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Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition
Harold Berman’s masterwork narrates the interaction of evolution and revolution in the development of Western law. This new volume explores two successive transformations of the Western legal tradition under the impact of the sixteenth-century German Reformation and the seventeenth-century English Revolution, with particular emphasis on Lutheran and Calvinist influences. Berman examines the far-reaching consequences of these apocalyptic political and social upheavals on the systems of legal philosophy, legal science, criminal law, civil and economic law, and social law in Germany and England and throughout Europe as a whole.
Berman challenges both conventional approaches to legal history, which have neglected the religious foundations of Western legal systems, and standard social theory, which has paid insufficient attention to the communitarian dimensions of early modern economic law, including corporation law and social welfare.
Clearly written and cogently argued, this long-awaited, magisterial work is a major contribution to an understanding of the relationship of law to Western belief systems.
Berman challenges both conventional approaches to legal history, which have neglected the religious foundations of Western legal systems, and standard social theory, which has paid insufficient attention to the communitarian dimensions of early modern economic law, including corporation law and social welfare.
Clearly written and cogently argued, this long-awaited, magisterial work is a major contribution to an understanding of the relationship of law to Western belief systems.
544 pages, Paperback
First published December 1, 2003
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About the author
Harold J. Berman
28 books24 followersHarold J. Berman was Ames professor of Law at Harvard Law School and Emory University for more than sixty years. He was expert on comparative, international, and Russian law as well as legal history and philosophy and the intersection of law and religion.
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May 21, 2017
In May 2016 I attended a lecture by scholar Deirdre McCloskey at the American Enterprise Institute (AEI) in Washington, DC. It was hosted by George Will, who the following month would join other members of the DC-based intellectual ‘bubble set’ in resigning from the Republican Party to protest Donald Trump’s antics during his campaign for the GOP nomination. His old friend McCloskey was apparently no fan of ‘The Donald’ herself, and in promoting her latest book (the third volume in a celebration of the bourgeoisie), she took swipes at various figures, both contemporary and historical. One target was Max Weber, whose thesis in The Protestant Ethnic and the ‘Spirit’ of Capitalism she characterized as seriously misguided.
After the brief presentation and a lengthier period of audience Q&A, McCloskey made herself available to answer questions individually. I was determined to get clarification on her belittling of Max Weber, since I’d long had a soft spot for the German theorist and saw this as perhaps just another dig at someone McCloskey didn’t view as sufficiently ‘capitalist’ to merit praise for what many regard as a stunning work. (To her credit, McCloskey had remarked beforehand that ‘greed is not good,’ as a kind of footnote to her overall theme that bourgeois capitalism must proceed unhindered, and ‘social democrats’ like Bernie Sanders—then surging against Hillary Clinton—are essentially fools.) But it seemed McCloskey had very little time for Weber’s idea, and when I confronted her one-on-one, she doubled down, saying the thesis had been objectively ‘proven wrong,’ and there was no point in dwelling on it. That was that.
Now, I accept critiques of great thinkers by intelligent people as well as the next man, but I must confess to being a bit defensive about poor old Max Weber. As one of the ‘founding fathers’ of sociology, Weber unleashed onto the world an area of study that now claims ‘scientific’ status for itself and is now even classified as a ‘STEM’ subject in American universities alongside hard sciences such as physics and chemistry. In fact, sociology is a ‘pseudo-science,’ and even very detailed sociological analyses can invariably be picked apart for the subjectivity of their approaches. But none of this is actually the fault of Max Weber, who died in 1920, long before the first sociology faculty had been formed in any major university in America. Weber studied societies—or, more broadly, ‘society’—and developed a series of original classifications and categories for consistency’s sake. But if sociology isn’t really a ‘science,’ even if it uses lots of statistics and numbers to support its propositions, surely that only weakens the claim of people like McCloskey that Weber’s thesis has been conclusively ‘disproven.’ After all, Weber put forth a theory, not a set of facts. So I felt a bit crestfallen at McCloskey’s dismissiveness, and went off to get some wine and cheese.
In the introduction of his last book, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition, Harold J. Berman (1918-2007) has this to say about Weber’s thesis:
Berman characterizes Weber as having ‘genius’ in the same introduction. But where he says Weber got it wrong in The Protestant Ethic was in believing entrepreneurial spirit was somehow motivated by the effect on the individual believer of Calvinist doctrines of salvation, when in fact—claims Berman—it was the strong communitarian character of both Lutheranism and Calvinism that gave rise to capitalism. Berman (a law professor) chides Weber (a lawyer who became a professor of other things) for ignoring capitalism’s legal dimension as reflective of something other than the coercive tendencies of the state. Weber also ignores the importance of lawyers as a community, and the formation of a legal system that included new institutions and entities, such as trusts and corporations, all of which were—says Berman—evidence of a communitarian, close-knit society and economy, not individualism or ‘asceticism.’
It is very difficult to resist embracing Berman’s view, since his outlook is unquestionably brighter and more optimistic than Weber’s in The Protestant Ethic. Weber’s wife had described her husband as ‘religiously unmusical’ (as Berman notes), and indeed, Weber was by all accounts a ‘positivist’ in his attitude toward the law. Berman definitely was not, and since the message of Law and Revolution II is that the complex interaction and conflict among religious faiths played an essential role in the creation of wondrous legal systems that gave rise to Western civilization, with all its industriousness and innovation, it is little wonder Berman would strike Weber down. One can even draw analogies between the concept of the ‘covenant’ between God and the believer, on the one hand, and the development of the law of contracts, on the other. The law is to be revered and admired, not treated as a sinister and political force. Berman’s vision is ultimately positive, and we all need something positive to cling to, just to go on living. This book delivers a message of hope.
At the same time, it is a message of hope amid ‘apocalypse.’ Berman acknowledges that ‘the two Great Revolutions’ (German and English) that are the subject of Law and Revolution II were ‘marked by violence, destruction, bigotry, persecution, oppression, and gross injustices.’ But each ended ‘after two generations.’ The Western legal tradition was transformed by reconciling ‘utopian visions’ with the traditions against which they had been originally pitted. Thus, without meaning to, the author adopts a strangely ‘Machiavellian’ approach to history, in the sense that the means (however terrible) seem to justify the ends. He is brilliant, but very formalistically so, and the formalism tends to wash away all the blood, death and destruction attendant to history’s major revolutions. What is left is a marvel of God’s grace.
It is in that context that we can craft a defense for Weber, who had gained first-hand good reason to view revolutions as far less bright or hopeful than did Berman. Berman is critical of Weber’s focus on fear within the Calvinist believer, yet Weber must have felt collective fear first-hand. He had lived through the First World War in Germany and the violent clash of empires in Europe. He had witnessed the contemporary horrors of the Bolshevik Revolution in Russia. Up to and during WWI, he resented the militaristic rule of the junkers (Prussian landed nobility) and had no patience for anti-Semitism (he would not have fared well under the Nazis). Weber also disliked the Bolsheviks and correctly predicted that their revolution would result in a bureaucratic dictatorship. After the abdication of the Kaiser, Weber became a key figure in the formation of the Weimar Republic, and, although this turned out to be a failure, it must surely have been reasonable to perceive it as a better, more humane alternative to its predecessor. The Weimar Republic was an attempt at a constitutional, representative and democratic parliamentary state. That it did not work may have more to do with outside forces than attempts by benevolent-yet-misguided thinkers such as Max Weber within Germany itself.
In short, Weber lived through a very dark time in Europe, and was quite centrally situated. He had ample reason to see fear as the prime ‘moving force’ in history, even if such view was not entirely correct. If a ‘terrifying’ aspect of capitalism obscured for him the hopeful side, perhaps he shouldn’t be dismissed too readily, especially in this day and age. In today’s increasingly uncertain world, where a 'global revolution' of sorts seems to be underway, unprecedented political change in the West is happening concurrently with a war on terror, anxiety about Muslim migrants and a general sense of economic unease in industrialized societies. It might be more helpful, rather than simply writing off the main thesis of The Protestant Ethic and the ‘Spirit’ of Capitalism, to acknowledge the frightening and disturbing aspects of capitalism, not just the revolutions that have given rise to it, and to concede that Weber may have had a point when he identified fear-provoking qualities in a religious tradition such as Calvinist Protestantism.
Like its predecessor—Law and Revolution: The Formation of the Western Legal Tradition—Berman’s Law and Revolution II is a masterpiece. It is sad that Berman died before he could produce Law and Revolution III, incorporating a close analysis of the Russian Revolution, since he certainly believed that terrible episode had profoundly influenced world law, and not necessarily in a bad way. As it is, he took us to the end of the 17th century with a full-spirited understanding of how the American Revolution of the 18th century could have happened, and what it signified. The relevant historical events and figures, including Martin Luther and Oliver Cromwell, but also kings, queens, princes, legal theorists who aren't household names, and many others, are all in here. Berman makes the history of the inter-faith conflicts in Europe come alive, and this book is even livelier than Law and Revolution (part one). Fluidly explained and endlessly engaging, it’s essential reading. I certainly didn’t want to put it down. Even the ‘religiously unmusical’ Max Weber would have been impressed.
After the brief presentation and a lengthier period of audience Q&A, McCloskey made herself available to answer questions individually. I was determined to get clarification on her belittling of Max Weber, since I’d long had a soft spot for the German theorist and saw this as perhaps just another dig at someone McCloskey didn’t view as sufficiently ‘capitalist’ to merit praise for what many regard as a stunning work. (To her credit, McCloskey had remarked beforehand that ‘greed is not good,’ as a kind of footnote to her overall theme that bourgeois capitalism must proceed unhindered, and ‘social democrats’ like Bernie Sanders—then surging against Hillary Clinton—are essentially fools.) But it seemed McCloskey had very little time for Weber’s idea, and when I confronted her one-on-one, she doubled down, saying the thesis had been objectively ‘proven wrong,’ and there was no point in dwelling on it. That was that.
Now, I accept critiques of great thinkers by intelligent people as well as the next man, but I must confess to being a bit defensive about poor old Max Weber. As one of the ‘founding fathers’ of sociology, Weber unleashed onto the world an area of study that now claims ‘scientific’ status for itself and is now even classified as a ‘STEM’ subject in American universities alongside hard sciences such as physics and chemistry. In fact, sociology is a ‘pseudo-science,’ and even very detailed sociological analyses can invariably be picked apart for the subjectivity of their approaches. But none of this is actually the fault of Max Weber, who died in 1920, long before the first sociology faculty had been formed in any major university in America. Weber studied societies—or, more broadly, ‘society’—and developed a series of original classifications and categories for consistency’s sake. But if sociology isn’t really a ‘science,’ even if it uses lots of statistics and numbers to support its propositions, surely that only weakens the claim of people like McCloskey that Weber’s thesis has been conclusively ‘disproven.’ After all, Weber put forth a theory, not a set of facts. So I felt a bit crestfallen at McCloskey’s dismissiveness, and went off to get some wine and cheese.
In the introduction of his last book, Law and Revolution II: The Impact of the Protestant Reformations on the Western Legal Tradition, Harold J. Berman (1918-2007) has this to say about Weber’s thesis:
Weber’s argument, as one of its most knowledgeable critics observed, has been “widely misunderstood by friends and enemies alike.” It is, indeed, very complex and very subtle. Weber did not say that “Protestantism” was a “cause” of “capitalism.” He said, rather, that one form of “Protestantism,” namely, Calvinism, as found especially among seventeenth-century English Puritans, was congruent with, and supportive of, “the spirit”—a word which, in the original title of his book, he put in quotation marks for emphasis—of the bourgeois industrial capitalism that later emerged in Europe. Moreover, Weber’s view of English Calvinism’s congruence with, and support of, the capitalist spirit was itself complex and subtle, for he defined the spirit of capitalism as consisting of an overriding desire on the part of individual capitalist entrepreneurs to acquire great wealth, while at the same time he acknowledged that English Calvinists denounced such a desire as sinful worship of Mammon. This paradox was resolved, he argued, by the Calvinist doctrine of predestination, according to which, first, God has chosen only a small proportion of the human race to receive eternal salvation, and second, God’s decision to send an individual person to ultimate damnation or ultimate salvation is wholly beyond the ability of humanity either to comprehend or to influence. The Calvinist believer was thus placed, Weber wrote, in a state of terrifying uncertainty as to whether he was chosen to be one of the damned or one of the elect. In that situation, his only hope consisted in the fact that if he conscientiously carried out the vocation to which (as he believed) God had called him, then God might grant him great success in that calling, and if God did so bless him with great success, then that would be some evidence, a sign, though no more than a sign, that God had placed him among the elect.
Berman characterizes Weber as having ‘genius’ in the same introduction. But where he says Weber got it wrong in The Protestant Ethic was in believing entrepreneurial spirit was somehow motivated by the effect on the individual believer of Calvinist doctrines of salvation, when in fact—claims Berman—it was the strong communitarian character of both Lutheranism and Calvinism that gave rise to capitalism. Berman (a law professor) chides Weber (a lawyer who became a professor of other things) for ignoring capitalism’s legal dimension as reflective of something other than the coercive tendencies of the state. Weber also ignores the importance of lawyers as a community, and the formation of a legal system that included new institutions and entities, such as trusts and corporations, all of which were—says Berman—evidence of a communitarian, close-knit society and economy, not individualism or ‘asceticism.’
It is very difficult to resist embracing Berman’s view, since his outlook is unquestionably brighter and more optimistic than Weber’s in The Protestant Ethic. Weber’s wife had described her husband as ‘religiously unmusical’ (as Berman notes), and indeed, Weber was by all accounts a ‘positivist’ in his attitude toward the law. Berman definitely was not, and since the message of Law and Revolution II is that the complex interaction and conflict among religious faiths played an essential role in the creation of wondrous legal systems that gave rise to Western civilization, with all its industriousness and innovation, it is little wonder Berman would strike Weber down. One can even draw analogies between the concept of the ‘covenant’ between God and the believer, on the one hand, and the development of the law of contracts, on the other. The law is to be revered and admired, not treated as a sinister and political force. Berman’s vision is ultimately positive, and we all need something positive to cling to, just to go on living. This book delivers a message of hope.
At the same time, it is a message of hope amid ‘apocalypse.’ Berman acknowledges that ‘the two Great Revolutions’ (German and English) that are the subject of Law and Revolution II were ‘marked by violence, destruction, bigotry, persecution, oppression, and gross injustices.’ But each ended ‘after two generations.’ The Western legal tradition was transformed by reconciling ‘utopian visions’ with the traditions against which they had been originally pitted. Thus, without meaning to, the author adopts a strangely ‘Machiavellian’ approach to history, in the sense that the means (however terrible) seem to justify the ends. He is brilliant, but very formalistically so, and the formalism tends to wash away all the blood, death and destruction attendant to history’s major revolutions. What is left is a marvel of God’s grace.
It is in that context that we can craft a defense for Weber, who had gained first-hand good reason to view revolutions as far less bright or hopeful than did Berman. Berman is critical of Weber’s focus on fear within the Calvinist believer, yet Weber must have felt collective fear first-hand. He had lived through the First World War in Germany and the violent clash of empires in Europe. He had witnessed the contemporary horrors of the Bolshevik Revolution in Russia. Up to and during WWI, he resented the militaristic rule of the junkers (Prussian landed nobility) and had no patience for anti-Semitism (he would not have fared well under the Nazis). Weber also disliked the Bolsheviks and correctly predicted that their revolution would result in a bureaucratic dictatorship. After the abdication of the Kaiser, Weber became a key figure in the formation of the Weimar Republic, and, although this turned out to be a failure, it must surely have been reasonable to perceive it as a better, more humane alternative to its predecessor. The Weimar Republic was an attempt at a constitutional, representative and democratic parliamentary state. That it did not work may have more to do with outside forces than attempts by benevolent-yet-misguided thinkers such as Max Weber within Germany itself.
In short, Weber lived through a very dark time in Europe, and was quite centrally situated. He had ample reason to see fear as the prime ‘moving force’ in history, even if such view was not entirely correct. If a ‘terrifying’ aspect of capitalism obscured for him the hopeful side, perhaps he shouldn’t be dismissed too readily, especially in this day and age. In today’s increasingly uncertain world, where a 'global revolution' of sorts seems to be underway, unprecedented political change in the West is happening concurrently with a war on terror, anxiety about Muslim migrants and a general sense of economic unease in industrialized societies. It might be more helpful, rather than simply writing off the main thesis of The Protestant Ethic and the ‘Spirit’ of Capitalism, to acknowledge the frightening and disturbing aspects of capitalism, not just the revolutions that have given rise to it, and to concede that Weber may have had a point when he identified fear-provoking qualities in a religious tradition such as Calvinist Protestantism.
Like its predecessor—Law and Revolution: The Formation of the Western Legal Tradition—Berman’s Law and Revolution II is a masterpiece. It is sad that Berman died before he could produce Law and Revolution III, incorporating a close analysis of the Russian Revolution, since he certainly believed that terrible episode had profoundly influenced world law, and not necessarily in a bad way. As it is, he took us to the end of the 17th century with a full-spirited understanding of how the American Revolution of the 18th century could have happened, and what it signified. The relevant historical events and figures, including Martin Luther and Oliver Cromwell, but also kings, queens, princes, legal theorists who aren't household names, and many others, are all in here. Berman makes the history of the inter-faith conflicts in Europe come alive, and this book is even livelier than Law and Revolution (part one). Fluidly explained and endlessly engaging, it’s essential reading. I certainly didn’t want to put it down. Even the ‘religiously unmusical’ Max Weber would have been impressed.
March 31, 2018
Berman's books have been the perfect culmination to my studies of law and legal history. This book's explanation of the influence of the Protestant Reformation on the development of modern law--and especially Calvinist theology and social thought on English criminal and civil law--has brought a degree of understanding and newfound context I'm quite thankful for.
September 23, 2010
"Law and Revolution, II, The Impact of the Protestant Reformations on the Western Legal Tradition (v. 2) by Harold J. Berman (2006)"
Displaying 1 - 3 of 3 reviews