» Adapted from the August 2008 issue of the Louisville Bar Association's Bar Briefs «
In the hope that homage delayed is not homage denied, I dedicate this post to the first legal academic I ever met. A quarter century of familiarity with that scholar's work lights a path toward understanding the place and the power and the grace and the grandeur of law in a world beyond borders.
Harold J. Berman died November 13, 2007, at the age of 89. I knew him as an advisor and an instructor. I first met him at Emory University in the mid-1980s, where he recommended the study of law. Professor Berman later supervised one of my first scholarly papers in law, which began as an assignment in his Harvard Law School seminar on international business law.
The legal world will long remember Professor Berman for his contributions to Soviet law, legal history, international law, and above all his "integrative jurisprudence" of law in concert with history, politics, and morality. His work reached its apogee in the two books called Law and Revolution. Part I, published in 1983, addressed The Formation of the Western Legal Tradition; part II, published in 2004, explored The Impact of the Protestant Reformations on the Western Legal Tradition.
Professor Berman's work informs the global practice of law at multiple levels. In the first instance, his expansive view of law transcends the conventional understanding, often expressed in "international" or "transnational" settings, of law as a product of the contemporary nation-state and of the nation-state, in turn, as a creation of the Peace of Westphalia. To Professor Berman, to think so narrowly would be to party as if it were 1648. The Western legal tradition grew from many sources beyond national authority, including canon law and the law of feudal lords and global merchants.
Two of his shorter works, both written roughly a dozen years ago, focus Professor Berman's wide-ranging view of law on challenges facing today's world. In World Law, 18 Fordham Int'l L.J. 1617 (1995), Professor Berman announced: "That humankind, in the aftermath of two world wars, has reached a turning point in its history, that the world has entered a new era of global interdependence, that all inhabitants of Planet Earth share a common destiny, is a historical fact, a political fact, an economic fact, a sociological fact, that has finally penetrated the consciousness of most of the earth's inhabitants." That reality, he lamented, "has had a harder time penetrating legal scholarship or the curriculum of our law schools." As a result, law schools "are still stuck" purporting to separate ""international law from comparative law and . . . both of these from the customary law of communities that transcend national boundaries."
Professor Berman recommended a cure as effective as it is simple: Legal educators and the lawyers they train should approach law as a unitary, coherent body of world law, without reference to nations or the boundaries between them. The relevant frame of reference for lawmaking shares the same geographic scope as the activities law endeavors to govern: the entire world, all at once.
In Law and Logos, 44 DePaul L. Rev. 143 (1994), Harold Berman expressed this universalist sentiment in even grander terms:
The Biblical story of the Tower of Babel tells us that at one time all men spoke the same language, but because of their pride God “confused the language of all the earth,” so that men could not “understand one another's speech.” As a result they were “dispersed” on the surface of the earth and could no longer make a “name” for themselves as a single universal community. It is significant that the story attributes the existence of separate nations to a breakdown in communication. Implicit in the story of the Tower of Babel is the story of Pentecost . . . . It tells us that at a place where a multitude of people of different nationalities had gathered to worship, certain of them received from the Holy Spirit the power to speak in “other languages,” so that all the peoples of the earth could hear “the mighty works of God,” “each in his own native tongue.” Thus the story of Pentecost gives hope that human pride can be overcome, and that by translation from one language to another all peoples of the world may, by the power of a higher spiritual truth, share each other's experiences vicariously and become, as they were originally intended to be, united.
Professor Berman hoped that Law and Logos would command a power and a reach beyond the Judeo-Christian tradition from which he drew this vision. I believe that it does. At times today's world seems hopelessly riven by divisions based on race, ethnicity, religion, and nationality. Driven by fear into separate camps, partisans fueling these ancient rivalries appear to speak fundamentally different moral languages. Indeed, at their worst, the only common element connecting these idioms seems to be mutual hatred and distrust of "the other."
Hope for truth and reconciliation in such a world surely lies in law. Across moral and religious traditions, across linguistic and cultural differences, across divisions of time and space, basic notions of procedural fairness and substantive justice unite all humanity. Bringing those principles to life, so that the shared dreams of people around the world might indeed lift us all, is the irreducible mission of law. For every Babel law responds in due time and full measure with its own Pentecost, at once word and world together.