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 America (and not only America) 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[無需守律法的 ] 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[啟示 ] of the "counter culture" as expressed in many of the communes that sprang up in America in the 1960s and early 1970s. Yet the spon 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 [關於永恒的] 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 [ 永恒學說 ]. 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[ 非傳統的 ] 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 : Introduction to 'The Interaction of Law and Religion' | 2009-03-25 11:43:03 | <>< />>
| |
|