Search Results for '"Harold Berman"'


Last month I reviewed Prelude to Foundation, and now I’ve finally gotten to the original. The two books were written many decades apart, but even if I’d started with this book I still wouldn’t be in the order everything was written: the first section (“The Psychohistorians”) was only added in 1951 when the stories from the 40s were collected into the Foundation trilogy. Even aside from that, the last story in this book was actually published before the story which precedes it (and is referenced in it since it takes place earlier). Thus I shouldn’t be faulted too much for starting with the prequel.

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Samuel Huntington described Muslims as having “u-shaped loyalties”, strongly identifying with their clan and the ummah but not with their country. At the same time the region has long been associated with “oriental despotism”. I’ve been thinking about that while reading Timur Kuran’s “The Long Divergence: How Islamic Law Held Back the Middle East”. Some of the story begins before Islam itself, which you might think undercuts the thesis but makes sense since Islam was going to codify many pre-existing norms. The “hydraulic theory” of state development is considered discredited today, but Kuran cites state control of large-scale irrigation systems as the reason governments tried to keep independent sources of wealth and power weak (see my earlier post on family vs the state). One of the elements of islamic law that he blames for allowing Europe to race ahead is the relatively egalitarian inheritance formulae, which results in estates being fragmented (contrast the western practice of primogeniture). Pharoanic Egypt, Babylon and Assyria all apparently had laws mandating egalitarian inheritance. I did not know that, assuming that winner-gets-all inheritance and monarchical dynasties went together. Instead Kuran says that primogeniture and monogamy go together. The tendency of the wealthiest merchants in the Islamic world to have multiple wives and a greater number of children results in an even greater fragmentation of wealth. As a result, no aristocracy developed in Turkey, the Arab world or Iran. (more…)

I read somewhere (I can’t remember where) a comparison of the Old Believers to Jews, for being an economically successful religious minority also drawn toward rebellion against what they saw as an oppressive regime. It seemed an odd comparison to me since Jews are Yuri Slezkine’s modernists par excellence (with the most religiously traditional sects exhibiting the previously mentioned traits to the least extent) while the Old Believers are defined by their opposition to the replacement of old rituals and among some sects even reject the shaving of beards. In that religious sense they are a bit reminescent of the Amish, who are famously pacifist/quietist and reject materialism for community. Flash forward to today when after listening to “Standing on the shoulders of freaks” I decided to investigate that rumor about Catherine the Great on wikipedia but wound up reading about Pugachev’s Rebellion instead. Their participation in that isn’t even mentioned in the article about the fallout of the Raskol. In school I had only heard about them meekly being burned at the stake while holding up two fingers.

The reasons for the schism seem rather ridiculous to us (by which I mean Protestants) today. Three-fingers or two, what difference does it make? The Old Believer-sympathetic writers of their wiki article points out how much more seriously people took rituals back then, which were supposed to be divine. That does sound similar to the attitude described as the pre-reform Germanic custom in Harold Berman’s “Law & Revolution”, and not being subject to the Pope one wouldn’t be surprised to see that tradition stronger in Russia. A while back when discussing the Puritans of England, Michael said the dispute was political rather than theological. I said that what we may regard as “theologically insignificant”, people at that time did not. The Old Believers may count as further evidence for me, but some of them also rejected priestly authority or set up their own alternative hierarchy (though their explicit reasons for this were like those of the Donatists).

UPDATE: Daniel Larison comments “It is fair to say that Old Believers became hostile to absolute monarchy under the Romanovs when Tsar Alexis supported their condemnation, but it would be misleading to say that the Schism was driven by opposition to absolutism. As I understand it, the Schism had its origins in resistance to Nikonian reform that the tsar supported, and it was only after the council of 1666 that the Old Believers concluded that the tsar had betrayed the faith. That is, their hostility to Tsar Alexis was based in their objection to the religious reform he was imposing. It was not a reaction against absolutism, except insofar as absolutism facilitated their persecution. From the original Old Believer perspective, there would have been nothing wrong with absolute monarchy, as long as the king was Orthodox (which for them would have meant a tsar in opposition to the Nikonian reform).”

Something that struck out at me from Harold Berman’s “Law and Revolution”:
“Beaumanoir’s longest chapter […] is devoted to crimes. These he divides into: (1) those punishable by death, together with confiscation of the criminals goods by the lord on whose property they were situated; [2 and 3 are those punishable only by fine and/or imprisonment]. The first group includes murder, treason, violent homicide, rape, arson, robbery, heresy, counterfeiting, escape from prison, poisoning, and attempted suicide.” Emphasis mine.

Harold Berman’s “Law and Revolution” refers to the “Norman Anonymous” of 1100 as the “last important pre-Western (that is, premodern) treatise on government”. After describing some of its arguments (contrasted with John of Salibury’s later “Policraticus”) he says “In all these matters the Norman Anonymous represented the ancien régime, the pre-revolutionary order which dated from Carolingian times and before”. This is ironic because Wikipedia says the term primarily refers to a period between the 14th and 17th centuries. In popular imagination it is linked to precisely the alliance of throne & altar which post-dates the “Papal revolution” that concerns this book. Relative to that order of course, the more tribal/Germanic order with a less distinct church could be considered “ancient” I suppose, but usage trumps etymology.

A remark I found odd from Harold Berman’s “Law and Revolution”:
“[…] in the fifth [through] eight centuries […] tens of thousands of monks […] settled in the wilderness, first as hermits and then in monastic communities, and who attracted manyothers to join them in tilling the soil. Thus Christian monasticism was one of the factors contributing to the emergence of the European peasantry. Spreading across Europe from Ireland and Wales, the monastic movement fought the superstitions of nature that dominated Germanic religions, and it opposed to the pagan calendar, based on nature and the four seasons, a Christian calendar based on biblical events and the lives of the saints”
There are some claims about the importance of monastic communities in “How the Irish Saved Civilization”, but that was about preserving ancient texts & learning in an era when hardly anyone was literate (although Greg Clark claims that was also the case for patricians in the Roman empire). But I was under the impression that there have been peasants for about as long as there have been states. There were peasants in ancient Rome and I’m pretty sure most Europeans before the fifth century were peasants as well. I don’t think they all got along through hunting and gathering. I know that he merely says “a factor” but isn’t it one of the rules of causality that a cause cannot come after its effect? I also find it ironic that he favorably contrasts the Christian calender with the pagan when the latter seems much more appropriate for agriculture.

A few pages later he supports the argument that Christianity is to blame for liberalism. “[…] Germanic law, with its overwhelming biases of sex, class, race, and age, was affected by the Christian doctrine of the fundamental equality of all persons before God: woman and man, slave and free, poor and rich, child and adult. These beliefs had an ameliorating effect on the position of women and slaves and on the protection of the poor and helpless.” I’m sure some enterprising white nationalist can discover a converso responsible for it.

It’s an interesting book so far, but a bit intimidating in its size and detail. I can’t just skip the endnotes either, since they aren’t mere citations to works listed in the bibliography (as was the case for Wilson & Herrnstein) but extensive discussions of issues mentioned in the text. For example, the first note for chapter two begins at the bottom of page 574 and ends a third of the way down page 578. Try cramming that into an asterisked margin! This means I have to keep flipping back and forth between the main text and notes. The book is something like a better version of David Gress’ “From Plato to NATO” (though I admit to not finishing the last chapter of that). Gress is annoyingly caught up in the “culture wars” of the early/mid 90s and repeatedly inserting that into his historical narrative detracts from it. That’s not the case for Berman, though he writes that he intuitively feels that he is living through a crisis in the “West” or the law that signifies an end of an era (just as the Papal revolution did). Looking back to 1983 (when “Law and Revolution” was published), I think he was wrong. Jacques Barzun’s “From Dawn to Decadence” more plausibly argues for something like that, but he was discussing culture rather than legal foundations. I suppose neoliberalism and the collapse of the Soviet Union color my perceptions more and make the Russian revolution seem less relevant today.

I’m only in the middle of the introduction, but it appears the primary thesis of Harold Berman’s “Law and Revolution” is that the development of papal law & ecclesiastical autonomy represented a radical break with the past that defined the “modern” era (which he defines as taking place from about 1050 AD until 1945). He acknowledges that there was also more gradual evolution interacting with his specified periods of revolution (in addition to the usual ones he refers to the reformation as the “German Revolution”) we can also detect more extreme discontinuities in the law (which has always served a role of transmitting tradition). For instance “One cannot say, for example, that trial by ordeal and trial by battle gave rise to trial by jury […]”. Perhaps not trial by jury itself, but allegedly there is a hallowed feature derived from trial by combat: the right to confront one’s accusers. At least that’s the basis of this feminist argument that the right should be “unincorporated” for cases of domestic violence. Since I never bought into incorporation, I agree, though I don’t know what the state constitutions say. Peter Leeson argues that trial by battle was an efficient means of solving the disputes faced by courts of that time.