Harold J. Berman

Faith and order : the reconciliation of law and religion

This book argues that despite the tensions existing in all societies between religious faith and legal order, they inevitably interact. In the course of his discussion Berman traces the history of Western law, exposes the fallacies of law theories that fail to take religion into account, examines key theological, prophetic, and educational themes, and looks at the role of religion in the Soviet and post-Soviet state.

Religious Foundations of Law in the West: An Historical Perspective *

The fundamental changes that have taken place in our legal institutions during the past two generations are part of a transformation of the entire Western legal tradition, marked particularly by its disconnection from the religious foundations upon which it was built. For over eight hundred years, from the late eleventh to the early twentieth century, law in the West was supported by, and in many respects based on, religious beliefs, both Roman Catholic and Protestant. In the twentieth century the intimate connection between the Western legal tradition and the Western religious tradition has been substantially broken. Sixty to seventy years ago, the connection between law and religion in the West was so intimate that it was usually taken for granted. Even in the United States, where religious diversity was far greater than in most other Western countries, and where agnosticism and atheism were more tolerated, it was generally accepted that the legal system was rooted in Judaic and Christian religious and ethical beliefs. “We are a religious people,” wrote Justice William O. Douglas as recently as 1951, speaking for a majority of the United States Supreme Court, “whose institutions presuppose a Supreme Being.” Not only law and legality in general, but many specific legal standards, principles and rules were widely thought to be derived ultimately from the Bible, from the history of the church, and from what the Declaration of Independence called “the laws of Nature and Natures God.”

The Spiritualization of Secular Law: The Impact of the Lutheran Reformation

The dialectical opposition and interaction of the secular and the spiritual realms of life has deep roots in Christian thought. Jesus enjoined his challengers to “render unto Caesar the things which are Caesars and unto God the things that are Gods” ( Matt 22:21). To his disciples he said, “That which is born of the flesh is flesh, and that which is born of the Spirit is spirit” ( John 3:6), and “except a man be born of … the Spirit, he cannot enter the kingdom of God.” ( John 3:5). St. Paul, in turn, contrasted “the inward man,” who delights in “the law of God,” with one who is “in the flesh,” the law of whose “members” wars against “the law of the spirit” ( Rom 7:5-7, 22-23). He listed among the “spiritual gifts” implanted by God in followers of Christ the gifts of wisdom, of knowledge, of faith, of healing, of miracles, and of prophecy ( 1 Cor 12:1-7). The spiritually minded inner-directed follower of Christ fights against the materialism of the unredeemed age, the time-bound world, into which he was born. Four centuries later St. Augustine applied this concept to the society in which he lived, drawing a sharp contrast between the sinful and, indeed, Satanic character of the temporal “earthly city” and the purity of the eternal “city of God.” For St. Augustine, both the church and the empire lived in an evil age, in hoc maligno saeculo , in which the true Christian, whether priest or layman, was, in effect, an alien. In Peter Browns words, “For Augustine, this saeculum is a profoundly sinister thing. It is a penal existence … it wobbles up and down without rhyme or reason.” In the City of God, on the other hand, Christian spirituality, for St. Augustine, was effectuated through the “vestiges” of the tri-une God implanted in human memory and imagination, human reason and understanding, and human desire and love.

The Use and Abuse of Confused Notions

The title of this chapter might seem, to one raised in the rationalist tradition of the West, not only paradoxical, but even provocative. Can there be a defensible use of confused notions? Is not the act of utilising a confused notion, without attempting to make it more precise, to clarify it, always an abuse to be condemned?

The Religious Sources of General Contract Law: An Historical Perspective

In his dramatic, if not mystical, account of the birth, growth, senescence, and death of American contract law, and of its ultimate dissolution into the law of tort, Grant Gilmore certainly did not intend to join forces with those who would later seize on his story as evidence that both contract and tort, and, indeed, law all together, are merely artificial devices to support a hierarchical and hegemonic political structure and to facilitate economic exploitation of the weak by the strong. Yet Gilmores expose of the logical circularities and fallacies of contract doctrine (especially as it is taught in first-year courses in American law schools) does add fuel to the already raging fires of skepticism—skepticism not only about the coherence of individual branches of the legal tree (contracts, torts, property, etc.) but also about the validity of doctrinal legal analysis and ultimately of law itself. Arthur Corbin—Gilmores mentor and the hero of his book—did not share that skepticism, although he strongly opposed the rigidities of the then prevailing contract doctrine, especially as represented in the teachings of his friend and rival, Samuel Williston. Unlike Williston, Corbin was prepared to give a contractual remedy for losses caused by reliance on a promise, and thus to bring contract and tort into a common focus. He was also more willing than Williston to expand concepts of fairness at the expense of strict liability for breach. Nevertheless, Corbin did not doubt, and surely did not seek to undermine, the coherence of contract law.

The presumption of innocence: another reply

Dr. Gorgones painstaking analysis and evaluation makes my argument seem much more complicated than it actually is. He reads many things into it that are not there. Having been criticized by George Fletcher, on the ground that I say that Soviet law really does contain the doctrine of presumption of innocence, when in fact, as he shows, it does not,1 I find it somewhat ironic to be attacked now by John Gorgone on the ground that I say that Soviet law really does not contain the doctrine of presumption of innocence, when in fact, as he shows, it does. They are both right. Soviet law both does and does not contain the doctrine of presumption of innocence. To put it very simply indeed, Soviet law contains a doctrine of presumption of innocence but it does not contain our doctrine of presumption of innocence. Soviet law provides that a person may not be convicted of a crime unless his guilt is proved beyond a doubt. The accused has no obligation to present evidence to prove his innocence. No inference of guilt may be drawn from the mere fact of indictment. Evidence supporting the indictment must be presented at trial, and the judgment of the court must be based on that evidence alone. The court

Law and Morality

Traditionally, studies dedicated to the relations between law and morality insisted, from a Kantian orientation, upon the following distinctions: law governs external behavior, morality emphasizes intention, law establishes a correlation between rights and obligations, morality prescribes duties which do not bring forth subjective rights; law establishes obligations sanctioned by power, morality escapes organized sanctions.

Justice and Reason

The legislators and judges who employ sanctions and constraints to assure respect for law and the execution of sentences, owe it to themselves to exercise their functions in the spirit in which those functions have been conferred on them. The legislators should elaborate laws that will be just because they are in harmony with the aspirations of the community they represent; the judges should apply the laws in a spirit of equity, in accordance with the traditions of the community whose magistrates they are. But the philosopher’s role, unlike the judge’s, does not consist of cultivating respect for the established order; nor does the philosopher, like the politician, have to conform to the wishes of an electorate in order to win their votes. If such a thing as a philosopher’s mission exists, it is that he be the advocate of reason and the defender of universal values deemed to be valid for all men. In the words of Husserl, ‘we philosophers are the civil servants of humanity.’1

Justice and its Problems

Justice is one of the most highly respected notions in our spiritual universe. All men — religious believers and nonbelievers, traditionalists and revolutionaries — invoke justice, and none dare disavow it. The search for justice inspires both the objurgations of the Hebrew prophets and the reflections of the Greek philosophers. It is invoked to protect the established order as well as to justify its overthrow. And so, justice is a universal value.

The Justification of Norms

It is only in the last ten years that logicians have been concerned with the problem of justification, a term still absent in the majority of logic manuals. What traditionally concerns the logician is induction or deduction. Deontic logic treats the obligatory, the permitted or prohibited, i.e., what is regulated by norms, and is not concerned at all with justification. Even if it is mentioned, it is only to be assimilated to a deduction, where a norm may figure among the premises. To justify a norm, in this case, would be to deduce it from a more general and fundamental norm. Concerning the latter, unless it is based upon self-evidence or an intuition sui generis, it will be considered only as the expression of our aspirations, propensities or passions; it means that all rationality is discarded. From this latter perspective, the justification of norms does not arise from philosophy, but from psychology, sociology, history and always supposes an improper passage from what is to what should be. This negation of the possibility of a practical philosophy leads to scepticism; certain people admit it, with a smile, as inevitable, but console themselves by showing that it is not a disadvantage. We can find a characteristic expression of this point of view in Leonard G. Miller’s article ‘Moral Scepticism’ (Philosophy and Phenomenological Research 22 (1961) 239–245). Professor Miller defends the thesis that it is meaningless to ask for justifications in the sphere of moral principles.