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This book tells the story of two successive transformations of the Western legal tradition under the impact of two Great Revolutions---the sixteenth-century German Revolution, of which the Lutheran Reformation was a critical part, and the seventeenth-century English Revolution, of which the Calvinist Reformation was a critical part. It was, of course, not just the legal tradition that was affected by these revolutions; also involved were new forms of nationhood, new forms of government, new concepts of truth. These were two total political and social upheavals, reflecting two new belief systems, whose repercussions were felt throughout Europe.
One cannot properly tell the story of what happened to the Western legal tradition in these two successive periods of history without also sketching its background in the revolutionary changes as a whole: what happened in Germany---and in Europe---after October 31, 1517, when Martin Luther posted his Ninety-five Theses on the door of his prince's church in Wittenberg, declaring, in effect, the abolition of the Roman Catholic priesthood, and rulers of German principalities raised armies to defend the Lutheran cause against the forces of the German emperor and the papacy; and what happened in England, and in Europe, after November 1640, when, following eleven years of personal rule by Charles I, a Puritan-dominated Parliament, elected by the English landed gentry, voted to establish the Presbyterian Church in Scotland, causing Charles to bring four hundred troops into the House of Commons for the purpose of arresting leading members, after which Parliament raised an army of its own to bring down royal supremacy. The main focus of the book, however, is not on the course of the two revolutions but rather on what happened eventually, in their wake, to the systems of law in the two countries, viewed in the context of the larger legal tradition of which the two national legal systems were a part.
An earlier volume told the story of the formation of the Western legal tradition. Under the impact of the Papal Revolution of the late eleventh and early twelfth centuries, there were created in the twelfth and thirteenth centuries the first modern legal system, the "new" canon law of the Roman Catholic Church (jus novum, as it was called), and, more gradually, coexisting secular legal systems---royal, feudal, urban, and mercantile. Indeed, the canon law served in important respects as a model for the development of secular legal systems. Later transformations of the Western legal tradition took place under the impact of the eighteenth-century French and American Revolutions, the twentieth-century Russian Revolution, and the crisis of the Western legal tradition in the twentieth and early twenty-first centuries.
The principal purpose of this introduction is to recapitulate, in relatively brief compass, the main themes of the entire work, in order to place the sixteenth- and seventeenth-century transformations of German and English law, respectively, in the context of the Western legal tradition as a whole, from its origins in the late eleventh century, through its successive major transformations, to its precarious situation in twentieth and early twenty-first centuries. It is ultimately from the perspective of the present crisis of the nine hundred-year-old Western legal tradition that the story of its formation and subsequent transformations is to be told.
It may be helpful at the outset to indicate briefly what is meant here by the words "Western," "legal," and "tradition," especially when they are brought together in a single concept, and also by the word "Revolution"---henceforth with a capital R---when applied to the great political and social upheavals that have erupted periodically in the history of the West.
By "the West" I mean the historically developing culture of the peoples of Europe who, from the early twelfth to the early sixteenth centuries, shared a common political and legal subordination, as well as a common religious subordination, to the papal hierarchy of the Roman Catholic Church, and who from the sixteenth to the twentieth century experienced a series of great national Revolutions, each of which was directed partly against Roman Catholicism and each of which had repercussions throughout Europe. Included as Western are also non-European nations such as the United States that have been brought within the historically developing Western culture by colonization or, as in the case of Russia, by cultural and political affinity and interaction.
By "legal" I mean the systems of law---including constitutional law, legal philosophy, and legal science, as well as principles and rules of criminal and civil law and procedure---that have developed in the nations of the West since the twelfth century. Despite their diversity in time and space, these legal systems share common historical foundations and common concepts and methods. Also included is what may be called spiritual law, or social law---that is, law regulating ecclesiastical affairs, marriage and the family, moral offenses, education, and poor relief. Prior to the sixteenth century, these were in the competence of the Roman Catholic Church; the Protestant Reformations brought them within the competence of the secular authorities.
By "tradition" I mean the sense of an ongoing historical continuity between past and future, and in law, the organic development of legal institutions over generations and centuries, with each generation consciously building on the work of its predecessors. The historian Jaroslav Pelikan has contrasted such allegiance to tradition with traditionalism: traditionalism, he has written, is the dead faith of the living, tradition is the living faith of the dead. Similarly, one may contrast historicism, adherence to the past for its own sake, with historicity, drawing on the past in building a new future. The sociologist Edward Shils called tradition "not the dead hand of the past but rather the hand of the gardener, which nourishes and elicits tendencies of judgment which would otherwise not be strong enough to emerge on their own. Characteristically Western is the concept of a "body" of law that consciously develops in time, that "grows" over generations and centuries. It is presupposed, in the Western legal tradition, that legal change does not occur at random but proceeds by conscious reinterpretation of the past to meet present and future needs. The law evolves, is ongoing, it has a history, it tells a story. Yet the evolution of law in the West began with a Great Revolution and has been interrupted periodically in the past five centuries by a series of Great Revolutions. Every nation of the West traces its law back to such a Revolution. The interaction of long-term evolution and periodic Great Revolutions is an essential part of the story.
By "Revolution" is meant here a fundamental change, a rapid change, a violent change, a lasting change, in the political and social system of a society, involving a fundamental change in the people themselves---in their attitudes, in their character, in their belief system. This meaning of the word is often dated from the outbreak of the French Revolution of 1789, when the duke of Liancourt brought the news of the storming of Bastille to King Louis XVI at Versailles. "But that is a revolt," exclaimed the king. "No, Sire," said Liancourt, "it is a Revolution." The same word had been applied to the American War of Independence of 1776-1783, and was subsequently applied to the Russian Revolution of 1905 and 1917. It may properly be applied to the English Revolution of 1640, which, however, was called the Glorious Revolution only when it was brought to a conclusion in 1689; to the German Revolution, which was called at the time the Lutheran Reformation; and to the Papal Revolution of 1075-1122, which was called at the time the Gregorian Reformation, after Pope Gregory VII, who initiated it. In each of these six Great Revolutions there was a violent upheaval, a civil war, fought for great ideals. Each required more than one generation to take root. Each sought legitimacy in a fundamental law and an apocalyptic vision. Each eventually produced a new body of law that reflected some of the major purpose of the Revolution. Each of the Great Revolutions transformed the Western legal tradition but ultimately remained within it.
Thus the tradition itself looks not only to the past but also to the future. A slogan of each of the Great Revolutions was "the reformation of the world." The first three---the Paoal, the German, and the English---invoked the biblical vision of "a new heaven and a new earth." The American and the French Revolutions adopted Deist versions of the same---the supremacy of God-given reason, God-given inalienable rights and liberties. The Russian Revolution proclaimed the messianic mission of the atheist Communist Party to prepare the way for a classless society in which all would be brothers and sisters and each would receive according to his needs. The belief systems that accompanied these apocalyptic visions were reflected not only in radical political, economic, and social changes but also in new concepts and new institutions of public and private law.
Thus the story told here of the transformations of the Western legal tradition that took place under the impact of the Lutheran and Calvinist Reformations of the sixteenth and seventeenth centuries must be seen as part of a still larger story, in a millennial perspective.
The Origin of the Western Legal Tradition in the Papal Revolution
The larger story begins with the separation of the ecclesiastical and secular jurisdictions, accomplished by a revolutionary movement to free the Church of Rome from subservience to emperors, kings, and feudal lords, and to establish an independent hierarchy of the priesthood, under the papacy, including a hierarchy of professional ecclesiastical courts to resolve disputes and to enforce papal legislation. Led initially by Pope Gregory VII, the Gregorian Reformation, as it was also called at the time, or the Investiture Contest, as it was also called, or the Papal Revolution, as it came to be called in the twentieth century, was marked by civil wars throughout Europe during a period of almost fifty years, from 1075 to 1122. The pan-European Church of Rome became the first modern state. It established a body of law that was systematized in Gratian's great treatise of 1140, characteristically titled A Concordance of Discordant Canons. This was the first modern systematic treatise on an entire body of law, and it was accepted---and still is---as an authoritative statement of the canon law. It was followed in the thirteenth century by authoritative treatise on English, German, French and other systems of territorial secular law.
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