Law and Revolution, the Formation of the Western Legal TraditionThe roots of modern Western legal institutions and concepts go back nine centuries to the Papal Revolution, when the Western church established its political and legal unity and its independence from emperors, kings, and feudal lords. Out of this upheaval came the Western idea of integrated legal systems consciously developed over generations and centuries. Harold J. Berman describes the main features of these systems of law, including the canon law of the church, the royal law of the major kingdoms, the urban law of the newly emerging cities, feudal law, manorial law, and mercantile law. In the coexistence and competition of these systems he finds an important source of the Western belief in the supremacy of law. Written simply and dramatically, carrying a wealth of detail for the scholar but also a fascinating story for the layman, the book grapples with wideranging questions of our heritage and our future. One of its main themes is the interaction between the Western belief in legal evolution and the periodic outbreak of apocalyptic revolutionary upheavals. Berman challenges conventional nationalist approaches to legal history, which have neglected the common foundations of all Western legal systems. He also questions conventional social theory, which has paid insufficient attention to the origin of modem Western legal systems and has therefore misjudged the nature of the crisis of the legal tradition in the twentieth century. |
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Contents
The Background of the Western Legal Tradition The Folklaw | 49 |
Tribal Law | 52 |
Christianity and Kingship | 62 |
Penitential Law and Its Relation to the Folklaw | 68 |
The Origin of the Western Legal Tradition in the Papal Revolution | 85 |
The Cluniac Reform | 88 |
The Dictates of the Pope | 94 |
The Revolutionary Character of the Papal Revolution | 99 |
Objectivity and Universality | 321 |
Reciprocity of Rights of Lords and Peasants | 322 |
Participatory Adjudication | 324 |
Integration and Growth | 328 |
Mercantile Law | 333 |
Religion and the Rise of Capitalism | 336 |
The New System of Commercial Law | 339 |
Urban Law | 357 |
SocialPsychological Causes and Consequences of the Papal Revolution | 107 |
The Rise of the Modern State | 113 |
The Rise of Modern Legal Systems | 115 |
The Origin of Western Legal Science in the European Universities | 120 |
The Law School at Bologna | 123 |
The Curriculum and Teaching Method | 127 |
The Scholastic Method of Analysis and Synthesis | 131 |
The Relation of Scholasticism to Greek Philosophy and Roman Law | 132 |
The Application of the Scholastic Dialectic to Legal Science | 143 |
Law as a Prototype of Western Science | 151 |
Theological Sources of the Western Legal Tradition | 165 |
Last Judgment and Purgatory | 166 |
The Sacrament of Penance | 172 |
The Sacrament of the Eucharist | 173 |
St Anselms Doctrine of Atonement | 174 |
The Legal Implications of the Doctrine of the Atonement | 179 |
Theological Sources of Western Criminal Law | 181 |
The Canon Law of Crimes | 185 |
Canon Law The First Modern Western Legal System | 199 |
The Relation of Canon Law to Roman Law | 204 |
Constitutional Foundations of the Canon Law System | 205 |
Corporation Law as the Constitutional Law of the Church | 215 |
Limitations on Ecclesiastical Jurisdiction | 221 |
Structural Elements of the System of Canon Law | 225 |
The Canon Law of Marriage | 226 |
The Canon Law of Inheritance | 230 |
The Canon Law of Property | 237 |
The Canon Law of Contracts | 245 |
Procedure | 250 |
The Systematic Character of Canon Law | 253 |
Beckct versus Henry II The Competition of Concurrent Jurisdictions | 255 |
The Constitutions of Clarendon | 256 |
Benefit of Clergy and Double Jeopardy | 259 |
Ecclesiastical Jurisdiction in England | 260 |
Writs of Prohibition | 264 |
THE FORMATION OF SECULAR LEGAL SYSTEMS | 271 |
The Concept of Secular Law | 273 |
The Emergence of New Theories of Secular Government and Secular Law | 275 |
John of Salisbury Founder of Western Political Science | 276 |
Theories of the Roman and Canon Lawyers | 288 |
The Rule of Law | 292 |
Feudal Law | 295 |
Feudal Custom in the West Prior to the Eleventh Century | 297 |
The Emergence of a System of Feudal Law | 303 |
Manorial Law | 316 |
Causes of the Rise of the Modern City | 359 |
The Origins of the Cities and Towns of Western Europe | 363 |
Cambrai Beauvais Laon | 364 |
Lorris Montauban | 368 |
Verneuil | 369 |
SaintOmer Bruges Ghent | 370 |
Cologne Freiburg Lubeck Magdeburg | 371 |
London Ipswich | 380 |
The Italian Cities | 386 |
Guilds and Guild Law | 390 |
The Main Characteristics of Urban Law | 392 |
The City as a Historical Community | 399 |
Royal Law Sicily England Normandy France | 404 |
The Norman Kingdom of Sicily | 409 |
The Norman State | 414 |
The Personality of Roger II | 417 |
The Norman Legal System | 419 |
The Growth of Royal Law in Norman Italy | 424 |
England | 434 |
The Personality of Henry II | 438 |
The English State | 440 |
English Royal Law The Common Law | 445 |
The Science of the English Common Law | 457 |
Normandy | 459 |
France | 461 |
The Personality of Philip Augustus | 463 |
The French State | 464 |
The French System of Royal Justice | 467 |
French Royal Civil and Criminal Law | 473 |
French and English Royal Law Compared | 477 |
Royal Law Germany Spain Flanders Hungary Denmark | 482 |
The personality and vision of Frederick Barbarossa | 488 |
The imperial peace statutes Landfrieden | 493 |
The Mirror of Saxon Law Sachsenspiegefy | 503 |
The Law of the Principalities | 505 |
Spain Flanders Hungary Denmark | 510 |
Royal Law and Canon Law | 516 |
Conclusion | 520 |
Beyond Marx beyond Weber | 538 |
Abbreviations | 560 |
Notes | 561 |
Acknowledgments | 636 |
637 | |
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Law and Revolution: The Formation of the Western Legal Tradition Harold Joseph Berman No preview available - 1983 |