This month’s Liberty Forum debate on the relationship between the inherited common law norms of liberty and our written Constitution also opens to a conversation on the comparison between civil law and common law and the degree to which each system protects liberty and permits fruits of liberty like commerce and jurisdictional competition to flourish. In this post I point to some comparative strengths each system possesses and the prerequisites to their successful operation which may no longer be operative.
A good way to explore the nature and implications of the rule of law in a free society is to compare the Civil Law of Europe with the Common Law traditions of England and America. Harold Berman’s second volume of Law and Revolution invites just such an exercise by examining the influence of the Reformation on both. What follows are some general reflections that were raised in my mind by that reading and current events, These should not be taken as final conclusions,but merely points for further conversation with respect to how both systems relate to liberty.
So far, I have considered Harold Berman’s overall project, explained the basic ideas in Law and Revolution, Volumes I and II, and examined Berman’s investigations of polycentric liberty. This last post will review the questions Berman’s second book raises about the long-term effects of the Protestant revolution on liberty. I believe the Reformation had two positive effects as it played out over centuries. The Protestant Reformation helped liberty by creating more and more religious sects. This multiplication of sects led directly to the need for structures of political pluralism, which have provided substantial protection for liberty.
My first two posts considered Harold Berman’s overall project and explained the basic ideas in Law and Revolution, Volumes I and II. In this post, I would like to consider Berman’s first book and its reconsideration of the advantages of polycentric forms of ordering for liberty. Polycentric forms of political ordering can occur when different sovereigns dispense law to the same subjects. Multiple independent forms of legal order can advance liberty for two reasons.
Law and Revolution
In the first post I introduced Berman’s overall project. Now I would like to explore Berman’s volumes in Law and Revolution which critique dominant views of the relation between law and society. Berman saw law as a reflection of society’s most profound beliefs rather than simply a mirror of its economic or technological structure. Because the most fundamental beliefs in the West were Christian, law thus necessarily depended on developments in Christianity. As law is refracted through such beliefs, it then shapes the structures that define the exercise of political power. Thus, Berman turns Marxist analysis on its head. It is not the social and economic structure that determines beliefs through power relations. Fundamental beliefs shape the social and economic structure through law.
In a series of posts, I will discuss the great enterprise of the late professor Harold Berman. That enterprise was nothing less than to relate fundamental developments in Christianity and other core beliefs to fundamental developments in law. In this post I will introduce Berman and his project. In the second, I will summarize some of the most important themes of his books. In the third and fourth, I will offer my own views on some of the implications of his narrative for liberty.