The Protestant Revolution in Theology, Law, and Community (Part IV)
The Elect in England
The Calvinist challenge to the English church and state became known as the Puritan Revolution, with Puritans defined as those members who sought to purify the Church of England’s rituals, practices, and governance. Included in this category were Presbyterians, who advocated local control of churches, and a variety of sects, such as Independents and Congregationalists, who rejected the external authority of a national church (210–11). The Puritan Revolution was prompted by an array of factors: the aristocracy resisting rising state administration over parliament; the Stuarts’ political blunders, especially in introducing new theological doctrines that were closely identified with Roman Catholicism and were severely opposed by Puritans; and concessions granted to Presbyterians and Independents in order to enlist the support of the middle class (215–17). The tyranny of Charles I ended in his beheading and the establishment of a new Christian commonwealth for England. The question thus confronting the victors was on what principle should this new realm be organized?
In a debate with William Goffe, Oliver Cromwell argued that man must wait for God to reveal Himself in his conscience; and if God did not, then he must act when he can no longer resist the pressures of circumstances and interpret such action as a sign from God. After an examination of conscience revealed no internal evidence—“I am one of those whose heart God hath drawn out to wait for some extraordinary dispensations”—Cromwell inspected the external evidence of the world and found contradictory facts.16 Some may interpret God sincerely wanted the destruction of the monarchy and aristocracy and a refusal to execute this decision would be against God’s will, while others, like Cromwell, were not convinced this was God’s will. As Cromwell stated, “Though God have a purpose to destroy them, and though I should find a desire to destroy them—though a Christian spirit can hardly find it for itself—yet God can do it without necessitating us to do a thing which is scandalous, or sin, or which would bring a dishonor to his name.” The question of whether to behead Charles I crystallized the difficulties of organizing a new community on the principle of justification by grace through faith alone.
The conflict between the Rump, those who wished to maintain the regime, and the New Model Army, those who wished to secure the gains of the Revolution, became a public one, with the army emerging victorious by dissolving parliament on April 22, 1653. In his declaration of the dissolution of parliament, Cromwell concluded “that as we have been led by necessity and Providence to act as we have done, even beyond and above our own thoughts and desires, so we shall and do in that part of this great work which is behind, put ourselves wholly upon the Lord for a blessing . . . , and therefore do solemnly desire and expect that all men . . . should wait for such issue as He should bring forth.” Although he was compelled by God to dissolve parliament, Cromwell was not confident what to do next. This oscillation between indecisive waiting and decisive action was characteristic of Cromwell’s reign—from the toleration of religious dissent in England to the terrible massacres in Ireland—and was the fundamental reason for the bankruptcy of his legitimacy and the inability to find a successor rather than, as Berman claimed, the illegality of the Barebone and succeeding parliaments under Cromwell’s reign (219). The theology of justification by grace through faith alone not only made the sustainable social and political organization of the Commonwealth impossible but created incoherence in Cromwell’s own leadership decisions.
Although his rule was ineffective in both political and religious policies, Cromwell did make a lasting contribution to the eventual supremacy of the English parliament over the monarch and the toleration of religious dissent at the local level. Moreover, certain aspects of Cromwell’s theology did become part of English political and religious thought, with the most important being that England conceived of itself as an elect nation that was predestined for God’s greatness and glory (218–22). As Berman argued, these ideas of Cromwell would resurface in the Glorious Revolution’s own political and religious settlements as well as influence the development of law and legal science in England (225–30). Specifically, Berman cited six Puritan beliefs that had jurisprudential consequences:
1. The belief that “history is a revelation of divine providence, a spiritual story of the unfolding of God’s own purposes, and, more particularly, that God works in history, in part, through his elect nation, England, which is historically destined to reveal and incarnate God’s mission for mankind.”
2. The belief that “the reformation of the world is a religious commitment, commanded by God,” which prompted an ethic of “public spirit and civic virtue” among the English aristocracy.
3. The belief that “God is a God of law, who inspires his followers to translate his will into legal precepts and institutions.”
4. The belief of the covenant and its “corporate character of the local community of the faithful,” which later would influence the development and importance of common law and contract.
5. The belief that “hard work, austerity, frugality, reliability, discipline, and vocational commitment” were demanded by God.
6. The belief that man was fallen raised questions about the magistrate’s own judgment, thereby requiring a high threshold of evidence for conviction (264–65).
The great English legal scholars, such as Sir Matthew Hale, integrated the theology of Puritanism—and recent scientific discoveries—with their knowledge of the law. English law consequently had a historical, moral, and political character associated with it that made common law able to preserve its legal tradition, act for legal justice, and maintain legal order (269).
The two dominant legal philosophies of the sixteenth and seventeenth centuries were natural law, “which treats law essentially as the embodiment in legal rules and concepts of principles derived from reason and conscience,” and positivism, “which treats law essentially as a body of rules laid down (‘posited’) and enforced by the supreme lawmaking authority, the sovereign” (251). Positivists were not concerned with the normative aspects of the law, while natural law theorists contended that morality was implicit in any law and therefore law should be interpreted, analyzed, and applied with this purpose in mind. As discussed earlier, both Roman Catholics and Lutherans subscribed to natural law in spite of their disagreement about the roles of, and relationship between reason and conscience. The Calvinist contribution to legal philosophy was the introduction of a third approach to law that reflected the Puritan belief of history as a spiritual story of the unfolding of God’s own purposes in His elect nation England. This historical philosophy of law was perhaps best articulated by the aforementioned Hale.
Hale’s legal philosophy integrated natural and positive law into his historical approach. Natural, divine, and positive law was binding upon the state, but natural and divine law was reduced in scope: what may have been appropriate for one nation may not be suitable for another people. This gap was to be filled by positive law, which must be understood in terms of its historical development. Whereas divine and natural law was universally binding, positive law was subject to the discretion of the lawgiver; however, this discretion should follow the historical development of positive law. Thus, there was a historical logic or consistency that could be uncovered in the history of positive law that provided a normative guide for lawgivers. Hale believed that the constitutional framework of England was consistent, although the particular contents of that constitution had changed and evolved over time. The role of the magistrate and scholar therefore was to discover this consistency in positive law and balance it against the change in the content of the law itself (253–57).
Hale singled out common law as possessing an internal, coherent logic consisting of the “reasoned experience of the lawyers and judges and legislators who have made it in the course of many centuries” (257). This reasoned experience was the reasonable faculty that all men possessed but applied to a variety of fields. For example, the faculty of reason applied to medicine was different than the faculty of reason applied to music. Law was the most difficult subject for the faculty of reason, since it dealt “with the regulation and ordering of civil societies and with the measurement of right and wrong, when it comes to particulars” (258). It was impossible for any man to determine which law to apply to every particular case, yet certainty was required in matters of law to provide legitimacy, stability, and order in society. To remedy this situation, Hale invoked Coke’s “artificial reason”: “And upon all this that hath been said it appears that men are not born common lawyers, neither can the bare exercise of the faculty of reason give a man a sufficient knowledge of it, but it must be gained by the habituating and accustoming and exercising that faculty by reading, study, and observation to give a man a complete knowledge thereof” (259). Besides the belief of God as a God of law and the virtues of hard work, Hale directly appealed to the historical experience of England as the basis to know what law to apply to which case. Artificial reason for Hale consequently was “the combination of the reason inherent in the law itself and the reasoning of experienced students and learned practitioners of the law” (260). The law’s essence therefore was its history.
It was true that the sovereign possessed numerous powers, but these powers were inherited, which consequently limited the nature and extent of his power. For example, the king has to take a solemn oath at his coronation to observe the constitutional or fundamental law of the land; and the law itself contained an invalidating power (potestas irritans) when the king were to act contrary to the law. Attacking the positivism in Hobbes’s hypothetical Leviathan, Hale cited that the English historical experience and legal framework was the best criteria for the truth or falsehood of a regime: “the best measures of truth or falsehood are not imaginary notions or reasons at large, but the laws and customs of this kingdom which have determined reason at large and bound it up within the bounds of such laws and usages” (262). Furthermore, the experience of natural and positive law supported that history was the best guide for the faculty of reason rather than Hobbes’s hypothetical mental exercises. Simply put, history, as revealed in God’s law, became the theological and legal basis of the Calvinist community in England.
Berman’s argument about the communitarian character of Calvinism as rooted in its theology and practiced in its law corrects Weber’s Protestant “work ethic” thesis. In their belief in predestination and desire to reform the world through law, along with their belief in the history of the elect nation, Puritans were able to form a community out of their conscience and introduce a new approach to law through the lens of history. However, the cost was the abandonment not only of a universal community, whether secular or spiritual, but also a universal history from which legal scholars could draw. If God were to reveal Himself only to His elect nation in history, the possibility of a universal history could not exist. Such theological beliefs can easily be translated not only in adopting precedent and analogy as methods to analyze law but also by contributing to feelings of nationalism. As Luther sought the independence of Germanic civilization from Rome, so did the Puritans seek autonomy from the Church of England and other outside influences. From the perspective of international politics, the cost of the Protestant Revolution in law was the breakup of the universal empires of church and state for fragmentary nations in constant rivalry with one another in war, commerce, and empire.
Conclusion
In his Conclusion Berman urges his reader to consider the historical approach to law, whose origins resided in the Roman Catholic and Protestant Revolutions. Although Roman Catholics and Protestants differed in their theological beliefs, both camps were preoccupied with the basic question about “the nature of the divine law and of natural law and their relationship to the positive law of the state” (374). Because of the value placed on conscience and a de-emphasis on reason, Lutherans were more receptive to a positive law than their Roman Catholic counterparts. Likewise, Calvinists’ theological beliefs of an elect nation that made a covenant with God in the flow of history influenced their approach to law as a matter of experienced history with its own internal logic and coherence.
For Protestants, the law was the device to form, forge, and govern themselves into a new community. Underlying this new conception of law were new theological beliefs, of which the most important one was predestination that justified uniting both the elect and reprobate together in a new society. Berman’s inclusion of the Roman Catholic and Protestant Revolutions is a much-needed correction to the traditional understanding of law as medieval and modern. Furthermore, Berman’s approach to the study of law—to demonstrate how theological beliefs, along with political, social, and economics factors, influence the development of western law—is a refutation of both the Marxian and Weberian approach by placing law and religion as the base of historical change:
“It differs especially from Marxism in viewing the princes and high magistracy, the secular Obrigkeit, as the class that drew power away from the Roman Catholic clergy in the sixteenth century, and the landed gentry, not the capitalist bourgeoisie, as the class that drew power away from king and court and nobility in the seventeenth. It differs from Weberian theory in deriving fundamental change in political power in the sixteenth and seventeenth centuries from fundamental change in the belief systems and changes in law, rather than deriving fundamental changes in the belief system and changes in law from fundamental changes in political power (380).”
As demonstrated with the abundance of evidence presented, beliefs, law, and legal institutions matter as much, if not more, than political, social, and economic factors to explain historical change. Berman finished his book with an appeal to recover the historical approach to law that included the components of conscience and reason as well as an integration of positive and natural law, as was accomplished in the Protestant Revolution. The recommendation is made because such an approach would not only transcend the futile and continuous debate between positivist and natural law theorists but also infuse a new vitality and energy into our present study of law to address the new problems that confront us today. In a sense, Berman seemed to be calling for another revolution in today’s study of law: “a fundamental change, a rapid change, a violent change, a lasting change, in the political and social systems of a society, involving a fundamental change in the people themselves—in their attitudes, in their character, in their belief systems” (3).
In his Introduction, Berman reviewed the six great revolutions—Papal, Lutheran, Calvinist, American, French, and Soviet—but later lamented the current state of American legal scholarship, when he wrote, “[a]s of the beginning of the twenty-first century, there seemed to be no objective basis for systematizing American law as a whole; that is, there seemed to be no generally shared belief inborn elements of knowledge constituting fundamental principles from which all legal institutions can be rationally derived” (130; 4–21). Likewise, among American legal scholars, “there seemed to be . . . no generally shared belief in, or at least no analysis of, the capacity of the individual conscience to reach just results in actual cases on the basis of reasoned compassion” (130). Thus, a study of the past revolutions in law and belief could provide us a guide and remedy for our current impasse in the study of law; but such a study must include a thorough analysis of our present beliefs, particularly theological and religious ones, that predominant our society today in order for us to escape our current confusion.
Notes
15. Ibid., 4.xx.12.
16. Cromwell, Oliver. Puritanism and Liberty, being the Army Debates (1647–9) from the Clarke Manuscripts with Supplementary Documents, ed. A. S. P. Woodhouse (London: J. M. Dent, 1936), 103–105.