Harold Berman

Law and Revolution

The first of the great revolutions of Western history was the revolution against domination of the clergy by emperors, kings, and lords and for establishment of the Church of Rome as an independent, corporate, political and legal entity, under the papacy. The church, now viewed above all as the clergy, would work for the redemption of the laity and the reformation of the world, through law, in the direction of justice and peace. This was, however, only one side of the Papal Revolution. Another side of it was the enhancement of the secular political and legal authority of emperors, kings, and lords, as well as the creation of thousands of autonomous, self-governing cities. Still another side of it was the enormous expansion of economic activity, especially in agriculture, commerce, and crafts. Still another was the founding of the universities, and the development of the new sciences of theology and law. There were other sides as well. The Papal Revolution had, in short, the character of a total change. It envisioned not only a new heaven but also a new earth. The Investiture Struggle was only part of it. The Gregorian Reformation was only part of it.

The Papal Revolution had been in preparation for at least a generation. The first overt steps toward it were taken by the papal party in the 1050s and 1060s. In 1059 Pope Nicholas II, at the Synod of Rome, for the first time forbade lay investiture and established a procedure for election of popes by the cardinals, thereby taking the power to appoint the pope away from the emperor. In 1075 Pope Gregory VII threw down the gauntlet in his Dictates of the Pope. From 1076 to 1122 wars were fought in various pans of Europe between supporters and opponents of the papal authority and its program. Eventually, compromises were reached. Neither side was wholly victorious.

It was this total upheaval that gave birth to the Western legal tradition.

A system of law wai necessary to the Western Church to maintain its new, viable, corporate legal unity under the papacy; the disembedding of canon law from theology and liturgy, and its systematization and rationalizing, were needed as a source of legitimacy and a means of control by the central ecclesiastical authorities and also as an effective symbol of the separate corporate identity of the clergy as a whole. The new jus canonicum was also essential to the maintenance of the church's new set of relations with the various secular authorities. Relatively autonomous and rational systems of law were needed by the various secular authorities as well, in order to enable them to legitimate and effectuate their newly developing central controls and to maintain themselves in the new competition of polities.

The need for legal systems was not merely a practical political one. It was also a moral and intellectual one. Law came to be seen as the very essence of faith. 'God is himself law, and therefore law is dear to him,' wrote the author of the Sachsenspiegel, the first German lawbook, about 1220. That was almost a century after the Concordat of Worms had settled the Investiture Struggle, but it was nevertheless a direct expression of the philosophy of the Papal Revolution. It was, indeed, a direct expression of the spirit of the Concordat of Worms. No one in the West would have said it before 1075; after 1122 it was, in one form or another, a commonplace. Law was seen as a way of fulfilling the mission of Western Christendom to begin to achieve the kingdom of God on earth.

The Papal Revolution gave birth to a new formulation of the doctrine of the two swords that had been introduced five centuries earlier by Pope Gregory I. The earlier formulation had been concerned with the relation between earthly and heavenly spheres of Christian living. For the, theorists of the Papal Revolution, however, the main problem was the relation between the ecclesiastical and lay authorities in the earthly sphere itself. It was the church as a visible, corporate, political and legal entity that was to wield the spiritual sword; and that sword was to control not only life in the next world but also a large number of matters in this world as well, including administration of church property, activities of clerics, family relations, business morality, indeed, anything that could be brought under the heading of morals or belief.

For the first time the spiritual sword was embodied in a system and a science of law, the newly systematized and rationalized canon law of Gratian and of the great lawyer-popes of the twelfth and thirteenth centuries. The papacy developed also the governmental institutions and the bureaucratic apparatus needed to make this legal system work: a professional judiciary, a treasury, a chancery. This was the first modern Western system of government and law. It was eventually emulated by the secular polities that took form in the succeeding generations.

It may at first seem strange to attribute to the revolutionary events of the late eleventh and early twelfth centuries the subsequent development of legal systems in the latter twelfth, thirteenth, and even later centuries. It might seem more logical to attribute the later developments to later events. Of course, without the later events there could not have been the later developments. Nevertheless, all the legal systems of Europe in the latter twelfth and thirteenth centuries manifested and embodied and carried to their conclusion principles that had been established in preceding generations. This is not to be understood in terms of a Hegelian progression of ideas; it is rather to be understood in terms of the dynamics of Western history, in which not only material and ideal factors but also, above all, great events themselves have exerted pressures for change in certain directions over a long period. To trace the growth of legal institutions in the late twelfth and thirteenth centuries back to the Papal Revolution of the late eleventh century, culminating in the Concordat of Worms, is no more strange than to trace the growth of racial equality in the United States in the late nineteenth and twentieth centuries back to the American Revolution of the late eighteenth century, culminating in the Civil War Amendments to the United States Constitution. Without a perspective of such duration it is impossible to understand either the periodic cataclysms of Western history or the great traditions that have succeeded those cataclysms and have served as bulwarks against their recurrence. Renewal is followed by continuity and growth, revolution by evolution.

That it takes several generations to make a revolution should not be surprising. Especially if one is concerned with the institutionalization of its goals, and with the necessary compromises that flow from the process of institutionalization, one must take into account long-term movements. In the case of the Papal Revolution, two of its major goals, rule by law and the rule of law— that rulers must seek to effectuate their policies systematically through legal institutions and that they are themselves to be bound by the legal institutions through which they govern—were quite new to Western society. If these principles were to be secure they had to be accepted and internalized as well as adapted and modified by the children and grandchildren of the people who first introduced them.

Most of the institutions, procedures, concepts, and rules of the Germanic folklaw disappeared in the centuries after the Papal Revolution. This did not happen all at once. The blood feud continued in many parts of Europe into the fifteenth century, despite the opposition of both canon law and royal law. Marriages of children continued to be arranged by their parents, especially among the nobility. Although Germanic procedures of compurgation were transformed into testimony under oath, nevertheless the measuring of the value of an oath according to the status of the witness showed traces of the old formalism. These are only a few examples of survivals. On the whole, however, the Germanic folklaw died out under the impact of the division of political authority into two parts, the ecclesiastical and the secular, the formation of the church-state and eventually of secular states, and the rationalization and systematization of church law and eventually of secular types of law.

Yet the integrated Germanic folk culture was a necessary foundation for the new program of rationalization and systematization of law. Western legalism was rooted in an earlier communitarianism. The Papal Revolution itself was only possible in a society already united as a populus christianus; the fight over who should control the church, and thus who should control 'ideology' (as it would be called today), presupposed the existence of a common loyalty to the church and a common faith. The related question of who should control church wealth also presupposed the existence of a shared belief that that wealth should be used for religious purposes. The revolution shattered the unity that was the precondition for its occurrence. It erected and institutionalized new divisions of canon law and secular law and, within secular law, divisions of feudal, manorial, mercantile, urban, and royal law; within each of these divisions there were also divisions of reason and custom and command. The preexisting unity had been the unity of race, of soil, of class, of family, of faith. In fact, however, the various new, systematized, rationalized, ongoing, transcendent bodies of law were intended in pan to preserve those old unities, although in very different forms from the ones that had previously prevailed.

The Germanic folklaw itself had been of one piece with the communitarian, essentially tribal society. Like Germanic myth, an, and language itself, the folklaw had been diffuse, embedded in custom, and thought to be more or less immutable. Christianity had introduced a dynamic element; it had cast doubt on the tribal values. But prior to the late eleventh century, despite some exceptions, Christianity had not been systematically reflected in the institutional life of the Germanic peoples; it was for the most pan an otherworldly faith. The Papal Revolution, however, made Christianity into a political and legal program. The church became a state. Canon law became a specific means, first, of holding the church-state together, and second, of reforming the world. The other emerging law systems also sought to reform custom in accordance with reason and conscience. Yet this was not meant to destroy the old communities; on the contrary, it was intended to strengthen them.

To apply reason to custom, that is, to weed out the mass of unreasonable customs and to cultivate the reasonable ones into a system of law, was a bold program, to say the least. It was highly convenient, and not wholly accidental, that a manuscript of Justinian's Digest turned up in a library in Florence in the 1080s, and it was surely not accidental that very soon a university was founded at Bologna—the first European university—to study that manuscript. Henceforth the jurists had an entire dictionary, so to speak, in which to find legal terms, concepts, standards, and rules, a ratio scripta, as the Roman law was then called, by which to sift the customs. It was as though the Old Testament had suddenly been discovered for the first time by Christian theologians. The Western jurists applied a new dialectical method to the Roman texts, directed toward the reconciliation of contradictions. They were thus able to draw from these texts conceptual implications which the Romans themselves had never dreamed of—a theory of contract law, a concept of rights of possession, elaborate doctrines defining justifications for the use of force, and the like. The jurists thus gave the West its characteristic methods of analysis and synthesis of texts. They taught the West to synthesize cases into rules, rules into principles, principles into a system. Their method, which is still that of legal science in the United States today, was to determine what various particulars have in common, to see the whole as the interaction of the pans. This was the prototype of modern Western science, for it took the customs and the rules as data and adduced from the data the regularities-the 'laws'—that explained them. Historically and sociologically, such a method was essential to the reconciliation of the contradictions among the conflicting legal systems—in the first instance, the reconciliation of canon law with secular law, and in the second instance, the reconciliation of the various secular legal systems with one another.

If the dialectical method of scholastic philosophy was essential to the structuring of law in the West, the theological doctrines that accompanied the use of that method were essential to its basic concepts, and especially its concept of crime and punishment. The theology of the Papal Revolution was a theology of judgment. God was, above all, a God of justice. Through his incarnation in Christ, and Christ's sacrifice of himself for mankind, the original sin of penitent Christians was forgiven, but actual sins must be atoned for either in this life or in purgatory. A price must be paid for the violation of the law. Upon payment of the price, the law was vindicated, and the erstwhile sinner could enter paradise. This theology underlay the church's establishment for the first time of an 'external forum' for the trial of crimes, as contrasted with the 'internal forum' of the confessional and the sacrament of penance. A set of principles of criminal law was developed which was similar to thai which prevails in most Western countries today: that there must be an external criminal act, that it must be prohibited by law, that it must manifest a direct or an indirect intent, that it must have proximately caused the harm, that it must be vexatious to the community.