between lords and peasants. Accompanying the expansion of an urbanized merchant class and an increased agricultural production, mercantile law also grew to systematize trade, commerce, money-lending, and early capitalism. (Thus Berman agrees with the solid historical evidence that “capitalism” began in the eleventh and twelfth centuries, not, as is commonly supposed, in the sixteenth and seventeenth centuries.) Urban law—the laws of the cities and guilds in the urban centers of Europe—also grew to prominence after the papal revolution as thousands of new cities appeared across the continent. These new cities and guilds within them (including the student guilds known as “universities”) were, as Berman writes, “conscious of themselves as urban communities and they all had similar legal institutions” (1983, 357). Finally, just as the papal revolution had changed the nature of kingship in Western Christendom, royal law became systematized to regulate the relations of royal authority to other tribal, feudal, noble, and urban authorities.

In Law and Revolution II, Berman’s thesis that Lutheran and Anglo-Calvinist reformers greatly affected the Western legal tradition sounds at first no less peculiar than his first study. As in his earlier volume, Berman challenges the conventional views of the legal historians and political theorists by affirming the Christian roots of the Western legal tradition. Yet in this volume, Berman argues that the aggrandizement of the modern secular state’s ability to wield virtually all law under a common rationalized system (including laws governing churches within the secular territories) was a result of the impact of Protestantism in the sixteenth and seventeenth centuries.

To Luther and the Lutheran reformers, the true church was the spiritual kingdom, the priesthood of all believers; it was a kingdom governed by the Gospel and destined for the resurrection. The earthly kingdom or the kingdom of this world (which for Luther included the institutional church) was governed by law. For the Lutherans, God was ruler of both kingdoms; therefore, positive law—regardless of its criminal, ecclesial, or commercial ends—was the embodiment of divine command. The moral law of the Ten Commandments and the positive law of the secular king for the Lutherans had the same purposes: to make sinners conscious of their sinfulness (and thus help them to repent), to deter transgression by threat of punishment, and to generally educate human beings in the paths of righteousness.

For Berman, the essence of the Lutheran revolution in law was the enactment of Ordnungen, or the comprehensive statutes in the Protestant principalities. Statutes governing the institutional churches, marriage and family, moral and criminal offenses, schools and education of the young, and even ordinances on services to the poor, widowed, homeless, orphaned, and unemployed were enacted throughout the Lutheran principalities. Behind these Ordnungen a Lutheran legal philosophy developed that emphasized the unity of all law (though with distinct branches and classifications). Thence what was conceived in the Lutheran revolution was a new “common law” that was based on principles derived from earlier canon and even Roman law and from the commonalities of feudal, manorial, mercantile, urban, and royal law. Concomitant to this development of a comprehensive legal system, the Lutheran reformers developed a legal science, complete with law schools and an academic elite who were often called upon by authorities to resolve difficult legal matters. Moreover, Berman argues that the Lutheran legal philosophy considered law as biblically based. Just as Lutheran hermeneutics saw to the integration of the Old and New Testaments, so did the Lutheran jurists see positive law as the embodiment of biblical imperatives and morality.

Measuring the influence of the English Revolution on the Western legal tradition is a difficult task, especially if the English Revolution is defined as the entire upheaval from the Stuart monarchy to the Glorious Revolution. Yet Berman’s analysis is not fazed by it. With breadth and detail, he accounts for the transformation of the English legal system through the clash of Anglo-Calvinism, absolute monarchism, and Anglicanism, leading to the eventual settlement of Whig government, jurisprudence, and religious toleration.

In Berman’s account, the English Revolution greatly transformed Western law in several ways. Royal prerogative courts were abolished, judges became independent of the crown and tenured, common law courts became supreme, and the modern doctrine of precedent was formed. The English Revolution also transformed trial by jury by freeing it from the dominance of royalist judges. Procedural rights of the accused, an adversarial system for the presentation of evidence, and the development of new criteria for proof in civil and criminal cases were developed. In addition, the English legal system formed a legal philosophy based on empiricism. Guiding principles in law were derived from common experience over time. These principles of English legal philosophy came to be seen as incremental and continuous with English legal traditions including the Magna Carta and canon law. Yet at the same time, this philosophy was revolutionary in its pervasive transformation of the English legal system; multiple legal spheres in criminal law no longer were permitted to exist, for all was subsumed under a new English common law.

“Contemporary scholars in all the relevant fields,” Berman argues, “have with few exceptions paid little attention to the enormous impact of sixteenth- and seventeenth-century Protestantism on the development of Western legal traditions” (2003, 373). This argument, of course, extends to the first volume study on the Gregorian revolution. Against many of the prevailing views of historical change in academia and common opinion (that economic, social, and material factors are the main engines of change), Berman argues that belief systems—in his cases medieval and Reformation Christian belief systems—more than any other influence, gave us the rule of law as we know it in the West. Berman does not deny the importance of economic or social history; rather, he defends the central place of beliefs and ideas that academia has often neglected or ignored.

 Retrieving an historical understanding of past ideas lends us valuable insights into our own moral and political dilemmas. In this spirit, at the end of his second volume, Berman aptly quotes Alexis de Tocqueville: “When the past no longer illuminates the future, the spirit walks in darkness” (2003, 382).

 

 

 

Jarrett Carty is Assistant Professor in the Liberal Arts College at Concordia University Montreal.

 

 

Bibliography

Harold J. Berman. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Massachusetts: Harvard University Press, 1983.

Harold J. Berman. Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition. Cambridge, Massachusetts: The Belknap Press of Harvard University Press, 2003.

Copyright © 2014 | Valparaiso University | Privacy Policy
rose