Harold Berman, RIP


The legal historian Harold Berman, best known for the mammoth Law and Revolution (1983), has passed away. Donald Boudreaux explains the idea at the heart of that book:

The main lesson of Law and Revolution is that law can—and certainly did in western Europe—emerge unplanned from competition among different wannabe sovereign powers. During the middle-ages and early modern era the Roman Catholic church sought absolute sovereignty. So too, did various princes. And these seekers of unalloyed sovereignty each had to compete for authority not only with each other, but also with the law-making processes that emerged in cities, on feudal manors, and—importantly—among merchants.

Sovereignty in the west, fortunately, was fractured. The competition for absolute power—the quests of the princes and of the church, of "caesar" and of "christ," each to wield absolute power prevented either of them from becoming absolute. Competition is a grand thing. And law is not so much the product of a sovereign, or of a law-giving genius, as it is the emergent outcome of countless instances of human interactions and struggles of each of us and of those who would rule us to carve out elbow room for ourselves and domains of authority.

More tributes: from Jacob Levy, from Robert Higgs, and from Todd Zywicki.

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  1. One of the tragedies of modern American jurisprudence has been the displacement of “common law” (the law created in judicial dispute resolution and the very definition of law as “the emergent outcome of countless instances of human interactions”) by statutory law, which does indeed claim to be law as “the product of a sovereign, or of a law-giving genius”.

    It is part and parcel of the relentless march to the Total State, also embodied in the constant erosion of states as independent sovereigns and aggregation of power at the national level.

  2. “erosion of states as independent sovereigns”

    People in favor of this use pragmatic reasons:
    “We shouldn’t have to challenge this/propose this law for the good of the children/society/whomever in all fifty states.
    We need one federal law.”

    Roe v. Wade enables the extremists on both sides to argue that their way is the right way for the whole nation. Forbid that we have different states with different laws.

  3. I think there’s a point in here about Napoleon and the Code Civil, but I’m not knowledgeable enough to make it.

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