个人资料
正文

Introduction to 'The Interaction of Law and Religion'

(2009-03-25 11:43:03) 下一个


By Harold J. Berman.

This is a book of lectures, not a treatise or monograph.

It is meant to affirm and to challenge, not to demonstrate

by elaborate proofs . Although it deals with eternal ques­

tions, the book claims to be timely rather than timeless.

The principal affirmation is that law and religion are

two different but interrelated aspects, two dimensions of

social experience--in all societies, but especially in

Western society, and still more especially in American

society today. Despite the tensions between them, one

cannot flourish without the other. Law without (what I

call), religion degenerates into a mechanical legalism.

Religion without (what I call) law loses its social effec­

tiveness.

Some listeners were concerned that more emphasis

was not placed on the conflicts between law and religion.

There is, indeed, a danger of oversimplifying their rec­

onciliation by failing to see that it is a dialectical

-11-

synthesis, a synthesis of opposites. The postscript has

been written partly to allay that danger. But for reasons

stated there as well as in the lectures themselves, I am

convinced that we have heard too much about the separa­

tion of law and religion and not enough about their

fundamental unity. I should perhaps emphasize that I

am speaking of law and religion in the broadest sense--

of law as the structures and processes of allocation of

rights and duties in a society and of religion as society's

intuitions of and commitments to the ultimate meaning

and purpose of life.

When prevailing concepts of law and of religion be­

come too narrow, and hence the links between the two

dimensions are broken, a society becomes demoralized.

The existing institutional structures and processes lose

their sanctity, and conversely, the sacred values upon

which the society is founded are viewed as mere

hypocrisy. Eventually such demoralization may yield to

widespread demands for radical change. This was the

situation confronting America (and not only America)

when these lectures were given. For several years radical

movements had been agitating this country and others:

the youth culture, the New Left, the peace movement,

women's liberation, black militants, and others. Also the

larger ideologies of democracy, socialism, and various

forms of communism, which had seemed almost inert

in the 1950s and early 1960s, underwent a revival in the

late 1960s. All these movements attacked existing institu­

tional structures and processes in the name of various

-12-

basic values--I would call them religious values--upon

which Western civilization is founded. Most of them,

however, offered no viable alternative institutional struc­

tures and processes with which to replace the existing

ones, and some of them were altogether antilegal and

antistructural. They were therefore at the mercy of the

"Establishment," which to a considerable extent re­

sponded by simply reasserting "law and order."

In 1973, as this introduction is being written, most of

the radical movements of 1968-1972 seem to have sub­

sided, at least temporarily. We seem to have reverted to

a vague demoralization. Perhaps the lectures are more

timely than ever. What they say to the Establishment is

that a people cannot live for long without engagement,

without enthusiasm, without struggle, without faith.

What they say to the Radicals is that a revolution cannot

succeed if it lacks a great vision of institutional and

structural change, a vision of law, and not merely a vision

of faith--a vision, in fact, of the interaction of law and

faith. But where the whole society has such a vision,

revolution is not necessary; it has already happened.

The four chapters that follow represent four different

perspectives. The first is anthropological: it deals with

law and religion as dimensions of all cultures and argues

that in all cultures, including our own today, law and

Eeligion share certain elements, namely, ritual, tradition,

authority, and universality. These religious elements of

law are not often stressed by contemporary legal scholars.

Instead, law is generally presented as a secular, rational,

-13-

utilitarian system--a way of getting things done. But as

soon as one goes behind the law in books to the processes

by which it is made, interpreted, and applied, one sees

the symbols of the sanctity which infuses it. That is as

true of an American legislature or court as it is of any

tribal procedure. Law has to be believed in, or it will

not work. It involves not only man's reason and will,

but his emotions, his intuitions and commitments, and

his faith.

The second chapter represents a historical perspective.

It deals with the influence of religion on Western law

during the past two thousand years, including the in­

fluence not only of traditional Judaism and Christianity

but also of the secular religions of democracy and

socialism into which Christian attitudes and values have

been translated during the past two centuries. The main

theme is that our basic legal concepts and institutions

derive much of their meaning from a historical develop­

ment in which religion has played a major part. Indeed,

the very concept of the ongoingness of law, of its organic

growth over generations and centuries, is itself a religious

concept rooted in Judaism and Christianity. Moreover,

in Western history since the eleventh century the on­

going legal tradition has been interrupted periodically by

great revolutions, each of which has attacked the pre­

existing system of law in the name of a religious or

quasi-religious vision and each of which has eventually

created new legal institutions based on that vision.

The third chapter shifts attention from the religious

-14-

dimensions of law to the legal dimensions of religion.

Here the perspective is philosophical. An effort is made

to expose the fallacies of those schools of religious thought

which pose irreconcilable contradictions between law and

love, law and faith, or law and grace. In all religions, even

the most mystical, there is a concern for social order and

social justice, a concern for law, both within the religious

community itself and in the larger social community of

which the religious community is a part. In both

Judaism and Christianity law is understood to be a

dimension of God's love, faith, and grace; both Judaism

and Christianity teach that God is gracious and Just,

that he is a merciful judge, a loving legislator, and that

these two aspects of his nature are not in contradiction

with each other. Antinomian[无需守律法的 ] tendencies in current

Protestant and Catholic thought--the belief that struc­

tures and processes of social ordering are alien to man's

highest qualitities and aspiration's--have a counterpart

in the secular apocalypticism[启示 ] of the "counter culture"

as expressed in many of the communes that sprang up in

America in the 1960s and early 1970s. Yet the spon­

taneity, joy, self-discovery, togetherness, and other great

qualities and aspirations of such groups cannot be

realized over a long period of time without structures

and processes, without norms.

The perspective of the fourth chapter is harder to

classify. It explores the predicament faced by Western

man in a revolutionary era--such as the present era from

which we are only beginning to emerge--when the exist­

-15-

ing legal and religious systems have broken down and

there seems to be nothing available to replace them. This

might be called an eschatological [关于永恒的] perspective. Living

between two worlds, we experience the dying of the old

orders of law and religion and anticipate their regenera­

tion. What is dying is not so much their institutional

structure (which indeed seems to have a remarkable

staying power) as the foundations on which the structure

is built. An important part of those foundations is the

presupposition that law and religion are wholly separate

aspects of life--that the way we run our society need

have nothing to do with our deepest intuitions and our

deepest commitments, and vice-versa. Behind this radical

separation of law and religion is a dualistic mode of

thought that has recurrently threatened the integrity of

Western man during the past nine centuries. Subject is

radically separated from object, person from act, spirit

from matter, emotion from intellect, ideology from power,

the individual from society. The overcoming of these

dualisms, is the key to the future. The new era which

we anticipate is one of synthesis. The dying of the old

dualisms, calls for rebirth through the kinds of com­

munity experiences--on all levels, from communes to

the United Nations--that reconcile legal and religious

values.

Having recapitulated the main themes of the chapters,

I am struck by the discrepancy between the small size of

this book and the magnitude of those themes. To treat

them systematically and comprehensively would require

16

something like Dr. Eliot's five-foot shelf. This, on the

other hand, is intended to be a germinal book. Yet even

from the point of view of conventional scholarship, it

may serve as a useful prospectus for future research.

In fact, its main themes have not been the sub­

ject of extensive treatment in scholarly literature. There

is no work of anthropology, so far as I know, which

deals directly with the role of ritual, tradition, au­

thority, and universality in legal processes, although

there are books which deal with those four elements in

the great religions of the world. There is also no work of

historical scholarship, so far as I know, which deals

directly with the influence of religion on the historical

development of Western law; indeed, there seems to be

no extensive study even of the influence of the canon

law of the Roman Catholic Church on the secular legal

systems of the West, although the fact that it bad a very

considerable influence on them can hardly be denied.

And the few studies of the influence of Puritanism on

English and American law in the seventeeth and eigh­

teenth centuries only begin to tell the story. Moreover,

the historical derivation of Western concepts of democ­

racy and socialism from Western concepts of Christianity,

though often hinted at, has not to my knowledge been

the subject of systematic research.

On the main subject of the third chapter--antilegal

tendencies in Christian thought--much has been written;

the chapter summarizes the literature and cites some of it

in the annotations. However, on the second theme of the

-17-

chapter--antilegal tendencies in the counter culture and

in the communes--much empirical research remains to be

done.

Finally, the fourth chapter opens up the question of

the differences in attitudes toward law between Eastern

and Western Christianity as well as between Christian

and non-Christian religions. It also opens up the question

of the relation between the sociology of revolution and

Christian eschatology [ 永恒学说 ]. Again, these are subjects that have

often been suggested--some times in ways quite similar

to the ways that they are suggested here--but not

systematically studied and elaborated.

And so the expansion of the book is left to the reader.

If he will use it as a starting point for further research,

the author need not worry about either its brevity or its

eclectic[ 非传统的 ] character. (Indeed, any study which attempts to

integrate established scholarly disciplines will appear in­

complete and eclectic to specialists in any of the

disciplines.

Yet this book is not offered primarily as a work of

scholarship in the usual sense of that much abused word.

It is offered primarily as a self-reminder and as a re­

minder to others that the compartments into which we

have divided the world are not self-contained units, and

that if they are not opened up to each other they will

imprison and stifle us. The lawyers study and practice

their concepts and techniques; the seminarians concern

themselves with things of the spirit; the professors profess

their various disciplines. But the gods of law and the......

-18-

From :

<>< />
Introduction to 'The Interaction of Law and Religion'2009-03-25 11:43:03

http://www.questia.com/library/book/the-interaction-of-law-and-religion-by-harold-j-berman.jsp

[ 打印 ]
阅读 ()评论 (0)
评论
目前还没有任何评论
登录后才可评论.