Introduction

HIS 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 has brought it virtually to an end.

Not all people will want to listen to this story. Many will find the plot unacceptable; they will consider it a fantasy. Some will say that there never was a Western legal tradition. Others will say that the Western legal tradition is alive and well in the late twentieth century.

Even among those who will recognize that the story is true, and that it should be taken seriously, there will be wide differences of opinion concerning the meanings of the words Western, legal, tradition, and revolution. One purpose in telling the story is to uncover the meanings of those words in a narrative context, that is, in their time dimension. From that standpoint, to attempt to define them in advance would be selfdefeating. As Friedrich Nietzsche once said, nothing that has a history can be defined. Nevertheless, an author of nonfiction has an obligation to disclose at the outset some of his prejudices. At the same time it may be useful to attempt, in a preliminary way, to dispel some of the misunderstandings -- as I see them -- of those who may prejudge the story to be unacceptable.

What is called "the West" in this book is a particular historical culture, or civilization, which can be characterized in many different ways, depending on the purposes of the characterization.

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Occident" and was taken to comprise all the cultures that succeeded to the heritage of ancient Greece and Rome, as contrasted with "the Orient," which consisted chiefly of Islam, India, and the "Far East." Since the end of World War II, "East" and "West" have often been used to distinguish Communist from non_Communist countries: in "EastWest trade," a shipment of goods from Prague to Tokyo is a shipment from East to West.

There is another East-West distinction which is less well known today: the distinction between the eastern and western parts of the Christian church, which in the early centuries of the Christian era paralleled the distinction between the eastern and western parts of the Roman Empire. Although there were differences between the Eastern church and the Western church from an early time, it was only in 1054 that they split apart. Their separation coincided with the Western movement to make the Bishop of Rome the sole head of the church, to emancipate the clergy from the control of emperor, kings, and feudal lords, and sharply to differentiate the church as a political and legal entity from secular polities. This movement, culminating in what was called the Gregorian Reformation and the Investiture Struggle ( 1075-1122), 1gave rise to the formation of the first modern Western legal system, the "new canon law" (jus novum) of the Roman Catholic Church, and eventually to new secular legal systems as well -- royal, urban, and others. The term "Western," in the phrase "Western legal tradition," refers to the peoples whose legal tradition stems from these events. In the eleventh and twelfth centuries, these were the peoples of western Europe, from England to Hungary and from Denmark to Sicily; countries such as Russia and Greece, which remained in the Eastern Orthodox church, as well as large parts of Spain, which were Muslim, were excluded at that time.

The West, then, is not to be found by recourse to a compass. Geographical boundaries help to locate it, but they shift from time to time. The West is, rather, a cultural term, but with a very strong diachronic dimension. It is not, however, simply an idea; it is a community. It implies both a historical structure and a structured history. For many centuries it could be identified very simply as the people of Western Christendom. Indeed, from the eleventh to the fifteenth centuries the community of those people was manifested in their common allegiance to a single spiritual authority, the Church of Rome.

As a historical culture, a civilization, the West is to be distinguished not only from the East but also from "pre-Western" cultures to which it "returned" in various periods of "renaissance." Such returns and revivals are characteristics of the West. They are not to be confused with the

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models on which they drew for inspiration. " Israel," "Greece," and "Rome" became spiritual ancestors of the West not primarily by a process of survival or succession but primarily by a process of adoption: the West adopted them as ancestors. Moreover, it adopted them selectively________________________________________________ different

parts at different times. Cotton Mather was no Hebrew. Erasmus was no Greek. The Roman lawyers of the University of Bologna were no Romans.

Some Roman law, to be sure, survived in the Germanic folklaw and, more important, in the law of the church; some Greek philosophy also survived, also in the church; the Hebrew Bible, of course, survived as the Old Testament. But such survivals only account for a small part of their influence on Western law, Western philosophy, and Western theology. What accounted for the major part of their influence were the rediscoveries, reexaminations, and receptions of the ancient texts.

The West, from this perspective, is not Greece and Rome and Israel but the peoples of Western Europeturning to the Greek and Roman and Hebrew texts for inspiration, and transforming those texts in ways that would have astonished their authors. Nor, of course, is Islam part of the West, although there were strong Arabic influences on Western philosophy and science -- though not on Western legal institutions -- especially in the period with which this study is concerned.

Indeed, each of the ancient ingredients of Western culture was transformed by being mixed with the others. The amazing thing is that such antagonistic elements could be brought together into a single world view. The Hebrew culture would not tolerate Greek philosophy or Roman law; the Greek culture would not tolerate Roman law or Hebrew theology; the Roman culture would not tolerate Hebrew theology, and it resisted large parts of Greek philosophy. Yet the West in the late eleventh and early twelfth centuries combined all three, and thereby transformed each one.

Somewhat more controversial is the distinction between the West and the culture of the Germanic and other tribal peoples of Europe before the eleventh century. If West were a geographical term, that earlier culture would have to be included; indeed, one would have to start, as most studies of European history do, with Caesar's Gallic wars, the invasion

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of the Roman Empire by the Germanic peoples, the rise of the Frankish monarchy, and Charlemagne and Alfred the Great before coming to the Gregorian Reformation, the Investiture Struggle, and what is usually called the High Middle Ages or the Renaissance of the Twelfth Century (though it actually began in the latter half of the eleventh).

Finally, it needs to be said in connection with the meaning of the word Western that, at least for the purpose of analyzing and explaining legal institutions, no sharp distinction should be made between Western and "modern"; and further, that modern should be differentiated from "contemporary" by applying modern to the period prior to the two World Wars and contemporary to the period since 1945. One of the purposes of this study is to show that in the West, modern times -- not only modern legal institutions and modern legal values but also the modern state, the modern church, modern philosophy, the modern university, modern literature, and much else that is modern -- have their origin in the period 1050-1150and not before.

The term "legal," like the term Western, has a history. "Law" these days is usually defined as a "body of rules." The rules, in turn, are usually thought to derive from statutes and, where judicial lawmaking is recognized, from court decisions. From this point of view, however, there could be no such thing as "Western law," since there is no Western legislature or court. (By the same token there could be no such thing as "American law," but only the federal law of the United States and the state law of each of the fifty states.) Such a definition of law is entirely too narrow for any study that embraces the legal systems of all countries of the West in all the various periods of Western history, and which is concerned not only with the law in books but also with law in action. Law in action involves legal institutions and procedures, legal values, and legal concepts and ways of thought, as well as legal rules. It involves what is sometimes called "the legal process," or what in German is called Rechtsverwirklichung, the "realizing" of law.

Lon L. Fuller has defined law as "the enterprise of subjecting human conduct to the governance of rules." 2This definition rightly stresses the primacy of legal activity over legal rules. Yet I would go further by adding to the purpose of the enterprise not just the making and applying of rules but also other modes of governance, including the casting of votes, the issuing of orders, the appointment of officials, and the handing down of judgments. Also the law has purposes other than governance, in the usual sense of that word: it is an enterprise for facilitating voluntary arrangements through the negotiation of transactions, the issuance of doc­

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uments (for example, credit instruments or documents of title), and the performance of other acts of a legal nature. Law in action consists of people legislating, adjudicating, administering, negotiating, and carrying on other legal activities. It is a living process of allocating rights and duties and thereby resolving conflicts and creating channels of cooperation.

Such a broad concept of law is needed in order to compare, within a single framework, the many specific legal systems that have existed in the West during many centuries. It is needed also in order to explore the interrelationships of these systems with other political, economic, and social institutions, values, and concepts.

I have taken the liberty of defining law in general terms, without reference to the particular legal institutions, values, and concepts that characterize the Western legal tradition. My purpose in doing so has been to answer those who, by defining law too narrowly, namely, as a body of rules, obstruct an understanding of the emergence of the Western legal tradition, of the impact on it of the great revolutions of Western history, and of its present predicament. The concept of law as a particular kind of enterprise, in which rules play only a part, becomes meaningful in the context of the actual historical development of the living law of a given culture.

To speak of a "tradition" of law in the West is to call attention to two major historical facts: first, that from the late eleventh and twelfth centuries on, except in certain periods of revolutionary change, legal institutions in the West developed continuously over generations and centuries, with each generation consciously building on the work of previous generations; and second, that this conscious process of continuous development is (or once was) conceived as a process not merely of change but of organic growth. Even the great national revolutions of the past -- the Russian Revolution of 1917, the French and American Revolutions of 1789 and 1776, the English Revolution of 1640, the German Reformation of 1517 -- eventually made peace with the legal tradition that they or some of their leaders had set out to destroy.

The concept of conscious organic development was applied in the eleventh and twelfth centuries to institutions. In this context the term "institutions" means structured arrangements for performing specific social tasks. Universities, for example, are institutions for transmitting higher education and training professionals; the financial and judicial departments of government are institutions for administering taxation and justice, respectively; the legal system is a structured system of arrangements, one of whose primary purposes is to provide guidance to the various departments of government, as well as to people generally, concerning what is permitted and what is prohibited. In the West in the eleventh and twelfth centuries not only the newly created universities,

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exchequers and courts, and legal systems were viewed as developing institutions, but even the church came to be so viewed. So also did secular structures such as urban and royal governments. These various institutions were conceived as having an ongoing character; they were expected gradually to adapt to new situations, to reform themselves, and to grow over long periods of time. In part, such growth was planned: many cathedrals, for example, were planned to be built over generations and centuries; they had budgets, literally, for a thousand years. In part, the growth was not so much planned as engineered: administrators and legislators revised the work of their predecessors, di sciples set out to improve on the work of their masters, the "commentators" succeeded the "glossators." In part, growth seemed less to be planned or engineered than just to happen: for example, architects "combined" Romanesque with Norman, and out of that there "emerged" early Gothic, which "developed" into later Gothic, and so on.

As Robert Nisbet says, no one sees a society "grow" or "develop" or "decay" or "die." 3These are all metaphors. Nevertheless, the belief of people living in a society in a given time that the society is, in fact, growing or developing, or decaying, or dying, is a very real thing. In the formative era of the Western legal tradition the older Augustinian belief that society, the "earthly city," is continually decaying was modified by a new belief that social institutions are capable of birth and growth and reproduction. Moreover, this process was conceived to be one in which successive generations consciously and actively participate. As Goethe said, a tradition cannot be inherited -- it has to be earned.

The great English historian F. W. Maitland made use of the biological metaphor of growth to describe the changes that took place in the English law relating to the forms of action in the twelfth century and thereafter. He wrote:

Our forms of action are not mere rubrics nor dead categories; they are not the outcome of a classificatory process that has been applied to pre-existing materials. They are institutes of the law; they are -- we say it without scruple -- living things. Each of them lives its own life, has its own adventures, enjoys a longer or shorter day of vigour, usefulness, and popularity and then sinks perhaps into a decrepit and friendless old age. A few are still-born, some are sterile, others live to see their children and children's children in high places. The struggle for life is keen among them and only the fittest survive. ⁴

Thus trespass, which Maitland called a "fertile mother of actions," is said to have "given birth to" or "given rise to" or "thrown off" -- depending partly on one's taste in metaphors and partly on one's concept of organic

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continuity___ trespass for assault and battery, trespass to chattels, trespass to land, and many other

trespass actions. It was also "a source of" trespass on the case, although there the offspring differed very substantially from its progenitor. 5_ Scholars have drawn a tree to represent the forms of action, with trunk and branches and dates assigned, like a genealogical tree. Is this just a pedagogical device? Is it perhaps a form of animism?

It may be useful to draw an analogy between the development of law, so conceived, and the development of music. From the eleventh and twelfth centuries on, monophonic music, reflected chiefly in the Gregorian chant, was gradually supplanted by polyphonic styles. Two-part, three-part, and eventually four-part music developed. The contrapuntal style exemplified in the thirteenth-century motet evolved into the harmonic style of the fourteenth-centuryars nova, exemplified in the ballade.

Eventually, counterpoint and harmony were combined. The sixteenth century witnessed the development of the great German Protestant chorales, and these, together with Italian and English madrigals and other forms, provided a basis for opera, which first appeared in Italy at the end of the sixteenth and in the early seventeenth century. Eventually Renaissance music gave way to Baroque, Baroque to Classical, and so on. No good contemporary musician, regardless of how off-beat he may be, can afford not to know this story. There was a time not long ago when a good lawyer was required, in a similar way, to know the story of the development of legal institutions.

Of course, not every change is to be seen as growth. Some changes may be said to cut off growth. One cannot say, for example, that trial by ordeal and trial by battle gave rise to trial by jury, or that the civil action for trespass to land grew out of the appeal of felony. Ordeal, battle, and appeal of felony were tribal and feudal in nature; jury and trespass were royal. Moreover, the former hardly survived the introduction of the latter, whereas the concept of organic growth presupposes that the parent continues to live alongside the offspring. It is different from the concept of causation. Not the ordeal but the abolition of the ordeal gave rise to the jury in criminal cases.

At the same time, conscious growth does not necessarily mean deliberate movement toward particular ideal goals. It means something less than moral progress, though something more than mere change or accumulation. Law reform has been, to be sure, a recurrent feature of the Western legal tradition ever since its formative era. Yet reform itself is seen as part of what I have called the ongoing character of the tradition, its self-conscious continuity in time.

The principal characteristics of the Western legal tradition may be summarized, in a preliminary way, as follows:

1. A relatively sharp distinction is made between legal institutions (including legal processes such as legislation and adjudication as well as the

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legal rules and concepts that are generated in those processes) and other types of institutions. Although law remains strongly influenced by religion, politics, morality, and custom, it is nevertheless distinguishable from them analytically. Custom, for example, in the sense of habitual patterns of behavior, is distinguished from customary law, in the sense of customary norms of behavior that are considered to be legally binding. Similarly, politics and morals may determine law, but they are not thought to be law as they are in some other cultures. In the West, though of

course not only in the West, law is considered to have a character of its own, a certain relative autonomy.

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. In other words, the law includes not only legal institutions, legal commands, legal decisions, and the like, but also what legal scholars (including, on occasion, lawmakers, judges, and other officials talking or writing like legal scholars) say about those legal institutions, commands, and decisions. The law contains within itself a legal science, a meta-law, by which it can be both analyzed and evaluated.

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. They are not shared, however, in many contemporary non-Western cultures, nor were they present in the legal order that prevailed among the Germanic peoples of Western Europe prior to the eleventh century. Germanic law was embedded in political and religious life and in custom and morality -- as law is today in many informal communities such as the school, the neighborhood, the factory, the village. Neither in the Frankish Empire nor in Anglo-Saxon England nor elsewhere in Europe at that time was a sharp distinction made between legal norms and procedures, on the one hand, and religious,

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moral, economic, political, or other standards and practices, on the other. There were, to be sure, laws, and occasionally collections of laws, issued by kings; but there were no professional lawyers or judges, no professional legal scholars, no law schools, no law books, no legal science. This was true also in the church: canon law was fused with theology, and except for some rather primitively organized collections of canons and the monastic books of penalties for sins, there was nothing that could be called a literature of ecclesiastical law.

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. The concept of law as a corpus juris might be thought to be implicit in every legal tradition in which law is viewed as distinct from morality and from custom; and it is often supposed that such a concept was not only implicit but also explicit in the Roman law of Justinian. However, the phrase corpus juris Romani was not used by the Romans but by the twelfth- and thirteenth-century European canonists and Romanists who extrapolated the concept from the work of those who, one or two centuries earlier, had discovered the old Justinian texts and taught them in the European universities. It was the twelfth­century scholastic technique of reconciling contradictions and deriving general concepts from rules and cases that first made it possible to coordinate and integrate the Roman law of Justinian. 6

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. The body of law only survives because it contains a built-in mechanism for organic change.

7. The growth of law is thought to have an internal logic; changes are not only adaptations of the old to the new, but are also part of a pattern of changes. The process of development is subject to certain regularities and, at least in hindsight, reflects an inner necessity. It is presupposed in the Western legal tradition that changes do not occur at random but proceed by reinterpretation of the past to meet present and future needs. The law is not merely ongoing; it has a history. It tells a story.

8. The historicity of law is linked with the concept of its supremacy over the political authorities. The developing body of law, both at any given moment and in the long run, is conceived by some -­although not by all, and not necessarily even by most -- to be binding upon the state itself. Although it remained for the American Revolution to contribute the word "constitutionalism," nevertheless, since the twelfth century in all countries of the West, even under absolute monarchies, it has been widely said and often accepted that in some important respects law transcends politics. The monarch, it is argued, may make law, but he may not make it arbitrarily, and until he has remade it -- lawfully -- he is bound by it.

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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. It is this plurality of jurisdictions and legal systems that makes the supremacy of law both necessary and possible.

Legal pluralism originated in the differentiation of the ecclesiastical polity from secular polities. The church declared its freedom from secular control, its exclusive jurisdiction in some matters, and its concurrent jurisdiction in other matters. Laymen, though governed generally by secular law, were subject to ecclesiastical law, and to the jurisdiction of ecclesiastical courts, in matters of marriage and family relations, inheritance, spiritual crimes, contract relations where faith was pledged, and a number of other matters as well. Conversely, the clergy, though governed generally by canon law, were subject to secular law, and to the jurisdiction of secular courts, with respect to certain types of crimes, certain types of property disputes, and the like. Secular law itself was divided into various competing types, including royal law, feudal law, manorial law, urban law, and mercantile law. The same person might be subject to the ecclesiastical courts in one type of case, the king's court in another, his lord's court in a third, the manorial court in a fourth, a town court in a fifth, a merchants' court in a sixth.

The very complexity of a common legal order containing diverse legal systems contributed to legal sophistication. Which court has jurisdiction? Which law is applicable? How are legal differences to be reconciled? Behind the technical questions lay important political and economic considerations: church versus crown, crown versus town, town versus lord, lord versus merchant, and so on. Law was a way of resolving the political and economic conflicts. Yet law could also serve to exacerbate them.

The pluralism of Western law, which has both reflected and reinforced the pluralism of Western political and economic life, has been, or once was, a source of development, or growth -- legal growth as well as political and economic growth. It also has been, or once was, a source of freedom. A serf might run to the town court for protection against his master. A vassal might run to the king's court for protection against his lord. A cleric might run to the ecclesiastical court for protection against the king.

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. This tension has periodically led to the violent overthrow of legal systems by revolution. Nevertheless, the legal tradition, which is something bigger than any of the legal systems that comprise it, survived and, indeed, was renewed by such revolutions.

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