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Harold J. Berman


Harvard Univ. Press, Cambridge, 1983, 657 pgs., index, end notes, maps


Reviewer Comment: This is a more vital reference now to understanding how and why our legal system is unique. Law is a social construct and our legal system is under attack today




Introduction - The author begins thusly: "This book tells the following story: that once there was a civilization called "Western ", that it developed distinctive "legal" institutions, values, and concepts; that these Western legal institutions, values, and concepts were consciously transmitted from generation to generation over centuries, and thus came to constitute a "tradition", that the Western legal tradition was born of a "revolution" and thereafter, during the course of many centuries, has been periodically interrupted and transformed by revolutions; and that in the twentieth century the Western legal tradition is in a revolutionary crisis greater than any other in its history, one that some believe had brought it virtually to an end".

He continues by noting that many people will not believe this or will dispute its origins or condition today. Then he defines the key terms, 'western' 'legal', and 'tradition'. This is a lengthy introduction, but important for an understanding of the chapters that follow. His fundamental point is that this "Western Legal Tradition" made use of but transformed its Greek, Roman and Biblical antecedents to create something quite new and different. And despite the political - social - revolutions since its inception the body of law has developed but not been drastically altered.

The author summarizes as follows: "The principal characteristics of the Western legal tradition may be summarized, in a preliminary way, as follows:
1. A relatively sharp distinction in made between legal institutions (including legal processes such as legislation and adjudication as well as as the legal rules and concepts that are generated in those processes) and other types of institutions.

2. Connected with the sharpness of this distinction is the fact that the administration of legal institutions, in the Western legal tradition, is entrusted to a special corps of people, who engage in legal activities on a professional basis as a more or less full-time occupation.

3. The legal professionals, whether typically called lawyers, as in England and America, or jurists, as in most other Western countries, are specially trained in a discrete body of higher learning identified as legal learning, with its own professional literature and its own professional schools or other places of training.

4. The body of legal learning in which the legal specialists are trained stands in a complex, dialectical relationship to the legal institutions, since on the one hand the learning describes those institutions but on the other hand the legal institutions, which would otherwise be disparate and unorganized, become conceptualized and systematized, and thus transformed, by what is said about them in learned treatises and articles and in the classroom".

"The first four characteristics of the Western legal tradition are shared by the tradition of Roman law as it developed in the Roman Republic and the Roman Empire from the second century B. C. to the eighth century A. D. and later."

This is not the case in other previous or contemporary societies.

5. "In the Western legal tradition law is conceived to be a coherent whole, an integrated system, a 'body', and this body is conceived to be developing in time, over generations and centuries".

6. "The concept of a body or system of law depended for its vitality on the belief in the ongoing character of law, its capacity for growth over generations and centuries - a belief which is uniquely Western".

7. "The growth of law is thought to have an internal logic; changes are no only adoptions of the old to the new, but are also part of a pattern of changes".

8. "The historicity of law is linked with the concept of its supremacy over the political authorities".

9. "Perhaps the most distinctive characteristic of the Western legal tradition is the coexistence and competition within the same community of diverse jurisdictions and diverse legal systems". "The same person might be subject to the ecclesiastical courts in one type of case, the king's court in another, is lord's court in a third, the manorial court in a fourth, a town court in a fifth, a merchant's court in a sixth".

10. "There is a tension between the ideals and realities, between the dynamic qualities and the stability, between the transcendence and the immanence of the Western legal tradition".

"Laws and History"
In this section the author points out that much of the historical theory of the development of law and legal systems is no longer believed or taught in law schools. But he describes this historical development anyway. Moreover, he notes, the academic belief in the nature of history itself is diverse and divisive. As he writes, "However, those who go so far as to reject all meaning in history, all direction, and all periodization should not have any greater objection to the story told here than they would have to more conventional accounts that merely attach to the same events and facts less meaning".

The remaing lengthy introduction concerns the history of the development of the Western legal tradition over the course of centuries and through the six major political - social revolutions that affected it.


Part I The Papal Revolution and the Canon Law


Chapter I - The Background of the Western Legal Tradition: The Folklaw


Chapter 2 - The Origin of the Western Legal Tradition in the Papal Revolution


Chapter 3 -The Origin of the Western Legal Science in the European Universities


Chapter 4 - Theological Sources of the Western Legal Tradition


Chapter 5 - Canon Law: The First Modern Western Legal System


Chapter 6 - Structural Elements of the System of Canon Law


Chapter 7 - Becket versus Henry II: The Competition of Concurrent Jurisdictions


Part II The Formation of Secular Legal Systems


Chapter 8 - The Concept of Secular Law


Chapter 9 - Feudal Law


Chapter 10 - Manorial Law


Chapter 11 - Mercantile Law


Chapter 12 - Urban Law


Chapter 13 - Royal Law: Sicily, England, Normandy , France


Chapter 14 - Royal Law: Germany, Spain, Flanders, Hungary, Denmark




We add some relevant references

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Marcia L. Colish - Medieval Foundations of the Western Intellectual Tradition 400 - 1400


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