REVOLUTIONARY LAW

The revolutionary belief in the end of time, the final millennium, helps to account not only for the overthrow of the old law but also for the embodiment of the revolution in a new system of law.

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new and permanent system of revolutionary law on the second day. For example, the Bolsheviks in 1917 declared inheritance to be abolished, but at the same time they enacted a decree to the effect that estates up to 10,000 gold rubles would continue to pass to heirs according to the old rules until a system could be worked out for administering smaller estates. It proved impossible, however, to work out a system whereby the state could effectively inherit a cow, household furniture, art objects, or even money. The next resort was to a very high inheritance tax; but this measure eventually c onflicted with efforts to promote family stability, and it was easily evaded by gifts in anticipation of death.

Each of the great revolutions experienced an interim period in which new laws, decrees, regulations, and orders were enacted in rapid succession and as rapidly amended, repealed, or replaced. Eventually, however, each of the great revolutions made its peace with the prerevolutionary law and restored many of its elements by including them in a new system that reflected the major goals, values, and beliefs for which the revolution had been fought. Thus the new systems of law established by the great revolutions transformed the legal tradition while remaining within it.

The Lutheran Reformation, and the revolution of the German principalities which embodied it, broke the Roman Catholic dualism of ecclesiastical and secular law by delegalizing the church. Where Lutheranism succeeded, the church came to be conceived as invisible, apolitical, alegal; and the only sovereignty, the only law (in the political sense), was that of the secular kingdom or principality.

The key to the renewal of law in the West from the sixteenth century on was the Lutheran concept of the power of the individual, by God's

29- grace, to change nature and to create new social relations through the exercise of his will. The Lutheran concept of the individual will become central to the development of the modern law of property and contract. To be sure, there had been an elaborate and sophisticated law of property and of contract, both in the church and in the mercantile community, for some centuries, but in Lutheranism its focus was changed. Old rules were recast in a new ensemble. Nature became property. Economic relations became contract. Conscience became will and intent. The last testament, which in the earlier Catholic tradition had been primarily a means of saving souls by charitable gifts, became primarily a means of controlling social and economic relations.

Therefore it is not true to say that Lutheranism placed no limits on the political power of the absolute monarchs who ruled Europe in the sixteenth century. The development of positive law was conceived to rest ultimately upon the prince alone, but it was presupposed that in exercising his will he would respect the individual consciences of his subjects, and that meant respecting also their property and contract rights. This presupposition rested -- precariously, to be sure -- upon four centuries of history in which the church had succeeded in Christianizing law to a remarkable extent, given the level of the cultural life of the Germanic peoples in the beginning. Thus a Lutheran positivism which separates law from morals, denies the lawmaking role of the church, and finds the ultimate sanction of law in political coercion nevertheless assumes the existence of a Christian conscience among the people and a state governed by Christian rulers.

A slightly later form of Protestantism, Calvinism, also had profound effects upon the development of Western law, especially in England and America. The Puritans carried forward the Lutheran concept of the sanctity of the individual conscience and also, in law, the sanctity of the individual will as reflected in property and contract rights. But they emphasized two elements that were subordinated in Lutheranism: first, a belief in the duty of Christians generally, and not merely Christian rulers, to reform the world; ²⁴ and second, a belief in the local congregation, under its elected minister and elders, as the seat of truth -- a "fellowship of active believers" higher than any political authority.

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active Puritan congregations, bent on reforming the world, were ready to defy the highest powers of church and of state in asserting their faith, and they did so on grounds of individual conscience, also appealing to divine law, to the Mosaic law of the Old Testament, and to natural_law concepts embodied in the medieval legal tradition. As the early Christian martyrs had founded the church by their disobedience to Roman law, so the seventeenth_century Puritans, including men like John Hampden, John Lilburne, Walter Udall, and William Penn, by their open disobedience to English law laid the foundations for the English and American law of civil rights and civil liberties as expre ssed in the respective constitutions of the two countries: freedom of speech and press, free exercise of religion, the privilege against self_incrimination, the independence of the jury from judicial dictation, the right not to be imprisoned without cause, and many other such rights and freedoms. 26 Calvinist congregationalism also provided the religious basis for the modern concepts of social contract and government by consent of the governed. 27_______________________

Puritanism in England and America, and Pietism, its counterpart on the European continent, were the last great movements within the institutional church to influence the development of Western law in any fundamental sense. In the eighteenth and nineteenth centuries both the Roman Catholic Church and the various Lutheran denominations continued, of course, to exert pressures upon law in various directions. Undoubtedly, prophetic Christianity continued to play an extremely important part in bringing about law reform -- for example, in the abolition of slavery, in the protection of labor, and in the promotion of welfare legislation generally. And undoubtedly, on the other side, organized religion continued to support the status quo, whatever it happened to be. But the significant factor in this regard -- in the nineteenth century and even more in the twentieth -- was the very gradual reduction of traditional religion to the level of a personal, private matter, without public influence on legal development, while other belief systems -- new secular religions (ideologies, "isms") -- were raised to the level of passionate faiths for which people collectively were willing not only to die but also to live new lives.

It was the American and French revolutions that set the stage for the new secular religions -- that is, for pouring into secular political and social movements the religious psychology as well as many of the religious ideas that had previously been expressed in various forms of Catholicism and Protestantism. At first a kind of religious orthodoxy was preserved by means of a deistic philosophy -- which, however, had little of that psychology which is the heart of religious faith. What was religious, in fact, about the great revolutionary minds of the late eighteenth and nine- -31-

teenth centuries men like Rousseau or Jefferson______ was not their belief in God but their belief in

Man, individual Man, his Nature, his Reason, his Rights. The political and social philosophies that sprang from the Enlightenment were religions because they ascribed ultimate meaning and sanctity to the individual mind __ and also, it must be added immediately, to the nation. The age of individualism and rationalism was also the age of nationalism: the individual was a citizen, and public opinion turned out to be not the opinion of mankind but the opinion of Frenchmen, the opinion of Germans, the opinion of Americans.

Individualism, rationalism, nationalism -- the Triune Deity of Democracy -- found legal expression in the exaltation of the role of the legislature and consequent reduction (except in the United States) of the lawcreating role of the judiciary; in the freeing of individual actions from public controls, especially in the economic sphere; in the demand for codification of criminal and civil law; in the effort to make predictable the legal consequences of individual actions, again especially in the economic sphere. These "jural postulates" (as Roscoe Pound would have called them) ²⁸ were considered to be not only useful but also just, and not only just but also part of the natural order of the universe. Life itself was thought to derive its meaning and purpose from these and related principles of legal rationality, whose historical sources in theological doctrines of natural law and of human reason are evident.

Liberal democracy was the first great secular religion in Western history -- the first ideology which became divorced from traditional Christianity and at the same time took over from traditional Christianity both its sense of the sacred and some of its major values. But in becoming a secular religion, liberal democracy was very soon confronted with a rival: revolutionary socialism. And when, after a century of revolutionary activity throughout Europe, communism ultimately seized power in Russia in 1917, its doctrines had acquired the sanctity of authoritative revelation and its leadership the charisma of high priests. Moreover, the Communist Party had the intimacy, on the one hand, and the austerity, on the other, of a monastic order. It is not accidental that during the purges after World War II, loyal Communists in Europe used to say, "There is no salvation outside the Party."

The jural postulates of socialism, though they differ in many respects from those of liberal democracy, show a common ancestry in Christianity. The Soviet Moral Code of the Builder of Communism, for example, which Soviet school children must learn by heart and which is taken as a basis for Soviet legal policy, contains such principles as: "conscientious labor for the good of society -- he who does not work, neither shall he eat"; "concern on the part of everyone for the preservation and growth of public wealth"; "collectivism and comradely mutual assistance -- one for all and all for one"; "honesty and truthfulness, moral purity, modesty,

-32- and unpretentiousness in social and personal life"; "an uncompromising attitude toward injustice, parasitism, dishonesty, careerism, and moneygrubbing"; "an uncompromising attitude toward the enemies of communism"; "fraternal solidarity with the working people of all countries and with all people." 29 Soviet law is strikingly reminiscent of the Puritan code of the Massachusetts Bay Colony, the Body of Liberties of 1641, in its punishment of ideological deviation, idleness, and personal immorality. 30 In addition, the Soviet system places a very strong emphasis on the educational role of law and on popular participation in legal proceedings and in law enforcement __ through Comrades'

Courts and People's Patrols and by placing persons in the care of the collective of the factory or the neighborhood. Moreover, this is done in the name of an eschatology which foresees the ultimate disappearance of coercion and of law itself as a communist society is created in which every person will treat every other_________________ again, in the words of the Moral Code of the Builder of Communism________ as

"comrade, friend, and brother." It is by no means inconsistent with this utopian vision that strong measures of coercion and of formal law may be used to bring it about.