Toward a Social Theory of Law

Two words that have shaped modern man's thinking about the past have made it difficult to capture the meaning of the Western legal tradition.

The first word is "medieval" (or Middle Ages).

This came into use in the sixteenth century to characterize, on the one hand, the period between early Christianity and the Protestant Reformation and, on the

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other hand, the period between classical antiquity and the "new humanism" (the Renaissance, as it was first called by Michelet three hundred years later). The word medieval was pleasing also to supporters of the Catholic Counter_Reformation, because it implied not only that Protestantism was an innovation but also that Roman Catholicism had a continuity unbroken since at least the time of Constantine. Eventually the word proved convenient also for the nationalistic historiography of the nineteenth century, for it seemed to define the period between the decline of the Roman Empire and the rise of the sovereign national states.

How surprising it is, then, to discover that virtually all of the modern Western legal systems originated right in the middle of the Middle Ages!

The second word to conjure with is "feudalism," which came to be identified as the social-economic formation of the Middle Ages. The medieval age of feudalism was contrasted with the modern age of capitalism. Capitalism was associated with individualism and Protestantism, as feudalism was associated with traditionalism and Catholicism.

The concept of feudalism is almost as highly charged with hidden ideological assumptions as the concept of the Middle Ages. The adjective feudal, derived from the concrete noun fief (feod), had technical, political, economic, and legal meanings from the eleventh century on; but the abstract noun feudalism, referring to the total social-economic system, was only invented in the eighteenth century.

34 The French Revolution purported to abolish feudalism (feodalite) and feudal society (la societe feodale). A decree of August 11, 1789, proclaimed: "The National Assembly totally abolishes the feudal regime." As Marc Bloch has said, "How could one thenceforth deny the reality of a system which it had cost so much to destroy?" ³⁵ Bloch's irony is justified by the later statement of a leading English Marxist historian, Christopher Hill. In attacking the view that feudalism ended when serfdom ended, in

the sixteenth century, Hill remarked, "If feudalism is abolished with serfdom, then France in 1788 was not a feudal state, and there never has been a bourgeois Revolution in the sense of a Revolution which overthrew the feudal state." ³⁶ In other words, feudalism could not possibly have ended two hundred years before 1789; if it had, the French Revolution would have been fought in vain, and even more serious, Marxist theory would be wrong.

Thus all the ideologies of the nineteenth century, including Marxism, conspired to minimize, deny, or ignore the deep roots of modern Western institutions and values in the pre-Protestant, prehumanist, prenationalist, preindividualist, and precapitalist era; and all conspired to conceal the break in Western history that took place in the late eleventh and twelfth centuries. This false periodization of Western

-42- history not only led to many errors on the part of conventional historians concerning the movement of history from a medieval to a modern age but also confounded the social theorists' efforts to trace lines from a modern to a "new" (socialist, postliberal, postmodern) society.

The belief that Western society developed from an age of feudalism to an age of capitalism often carries with it an implication that the basic structure of a social order is economic, and that law is part of an "ideological superstructure" used by those who have economic power as a means of effectuating their policies.

However, the Western legal tradition cannot be understood simply as an instrument of domination, whether economic or political; it must be seen also as an important part of the basic structure of Western society. It is both a reflection and a determinant of economic and political development. Without constitutional law, corporation law, contract law, property law, and the other fields of law that developed in Western Europe from the twelfth to the fifteenth centuries, the economic and political changes of the seventeenth to the nineteenth centuries, which contemporary social theorists have identified with capitalism, could not have taken place.

Moreover, the word feudalism may be used to obscure the fact that Western legal institutions and values in their formative period of development often challenged the prevailing political and economic system. There were recurrent struggles between law and feudal class oppression, between law and the power of urban magnates, between law and ecclesiastical interests, between law and royal domination. Serfs who escaped to the cities claimed their liberty, under urban law, after a year and a day. Citizens rebelled against their urban rulers in the name of constitutional principles declared in the city charters. Barons demanded ancient rights and privileges from kings. Princes and popes fought one another, each claiming that the social-economic power of the other was being exercised in violation of divine and natural legal rights, against the spirit of the laws, and even against their letter. In these and other struggles law was invoked against prevailing material facts and conditions; it was turned against the very social structure that had mothered it, so to speak.

Similarly, in Western history law has been invoked periodically against the prevailing political and moral values of society -- the very values which may be said to have fathered it, and which it is supposed to share. Law is summoned to protect the dissident, the heretic, although the political authorities and public opinion itself condemn dissent or heresy.

Law may protect the collective against a dominant individualism, or the individual against a dominant collectivism. This loyalty of the law to its own values is hard to explain in terms of an instrumental theory that views legal institutions as merely a tool of the dominant class or of the political elite.

Law -- in Western history, at least -- cannot be wholly reduced either to the material conditions of the society that produces it or to the system of ideas and values; it must be seen also, that is, in part, as an independent factor, one of the causes, and not only one of the results, of social, economic, political, intellectual, moral, and religious developments.

The first task of a social theory of law today -- almost a century and a half after Karl Marx and almost a century after Max Weber -- is to escape from oversimplified concepts of causation and of law. Whatever philosophers may wish to say about idealism and materialism, from a historical point of view the fact that Hegel was wrong in supposing that consciousness determines being does not mean that Marx was right in saying that being determines consciousness. In history, in real life, neither "determines" the other; usually they go together; when they do not, it is sometimes one and sometimes the other that is of decisive importance. A social theory of law should stress the interaction of spirit and matter, of ideas and experience, in its definition and analysis of law. It should bring the three traditional schools of jurisprudence -- the political school (positivism), the moral school (natural-law theory), and the historical school (historical jurisprudence) -- together in an integrative jurisprudence.

The second task of a social theory of law today is to adopt a historiography that is appropriate to legal history, rather than a historiography that is derived principally from economic history, the history of philosophy, or other kinds of history. A social theory of law must confront the fact that legal systems began to be constructed in the West in the late eleventh and twelfth centuries, and that some of the basic characteristics of those legal systems have survived the great national revolutions of the sixteenth to the twentieth centuries.

Another fact to be confronted is that the first modern Western legal system was the canon law of the Roman Catholic Church, and that that legal system had many characteristics in common with what contemporary social theorists call the secular, rational, materialistic, individualistic legal systems of liberal capitalist society. The dualism of ecclesiastical and secular jurisdictions is a distinctive if not unique feature of Western culture. A social theory of law must surely offer an explanation of this. Such an explanation would have to deal also with the Western concept of plural corporate groups within the secular jurisdiction, each with its own law, and of the relationship of that pluralism to the dualism of the secular and ecclesiastical. This is a historiographical, not only a sociological, problem, since it involves an interpretation of the great revolutions of Western history, through which the national states have swallowed up a large part of the jurisdiction of the church, and ultimately a large part of the jurisdiction of the various corporate groups within the secular order as well.

Such a historiography would lead to a general social theory that sees

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Western history not primarily as a series of transitions from feudalism to capitalism to socialism but rather as a series of transitions from plural corporate groups within an overarching ecclesiastical unity to national states within an overarching but invisible religious and cultural unity, and then to national states without an overarching Western unity, seeking new forms of unity on a world scale.

Taking this historical perspective, a social theory of law would be concerned with the extent to which the Western legal tradition has always been dependent, even in the heyday of the national state, on belief in the existence of a body of law beyond the law of the highest political authority, once called divine law, then natural law, and recently human rights; and the extent to which this belief, in turn, has always been dependent on the vitality of autonomous legal systems of communities within the nation (cities, regions, labor unions), as well as communities crossing national boundaries (international mercantile and banking associations, international agencies, churches).

In addition, it is a task of a contemporary social theory of law to study the fate of law in periods of revolutionary change, not so much in order to examine the rapid substitution of new laws for old but rather in order to examine the ways in which foundations are or are not laid for a stable and just legal order in the future, after the revolution has settled down.

Finally, a social theory of law must move beyond the study of Western legal systems, and the Western legal tradition, to a study of non-Western legal systems and traditions, of the meeting of Western and nonWestern law, and of the development of a common legal language for mankind. For only in that direction lies the way out of the crisis of the Western legal tradition in the late twentieth century.

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Source: Berman H.J.. Law and Revolution: The Formation of the Western Legal Tradition. Cambridge, Mass. : Harvard University Press,1983. вЂ” 657 p.. 1983

Toward a Social Theory of Law

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