By Harold J. Berman.
This is a book of lectures, not a treatise or monograph.
It is meant to affirm and to challenge, not to demonstrate
by elaborate proofs . Although it deals with eternal ques
tions, the book claims to be timely rather than timeless.
The principal affirmation is that law and religion are
two different but interrelated aspects, two dimensions of
social experience--in all societies, but especially in
Western society, and still more especially in American
society today. Despite the tensions between them, one
cannot flourish without the other. Law without (what I
call), religion degenerates into a mechanical legalism.
Religion without (what I call) law loses its social effec
tiveness.
Some listeners were concerned that more emphasis
was not placed on the conflicts between law and religion.
There is, indeed, a danger of oversimplifying their rec
onciliation by failing to see that it is a dialectical
-11-
synthesis, a synthesis of opposites. The postscript has
been written partly to allay that danger. But for reasons
stated there as well as in the lectures themselves, I am
convinced that we have heard too much about the separa
tion of law and religion and not enough about their
fundamental unity. I should perhaps emphasize that I
am speaking of law and religion in the broadest sense--
of law as the structures and processes of allocation of
rights and duties in a society and of religion as society's
intuitions of and commitments to the ultimate meaning
and purpose of life.
When prevailing concepts of law and of religion be
come too narrow, and hence the links between the two
dimensions are broken, a society becomes demoralized.
The existing institutional structures and processes lose
their sanctity, and conversely, the sacred values upon
which the society is founded are viewed as mere
hypocrisy. Eventually such demoralization may yield to
widespread demands for radical change. This was the
situation confronting
when these lectures were given. For several years radical
movements had been agitating this country and others:
the youth culture, the New Left, the peace movement,
women's liberation, black militants, and others. Also the
larger ideologies of democracy, socialism, and various
forms of communism, which had seemed almost inert
in the 1950s and early 1960s, underwent a revival in the
late 1960s. All these movements attacked existing institu
tional structures and processes in the name of various
-12-
basic values--I would call them religious values--upon
which Western civilization is founded. Most of them,
however, offered no viable alternative institutional struc
tures and processes with which to replace the existing
ones, and some of them were altogether antilegal and
antistructural. They were therefore at the mercy of the
"Establishment," which to a considerable extent re
sponded by simply reasserting "law and order."
In 1973, as this introduction is being written, most of
the radical movements of 1968-1972 seem to have sub
sided, at least temporarily. We seem to have reverted to
a vague demoralization. Perhaps the lectures are more
timely than ever. What they say to the Establishment is
that a people cannot live for long without engagement,
without enthusiasm, without struggle, without faith.
What they say to the Radicals is that a revolution cannot
succeed if it lacks a great vision of institutional and
structural change, a vision of law, and not merely a vision
of faith--a vision, in fact, of the interaction of law and
faith. But where the whole society has such a vision,
revolution is not necessary; it has already happened.
The four chapters that follow represent four different
perspectives. The first is anthropological: it deals with
law and religion as dimensions of all cultures and argues
that in all cultures, including our own today, law and
Eeligion share certain elements, namely, ritual, tradition,
authority, and universality. These religious elements of
law are not often stressed by contemporary legal scholars.
Instead, law is generally presented as a secular, rational,
-13-
utilitarian system--a way of getting things done. But as
soon as one goes behind the law in books to the processes
by which it is made, interpreted, and applied, one sees
the symbols of the sanctity which infuses it. That is as
true of an American legislature or court as it is of any
tribal procedure. Law has to be believed in, or it will
not work. It involves not only man's reason and will,
but his emotions, his intuitions and commitments, and
his faith.
The second chapter represents a historical perspective.
It deals with the influence of religion on Western law
during the past two thousand years, including the in
fluence not only of traditional Judaism and Christianity
but also of the secular religions of democracy and
socialism into which Christian attitudes and values have
been translated during the past two centuries. The main
theme is that our basic legal concepts and institutions
derive much of their meaning from a historical develop
ment in which religion has played a major part. Indeed,
the very concept of the ongoingness of law, of its organic
growth over generations and centuries, is itself a religious
concept rooted in Judaism and Christianity. Moreover,
in Western history since the eleventh century the on
going legal tradition has been interrupted periodically by
great revolutions, each of which has attacked the pre
existing system of law in the name of a religious or
quasi-religious vision and each of which has eventually
created new legal institutions based on that vision.
The third chapter shifts attention from the religious
-14-
dimensions of law to the legal dimensions of religion.
Here the perspective is philosophical. An effort is made
to expose the fallacies of those schools of religious thought
which pose irreconcilable contradictions between law and
love, law and faith, or law and grace. In all religions, even
the most mystical, there is a concern for social order and
social justice, a concern for law, both within the religious
community itself and in the larger social community of
which the religious community is a part. In both
Judaism and Christianity law is understood to be a
dimension of God's love, faith, and grace; both Judaism
and Christianity teach that God is gracious and Just,
that he is a merciful judge, a loving legislator, and that
these two aspects of his nature are not in contradiction
with each other. Antinomian[无需守律法的 ] tendencies in current
Protestant and Catholic thought--the belief that struc
tures and processes of social ordering are alien to man's
highest qualitities and aspiration's--have a counterpart
in the secular apocalypticism[启示 ] of the "counter culture"
as expressed in many of the communes that sprang up in
taneity, joy, self-discovery, togetherness, and other great
qualities and aspirations of such groups cannot be
realized over a long period of time without structures
and processes, without norms.
The perspective of the fourth chapter is harder to
classify. It explores the predicament faced by Western
man in a revolutionary era--such as the present era from
which we are only beginning to emerge--when the exist
-15-
ing legal and religious systems have broken down and
there seems to be nothing available to replace them. This
might be called an eschatological [关于永恒的] perspective. Living
between two worlds, we experience the dying of the old
orders of law and religion and anticipate their regenera
tion. What is dying is not so much their institutional
structure (which indeed seems to have a remarkable
staying power) as the foundations on which the structure
is built. An important part of those foundations is the
presupposition that law and religion are wholly separate
aspects of life--that the way we run our society need
have nothing to do with our deepest intuitions and our
deepest commitments, and vice-versa. Behind this radical
separation of law and religion is a dualistic mode of
thought that has recurrently threatened the integrity of
Western man during the past nine centuries. Subject is
radically separated from object, person from act, spirit
from matter, emotion from intellect, ideology from power,
the individual from society. The overcoming of these
dualisms, is the key to the future. The new era which
we anticipate is one of synthesis. The dying of the old
dualisms, calls for rebirth through the kinds of com
munity experiences--on all levels, from communes to
the United Nations--that reconcile legal and religious
values.
Having recapitulated the main themes of the chapters,
I am struck by the discrepancy between the small size of
this book and the magnitude of those themes. To treat
them systematically and comprehensively would require
16
something like Dr. Eliot's five-foot shelf. This, on the
other hand, is intended to be a germinal book. Yet even
from the point of view of conventional scholarship, it
may serve as a useful prospectus for future research.
In fact, its main themes have not been the sub
ject of extensive treatment in scholarly literature. There
is no work of anthropology, so far as I know, which
deals directly with the role of ritual, tradition, au
thority, and universality in legal processes, although
there are books which deal with those four elements in
the great religions of the world. There is also no work of
historical scholarship, so far as I know, which deals
directly with the influence of religion on the historical
development of Western law; indeed, there seems to be
no extensive study even of the influence of the canon
law of the Roman Catholic Church on the secular legal
systems of the West, although the fact that it bad a very
considerable influence on them can hardly be denied.
And the few studies of the influence of Puritanism on
English and American law in the seventeeth and eigh
teenth centuries only begin to tell the story. Moreover,
the historical derivation of Western concepts of democ
racy and socialism from Western concepts of Christianity,
though often hinted at, has not to my knowledge been
the subject of systematic research.
On the main subject of the third chapter--antilegal
tendencies in Christian thought--much has been written;
the chapter summarizes the literature and cites some of it
in the annotations. However, on the second theme of the
-17-
chapter--antilegal tendencies in the counter culture and
in the communes--much empirical research remains to be
done.
Finally, the fourth chapter opens up the question of
the differences in attitudes toward law between Eastern
and Western Christianity as well as between Christian
and non-Christian religions. It also opens up the question
of the relation between the sociology of revolution and
Christian eschatology [ 永恒学说 ]. Again, these are subjects that have
often been suggested--some times in ways quite similar
to the ways that they are suggested here--but not
systematically studied and elaborated.
And so the expansion of the book is left to the reader.
If he will use it as a starting point for further research,
the author need not worry about either its brevity or its
eclectic[ 非传统的 ] character. (Indeed, any study which attempts to
integrate established scholarly disciplines will appear in
complete and eclectic to specialists in any of the
disciplines.
Yet this book is not offered primarily as a work of
scholarship in the usual sense of that much abused word.
It is offered primarily as a self-reminder and as a re
minder to others that the compartments into which we
have divided the world are not self-contained units, and
that if they are not opened up to each other they will
imprison and stifle us. The lawyers study and practice
their concepts and techniques; the seminarians concern
themselves with things of the spirit; the professors profess
their various disciplines. But the gods of law and the......
-18-
From ：
| ||
|
