Law and Revolution

The Western legal tradition has been transformed in the course of its history by six great revolutions. Three of them -- the Russian Revolution, the French Revolution, and the American Revolution -- were called revolutions by those who participated in them, although the meaning of the word "revolution" was different in each case.

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a turn of the wheel back to an earlier system of government.) Thus what most historians now call the

English Revolution consisted of three successive "restorations." ¹⁰

The fifth great revolution -- still going backward in time -- was the Protestant Reformation, which in

Germany had the character of a national revolution, starting with Luther's attack upon the papacy in 1517 and ending in 1555 with the frustration of the Emperor by the Protestant League and the establishment of religious peace among the German principalities. The sixth, the Papal Revolution of 1075-1122, which is the subject of this study, was also called a reformation at the time, the Reformatio of Pope Gregory VII, generally translated into modern languages as the Gregorian Reform, thereby concealing still further its revolutionary character.

Objections may be raised to calling the German Reformation a revolution, despite the fact that it is often called that by historians of revolutions, including many who are not Marxists.

The history of the West has been marked by recurrent periods of violent upheaval, in which the preexisting system of political, legal, economic, religious, cultural, and other social relations, institutions, beliefs, values, and goals has been overthrown and replaced by a new one. There is by no means a perfect symmetry in these periods of great historical change; yet there are certain patterns or regularities. Each has marked

a fundamental change, a rapid change, a violent change, a lasting change, in the social system as a whole. Each has sought legitimacy in a fundamental law, a remote past, an apocalyptic future. Each took more than one generation to establish roots. Each eventually produced a new system of law, which embodied some of the major purposes of the revolution, and which changed the Western legal tradition, but which ultimately remained within that tradition.

These upheavals were not, on the one hand, coups d'etat or rebellions, or, on the other hand, long series of incremental changes that were ac-

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It is appropriate to use the word revolution -- despite all the abuses to which it has been subjected !£-- to refer to such epoch-making periods, in light of the connotation of violence that is associated with the revolutions of the past two centuries, especially the Russian, the French, and the American. Here "violence" does not refer to the legal force imposed by established governments through police or armies, but to illegal force exerted by individuals and groups against established authority. From the point of view of the history of Western law, it is of special importance to recognize that periodically in Western history such illegal force has been exerted to overthrow the established order, and that eventually those raised to authority as a result of such an overthrow have created new and enduring systems of government and law.

The term revolution is used to refer not only to the initial violent events by which a new system is introduced but also to the entire period required for that system to take root. As Eugen Rosenstock- Huessy has emphasized, more than one generation is needed to make a genuine revolution. ¹²

The six great revolutions were "total" revolutions in that they involved not only the creation of new forms of government but also new structures of social and economic relations, new structures of relations between church and state, and new structures of law, as well as new visions of the community, new perspectives on history, and new sets of universal values and beliefs. ¹³ "The reformation of the world," which was a slogan of the Papal Revolution, had an almost exact counterpart in each of the other revolutions. To be sure, much of the old survived, and after some time even more of the old was brought back, but in each revolution the totality -- the paradigm -- was new.

Thus each of the six revolutions produced a new or greatly revised system of law, in the context of what was conceived as a total social transformation. Indeed, the extent to which its purpose was eventually embodied in new law marks the success of the revolution.

Each revolution represents the failure of the old legal system that the revolution replaced or radically changed. These systems were failures if only in the sense that they were, in fact, replaced or radically changed. One of the first decrees of the Bolshevik government in 1917 was to declare that the entire prerevolutionary legal system was abolished. Henceforth only the decrees of the new government were to be applied, with gaps to be filled by "revolutionary legal consciousness." The French Revolution also discarded, at first, the system of legislation, administration, and adjudication of the ancien regime.

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dependence was won, democrats fought against the reception of English law by the federal and state courts. In England, the Long Parliament of 1640_41 abolished the Court of Star Chamber, the Court of High Commission, and the other royal "prerogative courts," and this legislation was reenacted by Charles II's Parliament in 1660; together with parliamentary supremacy, a greatly revised common law became England's unwritten constitution. Luther burned the canon law books. Pope Gregory VII denounced the imperial and royal laws by which the Church had been governed_____________________________________________________ laws which

permitted bishops and priests to be appointed to their posts by the secular authorities, church offices to be bought and sold, and the clergy to marry.

The old law was also a failure in another sense: it proved incapable of responding, in time, to the changes that were taking place in society. If the tsarist government had introduced an effective constitutional monarchy and had redistributed the land; if the Bourbon kings had disestablished the church, abolished the remnants of feudalism, and permitted the creation of democratic institutions; if King George III had granted the American colonists all the rights of his English subjects and had, in addition, permitted them to introduce democratic institutions; if the first Stuart kings had accepted the supremacy of Parliament; if the canon law had yielded, in the fifteenth century, to conciliarism and to other pressures for reform; if eleventh-century emperors and kings had given up, in time, their supremacy over the church -- if, in short, the inevitable had been anticipated and necessary fundamental changes had been made within the preexisting legal order -- then the revolutions would presumably have been avoided. To change in time is the key to the vitality of any legal system that confronts irresistible pressure for change. A revolution, in the historical sense of that term, is a rapid, discontinuous, violent change that bursts the bonds of the legal system.

It may be that the failure to anticipate fundamental changes, and to incorporate them in time, is due to an inherent contradiction in the nature of the Western legal tradition, one of whose purposes is to preserve order and another is to do justice. Order itself is conceived as having a built-in tension between the need for change and the need for stability. Justice also is seen in dialectical terms, involving a tension between the rights of the individual and the welfare of the community. The realization of justice has been proclaimed as a messianic ideal of the law itself, originally associated (in the Papal Revolution) with the Last Judgment and the Kingdom of God, then (in the German Revolution) with the Christian conscience, later (in the English Revolution) with public spirit, fairness, and the traditions of the past, still later (in the French and American Revolutions) with public opinion, reason, and the rights of man, and most recently (in the Russian Revolution) with collectivism, planned economy, and social equality. It was the messianic ideal of

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justice, above all, that found expression in the great revolutions. The overthrow of the preexisting law as order was justified as the reestablishment of a more fundamental law as justice. It was the belief that the law was betraying its ultimate purpose and mission that brought on each of the great revolutions.

Thomas Kuhn has explained great revolutions in science, such as the Copernican, Newtonian, and Einsteinian revolutions, as the result of crises that occur periodically when those phenomena that cannot be explained in terms of the basic postulates of the established science, and hence are treated as anomalies, are discovered to require new basic postulates. The new basic postulates that are devised to explain as "natural" what were previously though to be merely "anomalous" become, as Kuhn shows, the core of a new scientific "paradigm." 14The interaction of revolution and evolution in Western law offers a striking parallel to the interaction of revolution and evolution in Western science.

Thus the great revolutions of Western political, economic, and social history represent explosions that have occurred when the legal system proved too rigid to assimilate new conditions. Some writers have treated these historic explosions as a kind of recurrent "cancer" in Western society, a "fever" that must run its course. ¹⁵ That, however, is only one side of the story, and not the most important side. They also constituted a great release of energy, which, to be sure, destroyed much of the past but also created a new future. Ultimately, each of the great revolutions may be seen to have been not so much a breakdown as a transformation. Each had to compromise with the past, but each also succeeded in producing a new kind of law that embodied many of the major purposes for which it had been fought.

To emphasize the legal dimension of the great revolutions -- their rejection of the preexisting legal order and their ultimate contribution to a new kind of law -- does not minimize but, on the contrary, enhances the importance of their political, economic, religious, cultural, and other social dimensions. Fundamental changes in law have inevitably been interlocked with fundamental changes in other structural elements of social life. More particularly, in the Papal Revolution of the late eleventh and early twelfth centuries, the reformation of law was intimately related to the entire range of "very profound and very widespread changes" of that time (in the words of the great social and economic historian Marc)

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Bloch), which "affected all the graphs of social activity." * 16 Moreover, to call this total transformation the Papal Revolution does not limit its scope to such issues as the struggle for papal control over the church and for the freedom of the church, under the papacy, from secular domination, but, on the contrary, includes within its scope all the interrelated changes that took pl ace at that time. The new papal concept of the church, as Joseph R. Strayer has said, "almost demand ed the invention of the concept of the State." *17 The revol ution in law was closely connected with the revolution in the church and the revolution of the church, which in turn were closely connected with the revolution in agriculture and commerce, the rise of cities and of kingdoms as autonomous territorial polities, the rise of the universities and of scholastic thought, and other major transformations which accompanied the birth of the West, as it thought of itself and as it was thought of by others during the next eight centuries and more. The name "Papal Revolution" is not to be taken narrowly; like the name "Puritan Revolution" applied to English history from 1640 to 1660, it points beyond itself.

The time period of the Papal Revolution is not limited to the relatively few years when it was at its height, so to speak, during the pontificate of Pope Gregory VII, any more than the time period of the Russian Revolution is limited to the few years when Lenin led the Bolsheviks to power and fought off their enemies. One may date the Papal Revolution from 1075 -- when Gregory proclaimed papal supremacy over the entire church and ecclesiastical independence from, and superiority over, the secular power -- to 1122 -- when a final compromise was reached between the papal and the imperial authority. The repercussions, however, did not cease even then; the forces that were set in motion by these events continued to take effect for centuries.

Many historians shun explanations that involve such long time spans. They would rather attribute given conditions to causes that are contemporary with or that immediately precede those conditions. Yet if the question is posed sharply, it is hard to deny that current conditions are often determined to a significant degree by events that occurred even centuries earlier. For example, if one were to try to explain the crisis of race relations in the United States of America in the second half of the twentieth century, one could not omit the Declaration of Independence of 1776, the resolution of the slavery question in the United States Constitution of 1789, and the Civil War of 1861-1864. Surely the American Revolution set in motion forces that resulted in the emancipation of the slaves and ultimately in the struggle for civil rights.