Vol. 7 No. 10 (October 1997) pp. 481-482.

THE INTEGRATIVE JURISPRUDENCE OF HAROLD J. BERMAN by Howard O. Hunter (Editor). Boulder, Colorado, USA/Oxford, UK: Westview Press 1996. 166 pp. Cloth. ISBN 0-8133-2296-0.

Reviewed by Torbjorn Vallinder, Department of Political Science, Lund University, Sweden.
 

The compartmentalization of the different social sciences has for some decades now been a recurrent theme in the respective departments. Nowadays very few scholars are able to carry out qualified research in more than one subfield of their science, still fewer cover the whole field. And after Max Weber (who died in 1920) practically no one, to my knowledge, has been able to integrate the social sciences (including history and the science of religion) with legal studies.

However, Harold J. Berman, Professor of Law and Fellow of the Carter Center of Emory University, may reasonably be compared to the famous German scholar. That statement may be said to be the basic thesis of a recent book, edited by one of Professor Berman’s colleagues at Emory, Howard O. Hunter, THE INTEGRATIVE JURISPRUDENCE OF HAROLD J. BERMAN; please do not miss the adjective in the title! All the contributors to the book are former students of Professor Berman.

The different aspects of Berman’s qualitatively and quantitatively impressive production (1946-1994: 22 books and 307 other pieces, some of them fairly extensive) are analyzed in five articles about Berman and

Here, following my own scholarly interest in the relations between law and politics, I will concentrate on Berman’s achievements in legal history, primarily his well-known standard work LAW AND REVOLUTION (1983). That means that the articles by Helmholz, Teachout and Witte will be taken up.

Helmholz starts by giving an overview of the generally very favorable reception of Berman’s magnum opus. Then he discusses--and, in the main, repudiates--three types of criticism of specific points in the book.

The first type aimed at Berman’s failure to take account of some recent legal scholarship. Such remarks cannot be taken seriously, Helmholz maintains. The important thing is that the book has, as a matter of fact, got the major developments right.

The second type of criticism was about Berman’s strong, perhaps too strong, concentration on the significance of the canon law as the source of the Western legal tradition. There may be something to this sort of criticism, Helmholz admits, but it cannot be damning one.

The third type of criticisms came from Marxist quarters. Berman clearly belongs to the liberal tradition in American legal education and his integration jurisprudence--more on that point in a moment--will seem weak stuff to Marxist historians. On the other hand: "... it does seem exceedingly unlikely to me that Berman, an acknowledged expert in Soviet Law, has misunderstood the richness of the Marxist tradition" (Helmholz).

Teachout makes a bold attempt to clarify the meaning and consequences of Berman’s integrative jurisprudence. He identifies three recurrent themes and elements that give Berman’s jurisprudence its distinctive character:

"the use of the dialectic method to organize experience; the movement, both within individual essays and cumulatively, toward integrated vision; and the special significance of historical perspective. There are other important themes and elements, but these three, it seems to me, lie closest to the core." According to Berman, the dialectical method, later called the scholastic method, was first fully developed in the early 1100s. "The dialectical impulse formed, as it were, the constitutional heart of the culture", Teachout writes. He goes on by saying that the method, centered in the activity of reconciling opposites, was the critical organizing force in the culture. It was the great agent of integration.

In his magnificent overview of the Western legatradition since the Middle Ages, Berman distinguishes three main schools: positivism, natural law and the historical approach; the last-mentioned one originated in 19th century Germany. The great aim and aspiration of his jurisprudence is integration, integration of self and of culture, Teachout points out: "The dialectical method is, as it were, the handmaiden of this version." The emphasis on the historical perspective in Berman’s magnum opus, is, lastly, both natural and important and needs no further comments here.

Witte’s article on law and religion contributes instructively to the illumination of the meaning of Berman's integrative vision. Thus, Berman urges that the subjects and sciences of law and of religion be reconciled to each other. As just said, he also aims at an integration between positivism and natural law. Consequently he challenges Max Weber for his separation of fact and value, is and ought.

These are exorbitant ambitions and quite naturally Witte is skeptical "A hint of mystical millenarianism colors Berman’s historical method--much of it already conceived while he was a young man witnessing the carnage of World War II." If an obiter dictum can be allowed here I would say that in a choice on this point between Berman and Weber--or, for that matter, Hans Kelsen--I would prefer the European(s) to the American.

It is time for a summing up. The basic aim of Howard O. Hunter and his contributors is clearly to stimulate interest in Harold J. Berman’s brilliant scholarly work. I sincerely hope that they will succeed and I am quite convinced that they will.


Copyright 1997