Law and Revolution

by Berman, Harold J.

• ISBN13: 9780674517769
• ISBN10: 0674517768
• Edition: Reprint
• Format: Paperback
• Copyright: 1985-01-01
• Publisher: Harvard Univ Pr

Summary

The roots of modern Western legal institutions and concepts go back nine centuries to the Papal Revolution, when the Western church established its political and legal unity and its independence from emperors, kings, and feudal lords. Out of this upheaval came the Western idea of integrated legal systems consciously developed over generations and centuries. Harold J. Berman describes the main features of these systems of law, including the canon law of the church, the royal law of the major kingdoms, the urban law of the newly emerging cities, feudal law, manorial law, and mercantile law. In the coexistence and competition of these systems he finds an important source of the Western belief in the supremacy of law. Written simply and dramatically, carrying a wealth of detail for the scholar but also a fascinating story for the layman, the book grapples with wideranging questions of our heritage and our future. One of its main themes is the interaction between the Western belief in legal evolution and the periodic outbreak of apocalyptic revolutionary upheavals. Berman challenges conventional nationalist approaches to legal history, which have neglected the common foundations of all Western legal systems. He also questions conventional social theory, which has paid insufficient attention to the origin of modem Western legal systems and has therefore misjudged the nature of the crisis of the legal tradition in the twentieth century.

Table of Contents

Introduction	1	(10)
Law and History	11	(7)
Law and Revolution	18	(15)
The Crisis of the Western Legal Tradition	33	(8)
Toward a Social Theory of Law	41	(6)
PART I: THE PAPAL REVOLUTION AND THE CANON LAW	47	(224)
The Background of the Western Legal Tradition: The Folklaw	49	(36)
Tribal Law	52	(10)
Dynamic Elements in Germanic Law: Christianity and Kingship	62	(6)
Penitential Law and Its Relation to the Folklaw	68	(17)
The Origin of the Western Legal Tradition in the Papal Revolution	85	(35)
Church and Empire: The Cluniac Reform	88	(6)
The Dictates of the Pope	94	(5)
The Revolutionary Character of the Papal Revolution	99	(8)
Social-Psychological Causes and Consequences of the Papal Revolution	107	(6)
The Rise of the Modern State	113	(2)
The Rise of Modern Legal Systems	115	(5)
The Origin of Western Legal Science in the European Universities	120	(45)
The Law School at Bologna	123	(4)
The Curriculum and Teaching Method	127	(4)
The Scholastic Method of Analysis and Synthesis	131	(1)
The Relation of Scholasticism to Greek Philosophy and Roman Law	132	(11)
The Application of the Scholastic Dialectic to Legal Science	143	(8)
Law as a Prototype of Western Science	151	(14)
Theological Sources of the Western Legal Tradition	165	(34)
Last Judgment and Purgatory	166	(6)
The Sacrament of Penance	172	(1)
The Sacrament of the Eucharist	173	(1)
The New Theology: St. Anselm's Doctrine of Atonement	174	(5)
The Legal Implications of the Doctrine of the Atonement	179	(2)
Theological Sources of Western Criminal Law	181	(4)
The Canon Law of Crimes	185	(14)
Canon Law: The First Modern Western Legal System	199	(26)
The Relation of Canon Law to Roman Law	204	(1)
Constitutional Foundations of the Canon Law System	205	(10)
Corporation Law as the Constitutional Law of the Church	215	(6)
Limitations on Ecclesiastical Jurisdiction	221	(4)
Structural Elements of the System of Canon Law	225	(30)
The Canon Law of Marriage	226	(4)
The Canon Law of Inheritance	230	(7)
The Canon Law of Property	237	(8)
The Canon Law of Contracts	245	(5)
Procedure	250	(3)
The Systematic Character of Canon Law	253	(2)
Becket versus Henry II: The Competition of Concurrent Jurisdictions	255	(16)
The Constitutions of Clarendon	256	(3)
Benefit of Clergy and Double Jeopardy	259	(1)
Ecclesiastical Jurisdiction in England	260	(4)
Writs of Prohibition	264	(7)
PART II: THE FORMATION OF SECULAR LEGAL SYSTEMS	271	(249)
The Concept of Secular Law	273	(22)
The Emergence of New Theories of Secular Government and Secular Law	275	(1)
John of Salisbury, Founder of Western Political Science	276	(12)
Theories of the Roman and Canon Lawyers	288	(4)
The Rule of Law	292	(3)
Feudal Law	295	(21)
Feudal Custom in the West Prior to the Eleventh Century	297	(6)
The Emergence of a System of Feudal Law	303	(13)
Manorial Law	316	(17)
Objectivity and Universality	321	(1)
Reciprocity of Rights of Lords and Peasants	322	(2)
Participatory Adjudication	324	(4)
Integration and Growth	328	(5)
Mercantile Law	333	(23)
Religion and the Rise of Capitalism	336	(3)
The New System of Commercial Law	339	(17)
Urban Law	356	(48)
Causes of the Rise of the Modern City	359	(4)
The Origins of the Cities and Towns of Western Europe	363	(27)
Picardy (France): Cambrai, Beauvais, Laon	364	(4)
France: Lorris, Montauban	368	(1)
Normandy: Verneuil	369	(1)
Flanders: Saint-Omer, Bruges, Ghent	370	(1)
Germany: Cologne, Freiburg, Lubeck, Magdeburg	371	(9)
England: London, Ipswich	380	(6)
The Italian Cities	386	(4)
Guilds and Guild Law	390	(2)
The Main Characteristics of Urban Law	392	(7)
The City as a Historical Community	399	(5)
Royal Law: Sicily, England, Normandy, France	404	(78)
The Norman Kingdom of Sicily	409	(25)
The Norman State	414	(3)
The Personality of Roger II	417	(2)
The Norman Legal System	419	(5)
The Growth of Royal Law in Norman Italy	424	(10)
England	434	(25)
The Personality of Henry II	438	(2)
The English State	440	(5)
English Royal Law (``The Common Law'')	445	(12)
The Science of the English Common Law	457	(2)
Normandy	459	(2)
France	461	(21)
The Personality of Philip Augustus	463	(1)
The French State	464	(3)
The French System of Royal Justice	467	(6)
French Royal Civil and Criminal Law	473	(4)
French and English Royal Law Compared	477	(5)
Royal Law: Germany, Spain, Flanders, Hungary, Denmark	482	(38)
Germany	482	(28)
Imperial Law	482	(6)
The personality and vision of Frederick Barbarossa	488	(5)
The imperial peace statutes (Landfrieden)	493	(10)
The Mirror of Saxon Law (Sachsenspiegel)	503	(2)
The Law of the Principalities	505	(5)
Spain, Flanders, Hungary, Denmark	510	(6)
Royal Law and Canon Law	516	(4)
Conclusion	520	(40)
Beyond Marx, Beyond Weber	538	(22)
Abbreviations	560	(1)
Notes	561	(75)
Acknowledgements	636	(1)
Index	637