Law and Revolution. II. The Impact of the Protestant Reformations on the Western Legal Tradition by Harold J. Berman (review)

Abstract

122 Max Weber Studies Harold J. Bermart, Law and Revolution. II. The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, MA: Harvard University Press, 2003), pp. 522 + xii. ISBN 0-674-01195-3. £36.95 hb. It seems to me beyond doubt that, along with much of Berman's work, this book constitutes a highly distinguished contribution to scholarship in legal theory and legal history, and no reader interested in the emergence of modern European law or modern European states can afford not to read it. It sets out a panorama of legal debate in early modern Germany and early modern England and it provides meticu lous reconstruction of the legal principles that were articulated during and after the period of Reformation. At the heart of this labour of reconstruction is an attempt to revise approaches to the Reformation, often originating in German historicism, that interpret Lutheranism as an essentially antinomian movement, which had limited constructive importance for the law. Against such views, Berman claims that, in its legal implications, the Reformation built upon continuities with earlier legal traditions and it helped, almost immediately, to provide distinctively Protestant legal structures—even, in fact, a 'new legal science' (p. 109) —for those states that abandoned the Roman Catholic church. Most particularly, he argues that Protes tant jurists used the principles of individual conscience and personal responsibility embedded in Lutheranism to detach the law from the supra-positive framework of Roman Catholic ideas of legality and to place it on reliably autonomous foundations (p. 92). On this account, the Reformation was a secular event which expedited a process of legal and rational positivization, yet which also provided foundations of 'positivist theory' and 'natural law' to stabilize and guide this process and to engen der concepts of accountability for an increasingly secular age (p. 8). This, Berman explains, ultimately paved the way for the emergence of rationally and positively founded political orders: as they accepted the notion of the 'objectivity of human law as an integral part of God's creation' (p. 110), the legal ideas of the Reforma tion contained the 'first statement' of the 'German concept' of the state as a positive legal state (Rechtsstaat) (p. 98). Underlying Berman's claims is thus the argument, turned in part against Weber, but directed still more pointedly against Marx, that law and religion are integrally connected, that the dynamic trajectory of political secularization is deeply linked to the changing relations between religion and law, and that changes in 'belief systems' and 'changes in law' combine to determine the positive conditions in which societies are structured and political power is exercised (p. 380). In proposing this argument, Berman addresses all spheres of legal debate and application—including jurisprudence, civil law, economic law, social law, family law, criminal law, and constitutional law—and he provides a marvellously encompassing account of the dramatic and many-levelled modernization of the law in early modern Europe. This book, in short, deserves to take an important place amongst the seminal writings on legal history and on the relation between law and modern social evolution. Despite my deep admiration for this book, however, I am of the view that it con tains several serious historical and conceptual flaws, and it cannot be viewed as a fully reliable account of its subject matter. First, Berman's dismissal of the view that Luther was an antinomian is by no means as easily justifiable as he and his followers normally lead us to believe. The argument that Luther promoted positive law is surely correct. But it must also be remembered that Luther endorsed the determination of ) Max Weber Studies 2008. Book Reviews 123 law by positive principles, not because he was convinced, in humanistic style, that law has a positive or utilitarian value, but because he thought that worldly law plays no role in human salvation, that it is consequently relatively unimportant, and that the criteria upholding law are only of marginal significance if measured against the necessities of faith. The positivization of law in Lutheranism is thus positivization as indifference. For example, Luther described the Decalogue as 'the Sachsenspiegel of the Jews',1 and he argued that the practical...