Berman, H. - Religious Foundations of Law in The West - An Historical Perspective (1983.) PDF

Religious Foundations of Law in the West: An Historical Perspective
Author(s): Harold J. Berman

Source: Journal of Law and Religion , Summer, 1983, Vol. 1, No. 1 (Summer, 1983), pp.
3-43
Published by: Cambridge University Press
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JOURNAL OF LAW
AND RELIGION
VOLUME I SUMMER 1983 NUMBER 1
RELIGIOUS FOUNDATIONS OF LAW IN THE

WEST: AN HISTORICAL PERSPECTIVE*
Harold J. Berman **
The fundamental changes that have taken place in our legal

institutions during the past two generations are part of a transforma-
tion of the entire Western legal tradition, marked particularly by its
disconnection from the religious foundations upon which it wa
built. For over eight hundred years, from the late eleventh to th
early twentieth century, law in the West was supported by, and in
many respects based on, religious beliefs, both Roman Catholic and
Protestant. In the twentieth century the intimate connection be-
tween the Western legal tradition and the Western religious tradi-
tion has been substantially broken.
Sixty to seventy years ago, the connection between law and reli-
gion in the West was so intimate that it was usually taken for
granted. Even in the United States, where religious diversity was far
greater than in most other Western countries, and where agnosti
cism and atheism were more tolerated, it was generally accepted
that the legal system was rooted in Judaic and Christian religiou
and ethical beliefs.l "We are a religious people," wrote Justice Wil-
* Parts I, IV, and V of this article are based largely on H. BERMAN, LAW AND
REVOLUTION: THE FORMATION OF THE WESTERN LEGAL TRADITION, scheduled for Fall
publication, 1983 by the Harvard University Press, to which grateful acknowledgement is
made for permission to reproduce substantial portions of pages 31-33, 37-40, and 558.
Several paragraphs are also reproduced from H. BERMAN, THE INTERACTION OF LAW AND
RELIGION (1974). With respect to the rest of the article, copyright is reserved by the author.
? Harold J. Berman.
** James Barr Ames Professor of Law, Harvard Law School. This article was written
during spring semester, 1983, while the author was the Frances Lewis Scholar in Residence
at Washington and Lee Law School. The author gratefully acknowledges the cooperation of
the Washington and Lee faculty and staff, and especially of Professor Thomas L. Shaffer,
Director of the Lewis Center.
1. This is attested by nonbelievers as well as believers. Thomas Jefferson, who was

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4 JOURNAL OF LAW & RELIGION [Vol. 1
liam 0. Douglas as recently as 1951, speaking for a maj

United States Supreme Court, "whose institutions pr
Supreme Being."2 Not only law and legality in genera
specific legal standards, principles and rules were widely
be derived ultimately from the Bible, from the history of
and from what the Declaration of Independence called
Nature and Nature's God."
It is true that, starting with the Enlightenment of the late eight

eenth century, many intellectuals in Europe and America cam
paigned vigorously for the emancipation of political and leg
institutions from religious influences. Some went so far as to insis
on the separation of law not only from traditional religion as such
but also from any system of morality other than that of utilitarian
ism or pragmatism. However, the religious and moral skepticism o
intellectuals, including leading law teachers of the time, failed
penetrate the public mind in the late eighteenth, nineteenth, an
early twentieth centuries. In the United States the great majority
lawyers continued until the twentieth century to learn their law fro
Blackstone, who taught that "the law of nature . . . dictated b
God himself . . . is binding . . . in all countries and at all time
no human laws are of any validity, if contrary to this; and such o
them as are valid derive all their force and all their authority, medi
ately or immediately, from this original."3
Blackstone, who wrote for, and was widely ready by, non-law-
yers as well as lawyers, described in the first part of his Commenta
ries, the following kinds of law that prevailed in England: natur
law, divine law, the law of nations, the English common law, loc
customary law, Roman law (in the universities), ecclesiastical la
(in the church courts), the law merchant, statutory law, and equity.
Implicit in this catalogue was a view of law as a product of overlap
ping histories-the history of Christianity and Judaism, the histor
perhaps the most freethinking of the Founding Fathers, nevertheless stated that the "onl
firm basis" of a nation's liberties is "a conviction in the minds of the people that their libe
ties are the gift of God." Many state courts in the nineteenth and early twentieth centurie
in upholding laws against blasphemy, Sunday laws, compulsory attendance at chapel exe
cises at a state university, religious exercises in elementary and secondary schools, and com
parable laws, reiterated the sentiment expressed in 1811 by Chief Justice Kent of New Yor
that "we are a Christian people, and the morality of the country is deeply ingrafted up
Christianity." Citations to these and similar quotations may be found in Berman, The Inter
action of Law and Religion, 8 CAPITAL U.L. REV. 346 (1979).
2. Zorach v. Clauson, 343 U.S. 306, 313 (1951).
3. W. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND 40-41 (1807).
4. Id. at 38-92.

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3] HISTORICAL PERSPECTIVE 5
of Greece, the history of Rome, the hi

tory, national history, international h
by linking Blackstone's readers with
ened their belief not only in the root
but also in the providential character
It was undoubtedly comforting to p
sive Era to be told that their criminal law went back to the Ten
Commandments, that their contract law went back to the relig
oath and the pledge of faith, and that, in general, their legal in
tions were derived from divine and natural law. This helped to
firm the words of the Victorian poet, "God's in His heaven
right with the world." Since that time, the belief that our s
law is rooted in divine law and natural law has virtually d
peared from the population as a whole, including those who ar
gious. It is undoubtedly discomforting to realize that this leave
legal tradition without its original foundations-suspended,
speak, in mid-air.
I.
What is "our legal tradition"? The Western legal tradition was

inaugurated about nine centuries ago in Europe when the Roman
Catholic Church first established its political and legal unity, under
the papal monarchy, and its freedom from domination by emperors,
kings, and feudal lords. This is a story well-known to specialists in
so-called "medieval" European history,5 but not widely known to
educated people generally; and it does not fit easily within the his-
torical picture that most educated people have in their minds. For
most American college graduates, Western Civilization still jumps
from "classical antiquity" and "the decline of the Roman Empire"
across the "Middle Ages" to the "Renaissance and the Reforma-
tion" and "the rise of the national state." (Marxists accept the same
basic periodization, but speak of "slave society," "feudalism," and
"capitalism.") To make a revolutionary break right in the middle of
5. The portrayal of the Papal Revolution as a fundamental break in the historical con-
tinuity of the church, and as the first of the great revolutions, was pioneered by Eugen Ro-
senstock-Huessy in DIE EUROPAISCHEN REVOLUTIONEN (1931; 3d ed. rev., 1960), and in
OUT OF REVOLUTION: THE AUTOBIOGRAPHY OF WESTERN MAN (1938). See also TEL-
LENBACH, CHURCH, STATE, AND CHRISTIAN SOCIETY AT THE TIME OF THE INVESTITURE
CONTEST 111, 164 (R. F. Bennett trans. 1959); 2 KNOWLES AND OBOLENSKY, THE CHRIS-
TIAN CENTURIES: THE MIDDLE AGES 169 (1968); R. W. SOUTHERN, WESTERN SOCIETY AND
THE CHURCH IN THE MIDDLE AGES 34 (1970); STRAYER, ON THE MEDIEVAL ORIGINS OF
THE MODERN STATE 22 (1970).

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the "Middle Ages" may seem strange; and to trace m

systems to that break may seem at least equally strange.
was such a break, and it was a genuine political revolu
which our modem Western legal systems are derived.
Starting in about 1050 there was created in Rome, a
papacy, a reform party, which set out to organize the cl
ops, abbots, priests, and others) to oppose the power o
kings, and feudal lords to appoint them to their ecclesias
and otherwise to control them. The chief slogan of the
was called a "reformation") was "freedom of the churc
formers denounced the prevailing practice of clerica
which involved the clergy in kinship politics and purcha
of church offices.
Up to that time the emperor had been the head of the church.
The pope was appointed by the emperor and swore fidelity to him.
It was the emperor, not the pope, who was called "Vicar of Christ."
(The pope, as bishop of Rome, was called "Vicar of St. Peter.") The
pope was, to be sure, a leading bishop, many said "the" leading
bishop. The church in Europe, however, at that time, was highly
decentralized, with each bishop operating, for the most part,
autonomously.
Then in 1075 Pope Gregory VII declared the absolute political
and legal supremacy of the pope not only over all bishops but also
over all secular rulers. Appeals, he said, in his famous Dictates of
the Pope, may be taken from decisions of bishops to the bishop of
Rome. "Emperors," he declared, "must kiss the feet of the bishop of
Rome."6 The emperor, he said, was only a layman and therefore
lower than the lowest priest.
This was not only a political struggle. It had an important eco-
nomic dimension. Something like one-fourth of the land of Europe
was in the hands of the clergy. It was also a theological -we would
say today an ideological-struggle. It had to do with the doctrine of
the Trinity, with atonement and purgatory and the Last Judgment,
and with the sacraments. The papacy at this time unilaterally
changed the Nicene Creed, thereby forcing a schism with the East-
ern Church. The papacy launched the First Crusade, uniting all the
peoples of the West in a war against the Saracens in the East.
6. The Dictates of the Pope (Dictatuspapae) may be found in English translation in

TIERNEY, THE CRISIS OF CHURCH AND STATE, 1050-1300, WITH SELECTED DOCUMENTS 49-
50 (1964).

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Civil wars were fought in Europe between supporte

pal and the imperial powers before a general settlemen
in the Concordat of Worms of 1122. In England an
ment (1106) was sealed only by the martyrdom of Tho
1170, almost 100 years after the original papal declara
astical independence.
Why was the Papal Revolution important for the d
of law? The answer is both simple and complex. In sim
the church was to be an independent political entity,
jurisdiction, it needed a system of law: first, to regulat
economic, social, and professional activities of the
church now claimed exclusivepersonal jurisdiction o
second, to regulate certain types of activities of th
church claimed exclusive subject-matter jurisdiction o
and divorce, wills, sexual and other moral offenses, her
ideological offenses, crimes against church property, c
there was a pledge of faith, and a variety of other mat
the laity; and third, the church needed law to regulat
with the secular authorities, with which it had concur
tion over many matters, including concurrent juris
over many matters for which each side claimed
jurisdiction.
The church needed law, and the church created the
em Western legal system, namely, thejus canonicum
canon law. Of course, there had been law in the chu
late eleventh century (though it had not been calledju
there had been decisions and decrees and canons of church councils
and of bishops, including the bishop of Rome. There had bee
some primitive local collections of these decisions and decrees
canons. But there had been no systematization of canon law. Th
had been no systematic collections which governed the wh
church, no treatises on canon law, no hierarchical system of cour
culminating in the papal curia, no trained legal profession, and
law professors teaching canon law in a university. Indeed, there h
been no universities at all in Western Europe until the Pa
Revolution.
In about 1087 the first European university was founded at

Bologna; its specific purpose was to study the newly discovered Ro-
man legal texts that had been compiled in 535 under the Emperor
Justinian in Constantinople. In the sixth to eleventh centuries the
Roman law had more or less died out in western Europe. Some

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isolated Roman legal rules and a good many Roman l

had survived in the law of the Germanic peoples of Euro
church itself, that is, the bishops in their bishoprics as
church councils, had preserved even more of the Roman
and terms, but Roman law as such was nowhere appli
West, and there was very little Roman legal learning. Th
enth century witnessed a revival of Roman legal learn
lated especially by the discovery of the texts of
particularly the Digest, which contained thousands of pa
ions of Roman jurists on hosts of questions, all very loos
ized. This discovery was not accidental. Both papal an
supporters had been searching the libraries for the Just
each side expecting to find in them legal support for its
tions, and each side conscious of its need for law as a me
lation in an emerging regime of competing jurisdictions
The study of the massive, complex, unsystematized l
of a bygone age would have been impossible without t
ment of a new method of analysis and synthesis. This w
by the jurists, philosophers, and theologians of the early
whom perhaps the greatest was Peter Abelard.7 Abela
chief founder of what was later called "scholasticism." Involved
were new techniques for reconciling contradictions, for draw
generalizations from the common features of disparate phenomen
and, above all, for using the whole as a basis for interpreting
parts without destroying their integrity as parts. Thus scholastici
was more than a method; it involved also a philosophy. It ena
the European jurists gradually to establish a body of new conc
and ideas that purported to unify the much more disparate, muc
more particularized rules and definitions given by the Roman jur
7. Abelard (1079-1142), one of the great geniuses of all time, made important last
contributions to logic, epistemology, theology, and ethics (including law), which ante
the discovery and translation of Aristotle's major works in the West. Students flock
him from all over Europe; he was the teacher of Gratian, John of Salisbury, and many o
outstanding thinkers of the mid-twelfth century. He was the first to use the word "theo
in the modem sense of the systematic study of evidence of the existence and nature of
divinity. He was apparently the first to identify and analyze natural causes as a categ
distinct from supernatural causes (miracles). He is considered, together with Aristo
Leibniz, and Frege, to be one of the four greatest logicians in the history of the Wes
invented the term "positive law" to refer to enacted law as distinct from natural la
customary law. His short books on ethics and on theology are available in English tran
tion. See, PETER ABELARD'S ETHICS (D. E. Lunscombe, ed., 1971); J. R. MCCALLUM,
LARD'S CHRISTIAN THEOLOGY (1948; reprinted 1976). A moving biography of
extraordinary man, whose love songs were known all over Europe, is R. LLOYD,
STRICKEN LUTE (1932).

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of Justinian's time and before. The texts of Justinian now came to

be called for the first time "the body of Roman law" (corpusjuris
Romani), and still later "the body of civil law" (corpusjuris civilis).
Roman law remained an ideal law, a university discipline, a
source of legal concepts and rules used by lawmakers, both ecclesi-
astical and secular, but not, as such, the positive law of any jurisdic-
tion. The canon law, on the other hand, was the positive law of the
church, replenished by judicial decisions and legislation of popes
and councils. It, too, was systematized-above all, by the monk
Gratian, who in 1140 analyzed thousands of canons that had been
issued since the early history of the church, reconciling their contra-
dictions and synthesizing them into what came to be called "the
body of canon law" (corpusjuris canonici).
Gratian's book, entitled characteristically THE CONCORDANCE
OF DISCORDANT CANONS, was the first comprehensive legal treatise
ever written in any language. In a modem edition it fills over 1400
pages.8 At the very beginning Gratian stated the basic principle
which made possible the harmonization, or systematization, of "dis-
cordant" rules. Divine law and natural law, he wrote, are superior
to the enactments of human rulers and the customs of peoples; in
case of conflict, customs must yield to enactments, and both customs
and enactments must yield to natural law and to divine law. Thus
the mass of customs, both ecclesiastical and secular, by which the
peoples of Europe were then largely governed, was to be subjected
to the newly emerging positive law, and both were to be subjected to
natural law, that is, to the tests of reason and conscience.9
In the century after Gratian's work appeared, the system of ca-
non law expanded to include subsystems of constitutional law, crim-
inal law, family law, wills, contract law, property law, and
procedure. Many basic features of contemporary American law in
these various fields are descended from the canon law of the twelfth
and thirteenth centuries.
The creation of the modem system of canon law stimulated, in
turn, and even necessitated, the creation of modem systems of secu-
lar law. The simple reason for this, once again, was the fact that the
8. Gratianus, Concordantia discordantium canonum (Decretum), in I CORPUS IURIS

CANONICI (E. Friedberg ed. 1897).
9. The concept "natural law" in Gratian's time was quite different from the concept
"laws of Nature" in the Declaration of Independence, referred to earlier. Gratian's natural
law was more akin to fairness, reasonableness, common sense, the spirit of the laws, what is
right.

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secular authorities were also confronted with the problem

taining separate and concurrent jurisdictions. The new s
secular law included (a) the emerging royal law of the vari
doms and duchies of Europe-the Norman kingdom in so
aly, England, Normandy, France, Flanders, Bavaria,
Austria, and others; (b) the urban law of thousands of free
towns that were founded and given charters of liberties in
eleventh, twelfth, and thirteenth centuries;10 (c) the feud
lord-vassal relations, which became more systematized at t
(d) the manorial law of lord-peasant relations, which al
more systematized at that time; and (e) the highly sophistic
cantile law of long-distance trade as well as the law regula
at markets and fairs.
And so the Western legal tradition took root in the duality of

ecclesiastical and secular jurisdictions, and the plurality of secular
jurisdictions-each jurisdiction with its own system of law. Every-
one in Western Christendom lived under at least two legal systems.
It is partly to the coexistence and competition of concurrent legal
systems that we owe the development of the concept and practice of
the supremacy of law. No political power was absolute. Each
checked the other. And law was needed to maintain the balance. In
the canon law of the church, popes were said to be legally bound by
their own laws; in the royal law of various kingdoms, kings were
said to be legally bound by their own laws; in feudal law there was
reciprocity of rights and duties between lord and vassal. Although
there were usually no effective legal means, within a given polity, of
enforcing laws against the will of the ruler, the fact that other com-
peting jurisdictions held them accountable under their own laws
often had practical as well as theoretical consequences.
The rise of legal systems in the West was a response not only to
political factors but also to more complex factors of a philosophical
and religious character. The spiritual authority, the church, had the
avowed goal of achieving, through law, the highest standards of jus-
tice, not only for itself but also for the various secular authorities.
The church conceived it to be its mission, in a world in which there
was one spiritual authority and multiple secular authorities, to re-
form secular law, to make it more just, more humane, more in con-
10. The founding of some thousands of chartered cities in the eleventh, twelfth, and
thirteenth centuries and the development of urban law as a special type of legal system are
described in Chapter 12 of H. BERMAN, LAW AND REVOLUTION: THE FORMATION OF THE
WESTERN LEGAL TRADITION (1983).

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formity with God's will. This was the deeper goal

Revolution: to reform not only the church but al
realm.
But how was this to be achieved? Germanic society in 1075

was dominated by primitive legal institutions. It was a predomi-
nantly tribal society, with very weak central authorities. Law was
almost wholly embedded in the social, economic, political, and reli-
gious life of the society. Blood feud was a normal means of resolu-
tion and disputes. Tariffs of composition-wergeld and other sums
fixed for loss of a life or a limb or an eye, or for a rape or other act
of violence-served as devices to help in the peaceful settlement of
conflict. Official procedures for determining guilt included ordeals
of fire and water, trial by combat, and similar "mechanical-magical"
modes of proof, as they were later called. There were in the year
1075 few professional jurists in the church and virtually none in the
secular sphere. Europe was largely a warring tribal culture only be-
ginning to achieve a more rational, more highly developed legal or-
der. How were the apocalyptic goals of the Papal Revolution to be
realized in what had come to be viewed as an essentially primitive
society?
The answer that was given was: gradually, over generations and
centuries.
This was an extraordinary answer. It introduced a new time-

sense into human history. It presupposed that each generation
would consciously build on the work of its predecessors to achieve
progress toward the redemption of the secular order. There was an
implicit idea of growth, or evolution. And in fact this took place. In
scholarship, pupils built on the work of their masters, generation by
generation. Gratian's concepts were elaborated and developed fur-
ther by his pupil Huguccio. The glossators were followed by the
post-glossators. Bracton built on Glanvill. And so it went on, from
century to century. But this was true not only in legal scholarship.
In lawmaking it was the same. The decretals of Pope Alexander III
in the mid-twelfth century were a source of the legislation of the
Fourth Lateran Council in 1215, which in turn was incorporated in
more comprehensive legislation under Pope Gregory IX in 1234.
King Henry II founded the English system of judicial writs with the
assize of novel disseisin and other possessory remedies in the twelfth
century, and in the thirteenth, under Henry III, there developed out
of these the action of trespass, "that fertile mother of actions," as
Maitland called it. Trespass on the case developed out of the vari-

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ous forms of trespass, and eventually it threw off its ow

Thus a legal tradition was established; it came to be belie
that law has its own autonomous character, disembedded
social, economic, political, and religious institutions an
and second, that law grows, that it has an ongoing chara
is built over centuries, like a great cathedral. Indeed, the
manesque and Gothic cathedrals that were started in the t
thirteenth centuries were planned to be built over gener
sometimes had budgets projected for a thousand years.
In speaking of the Western legal tradition, and of its
mation- its crisis-in the twentieth century, one must
this extraordinary time-sense; that is, from the belief in
tion of an integrated body of law over generations an
and, coupled with it, the belief in the gradual reform
world through the ongoing process of legal development
liefs are to be understood as religious in character, not o
they were associated, in the first instance, with the role o
and the dualism of ecclesiastical and secular authorities, but also
because they were derived from a more fundamental belief in God
as a God of judgment and of justice and of law. That more funda-
mental belief, in turn, was associated with the belief in the ultimate
realization of God's reign on earth. In other words, the Western
legal tradition originated in the belief that human law could eventu-
ally manifest divine law. The first German lawbook, the SACHSEN-
SPIEGEL, written in 1220, states this succinctly: "God is himself law;
and therefore law is dear to him."'l
But here we confront a startling paradox: the Western tradition

of evolution was derived from a violent revolution, an atomic explo-
sion, which split Western Christendom into competing ecclesiastical
and secular authorities; and further, it was later interrupted periodi-
cally by new revolutions of comparable magnitude-the Protestant
Reformation in Germany in the sixteenth century, the English
Revolution of 1640 to 1689, the American and French Revolutions
of 1776 and 1789, respectively, and the Russian Revolution of Octo-
ber 1917. These five great revolutions were not only national revo-
lutions; they were also transnational, Western, in their preparation
and in their repercussions. They occurred, I believe, in part because
of loss of confidence in law, and, more particularly, in legal evolu-
11. K. A. Eckhardt, ed., SACHSENSPIEGEL V: LANDRECHT IN HOCHDEUTSCHER OBER-

TRAGUNG, prolog (1967).

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tion as a process of realization of the apocalyptic go

been proclaimed for the West in the Papal Revolution
Each of these national revolutions was directed par
the Roman Catholic Church (or in the case of the Rus
tion, against the Russian Orthodox Church). Each sou
to destroy the existing legal order, with all its abuses an
But each had to reconcile itself, ultimately, to the su
older legal tradition-each finally compromised with
cepted it. Yet each also transformed the Western leg
Each brought about a further secularization of the law.
duced a new relationship between "church" and "state,"
tween the spiritual and the secular realm.
II.
In contrast to the Papal Revolution, the main outl

Protestant Reformation in Germany are generally famil
cated persons. It is well known that in 1517 the monk
ther, a professor of philosophy at the University of
nailed 95 theses to the door of his prince's church, deno
papal claim to be able to remit punishments in purgator
ther was excommunicated by the pope and condemned
peror, but protected by his prince; and that, in the
controversy over Luther's theology, civil war broke out
man Empire and eventually Protestant principalities w
and Lutheran teachings spread not only to most parts o
but to other parts of Europe as well.
Yet little has been written on the relationship of Prot
especially in its Lutheran form, to the development of
tions in the West. The fact that fundamental changes
duced into European legal systems in the sixteenth
people whose beliefs, both religious and political, were s
fluenced by Lutheranism is usually mentioned in the
literature only in passing, if at all.12 Indeed, the impre
12. A characteristic example is JOHN H. LANGBEIN, PROSECUTING CRIM

AISSANCE: ENGLAND, GERMANY, FRANCE (1974), where sixteenth-centu
developments are treated as part of "the Renaissance," with no reference at
mation. "Renaissance" was a term invented a little over a hundred years
and Burckhardt to characterize fifteenth- and sixteenth-century Europe.
"Renaissance" makes it easier to dissociate legal changes not only from th
of the Reformation but also from its political aspects. JOHN P. DAWSON, T
THE LAW (1968), dlso analyzes sixteenth-century German legal developme
tioning Lutheranism or the Reformation. Dawson does note tha

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that any connection between law and religion that may h

in the "Middle Ages" quickly evaporated in "Modem
To a certain extent Luther is himself responsible for
conception, since his doctrine of the Two Kingdom
Realms; in German, Reiche)-the earthly realm of poli
and the heavenly realm of grace and faith-is sufficien
to mislead even some serious students of Lutheran tho
doctrine is closely related to other basic Lutheran doctri
cation by faith alone, the fallen nature of man, the pries
believers, the church as an invisible community of the f
primacy of the Bible, and the Christian calling. Lutheran
dence is based upon a theology that removes law entirely
"heavenly" realm, and hence from the ecclesiastical sphe
however, ground law firmly in the will of God, for t
realm, according to Luther, is also ordained by God, a
it, although he is not "revealed" there (as he is in th
realm), but "hidden."'4
The Lutheran Reformation, and the revolution of the
principalities that embodied it, broke the Roman Cath
of ecclesiastical and secular law by delegalizing the chu
proclaimed the abolition of the ecclesiastical jurisdicti
he publicly burned the canon law books. This was in
sponse to serious abuses by the papal hierarchy, and to th
was the culmination of the hitherto unsuccessful movement for ref-
ormation within the church that had begun more than a century
Schwarzenberg, the chief author of the great sixteenth-century German code of criminal
law, the Constitutio Criminalis Carolina, was "inspired by piety and idealism" (p. 197). In
fact, Schwarzenberg was a convert to Lutheranism and wrote pamphlets defending it. He
also knew Luther personally.
13. Luther considered his doctrine of the distinction between the earthly and the heav-
enly kingdoms-one of law, the other of Gospel-to be revolutionary. "Of this difference
between the law and the Gospel," he wrote, "there is nothing to be found in the books of the
ancient fathers. Augustine did somewhat understand this difference and showed it. Jerome
and others knew it not .. ." LUTHER, A COMMENTARY ON ST. PAUL'S EPISTLE TO THE
GALATIANS, translated in John Dillenberger, MARTIN LUTHER: SELECTIONS FROM HIS
WRITINGS 144-145 (1961), See generally Karl Hertz, ed., Two Kingdoms and One World
(1976). Thomas Shaffer, in an otherwise excellent essay, identifies Luther's heavenly king-
dom with love. Shaffer, The Legal Ethics of the Two Kingdoms, 17 VAL. U.L. REV.3 (1983).
This would lead Luther to an antinomian position similar to the one which he in fact de-
nounced in the Anabaptists and other radical reformers. Luther treated love, like other
works of the law, as an active virtue of a person, whereas he viewed faith as a passive virtue,
being received as a gift of grace from God.
14. Cf. F. EDWARD CRANZ, AN ESSAY ON THE DEVELOPMENT OF LUTHER'S THOUGHT
ON JUSTICE, LAW AND SOCIETY 102-103 (1959).

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before.'5 But the great revolutions have all been b

thing more than revulsion against abuses and the fr
comes from unsuccessful efforts to remove them.
required a theory that explains the abuses as a necessa
the prevailing social system, together with a vision of
system in which such abuses cannot occur. Moreover,
been one not only of a new society but of a trans
human nature itself.
For over four centuries the Church of Rome had taught that
man, by use of his reason and his will, can live a good life, and that
by combining good deeds with faith, he can achieve salvation, thus
mitigating punishment for his sins in this world and the next.
Closely connected with this teaching was the belief in the jurisdic-
tion-the lawmaking power-of the organized church and its priest-
hood, over the moral life of Christendom. This was the "spiritual
sword" which was to balance and control the "temporal sword" of
the secular authorities and thus to create conditions in which salva-
tion would be possible.16 Luther's theory and vision substituted the
Two Kingdoms doctrine for the older Two Swords doctrine as it had
developed since the late eleventh century. He withdrew from the
church its character as a sword-wielding entity-a visible, corporate,
hierarchical, political and legal community. Instead, the church was
to be a purely spiritual community, part of the heavenly realm of
peace, joy, grace, salvation, glory. Luther's parallel doctrine of jus-
tification by faith denied that a person could work his way, so to
speak, into the heavenly kingdom. According to Luther, nothing
that a person does can "save" him, that is, can make him acceptable
15. If the Protestant Reformation were to be viewed simply as a protest against abuses
within the church, coupled with proposals for drastic reform, one could trace it back to the
Reformatio of Emperor Sigismund of 1415 and the Conciliar movement. The entire
fifteenth century was a time of bitter complaints and of proposals for radical change. See
Gerald Strauss, ed., MANIFESTATIONS OF DISCONTENT IN GERMANY ON THE EVE OF THE
REFORMATION (1971).
16. The phrase "two swords" is derived from a letter of Pope Gelasius I to Emperor
Anastasius at the end of the fifth century, in which the pope attributed to the imperial office
the sphere of public order and lawmaking and to the priestly office the administration of the
sacred mysteries. The Papal Revolution changed the meaning of the phrase, applying it to
the secular ("temporal") and the ecclesiastical ("spiritual") jurisdictions-the latter now be-
ing concerned not only with the sacraments but also with a large number of political, eco-
nomic, social, doctrinal, and moral matters. This opened the way for Pope Boniface VIII to
declare in 1302 that not only the spiritual sword but also the secular sword is in the power of
the pope. More characteristic, however, was the recognition that the ecclesiastical authority
and the secular authority had different, albeit overlapping, jurisdictions and that each ought
to cooperate with the other.

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to God. Man's fallen nature, his depravity, his essential selfis

penetrates everything he does-indeed everything he thin
everything he wants. Therefore salvation is only by grace, w
only bestowed on those who have faith. For this, no mediatio
priesthood is needed: every believer is a "private person" in h
lationship with God. The church is the invisible commun
faithful Christians, each a priest serving his fellows, coming
to respond to the Bible as the Word of God.
But what about the earthly kingdom? Superficially under
Luther's doctrine seems to take an entirely negative view of
a realm of sin and death, and there is no way out of it by exe
will or reason. Politics and law are not a path to grace and
But are not grace and faith a path to the right politics and th
law?
Here Luther was torn between his belief in man's essential
wickedness and his belief that that wickedness itself, and the earthly
realm which embodies it, are ordained by God. This dilemma is
resolved, theoretically, in Lutheran teaching, by the doctrine of "the
uses of the law." The moral law as well as the law of civil societ
are ordained, first, in order to make people conscious of their obli-
gations and hence repentant of their sins (the "theological use" o
the law), and second, in order to deter recalcitrant people from mis
conduct by threat of penalties (the "civil use" of the law). Som
Lutherans, at least, and most Calvinists, also accepted a third use of
the law, called its "didactic" or "pedagogical" use, namely, to guid
faithful people in the paths of virtuous living.17
Even more important, however, than the doctrine of the uses of
the law in explaining Luther's view of the earthly realm was hi
assumption that its ruler would himself be a Christian and woul
treat his princely responsibilities as a Christian calling. As the
Christian prince, according to Luther, is a private person in his rela-
tion with God, "a person for himself alone," so he is a social person
a "person for the sake of others," in his calling as a prince. As such
he should be inspired to serve his people. He should seek to govern
in a decent and godly way. He should strive to promote the well
being of his subjects.18 The Lutheran prince was essentially differ-
17. On "the uses of the law" in Lutheranism, see Cranz, supra note 14, pp. 99-111. A
useful comparison of Lutheran and Calvinist positions may be found in EDWARD LONG,
SURVEY OF CHRISTIAN ETHICS 82 ff. (1967).
18. Luther taught that the prince "must really devote himself' to his subjects and must
"protect and maintain them in peace and plenty." He must foster true religion among them

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ent from the prince of Niccol6 Machiavelli, Luther's con

Machiavelli also believed in the secular state, removed fr
vine law, but Machiavelli's prince was to act solely from
tions of power politics, whereas Luther's prince was to s
do justice. In this respect, secular politics and law in
principalities continued the older Roman Catholic tradit
from a different theological and philosophical persp
older tradition taught that law is based ultimately on re
man's natural inclination toward justice, and that human
valid, must ultimately reflect natural law and divine law
ism taught, on the contrary, that man's reason and m
essentially corrupt, and that human law cannot help but
this corruption. Nevertheless, Lutheranism also taug
Christian lawmaker can and should do his utmost to use his reason
and his will to serve God. Lutheranism also taught that it was the
task of the Christian pastor to preach the Gospel to the prince in
order to inspire him to fulfill his calling. Indeed, Luther expanded
the concept of "calling," which previously had been applied solely
to the clergy, to include the mission of every person to perform his
social role in a manner pleasing to God.
Thus the connection between law and religion was preserved by
the Lutheran doctrine of the Two Kingdoms, coupled with the con-
cept of the Christian calling. Politics and law were not paths to
grace and faith, but grace and faith remained paths to right politics
and right law. The Christian was supposed to be law-abiding, and
the law of a Christian prince was supposed to achieve both order
and justice. Law was supposed to induce people to avoid evil, to
cooperate, to serve the community. The Christian was not to think
that by doing good he could earn credits in heaven; nevertheless, he
was to use his will and reason-with full consciousness of their de-
fective nature-to do as much good as possible.
And so, ultimately, Luther took a positive view of secular law
More important, the Protestant Reformation which he inaugurat
made substantial contributions to the development of law in G
although he must not exceed his authority, and in particular he must never "comma
compel anyone by force to believe this or that," since such a "secret, spiritual, hidden m
ter" is beyond his competence. His main duties are to "bring about external peac
"prevent evil deeds," and to ensure that "external things" are "ordered and governe
earth" in a decent and godly way. These quotations from Luther's tract of 1523, The Sec
Authority. To What Extent It Should Be Obeyed, are brought together in QUENTIN
NER, THE FOUNDATIONS OF MODERN POLITICAL THOUGHT, VOL. II: THE AGE OF REFOR-
MATION 16 (1978).

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many and elsewhere. In the words of the great Germa

historian Rudolph Sohm, "Luther's Reformation was a
only of faith but also of the world: both the world of s
and the world of law."'9
The following are a few of the major changes in German law

that have their roots in the Lutheran Reformation:
1. The prince became head of the church in his principality.

Not only did his choice of religion, Roman Catholic or Protestant,
determine the established religion, under the principle cuius regio
eius religio, but the Protestant prince exercised legislative, adminis-
trative, and judicial powers over the temporal affairs of the church
in his territory.
2. Now lacking a Roman Catholic clergy trained to adminis-
ter the affairs of state, the Protestant prince developed a secular civil
service (Obrigkeit) to constitute his advisors and administrators.
This was the beginning of the famous German civil service tradi-
tion. It is important to note that in Germany civil servants could go
from one prince to another, as professors could go from the univer-
sity of one principality to that of another. This distinguished Ger-
many from France and England in the period of what is usually
called "absolute monarchy."
3. The vast jurisdiction that had previously been exercised by
ecclesiastical authorities under the pope was transferred to secular
authorities under the Protestant prince. This meant the seculariza-
tion of the canon law of marriage and divorce, wills, crimes, charita-
ble foundations, property, contract, and many other matters of civil
and criminal law. Heresy and blasphemy were made crimes under
secular law. Luther also supported the adoption and strict enforce-
ment of laws on vagrancy, begging, respectability, sumptuousness of
dress, and the like. The Reformation also meant the secularization
of education: public schools and libraries were instituted to replace
cathedral schools and universities were placed under the civil au-
thority. Indeed, the Obrigkeit had the moral duty to provide for
compulsory education. In addition, poor relief, protection of wid-
ows and orphans, medical care, and other forms of welfare, which
had previously been in large part the responsibility of monastic and
other ecclesiastical charitable foundations, were now left to secular
authorities.
4. The Reformation laid the foundation for the modem the-
19. RUDOLPH SOHM, WELTLICHES UND GEISTLICHES RECHT 69 (1914).

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ory of legal positivism. Luther did not adopt this theory

form. He acknowledged the independent existence of mo
natural law, which he identified sometimes as that which
to the conscience and sometimes as that which is reflected in the
Mosaic law. (In contrast to Wyclif, Hus, and their followers, Luther
considered that not the letter but only the spirit of Old Testament
law was binding on Christians.) He also left some room, though not
much, for civil disobedience when the ruler commands his subjects
to act in evil or ungodly ways.20 Nevertheless, he attacked the belief
that man can truly understand the will of God by his reason or truly
reflect it in his law, and he attacked the concept of God as a God of
reason and of law. Thus the moral law, or natural law, was associ-
ated with the earthly rather than the heavenly realm. These theo-
logical positions gave support to the positivist view that the source
of all law is in the will of the ruler. In addition, Luther attributed to
the prince the calling of "father of his country" (Landesvater).2'
The prince was to teach everyone how to be a good manager of his
household and his property, as well as an upright person. He was to
support religion, though he was not to interfere in theological mat-
ters. Above all, he was to be the source of civil law.
The tendency to identify law with the will of the ruler led, in
turn, to an emphasis on its coercive character. In the first place,
since law was no longer a given, an integral part of the objective
reality of God himself, the question now had to be raised, What is
the use of the law-that is, not only its use in the divine plan of
salvation but also its use to the ruler and to the ruled. Its "civil use,"
namely, to deter recalcitrant people from misconduct by threat of
penalties, was related to Luther's doctrine of the depravity of man.
Shocked by the rebellion of the peasants in 1524, Luther wrote that
"stem, hard civil rule is necessary in the world, lest the world be-
come wild, peace vanish, and commerce and common interest be
destroyed .... The civil sword shall and must be red and
bloody."22 This esentially utilitarian view of punishment, which is
congenial to a positivist jurisprudence, is in sharp contrast to the
20. On the one hand the subject must disobey any command to act in an evil or ungodly
way, since that is a perversion of the authority God has granted to princes; on the other
hand, the ruler must never be actively resisted-tyranny is not to be resisted but endured.
Luther's views on this subject changed somewhat as the fortunes of the Reformation ebbed
and flowed. See Skinner, supra note 18, at p. 17. Mainly he insisted on absolute obedience.
21. See, H. BOEHMER, LUTHER IM LICHTE DER NEUEREN FORSCHUNG 160 (3d ed.,
1914). Calvin used the same language.
22. VON KAUFSHANDLUNG UND WUCHER, in LUTHER, WERKE, vol. XV, p. 302.

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earlier Roman Catholic retributive view ("a price must b

the violation of the law"), which stresses proportionality o
ment to blameworthiness and is congenial to a natural-law
In addition, Luther emphasized the importance of re
precise legal rules, in contrast to broad legal standards or l
tutions and processes, as the essential form which law t
tenet of legal positivism was also related to the doctrine of
edness of man as well as to the utility of coercive sanct
deterrent. In wicked times, Luther wrote, written laws are
because of the excessive generality of natural law.24 Pre
not only deter ordinary lawbreakers but also restrain offi
cluding judges, from their natural inclination to wield the
arbitrarily.
Thus Lutheran jurisprudence was an important sourc
modem legal positivist's definition of law as the will of
expressed in rules and enforced by coercive sanctions. In co
nineteenth-century legal positivism, however, Lutheran
dence postulated that the state, its will, its rules and its san
ordained by God and have a "theological use," namely,
people conscious of their moral obligations and repentan
failure to fulfill them.
5. The Lutheran Reformation contributed in important ways

to an emphasis on codification of law. This was not the first age of
written law in Germany: apart from the texts and collections of ca-
non law that had been applicable in German ecclesiastical courts (as
in the ecclesiastical courts in all countries of Western Christendom),
there had been, from the twelfth century on, important imperial and
ducal legislation as well as comprehensive collections of laws
adopted in the various free cities of the German Empire.25 More-
23. The conception of retributive justice that is presented in much of the American
literature mistakes retribution for private vengeance. The gist of the traditional retributive
theory as it has developed in the West since the late eleventh century is that society requires
a penalty-a "tribute"-as satisfaction for the breach of the law. One might call private
vengeance "special retribution" and public satisfaction "general retribution." The Western
theory of general retribution is traced to St. Anselm's doctrine of the atonement in Berman,
The Theological Sources of the Western Legal Tradition, 46 PUERTO RICO L. REV. 371
(1977).
24. See Cranz, supra note 14, at 109.
25. The level of development of German law from the twelfth through the fourteenth
centuries has been underestimated by many historians because of their concentration on the
weakness of the German imperial authority and their consequent neglect of the strength (a)
of the princely authority in the various territories (Bavaria, Saxony, Austria, and others) and
(b) of the independent cities. The territorial princes headed sophisticated governmental bu-
reaucracies and established sophisticated legal procedures comparable to those of the kings

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over, the Sachsenspiegel and other similar works had

tailed restatement of customary law that was more or
to all the German territories. However, none of these
lections, or texts attempted to embrace totally and to
ular branch of law. The first such attempts-anywh
were made in some of the German cities and territories in the last
few years of the fifteenth and first years of the sixteenth century, in
the field of criminal law. Eventually, in 1532, Emperor Charles V
promulgated a comprehensive criminal code for the Empire as a
whole, the Constitutio Criminalis Carolina.
The Carolina (as the code is usually called) is universally recog-
nized to be one of the great achievements of the Western legal mind
and of Western legal policy. It would not be appropriate to attempt
here to describe it at length.26 What is needed is to indicate its rela-
tionship to the Protestant Reformation, especially since the existing
scholarly literature has either denied such a relationship or totally
ignored it or else has only mentioned in passing such facts as that
the chief author of the Carolina was a prominent Lutheran and that
the code reflected the spirit of the times.
It would be foolish to suggest that the Protestant Reformation
"produced" the Carolina or "caused" it to be written or adopted, if
only for the reason that the Carolina was based on a territorial code
that had been promulgated ten years before Luther nailed his theses
to the Wittenberg church door, and if only because it was adopted
for the Empire by Charles V, who was an ardent Roman Catholic
and violent opponent of Luther and the Protestant Reformation.
Nevertheless, many of the characteristics of the Carolina, including
the concept of codification which it embodies, are especially conge-
nial to Lutheranism. It would be surprising if it were otherwise,
since the Carolina remained one of the basic monuments of German
law for two centuries, during which time Lutheranism remained a
predominant feature of the belief-system of the German people.
Without reference to causal relationship, one may say that Luther-
anism supported the system of law embodied in the Carolina; that
the two share certain fundamental presuppositions; that one
manifests the legal side and the other the religious side of the same
coin, the same culture; that given one, something like the other
of France and England, the Count of Flanders, and other monarchs of the time. Also Ger-
man city law was very highly developed. See Berman, supra note 10, Chapters 12 and 14.
26. Most of the Carolina is translated by Langbein, supra note 12, at 261-308. It is
analyzed by him at 129-209 and is discussed by Dawson, supra note 12, at 197 ff., 212 ff.

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would be expected; that in the absence of one, the other

had much more difficulty in finding and maintaining ac
that with the decline of one, the other could be expected also to
decline.
What are some of their common presuppositions? First, both
are addressed to the same audience-literate Germans. This is ap-
parent in their language and style. The Carolina was written in
clear, simple, vivid German, to be understood by the lay judges and
lesser legal officials, untrained in law, who participated in German
criminal proceedings, just as Luther's tracts and essays were written
in clear, simple, vivid German, to be understood by all believers
who could read them. (One may even compare the Carolina's use of
figures and woodcuts with Luther's use of hymns.)
Second, they are both intended to be comprehensive, system-
atic, integrated, complete; they proceed from interlocking basic
principles and show their application to typical concrete situations.
The Carolina was among the first such systematic codifications of
criminal law and criminal procedure ever written. In this sense it
was professors' law, just as Lutheranism was professors' theology,
an attempt to embrace and unify the entire Christian belief-system.
Third, the paradox of a systematic legal codification under-
standable to all literate subjects, like the paradox of a systematic
theology understandable to all literate believers, was resolved by as-
signing a special role to university professors. The Carolina pro-
vided that especially difficult cases were to be sent to university law
faculties for resolution; the university law professors then studied
and collectively decided the case. (This practice was followed in
non-criminal cases as well. The professors were well paid for their
efforts, and their decisions were final.)27 Similarly, theological ques-
tions that troubled princes and pastors were resolved by university
professors of theology. These practices reflected a profound trust
not only in learning but also in the university, which in a sense re-
placed the papal curia.
Finally, both Lutheranism and the Carolina share a revulsion
against cruelty and arbitrariness; both place a high value on hu-
maneness and consistency. Yet both accept a certain amount of cru-
27. The dispatch of the record of the case to the university law faculty was called
Aktenversendung. The history and implications of this remarkable institution, which lasted
in Germany until 1879, are explored in Dawson, supra note 12, at 198-213, 240-241. See
also EUGEN ROSENSTOCK-HUESSY, OUT OF REVOLUTION: THE AUTOBIOGRAPHY OF WEST-
ERN MAN 402-403 (1938).

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elty as inevitable-neither is willing to proclaim

abolition. I have quoted Luther's dictum, "The civi
and must be red and bloody." Many other violent stat
found in his voluminous writings. He saw himself
in fact-a revolutionary, fighting enemies by the
means. Yet though his ultimate aim was the triumph
despair, the faith for which he fought was one throu
was to triumph over hatred, virtue over sin, reason o
ity. Similarly, the chief author of the Carolina, the g
Schwarzenberg, was in Professor Dawson's words,
piety and idealism."28 His main purpose was to put
cruelty and arbitrariness that had infected German cr
procedure in the fifteenth century, with the introdu
secular courts of the canonical system of torture to s
sions. However, the Carolina did not entirely abolis
stead it effectively limited its use to the most serio
which the death penalty was applicable, and even then
only be applied if there was convincing evidence of g
confession.
By prohibiting torture (a) in all non-capital cas

those capital cases where there was not convincing evi
the Carolina showed that the procedure that had b
from the church courts into the secular courts, in whi
cials investigated the case in its preliminary stages, p
cusation, then interrogated the accused and the w
rendered a verdict-the so-called inquisitorial proce
humane and rational; that theoretically, at least, it co
out torture. What needs to be explained is why tortur
capital crimes when it would have been just as "logi
with the requirement of a confession in those case
non-capital crimes, since guilt in any event had to
other means.29 It may be that there were certain qua
28. Dawson, supra note 12.

29. J. LANGBEIN, TORTURE AND THE LAW OF PROOF: EUROPE AND ENGLAND IN THE
ANCIEN REGIME (1977), takes the view that "The Roman-canon system . . . was simply
unworkable without torture." (p. 11). (What he calls "the Roman-canon system" was the
system of investigation and interrogation developed in the church courts in the twelfth and
thirteenth centuries, which was assimilated by various royal, ducal and urban courts in vari-
ous countries of Europe, especially in the fourteenth to sixteenth centuries. There was noth-
ing particularly "Roman" about it.) Langbein's argument is that torture was needed to
extract confessions from recalcitrant defendants, and that confessions were needed because
of distrust of circumstantial evidence once the ordeals had been abolished. (The rule was:
confession or two eye-witnesses; if there were two eye-witnesses, there was no need for con-

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ing a guilty person to his death unconfessed and thus participating

in his consignment to eternal damnation. Alternatively, there may
have been lingering doubts concerning the guilt of a person who had
only to confess and repent in order to avoid such damnation.
III.
Christians should bear oppression with patience, wrote the

young French reformer John Calvin in 1536, but when the prince
becomes too tyrannical then the lower magistrates, as leaders and
protectors of the community, are commanded by God "to withstand
the fierce licentiousness of kings."30
Calvin's theory of the divine right and duty of constitutional
resistance to tyranny by representative leaders of the community
was known in the sixteenth and seventeenth centuries to educated
people in Europe.31 So was his theory that the best form of govern-
fession and no ground for torture.) If, however, one were to start by questioning the neces-
sity of a confession, rather than by questioning the necessity for torture, one would see
immediately that a confession under the Carolina was not required in non-capital cases.
The system worked quite well without a confession, and hence without torture, when the
crime was one for which mutilation or exoculation or a monetary fine was the established
penalty. (Imprisonment as punishment was not widely used until much later.) The ques-
tion, then, is, What was there about capital crimes that made even the most convincing
circumstantial evidence an insufficient basis for a finding of guilt?
Langbein's formulation of the question leads him to the conclusion that the abolition of
torture in the eighteenth century must have followed, rather than preceded, the transforma-
tion of the "Roman-canon" system of proof (since by hypothesis, that system was "unwork-
able" without torture). Mirjan Damaska has challenged this conclusion in The Death of
Legal Torture, 87 Yale L.J. 860 (a review of Langein's book).
30. JOHN CALVIN, INSTITUTES OF THE CHRISTIAN RELIGION, ed. J. T. McNeill bk. 4,
ch. 20, para. 31 at 1518-1519 (F. L. Battles, transl., 1960). In a footnote on page 1519, the
editor quotes another passage in which Calvin stated that "when [earthly princes] rise up
against God . . . [we] ought rather to spit on their heads than obey them." As far as Calvin
himself is concerned, these passages must be read with great caution, since in general he
followed Luther in arguing that Christians must endure tyranny patiently and must respect
even the most cruel monarch as a power appointed by God. What was new in Calvin's
doctrine was the bestowing of the extraordinary right of resistance upon "magistrates," that
is, leading representatives of the community, as contrasted with citizens acting in their pri-
vate capacity. In subsequent generations Calvin's followers throughout Europe, including
England, developed his doctrine of resistance to tyranny far beyond its original meaning.
Among the books that influenced the English Puritans in this regard were the French Hu-
guenot Francis Hotman's FRANCO-GALLIA (1573), which demanded a meeting of the estates
of France to counter royal absolutism; VINDICIAE CONTRA TYRANNOS (1579), written under
the pen-name "Junius Brutus," probably by Hubert Languet and Philip du Plessis-Momay;
and the Scot Reformer George Buchanan's DE JURE REGNI APUD SCOTOS (1579), which
argues that there is a mutual pact between the king and his subjects entitling the latter to
take up arms against a ruler who breaks the terms of the contract under which he holds his
authority.
31. "Calvin's Institutes, containing this theory of constitutional resistance through rep-
resentative magistrates, remained for centuries a standard book among Protestants. Proba-

152.32.99.247 on Fri, 24 Nov 2023 03:37:41 +00:00
ment was, as he put it, either "artistocracy or a system

of aristocracy and democracy," such as "the Lord
among the people of Israel." The theological basis of this
tempered aristocracy was the doctrine of the sinfulness
fundamental selfishness and lust for power; it is "safer,
"for a number to exercise government, so that . . . i
himself unfairly, there may be a number of censors an
restrain his willfulness."32
In the 1640s, the English Puritans, inheritors of these
Calvinist doctrines, fought against the Stuart monarchy
Parliamentary supremacy and civil rights, and for "the
of the world" by law. They were joined by a substantial
of the non-Puritan Anglicans, many of whom had been
fluenced by Calvinism or by other branches of Protes
Protestant theology had made important inroads into th
Church itself. Calvin and his followers shared many
theological positions. They accepted, though with som
tions, the doctrine of the Two Kingdoms, justificat
alone, the fallen nature of man, the priesthood of all be
primacy of the Bible, and the Christian calling. Howeve
a different conception of the church and of its relation
state. They saw the church, as Luther did, primarily in
local community of the faithful, but, unlike Luther, they
to that local community the concept of a visible, corpora
legal body. The local church was to have its elected m
elders, who were to govern it by law. It was to have
dependent polity, balanced against that of the civil au
deed, where possible it was to be dominant over the civ
bly no other theological work was so widely read and so influential from th
the American Revolution. At least seventy-four editions in nine languages,
abridgements, appeared before the Puritan exodus to America, an averag
annually for three generations. Huguenots, Scots, Dutchmen, Walloon
other Germans, and an overwhelming majority of the American colonists o
century were bred on its strong political theories as well as on the strong m
ogy. In England the Instituteswas considered 'the best and perfectest system
both Anglican and Puritan, until Laud's supremacy [in the 1630s]. In 157
Catechism) it was required of Oxford undergraduates. Curious witness t
men was borne by Laud in 1636. Admitting that the Institutes 'may prof
one of their first books of divinity,' Laud secretly endeavored to dissuade N
dents from reading it 'so soon.' 'I am afraid it . . . doth too much pos
ment . . . and makes many of them humorous in, if not against the chur
FOSTER, COLLECTED PAPERS 78 (privately printed, 1929). Foster also notes
of the Institutes were published in America between 1763 and 1863. Id., a
32. Calvin, supra note 30, at bk. 4, ch. 20, paras. 8, 31.

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26 JOURNAL OF LAW & RELIGION [Vol. I
As the seat of truth, the church-"the fellowship of ac

ers"-was to regulate not only the worship but also th
the civil society; and its morals included many aspects of
ical, economic, and social life. This was, in effect, a new Two
Swords doctrine, added to the Two Kingdoms doctrine.
Calvinism also differed from Lutheranism in its emphasis on
the "third use of the law," its didactic or pedagogical function to
guide faithful persons in the paths of virtuous living. As Calvin
wrote:
The third and principal use, which pertains more closely to the
proper purpose of the law, finds its place among believers in
whose hearts the Spirit of God already lives and reigns. For even
though they have the law written and engraved upon their hearts
by the finger of God [Jer. 31:33; Heb. 10:16], that is, have been so
moved and quickened through the directing of the Spirit that
they long to obey God, they still profit by the law in the two
ways.
Here is the best instrument for them to learn more thor-
oughly each day the nature of the Lord's will to which they as-
pire, and to confirm them in the understanding of it. It is as if
some servant, already prepared with all earnestness of heart to
commend himself to his master, must search out and observe his
master's ways more carefully in order to conform and accommo-
date himself to them. And not one of us may escape from this
necessity. For no man has heretofore attained to such wisdom as
to be unable, from the daily instruction of the law, to make fresh
progress toward a purer knowledge of the divine will.
Again, because we need not only teaching but also exhorta-
tion, the servant of God will also avail himself of this benefit of
the law: by frequent meditation upon it to be aroused to obedi-
ence, be strengthened in it, and be drawn back from the slippery
path of transgression. ... "33
Although Calvin was referring here primarily to the moral law,
his words were applicable also to the law of the state, insofar as it
conformed to moral law. Like Luther, Calvin identified the moral
law, and not only the civil law, with the earthly kingdom of sin and
death rather than the heavenly kingdom of grace and joy. It was
inspired by God; but it was discerned by man's defective reason and
was applied by man's defective will. Calvin did not share the older
Roman Catholic understanding of law as something given, part of
33. Id. at bk. 2, ch. 7, para. 12.

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the very nature and being of God. For Calvin, as fo

was something that had uses. More than Luther, however, Calvin
stressed the positive role both of the moral law (which he identified
with natural law) and of the civil law in teaching man to walk in the
paths that God has set for him.
Moreover, there was a strong social dimension in Calvin's ad-
monitions. The ultimate purpose of law was not only to help indi-
vidual Christians to be upright but also thereby to create an upright
Christian community. The congregation of the faithful was to be "a
light to all the nations of the world," "a city on a hill."34 Calvinism
was essentially a communitarian religion.
In 1640 the English Puritans, followers of Calvin, provided the
theory and the vision needed to fight a civil war, overthrow the
monarchy, and establish Parliamentary supremacy. Ultimately,
however, Puritanism foundered in England, since its essentially con-
gregational conception of government was wholly inadequate as a
system for ruling a whole nation. It led first to factionalism and
disintegration and eventually succumbed to Cromwellian dictator-
ship. Nevertheless, even though the Anglican Church and Stuart
dynasty were restored in 1660, there was no going back to pre-Puri-
tan times. When James II tried to do so in 1685-1688, Parliament,
in the so-called Glorious Revolution of 1688, put a new royal family
on the throne, one which it could control. Moreover, by that time
Anglicanism had come to accept some of the basic political and le-
gal doctrines of Puritanism, despite the great differences between the
two in liturgy, in ecclesiology, in many matters of theology, and,
above all, in temperament.
Turning, at last, to the connections between seventeenth-cen-
tury English religious thought and the long-range development of
English law, we are confronted at the outset by methodological
complexities that cannot be satisfactorily resolved within the con-
fines of a short article. Puritanism was undoubtedly the spark that
ignited the Civil War, which led eventually, after many upheavals,
to the supremacy of Parliament over the crown and of the courts of
common law over their rival courts. Yet this "but for" causal con-
34. In a sermon preached in 1630 on the deck of his flagship Arabella Governor John
Winthrop said to his fellow Puritans crossing the Atlantic Ocean, "We must consider that we
shall be as a City upon a Hill, the eyes of all people are upon us; so that if we shall deal
falsely with our god in this work we have undertaken and so cause him to withdraw his
present help from us, we shall be made a story and a by-word through this world." JOHN
WINTHROP, A MODEL OF CHRISTIAN CHARITY, WINTHROP PAPERS II, 295, (1931).

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nection between Puritanism and the subsequent developm

English constitution law leaves open the question whether the
a more intimate relationship between the two. The question i
plicated not only by the fact that Puritanism was ultimately
to govern England at all but also by the fact that Puritanism
all times divided within itself and that the various parts of i
changing over time. Thus although it started out to "withstan
fierce licentiousness of kings," its leader, Oliver Cromwell, h
became an absolute monarch in everything but name. Mor
Anglicanism, too, was divided on constitutional questions,
Anglican church leadership shifted from one position to a
during the course of the seventeenth century, until the final
ment that placed it, together with the Crown, under Parliam
supremacy.
When one turns from constitutional law to the actual content of
the English common law, that is, to criminal and civil law in their
procedural and substantive aspects, one is confronted, once again,
with the fact that there was great diversity of views both among Pu-
ritans and among Anglicans. The most basic of the multitude of law
reforms proposed by the Puritans after they came to power in the
1640s were advocated also by many non-Puritans and were even
acceptable, at least in theory, to some who supported the monarchy.
Eventually, the major changes introduced into the English common
law in the seventeenth and early eighteenth centuries had the sup-
port of both Puritans and Anglicans.
These complexities can be resolved here only by making some
very bold assumptions. I shall take Puritanism in the broadest
sense, as including basic beliefs, practices, and policies that were
shared by Presbyterians, Congregationalists, Baptists, Quakers, and
adherents of other Calvinist (or Neo-Calvinist) denominations in
England in the seventeenth century. I shall, in addition, assume that
if English Puritans in the seventeenth century saw a connection be-
tween their religious beliefs and certain legal principles, then such a
connection existed. Finally, insofar as Calvinist doctrines and con-
cepts were espoused by Anglicans, I shall assume that to that extent
Calvinism exerted influence on Anglicanism (rather than vice-versa)
or, to put it another way, Anglicanism made compromises with
Calvinism.
This last point is especially important, and especially contro-

versial, since many leading Anglicans, including opponents of Puri-
tanism, such as Richard Hooker, adopted certain Calvinist ideas.

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Hooker, in fact, had an enormous influence on English thought in

the seventeenth century just because he had been able to find a new
middle way between Roman Catholicism on the right and Calvin-
ism on the left.35
Also leading seventeenth-century secular writers, such as John

Locke, who were Anglican in faith, were nevertheless much influ-
enced by Calvinism. Locke derived from Calvinism his theories of
natural law, the social compact, and government by consent of the
governed. He also accepted the Calvinist Two Kingdoms doctrine,
which encouraged the transfer to civil government of many features
of ecclesiastical polity.36
To link Anglicanism with Calvinism is justified only by the
breadth of the inquiry that is being made here, namely, to explore
the connections between religious beliefs and the long-range devel-
opment of English law in the seventeeth century.
The following are a few samples of such connections:
1. Puritanism introduced into English history the conception
35. Hooker's concept of the Church of England anticipated a reconciliation of opposing

Roman Catholic and Calvinist (he never used the then pejorative term "Puritan") concepts.
His great work, The Laws ofEcclesiastical Polity, was eventually relied on in the seventeenth
and eighteenth centuries not only by Anglicans but also sometimes by Puritans and Roman
Catholics. See W. D. J. CARGILL THOMPSON, THE PHILOSOPHER OF THE 'POLITIC SOCIETY':
RICHARD HOOKER AS A POLITICAL THINKER, in W. Speed Hill, ed., STUDIES IN RICHARD
HOOKER 3, 29-32, 44-45, 53-64 (1972), EGIL GRISLIS, THE HERMENEUTICAL PROBLEM IN
HOOKER, in id., 159, 161, 173, 202-203; JOHN E. BOOTY, HOOKER AND ANGLICANISM, in id.,
207, 211, 220 ff.
36. "Locke's political views were little more than a distillation of concepts that had long
been current coin in Calvinist political theory.... W. S. HUDSON, RELIGION IN
AMERICA: AN HISTORICAL ACCOUNT OF THE DEVELOPMENT OF AMERICAN RELIGIOUS
LIFE 94 (3d ed., 1981). See HUDSON, JOHN LOCKE: HEIR OF PURITAN POLITICAL THE
RISTS, in G. L. Hunt, ed., CALVINISM AND THE POLITCAL ORDER 108-129 (1965), where it
pointed out that Locke followed the Calvinist "two kingdoms" doctrine, applying the te
"civil" to the earthly kingdom and the term "religious" to the heavenly. Almost every arg
ment later used by Locke in the late 1680s and 1690s had been used before, Hudson poin
out, by the Presbyterian Samuel Rutherford in LEX, REX (1644), including an appeal to the
law of nature, the ultimate sovereignty of the people, the origin of government in a contr
between the governor and the governed, and the right of resistance when that contract w
broken. See also Foster, supra note 31, at pp. 153-160, arguing that Locke was indebted
the influence of his Puritan father, his Puritan teachers at Westminster School and Oxford
French Huguenots during his four years' residence in France 1675-1679, and Dut
Calvinists during the period of his exile in 1683-1689. Foster traces Calvinist elements
Locke's writings, noting the importance of "careful discrimination as to time and phases o
Calvinism." (p. 160). Foster uses the term "Calvinism" in a broad sense, embracing man
different branches of Protestant thought that were strongly influenced by Calvin's writing
He sometimes refers to "liberal Calvinism" or to "international Calvinism" to indicate the
breadth of the concept.

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of radical law reform as a religious activity.37 "The s

whole creation," wrote a leading Puritan "was about th
tion of the world."38 "Reform all places, all persons an
said another, in a sermon preached before the House o
in 1641. 'Reform the benches of judgment, the infer
trates . . .," he continued. "Reform the universities, refo
ies, reform the counties, reform inferior schools of learn
the Sabbath, reform the ordinances, the worship of
plant which my heavenly father hath not planted sha
up."39 When the Puritans were in power during the 16
1650s, over ten thousand pamphlets were published urgi
forms of various kinds. In the 1660s, with the Restorati
the reforms enacted during what then was called "the In
were re-enacted, in order to give them a new legitimacy
the zeal for "the reformation of the world" by politic
action subsided in England, it continued for some deca
tan-led colonies of North America, and was revived fr
time thereafter, both in England and America.
The Puritan concept of reformation of the world w
connected with the emphasis on law as a means of reform
on order as an end of law. This was forcefully expressed
cial "Address" delivered in Massachusetts in 1658: "G
God of order and not of confusion hath commanded in his word
and put man into a capacity in some measure to observe and b
guided by good and wholesome laws."40 It was, of course, in Pur
tan New England more than anywhere else that the concept of ref-
ormation of the world was combined with the doctrine of the
"didactic" or "pedagogical" use of the law to impose heavy crimin
sanctions-indeed, the death penalty-for moral offenses, espec
those of a sexual or religious nature.41
2. Calvinist religious convictions served as a motivating fo
and as a support for certain lasting constitutional changes in
duced in England in the course of the English Revolution of 1
37. See MICHAEL WALZER, THE REVOLUTION OF THE SAINTS: A STUDY IN THE ORI-
GINS OF RADICAL POLITICS 12 (1965).
38. Quoted in ROSENSTOCK-HUESSY, OUT OF REVOLUTION: THE AUTOBIOGRAPHY OF
WESTERN MAN 291 (1938).
39. Quoted in Walzer, supra note 37, at 10-11.
40. The Address to the General Laws of New Plymouth (1658), 11 RECORDS OF THE
COLONY OF NEW PLYMOUTH LAWS, 1623-1682, 72-73 (Pulsifer, ed. 1861).
41. See The "Capitall Laws" of the Body of Liberties (1641) of Massachusetts Bay, THE
COLONIAL LAWS OF MASSACHUSETTS, 1660, 55 (Whitmore, ed. 1889).

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1689. The limitations placed on the monarchy in the C

1642-1649, the subjection of the monarchy to Parliament
riod after its restoration in 1660, and, finally, in 1688, t
abdication of the monarch and his replacement by a n
subject to the severe restrictions placed on it by the Bill o
1689-were all supported by, and in part based on, pass
Calvin, quoted earlier, concerning the God-given right an
"lower magistrates" to resist tyrannical kings and concern
periority of aristocracy over monarchy as a form of g
The sixteenth-century Lutheran conception of the p
bearer of the religious mission to be the supreme gove
earthly kingdom, which was also shared by Anglicanism
teenth century, gave way to the Calvinist conception
supreme duty of government is borne by the "magistrac
ultimately meant, in England, the landed gentry, especia
were represented in Parliament. Locke's theories of soc
and of government by consent of the governed, expou
Two TREATISES OF GOVERNMENT, published in 1689-90
cation of the Parliamentary system as established by t
Revolution, were based essentially on liberal Calvinist
Underlying Locke's theory was the Calvinist-or, more
Protestant-emphasis on man's inherent selfishness. It wa
required the reciprocal limitations on power-on the po
jects as well as on the power of rulers-that are implicit i
cept of a contract.
The Calvinist doctrine of original sin also supporte
of a written constitution, which in effect embodied the
tract and made it, by virtue of the writing, more difficu
In 1649, a written constitution called the "Agreement
ple," had been proposed but not adopted, and in 1653 a w
stitution, called the "Instrument of Government," had been
adopted-the first national written constitution in history. It was,
however, wholly ineffective against Cromwell's dictatorship. Such
experiments were not repeated after the Restoration. Nevertheless,
they bore fruit in the Bill of Rights of 1689 and in the acceptance of
that document, together with Magna Carta, the Petition of Right of
1628, and other written texts, as constituent parts of England's "un-
written" constitution. It is true that the theory of an "unwritten"-
one might better call it a "half-written"-constitution left the way
42. See supra note 36.

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open to the acceptance of a parallel theory of absolute Pa

tary power. Parliament, some said, could, if it wished, en
turning all men into women. Fortunately, the matter rema
pothetical. In theory, the omnicompetence of Parliament wa
fied by its duty to preserve the liberties of the subject and t
the requirements of natural justice. In practice, Parliament
ever invoked a competence to wield unlimited power.
In tracing such basic constitutional principles to Calvinis
must bear in mind not only Calvinist doctrine but also C
practice. Aristocracy-or aristocracy tempered with dem
had not only been advocated by Calvin as the best form of
ment; it had also been introduced into the ecclesiastical p
Calvinist churches, government was by elected ministers an
ders. Similarly, the Calvinist doctrine of social contract was
duced into practice in Geneva, where all citizens were summ
groups to accept the "covenant" between God and the ch
take an oath to obey the Ten Commandments, and to swear
to the city.43 In this connection it must also be borne in m
the Calvinist doctrine of the Two Kingdoms assigned chu
ernment to the earthly kingdom, refered to in English Calvi
Anglican literature sometimes as "the world" and sometimes
ture;" it also taught that principles of ecclesiastical polity we
ferable to civil polity. In espousing theories of social contra
government by consent, Locke and others were consciously
ing these Calvinist guidelines.
3. Calvinism, like Lutheranism, emphasized the sanct
the individual conscience, which was connected with the pri
a person in his relationship with God. In Calvinism, howeve
more than in Lutheranism, individual conscience was con
with the collective duty of church members to resist effor
civil authority to repress their religious freedoms, includin
freedom to preach and to proselytize. Calvinism, unlike L
ism, could not accept the principle cuius regio eius religio. I
43. Cf. J. T. MCNEILL, THE HISTORY AND CHARACTER OF CALVINISM 135-
The sources of social contract in the practice of the West go back to the fo
chartered cities as sworn communes in the eleventh and twelfth centuries. Ty
town charter was read aloud and sworn to by the entire citizenry assembled i
square. The experience of Geneva in Calvin's time may be said to be, in part, a
that tradition. It differed, however, in that it represented a conscious break with
Catholic Church and an assertion of a local, dissenting faith-a model for othe
Roman Church, baptism in infancy was the usual basis of membership; in Gen
trast, each adult was required to make "a personal affirmation of a body of t
McNeill, id., at 141.

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31 HISTORICAL PERSPECTIVE 33
land, active Puritan congregations, bent on reform

were ready to defy the highest powers of church and
did so on grounds of individual conscience, support
law as reflected in the Bible as well as in Magna C
precedents of English legal history.
As the early Christian martyrs had founded the ch
disobedience to Roman law, so in the first decades o
teenth-century and again after the Restoration, Pu
John Hampden, John Lilburne, Walter Udall, Willi
hundreds of others, by their open disobedience to the
laid a foundation for the future protection of civil
England and in America. In the earlier period many
fused to take the ex officio oath as required by the
Commission under Archbishop Laud: such an oath, the
would require them to swear, in advance of any ch
answer truthfully any question that might be asked,
sacred obligation, based on the Bible, not to swear o
thermore, it violated the English common law. Pu
sorted to the writ of habeas corpus to challenge the j
courts established by the king on the basis of his own
the Court of Star Chamber, the Court of High Co
others; and when they came to power they abolished
tive" courts. They asserted a right to refuse to testify
selves in criminal proceedings, and a right not to be p
an act that had not previously been declared to be
objected to excessive bail, excessive fines, cruel and un
ments, the presumption of guilt, the subjection of the
of the judge, royal interference in adjudication, and t
objected to these on principle: first, that they were aga
God; second, that they violated the common law as it
former times-that is, before the Tudor-Stuart mo
sumed supremacy over the church.
In appealing to precedents that limited the arbitra
the king, the Puritans could look to the support of the
yers, including many who were by no means sympath
Puritan cause as such. It is said that in the 1640s John Lilbure,
then a member of Parliament, would go into the House of Com-
mons with a Bible in one hand and Coke's Institutes in the other.
The Puritans gave England-and ultimately America-civi
rights by being willing, on grounds of Christian conscience, to go t
prison for them. Later, a Puritan-led Parliament enacted legislation

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guaranteeing many of the rights on which Puritans had

insisted in vain. Still later, Parliaments not led by Pu
firmed and added to such legislation.
4. The revolutionary events of 1640-1689 facilita
tant changes in the English legal system as a whole. T
of the prerogative courts, except for the High Court of
and the subordination of Chancery and the ecclesiastical
gether with Admiralty, to the common law courts, led
vast expansion of the common law jurisdiction but also
tial revision of its substantive and procedural rules.
certain secularization of the law. The Court of King
placed the Court of Star Chamber as the nation's
morals" (custos morum)." Also many of the rules of
and canon law that had been reflected in the law merch
by the High Court of Admiralty as well as by Chancery
over to the common law, especially in the form of com
tom declared by juries of merchants.
A substantial rationalization of common law proc
place roughly during this period. Witness-proof was int
"active" self-informing jury was replaced by the "pa
which only knew what it heard and saw in court. The
mon law rules of evidence had to be developed and n
judicial supervision of jury verdicts. In civil cases writte
were introduced, and witnesses were subjected to exami
cross-examination by counsel for the parties. (In cr
witness-proof was permitted, but counsel for the acc
allowed until 1695, and then only in cases of treason; it w
1836 that counsel for the accused was allowed in cases
Also the language of court reports, which previously ha
French, was shifted to English.
In addition to such procedural changes, a new doctri
cedent was gradually introduced, with a distinction m
44. See, for example, Le Roy v. Sr. Charles Sidley, 1 Sid. 168, 82 Eng. R
involving an indictment to the effect that the defendant had shown his nu
cony in Covent Garden to a great multitude of people, and had said and don
"to the great scandal of Christianity." The Court of King's Bench took juris
that "since at this time there is no longer a Star Chamber . . . this Co
morum of all the subjects of the King, and it is now high time to punish suc
done against all modesty. .. ." The Court stated further that since the d
gentleman of a very old family (of the county of Kent) and his estate was
intending his ruin but in order to reform him)" he was to be fined 2000 m
oned for a week and placed on good behavior for three years.

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dictum and holding. This meant a much greater pred

result. Holdings in cases came to have a function somew
to that of codified rules. A science of reasoning by ana
came to be developed.
There was also a rationalization of common law rules concern-
ing property and contract. Courts developed, by the use of fictions,
actions to try title to land (ejectment) and title to chattels (trover).
The device of the "strict settlement" was invented to permit landed
gentry to make effective arrangements, despite the rule against per-
petuities, to keep land in the same family for many generations.
Also this was the period when it was established that a bargained
exchange was binding and actionable on breach, regardless of the
absence of fault.45
These legal developments are to be explained, of course, by

many diverse factors. Undoubtedly a major role was played by
political and economic considerations as well as by certain intellec-
tual factors, related especially to the new scientific outlook of the
seventeenth century. There was a drive toward security of property
rights and of contractual transactions; there was a drive toward ra-
tionality, in the sense of calculability or predictability.
There was also an important religious element. Efforts to ra-
tionalize the English common law, as well as to secure property and
contract rights, were connected with the Puritan emphasis on order
and discipline: "God is a God of order and not of confusion."
"Discipline," Calvin had said, "serves as the sinews [of the church]
through which the members of the body hold together, each in its
own place."46 They were connected also with the Calvinist empha-
sis on voluntary action, the act of will, in the service of God, to-
45. The leading case is Paradine and Jane, Style 47, 82 Eng. Rep. 519 (1647), also re-
ported in Aleyn 26, 82 Eng. Rep. 897. This was an action of debt for rent. The defendant
lessee had been ousted from the land by military forces. In the Style report it appears that
the defendant had argued that he was excused under the civil law, the canon law, natural
law, and military law. The court held him liable, stating (in the Aleyn report) that where a
duty or charge is created by law, the party will be excused if he is not at fault, "but when the
party by his own contract creates a duty or charge upon himself he is bound to make it good,
if he may, notwithstanding any accident by inevitable necessity, because he might have pro-
vided against it by his contract." "Another reason was added, that as the lessee is to have
the advantage of casual profits, so he must run the hazard of casual losses .. ." It is of
special interest that this was an action of debt for rent under a lease for a term of years; that
it was treated as a contract action; and that the court stressed the point that since there
would have been absolute liability if there had been a covenant under seal, there should be
such liability "much more here." (Style 47). The case marks the transition from feudal and
post-feudal concepts of landlord-tenant relations to a contractual concept.
46. CALVIN, supra note 30, at bk. 4, ch. 12, para. 1.

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gether with God's faithfulness in response, in keeping t

Calvinists taught that there were two covenants, one be
and the community, including the ruler and the peop
the other between the ruler and the people. These cov
seen in terms of the same values of rationality, predict
security that were emphasized in the law of property an
Finally, there were important connections between P
uistry and Puritan historicism, on the one hand, and
teenth-century English lawyer's emphasis on analogy
on historical precedent.
To stress these links between seventeenth-century E
developments and Puritanism is not to ignore their link
Anglicanism, including not only those features of A
which it shared with Puritanism but also those features which con-
trasted with Puritanism. For example, the historicism of the seven-
teenth-century English common lawyers, exemplified above all in
the writings of Sir Edward Coke and in his judgments when on the
bench, is much more akin to the historicism of Bishop Hooker and
of the Church of England than to that of Calvin and his English
followers. The English Puritans followed Calvin in looking first to
Biblical history and Biblical examples, but they added a vision of
England as an "elect nation" destined to fulfill God's plan of his-
tory. Anglican historicism taught the fiction of a continuously de-
veloping Anglican church, always fundamentally the same, always
English, never-even before the Reformation-really Roman,
"comprehensive" enough to embrace widely differing intellectual
approaches, founded not on doctrinal consistency but on historical
continuity. This, of course, was the kind of historicism adopted ulti-
mately by the English common law.
Also the language and style of the seventeenth-century English
common law was more similar to that of the Book of Common
Prayer than to that of Calvin's Institutes or the English Purit
tracts. Indeed, Calvinist doctrine was congenial to codification
law, and it was no accident that in the Puritan period of the Engl
Revolution there were great pressures toward simplification a
codification of the English common law. Ultimately, however, En
lish law adopted a quite different mode of systematization, namel
systematization by forms of action and by precedent-one that wa
controlled primarily by the judiciary rather than by the universi
professors. English Puritans were eventually able to find a g
deal in their religious upbringing to support a judge-made system

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tization of the law, even though they might have foun

support codification. The Anglican outlook, howeve
found codification quite uncongenial.
IV.
Calvinism in England and America was the last

ment within the institutional church to influence the
Western law in any fundamental sense. In the eightee
teenth centuries Roman Catholicism, Lutheranism,
Anglicanism continued, of course, together with Calvi
pressures upon law in various directions. Undoubted
Christianity continued to play an extremely important
ing about law reform-for example, in the abolition
the protection of labor, in the struggle for equality of
promotion of welfare legislation generally. And un
the other side, organized religion continued to supp
quo, whatever it happened to be. But the significant f
regard-in the nineteenth century and even more in th
was the very gradual reduction of traditional religion
a personal, private matter, without public influence o
opment, while other belief systems-new secular re
gies, "isms")-were raised to the level of passionate fait
people collectively were willing not only to die but als
lives. It was the American and French revolutions that
for the new secular religions-that is, for pouring into
ical and social movements, the religious psychology, a
of the religious ideas, that had previously been expres
forms of Catholicism and Protestantism. At first a ki
orthodoxy was preserved by means of a deistic phil
however, had little of that psychology which is the he
faith. What was religious, in fact, about the great
minds of the late eighteenth and nineteenth centu
Rousseau or Jefferson-was not their belief in God but their belief
in man, individual man, his nature, his reason, his rights. The polit-
ical and social philosophies that sprang from the Enlightenment
were religious because they ascribed ultimate meaning and sanctity,
in that sense divinity, to the individual mind and will-and also, it
must be added, to the nation. The age of individualism and ration-
alism was also the age of nationalism: the individual was a citizen,
and public opinion turned out to be not the opinion of mankind but

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the opinion of Frenchmen, the opinion of Germans, the

Americans.
Individualism, rationalism, nationalism-the triune deity of de-

mocracy-found legal expression in the exaltation of the role of the
legislature and consequent reduction (except in the United States) of
the law-creating role of the judiciary; in the freeing of individual
actions from public controls, especially in the economic sphere; in
the demand for codification of criminal and civil law; in the effort to
make predictable the legal consequences of individual actions, again
especially in the economic sphere. These "jural postulates" (as Ros-
coe Pound would have called them)47 were considered to be not
only useful but also just, and not only just but also part of the natu-
ral order of the universe. Life itself was thought to derive its mean-
ing and purpose from these and related principles of legal
rationality, whose historical sources in theological doctrines of law
and of human reason are evident.
Liberal democracy was the first great secular religion in West-

ern history-the first ideology which became divorced from tradi-
tional Christianity and at the same time took over from traditional
Christianity both its sense of the sacred and some of its major val-
ues. But in becoming a secular religion, liberal democracy was very
soon confronted with a rival: revolutionary socialism. And when,
after a century of spasmodic revolutionary activity throughout Eu-
rope, communism ultimately seized power in Russian in 1917, its
doctrines had acquired the sanctity of authoritative revelation and
its leadership the charisma of high priests. Moreover, the Commu-
nist Party had the intimacy, on the one hand, and the austerity, on
the other, of a monastic order. It is not accidental that during the
purges after World War II, loyal communists in Europe used to say,
"There is no salvation outside the Party."
The jural postulates of socialism, though they differ in many
respects from those of liberal democracy, show a common ancestry
in Christianity. The Soviet Moral Code of the Builder of Commu-
nism, for example, which Soviet school children must learn by heart
and which is taken as a basis for Soviet legal policy, contains such
principles as: "conscientious labor for the good of society-he who
does not work neither shall he eat;" "concern on the part of every-
one for the preservation and growth of public wealth;" "collectivism
and comradely mutual assistance-one for all and all for one;"
47. POUND, JURISPRUDENCE III, 8-15 (1959).

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"honesty and truthfulness, moral purity, modesty,

tiousness in social and personal life;" "an uncomprom
toward injustice, parasitism, dishonesty, careerism
grubbing;" "an uncompromising attitude toward t
communism;" fraternal solidarity with the workin
countries and with all people."48 Soviet law is striking
of the Puritan code of the Massachusetts Bay Colon
Liberties of 1641, in its punishment of ideological d
ness, and personal immorality.49 In addition, the
places a very strong emphasis, reminiscent of Calvin's
the law," on the educational role of law and on pop
tion in legal proceedings and in law enforcement-
rades' Courts and People's Patrols and by placing p
care of the collective of the factory or the neighborh
this is done in the name of an eschatology which fore
mate disappearance of coercion and of law itself a
society is created in which every person will trea
again, in the words of the Moral Code of the Build
nism-as "comrade, friend, and brother." It is by no
sistent with this utopian vision that strong measures o
of formal law maybe used to bring it about.
V.
Contemporary legal systems derive nourishment from the secu-

lar religions-the "values"-of their respective societies. American
law or French law could hardly maintain its vitality unless it were
rooted in a deep and widely shared belief in the nation and in the
nation's democratic institutions. Similarly, Soviet law could hardly
maintain its vitality unless it were rooted in a deep and widely
shared belief in the nation and in the nation's socialist institutions.
In this sense, all law depends for its vitality upon religion, whether
secular or theistic.50
In the past, however, secular religions were thought to be de-
pendent for their own nourishment on something beyond them-
48. The Moral Code of the Builder of Communism is part of the Program of the Com-
munist Party of the Soviet Union adopted by the twenty-second Party Congress in 1961. It
may be found in Dan N. Jacobs, ed., THE NEW COMMUNIST MANIFESTO AND RELATED
DOCUMENTS 35 (3d rev. ed. 1963).
49. See THE LAWS AND LIBERTIES OF MASSACHUSETTS (1929).
50. This is the theme of Chapter I of H. J. BERMAN, THE INTERACTION OF LAW AND
RELIGION (1974).

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40 JOURNAL OF LAW & RELIGION [Vol. I
selves-indeed, on theistic faith. In the West, at least, it was

generally taken for granted that the nation itself, its political system,
and its law, were part of a larger design; that they were ordained by
God as part of a divine plan of salvation; that they had a historic
mission and a destiny. The legal system was generally thought to
reflect, however imperfectly, a transcendent justice. It was thought
to be redeemable. The church, whether conceived as a political-le-
gal entity, with its own law, or as an invisible community of the
faithful, or as something in between, was assumed by the great ma-
jority of people to have the God-given task of helping to reform the
law and of helping to reform the world through law. Despite the
widespread faith in the nation and in democracy, it was generally
believed that there was a Western legal tradition whose foundations
rested, in part, on the interaction between what Roman Catholics
saw as the Two Swords, or what Protestants saw as the Two
Kingdoms.
These conceptions have virtually disappeared in the West in the
twentieth century, as theistic religion-in contrast to secular reli-
gion-has been increasingly reduced to a private matter.
The question then remains, What effect has the privatization of
theistic religion had upon basic legal concepts and institutions?
What important changes can be attributed to the disconnection of
the Western legal tradition from its historical roots in the dualism of
the secular and the spiritual realms?
The following are a few examples of such changes:
1. There has been an increasing tendency toward fragmenta-
tion and disintegration of the law. In different ways, both the tradi-
tional Roman Catholic and the traditional Protestant conceptions of
the relationship of secular law to the spiritual realm presupposed
that law itself is a coherent whole, a body, a corpusjuris. In the
twentieth century law has been treated more and more as a frag-
mented collection of ad hoc decisions and conflicting rules, united
only by common "techniques." There has been a breakdown of
older theories that would give consistency and meaning to the vari-
ous legal systems that were once thought to constitute the legal or-
der of Christendom. In consequence, a primitive pragmatism is
increasingly invoked to justify individual rules and decisions.
2. The belief in the growth of law, its ongoing character over
generations and centuries, has also been substantially weakened.
The notion is widely held that the apparent development of law, its

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apparent growth through re-interpretation of the pas

logical. The law is presented as having no history of it
closely related to the decline of the belief that histor
hidden direction.
3. The view that law transcends politics, that it is distinct from

the state, has yielded increasingly to the view that it is at all times
basically an instrument of politics and a means of effectuating the
will of those who exercise political authority.
4. The source of the supremacy of law in the plurality of legal
jurisdictions and legal systems within the same legal order has been
increasingly threatened in the twentieth century by the tendency
within each country to swallow up all the diverse jurisdictions and
systems in a single central program of legislation and administrative
regulation. The churches have long since ceased to constitute an
effective legal counterweight to the secular authorities. The custom
of mercantile and other autonomous communities or trades within
the economic and social order has been overriden by legislative and
administrative controls. International law has enlarged its theoreti-
cal claim to override national law, but in practice national law has
either expressly incorporated international law or else has rendered
it ineffectual as a recourse for individual citizens. In federal systems
such as that of the United States, the opportunity to escape from one
set of courts to another has radically diminished. Blackstone's idea
that we live under a considerable number of different legal systems
has hardly any counterpart in contemporary legal thought.
5. The very concept of a legal tradition that transcends the
existing legal order has itself lost a large part, at least, of its mean-
ing. Law is presented simply as the rules of the game or else as
current policy-in either case without much of a past or much of a
future.
The crisis of the Western legal tradition is not merely a crisis in

legal philosophy but also a crisis in law itself. Legal philosophers
have always debated, and presumably always will debate, whether
law is founded in reason and morality or whether it is only the will
of the political ruler. It is not necessary to resolve that debate in
order to conclude that as a matter of historical fact the legal systems
of all the nations that are heirs to the Western legal tradition have
been rooted in certain beliefs or postulates: that is, the legal systems
themselves have presupposed the validity of those beliefs. Today
those beliefs or postulates-such as the structural integrity of law, its
continuity its religious roots, its transcendent qualities-are rapidly

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disappearing, not only from the minds of philosopher

from the minds of lawmakers, judges, lawyers, law te
other members of the legal profession, but from the cons
the vast majority of citizens, the people a whole; and mor
they are disappearing from the law itself. The law is
more fragmented, more subjective, geared more to exped
less to morality, concerned more with immediate conseq
less with consistency or continuity. Thus the historical s
Western legal tradition is being washed away in the twen
tury, and the tradition itself is threatened with collapse
The breakdown of the Western legal tradition spring
part from the socialist revolutions that were inaugurated
in October 1917 and that have gradually spread thro
West as well as other parts of the world. It springs only i
massive state intervention in the economy of the nation (
state), and only in part from the massive bureaucratizati
and economic life through huge centralized corporate
corporate state). It springs much more from the crisis o
civilization itself, commencing in 1914 with the outbreak
War I. This was more than an economic and technolog
tion, more even than a political revolution. If it had not
ern society would be able to adapt its legal institutions t
new demands placed upon them, as it has done in rev
situations in the past. Western society would be able t
date socialism-of whatever variety-within its legal tr
the disintegration of the very foundations of that traditio
accommodated; and the greatest challenge to those fo
the massive loss of confidence in the West itself, as a civ
community, and in the very concept of a legal tradi
rooted in a common sense of historical destiny.
Merely to mourn the passing of an era would, of c

foolish. Since there is no going back, the important
"How shall we go forward?" By retracing the experien
which we arrived at our present predicament, can we
guidelines, and some resources, that may help us to ov
obstacles that block our way to the future?
Ultimately, that future involves new relationships be
West and other civilizations, other traditions. In the past
turies, the peoples of Western Europe have moved from
plural polities within an overarching ecclesiastical corpor

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a society of national states within an overarching but i

gious and cultural unity, and finally, in the twentieth
society of national states lacking an overarching Weste
seeking new forms of unity on a world scale. The break
Western legal tradition has been accompanied in the
the twentieth century by the rapid emergence of tran
institutions of a global character. We are witnessing
development of a common legal language for mankin
tradition that will be worldwide in character. Such a
tradition will also involve new relationships between law
aspects of social life, other elements of community.
belief in the autonomy and supremacy of law-historica
it is, on the dialectic of church and state-can hardly
principal foundation of legality in a world that is o
Christian.
In these circumstances the Western legal tradition of the past
millennium will perhaps serve as a kind of ancient history, a new
"corpus juris Romani," to which all the peoples of the world will
look for analogies and for guidance in the creation of new forms of
legal order. From that point of view, no aspect of it is more impor-
tant to keep in mind than its religious foundations.

152.32.99.247 on Fri, 24 Nov 2023 03:37:41 +00:00

Berman, H. - Religious Foundations of Law in The West - An Historical Perspective (1983.) PDF

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Berman, H. - Religious Foundations of Law in The West - An Historical Perspective (1983.) PDF

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Religious Foundations of Law in the West: An Historical Perspective

Author(s): Harold J. Berman

Stable URL: https://www.jstor.org/stable/1051071

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VOLUME I SUMMER 1983 NUMBER 1

RELIGIOUS FOUNDATIONS OF LAW IN THE

The fundamental changes that have taken place in our legal

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liam 0. Douglas as recently as 1951, speaking for a maj

It is true that, starting with the Enlightenment of the late eight

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of Greece, the history of Rome, the hi

What is "our legal tradition"? The Western legal tradition was

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the "Middle Ages" may seem strange; and to trace m

6. The Dictates of the Pope (Dictatuspapae) may be found in English translation in

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Civil wars were fought in Europe between supporte

In about 1087 the first European university was founded at

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isolated Roman legal rules and a good many Roman l

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of Justinian's time and before. The texts of Justinian now came to

8. Gratianus, Concordantia discordantium canonum (Decretum), in I CORPUS IURIS

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secular authorities were also confronted with the problem

And so the Western legal tradition took root in the duality of

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formity with God's will. This was the deeper goal

But how was this to be achieved? Germanic society in 1075

This was an extraordinary answer. It introduced a new time-

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ous forms of trespass, and eventually it threw off its ow

But here we confront a startling paradox: the Western tradition

11. K. A. Eckhardt, ed., SACHSENSPIEGEL V: LANDRECHT IN HOCHDEUTSCHER OBER-

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tion as a process of realization of the apocalyptic go

In contrast to the Papal Revolution, the main outl

12. A characteristic example is JOHN H. LANGBEIN, PROSECUTING CRIM

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that any connection between law and religion that may h

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before.'5 But the great revolutions have all been b

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to God. Man's fallen nature, his depravity, his essential selfis

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ent from the prince of Niccol6 Machiavelli, Luther's con

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many and elsewhere. In the words of the great Germa

The following are a few of the major changes in German law

1. The prince became head of the church in his principality.

19. RUDOLPH SOHM, WELTLICHES UND GEISTLICHES RECHT 69 (1914).

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ory of legal positivism. Luther did not adopt this theory

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earlier Roman Catholic retributive view ("a price must b

5. The Lutheran Reformation contributed in important ways

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over, the Sachsenspiegel and other similar works had

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would be expected; that in the absence of one, the other

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elty as inevitable-neither is willing to proclaim