Berman on Law and Religion

The topic addressed in this little book is important, asking such questions as what is law? where did it come from? what are the dynamics involved when it changes? and does so from the explicit perspective of the relation of law and religion. Such a topic is the monster under the bed for the modern secular state, which the establishment dare not talk about. But ironically, ignoring it could lead to their demise, since without a transcendent and objective basis for the law system, why should anyone feel compelled to honor and submit to its “law,” except from raw fear of consequences? Berman asks “what it is that inspires not unquestioning mass loyalty to law but simply [even] a general willingness to obey it at all.” (28)

In the first chapter, “Religious Dimensions of Law” Berman tries to read from human history a consistent bond between religion and law by discerning four elements exemplified by both at all times: ritual, tradition, authority, and universality. “In every society these four elements, as I shall try to show, symbolize man’s effort to reach out to a truth beyond himself.” (25) The apparent falsifiers of both western secular and Soviet law systems (the book was published in 1974) is defeated by an ad hominem exposure of the inconsistency of the one, and claiming that Stalin “had to reintroduce into Soviet law elements which would make his people believe in its inherent rightness” (29). He points out however that law cannot be restored to its august place by manipulating society via those four elements (40). Instead, the two institutions are “dialectically interdependent dimensions.” (46)

In the second chapter, “The Influence of Christianity on the Development of Western Law,” Berman gives a sweeping summary of 2,000 years of legal developments in connection with the history of the church. The initial persecution under the Romans set the stage, Berman claims, for the eventual principle of freedom of conscience. The Bible-based laws of Alfred (890), the struggles of the church vis a vis emperor culminating in the Papal Revolution of Hildebrand, the codification of the canon law in 1140, and the “method of analysis and synthesis” of the scholastics are listed. Berman suggests that the Lutheran reformation led to a secularized vision of the state, but also induced developments in the areas of property, contract, and testament. (65) The calvinistic movement led to the ideas of the “consent of the governed” and “social compact.” The age of Revolutions, followed by liberal democracy and then socialism, kept much of the “values” of Christianity even while rejecting the kernel. He argues that law is organic, non-political, and not entirely rational. (74)

The third chapter, “Law as a Dimension of Religion” proposes that just as religion lies at the heart of law, so religion to be renewed must not be antinomian. He discusses several forms of antinomianism. A “law vs love” thesis is a false dilemma. Likewise, “law vs faith” and “law vs grace.”

The fourth and final chapter “Beyond Law, Beyond Religion,” is a sudden shift in theme to the idea of time and renewal. The popular metaphor of death and redemption is utilized to advocate society “dying” to itself and entering into a new age of synthesis.

Repeatedly, Berman counters antinomian tendencies in modern society with the reductio that some kind of system of rules is necessary for a community — even a commune — to sustain and propagate itself. In this way, he thinks he has proven that a law system is an inescapable concept (e.g. 78-79).

However, these examples fail to draw the needed distinction between what I will call “traffic-flow stipulations” and the law of God. There is enough confusion on this point that a whole post should be dedicated to discussing it. For now, however, it just needs to be observed that a system of stipulations that we drive on the right side of the road, stop at red lights, and proceed no faster than 45 miles per hour are prudent and wise to expedite traffic, given that there are cars and roads; but they have nothing to do with the law of God. Driving in such a way as to preserve the life of your neighbor does have to do with the law of God, and the latter will entail some degree of conformity with the former. But they should never be confused. And the pragmatic need for the former does not show that the latter is involved, contra Berman. So much for his slick reductio of antinomianism.

The most serious problem with the book, however, is that, while seeing the need for transcendence to validate a legal system, Berman’s vision of “faith” and “religion” amounts to making them interchangeable coinage; they are relative and contingent by the very way that he sets the problem up. His model negates transcendence, thus leading to a direct contradiction. It is the difference between saying, “You should not steal, because God said, ‘thou shalt not steal’,” vs saying, “we need to regard stealing as wrong, therefore we should adopt the saying, ‘God said [thou shalt not steal]’.” The extra level of indirection betrays the bad faith.

The problem was already evident in Berman suggesting that religion is “man’s effort to reach out to a truth beyond himself.” If that’s all it is, then worrying about whether our legal system can sustain itself is the least of our worries.

If you don’t recognize God’s voice, it will do no good for someone to say, “to renew ourselves, we should recognize the voice of God.” This is pelagianism, but more than pelagianism: it makes God an object of manipulation, necessary to secure a just and orderly society. As if God exists for that purpose. Worse yet, a god of your choosing.

The Christian view of law is that God has spoken and thus we must obey. Moreover, as Creator he also speaks directly to every man, via General Revelation, so that there is a point of contact with all men when proclaiming the moral law, upon which the civil law should rest. Thus, civil society is possible even before all men have become Christians. The severely recalcitrant will be ruled by mere fear of consequence; and they will be ruled for their own benefit and that of the rest of society. But most citizens will voluntarily accede to a law system that approximates the divine law, consenting in view of an implanted sense of justice, and restrained from the full consequence of their own evil by common grace.

But for Berman, “religion” is an abstraction that can be instantiated by Christianity, Judaism, Buddhism, paganism. It should be obvious that only an unbeliever can think this way. One might just as well add the Rotary Club to the list of religions if that’s what is involved.

It is thus not surprising that his concluding chapter is essentially an ode and manifesto to New Age “integration.” His conservatism is merely standing athwart the slide into the void yelling, “but affirm that your values are really ultimate.”

While Berman is formally respectful toward Christianity, his coupling of the judaica to it as if twin brothers with equal claims to knowing God is quite galling. Here are some examples:

“The influence of religion on Western law during the past two thousand years, including the influence not only of traditional Judaism and Christian …” (14).

What? The only “influence” of Judaism until the mid-1600s was to cause Christians to look away in horror from it. And really, it is only since the Sexual Revolution of the 1960s that the judaica has had a serious influence on American law, though surely the Tribe has influenced the waging of wars and the machinations of princes eager to get access to money in the preceding centuries. But law is something else.

He has to say, “the pews of our churches and synagogues…” (21); though jews are something like 2% of the population.

“Christian historiography carried over from Judaism, …” (51). Oy vey! Name the jewish precursor to Augustine.

Constantly, “in both Judaism and Christianity” (15), “originated in Christianity and Judaism” (71), “for both Judaism and Christianity” (82), “a basic, if neglected, concept of both Judaism and Christianity” (102).

Judaism is an anti-Christ denial of, not complement to Christianity, as we have explained again and again. Judaism is a man-made religion from the “Second Temple” period based on an explicit rejection of Moses and the prophets, unless Jesus Christ is a liar. You cannot have it both ways. Christians will wake up from this dream-inducing lotus plant of judaic submission when they stop fearing man and fear God more.

But so keen is Berman on the blurring of this distinction that he actually suggests the Hebrews were Indo-European (119)!

Berman was of judaic descent, and evidently became more self-conscious about that heritage toward the end of his life. I do not know if he converted formally to Christianity or not; the lack of genuine insight into notions like justification and repentance unto life would make me question that.

A final criticism is that the book does not address the more fundamental question of the question of origin of right. The civil magistrate is personal, not carved in stone. The locus of authority once established, he can then tweak and modify the form the law is to take, and a “history of law” emerges. But who is the civil magistrate, and by what succession was it derived? That may end up being the more interesting question. As a member of the law guild, Berman undoubtedly did not want to push the question of law and religion into that realm, for it might have cast some doubts on the legitimacy of the guild itself.

Harold J. Berman, The Interaction of Law and Religion (Nashville: Abingdon, 1974)
BL65.L33 B47 1974

2 thoughts on “Berman on Law and Religion

  1. However, these examples fail to draw the needed distinction between what I will call “traffic-flow stipulations” and the law of God. There is enough confusion on this point that a whole post should be dedicated to discussing it.

    I for one would love to read such an article.

    In fact, it is an issue that has recently been causing me a lot of frustration.

    I lost my driving “privileges” in the state of Virginia for violating these “traffic flow stipulations.”

    I get frustrated because of how tyrannical these “traffic flow stipulations” have become. I began reading up on the pragmatic arguments against such strict laws ( but I can’t get any real foot behind it.

    I picked up a copy of Gary Norths “Victims Rights” hoping to find an answer. Around chapter 9, he does address the issue by discussing Exodus 21:33.

    If a man digs a pit and fails to properly manage it to the detriment of some other guys animal, he is responsible.

    Mr. North even points out how the Jewish lawyers worked out the exact depth of the pit that would cause the “digger” to be liable.

    How can we systematize these kinds of laws, without being tyrannical about it? I’m glad that you articulated the question here. It’s something that is unfortunately too big for me to figure out.

    I guess with all the walking I’ll be doing, I could be thinking about it though…

    (I know this isn’t really the main topic of this post, and I apologize.)


  2. Scott — I feel your pain. These laws are partly for revenue generation, and partly an aspect of the feminization of our people. The Mad Mothers have done great harm to our spirit. But of course it is the judges and politicians who succumbed to their hysterical shriekings, and it is they that will need to be publicly executed (after a fair trial, of course) when Christian men gain control of this land again. It is particularly painful to see Virginia in the vanguard of this nonsense.

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