The Tri-une God of History

HAROLD J. BERMAN

IN the 60 years that I have been attending church services mostly (but by no means only) Episcopalian, I cannot recall a single sermon on the role that God has played, and is now playing, in the collective history of the human race. I mean history in the historian’s sense of the word: the history of Europe and America, the history of the Church, world history in the second half of the 20th century. We are often told by preachers that God had a plan for the Hebrew people in the centuries from Abraham to Moses to Jesus, but we are told little, if anything, about God’s plan for what have turned out to be thousands of years between early Christianity and Christ’s coming again.

A basic reason for this omission, I believe, is the de facto removal of the Holy Spirit from the clergy’s vision of the Trinity. The Holy Spirit, who in biblical history spoke through the prophets and at Pentecost brought a common understanding to people of diverse languages, is that person of the Trinity who inspires us, teaches us, to fulfill our historical destiny as the people of God, in whose trinitarian image we are created.

As God the Father is our Creator and Lawgiver, he has given us, his children, the capacity, with his help, to create new life and to hand down just laws; as God the Son is our Brother and Redeemer, he has given us the capacity, with his help, to live for others and to forgive even our enemies; as God the Holy Spirit is our Inspirer, Teacher, and Prophet, she has given us the capacity, with her help, to inspire, teach, and form new relations of community. Indeed the Holy Spirit in us helps us in the course of history to form relationships of community that can reconcile the dialectical polarity between parental law and brotherly / sisterly love.

Theologians have traditionally given the name “economic” Trinity to these three manifestations of God’s activity in the world, as contrasted with the “immanent” Trinity, signifying the reciprocal relationships of the three with each other. In recent decades some theologians, such as Jiirgen Moltmann, have begun to ascribe a divine trinity of characteristics not only to individual human beings but also to social formations.

A great – and greatly neglected – Christian historian and philosopher, Eugen Rosenstock-Huessy, taught that God acts in our collective history over generations and centuries, and more specifically, that the three persons of the Trinity are represented in different ways in the three millennia of the Christian era. In the first millennium Christian missionaries taught the European peoples to give up their multiple gods and their worship of monarchs and tribal chiefs in favor of the one true God, the Creator, the Father of the risen Christ. Their common faith in one God was a necessary foundation for the tribal peoples of the West eventually to come together in the late 11th and 12th centuries in a common visible hierarchical Roman Catholic Church under the papacy.

The second millennium of the Christian era saw, in the West, the rise of Christian national states. In the period after the Protestant Reformation, Catholic and Protestant rulers sent to all continents of the world missionaries, merchants, and military to convert, to exploit, and to conquer, usually in the name of the incarnate Son, the human Christ on the Cross, the Redeemer. Largely through their efforts, guided and misguided, the whole world in the course of time has become an economic and political reality.

The historical challenge of the third millennium of the Christian era is to create out of the many peoples of the world a single community. In seeking to accomplish that goal, the emphasis of Christian faith must be on the third person of the tri-une God, the Holy Spirit, who prophesies unity and, taking many different forms, inspires people of diverse belief systems and loyalties to listen to each other, to learn each other’s languages, and to overcome their mutual hostilities.

In Rosenstock-Huessy’s words, “The story of salvation on earth is the advance of the singular against the plural. Salvation came into a world of many gods, many lands, many peoples. Over against these it sets up a singular one God, one world, one humankind.”(The Christian Future, or the Modern Mind Outrun)
Surely it is providential that gradually, starting with the most ancient civilization, in the course of 5,000 years, all humanity has been brought into a condition of economic and political interdependence. In material terms we live in one world, and we are now challenged to bring humanity together in spiritual terms as well. What St. Paul said, as a matter of faith, that God has created all peoples of one blood, has now been proved scientifically as a matter of fact God the Holy Spirit, active in many different belief-systems, now teaches us to transform our common humanity from a material also to a spiritual reality, as God the Father commands us to embody that spiritual reality in universal legal institutions and as God the Son challenges us to do so with sacrificial love.

Harold J. Berman was Woodruff Professor of Law at Emory University in Atlanta, Ga. 

 

The Holy Spirit: The God of History

The Holy Spirit: The God of History

Harold J. Berman

The Holy Spirit is the person of the Trinity who, above all, inspires us to form relationships of community. That is the significance of Pentecost: people who spoke different languages were given by the Holy Spirit a common understanding, each in his or her own language, of the message that was spoken to them. As God the Father is parent and lawgiver, and God the Son is brother and redeemer, so God the Holy Spirit is inspirer and teacher, who enables us, through social formations, to reconcile the dialectical polarity between parental law and brotherly / sisterly love.

Indeed, these social formations – of family, neighborhood, school, workplace, religious association, city, nation, world – are themselves created, as each individual person is created, in the image of the triune God. In the terminology of St. Augustine, we may say that they are formed and held together by will; they regulate their relations and activities by reason; and they are motivated and inspired by what St. Augustine called memory, which he defined as not only recollection of the past but also anticipation of the future – that is, the sense of time, of history. It is these three qualities – will, reason, and memory – that St. Augustine identified with Father, Son, and Holy Spirit. These are the forms, he wrote, of the image of God implanted in the human psyche.

It is the time sense, the recollection of the past and anticipation of the future, that is identified especially with the Holy Spirit. That the Holy Spirit was working in the history of ancient Israel, and especially in the teaching of the prophets, in anticipation of the coming of the Messiah, and that in the first centuries after the Resurrection the Holy Spirit was working in the history of the Roman Empire to spread Christianity, are familiar themes of Christian sermons. Far less familiar is the recognition that the Holy Spirit was working in the later history of Europe, and later in the history of other parts of the world, ultimately to bring the whole of humanity into a single world economy and an emerging world society, and that she is working now to transform that world society eventually into a world community.

That we have entered a new age, the age of the Holy Spirit, was prophesied after the First World War by a great and greatly neglected Christian philosopher and historian, Eugen Rosenstock-Huessy (1888-1973). Rosenstock-Huessy divided the Christian era into three historical millennia. In the first the tribal peoples of Europe were progressively converted from belief in many gods to belief in one God, the Father of Jesus Christ. In the second Western Christendom, through its merchants, its military, and its missionaries, carrying the banner of the Son, gradually made an entire world around itself.

Now, as we enter the third millennium of the Christian era, the West is no longer the center and the world’s Christians are called on to live in peace and harmony with adherents of other faiths, united with them by the Holy Spirit. “The story of salvation on earth,” Rosenstock-Huessy wrote, “is the advance of the singular against the plural. Salvation came into a world of many gods, many lands, many peoples. Over against these, it set up a singular – one God, one world, one humankind.”

The greatest challenge of the third millennium of the Christian era is to create out of the many peoples of the world one humankind. In accomplishing that goal, the emphasis of Christian faith should be on the third person of the triune God, the Holy Spirit, who inspires people of diverse languages, diverse cultures, diverse belief systems, diverse loyalties, to listen to each other, to learn each other’s languages, to discover what they have in common, and to join in overcoming the forces that divide them.

What they now have in common, above all, is a belief in what Hans Küng has called a “global ethic,” a universal affirmation of the Golden Rule, the assertion of all religions and all cultures of a belief in the supremacy of social responsibility over individual aggrandizement and of lawful over unlawful resolution of conflict – in short, a worldwide belief in the sanctity of spiritual values. This is not, to be sure, the same as a belief in the triune God; yet it is the work of the Holy Spirit, and it gives those who believe in the Holy Spirit an opportunity to help to transform the world economy and the emerging world society gradually into a world community.

Harold J. Berman is Robert W. Woodruff Professor of Law at Emory University School of Law in Atlanta, Georgia.

Law and Logos

Contents

This presentation is an adaptation of the lecture given by Harold J. Berman at DePaul University’s 1994 Annual Lecture of the Center for Church/State Studies.

LAW AND LOGOS

Harold J. Berman*

Introduction

We usually think of the relationship between law and religion from a legal perspective and only rarely, if at all, from a religious perspective. We think of the legal requirement that government not restrict the free exercise of religion, and at the same time not give undue support to religious causes. We speak of the separation of Church and State as though these were two legal entities locked in litigation. We speak often of what law requires of religion and only rarely of what religion requires of law.

In this presentation I propose to take a different approach. I start not from the United States Constitution but from the Ten Com­mandments, with their implicit assertions that all human law is founded ultimately on divine law and that the ultimate purpose of human law is to create conditions in which love of God and love of neighbor may flourish.1

From this perspective, I shall consider two principal topics. The first is the relationship of theology to the major theories of law that have competed for dominance in Western legal philosophy — posi­tivism, natural-law theory, and the historical school; I propose to try to integrate these three competing theories of law in the light of a Christian jurisprudence. My second principal topic is the challenge of the future, as we enter a new age of global communications, global technology, and global economy — the challenge to find a common spiritual faith that will support the emerging common law of an emerging world community. Such a common faith cannot be only Christian, since it must be a faith common to adherents of many different belief systems. Nevertheless, the jurisprudence that I shall analyze in the first part of my presentation will, I believe, help to define the kind of common faith that is needed.

I. A Christian Jurisprudence

In taking the phrase “Law and Logos” as my title, I have in mind the famous aphorism of Oliver Wendell Holmes, Jr., on which American lawyers have been weaned for over a century, that “[t]he life of the law has not been logic: it has been experience.”2 By “logic,” Holmes indicated that he meant “the syllogism” and “the axioms and corollaries of a book of mathematics.”3 By “experi­ence,” he indicated that he meant “the felt necessities of the time, the prevalent moral and political theories … even the prejudices which judges share with their fellow men.”4 These are certainly very narrow views of both logic and experience. The aphorism needs to be revised. I would say that the life of the law is not logic but Logos, and that Logos includes not only felt necessities, political and moral theories, and intuitions and convictions (“prejudices”) of judges, but also a spiritual faith grounded in a larger experience, both psychological and historical.

We know the Greek word Logos from the famous opening of the Gospel According to St. John: “In the beginning was the Word” — Logos-.5 Although he wrote in Greek, the author of the Gospel was a Jew, and for him “the Word” had both a Hebrew and a Greek meaning. The Hebrew term is dabar, which means living speech, communication, a call, as in the ten “Words” of Exodus, Chapter 20, which are loosely translated as the Ten Commandments.6 We may render the opening words of St. John’s Gospel: “In the begin­ning God spoke!” One is reminded of the first chapter of Genesis: God spoke, and his words called into being, gradually, the whole of creation.7 They were what present-day linguists would call performative utterances.8

In Greek, Logos has the additional connotation of reason, or un­derstanding, or truth; we get from it our endings to such words as “psychology,” “biology,” “theology,” and also, of course, the word “logic,” meaning “method of reasoning.” The Gospel says that the Word was God, but then it adds that the Word was also with God: a light to illuminate and guide and motivate wayward humanity. That light was — and is — not so much God the Father, God the Creator, God the Lawgiver, as it was — and is — God the Holy Spirit, God the Inspirer and Strengthener (“Comforter”), God the Communifier (if I may invent a word), who at Pentecost brought a common understanding to the diverse multitude of nationalities, so that each person heard the words of the disciples in his own language.9

Finally, according to St. John’s Prologue, the Word was incar­nated in Jesus Christ. From an early time there has been a strong tendency in traditional Christian theology to identify the Word, in John’s Gospel, solely with Christ, “the Word made flesh”; neverthe­less, it is apparent from the whole text that the Word is identified there with all three persons, or forms, of the triune God:10His ac­tivity in creation (vv. 1-5), his activity in lighting the way to understanding and truth (vv. 6-13), and his incarnation in the messianic person of his Son (vv. 14-18).11

I do not propose to explore further the mysteries of the interrela­tionships of the three forms of the triune God, as set forth by Christian theologians from Tertullian12 and St. Augustine,13 to Karl Rahner14 and Jürgen Moltmann.15 I do propose, however, to explore further the implications of religious beliefs, including the belief in the Trinity, for our understanding of law.16

Here I turn first to the belief shared by Judaism, Christianity, and Islam that humanity is created in the image of God. We are told in Genesis that “God created humanity in his own image …male and female created he them.”17Since we are created in God’s image, we have divine attributes. God has, however, given us free­dom not only to obey him but also to defy and to betray him, and we have used our freedom to seek our own aggrandizement and even to destroy each other and ourselves. Both individually and collec­tively, humanity has repeatedly succumbed to what, in a theological perspective, are satanic forces. Nevertheless, humanity does have three kinds of attributes that may be called divine: the capacity to be creators and lawmakers; the capacity to live — or at least to seek to live — holy and redemptive lives; and the capacity to inspire, teach, prophesy, and form new relationships of community.

In the Christian conception, these three types of human capacities correspond to the three persons of the triune God in whose image we are created. In traditional Judaism, there is not a belief in the humanity of God and the corresponding brotherhood of God and man. Only at the end of history will the Messiah come to bring reconciliation between God and man, and the reign of universal peace and goodwill on earth.18 There is, however, in Judaism, in addition to the belief in God as creator and lawgiver and father of us all,19 a belief in a divine spirit, which at the Creation “hovered on the face of the water” 20; which, when the last day comes, God “will pour out on all mankind”21; and which in the meanwhile, as the Shekhinah, or Presence, is the feminine spirit of God indwelling in his children.22 Also in Islam, there is at least a weak belief in a holy spirit, which is identified with those angels — especially Gabriel — through whom God communicates with his human family.”23 And in most non-theistic religions as well, the Way or the Truth or the Light is conceived as an immanent spiritual reality.24

The belief in a Spiritual Presence, a sense of the holy, which is common to most of the cultures of the world,25 undoubtedly rein­forces the tendency toward altruism and cooperation which — together with its opposite — exists in human nature and without which we would live in a Hobbesian world of all against all.26

At least from the time of St. Augustine, Christian theologians have ascribed to the soul of every person the separate but interlocking qualities of the three forms of the triune God. For St. Augus­tine, these were, respectively, being (esse, which he also identified with memory, or the experience of time),knowledge (nolle, which he also identified with reason and understanding) andwill (velle, which he also identified with desire and with love).27 Only in recent years, however, have some Christian theologians begun to ascribe a divine trinity of characteristics not only to the individual human be­ing but also, in a very tentative way, to social formations.28 None, however, so far as I know, has attempted to relate a trinitarian theology to law.29 I propose in this part of my presentation to discuss a theory of law that integrates the Augustinian categories of will, reason, and memory.

I call this a Christian jurisprudence (although I believe it should be entirely persuasive to non-Christians) because it corresponds to the Christian theological conception of a triune humanity created by God in his own image. It may also be justified to call it “Christian” on the ground that it builds on jurisprudential theories that were first developed in Western Christendom, in the period from the twelfth to the eighteenth century, by jurists and philosophers who were themselves devout Christian believers.30 Of course, the fact that it is a Christian jurisprudence in these two senses does not mean that all Christians must agree with it or that there cannot be another Christian jurisprudence.31

In the past I have expounded an “integrative” jurisprudence, which would combine the three major schools of Western legal phi­losophy that split apart in the late eighteenth and nineteenth centuries: positivism, natural-law theory, and historical jurisprudence. Each of these three schools, taken separately, unconsciously reflects distinctive qualities of a different one of the three persons of the triune God as conceived in traditional Christian theology. I shall review very briefly, from that perspective, some of the basic tenets of the three schools.32

The positivist school, which in the twentieth century has come to dominate American and European legal thought, identifies law with the policies of the lawmaker, “the will of the state,” expressed in the form of a more or less self-contained body of rules laid down by the state and enforced by state sanctions.33 Beneficent lawmakers will presumably issue beneficent rules; however, the law is what they have “posited” (hence “positivist”), beneficent or otherwise, and in analyzing it one should sharply distinguish what it is from what it ought to be.34 The key concepts of the positivist school of jurispru­dence are politics, order, will, power, legislation, and rules.35 In the language of trinitarian theology, the state reflects in a distorted way the authority, the will, of God the Father, God the Creator, God the Lawgiver; and its law consists primarily of rules that embody its policies.

Natural-law theory, on the other hand, which predominated in the West prior to the sixteenth and seventeenth centuries, and which has fought a rear-guard battle against positivism ever since, identifies law primarily with a morality higher than the state, a morality arising from human nature itself, and especially from our inborn reason and conscience.36 Natural-law theory does not deny the vir­tues of political order, but it would subordinate them to standards of justice. In England “the law of nature” was translated in fourteenth and fifteenth century statutes as “due process of law,” and later as “the law of reason.”37 Its advocates would put reason over will and conscience over power; they would stress as the principal source of law not legislation but equity, the sense of fairness; they would subordinate rules to the purposes which they embody. The naturalist’s assertion of the supremacy of the moral order over the political order corresponds — again, in a distorted way — to the trinitarian doctrine of the holiness and redemptive power of God the Son, the God-man, who is without sin, who has introduced the reign on earth of peace and good will, and who at his second coming will judge both the living and the dead.

A third philosophy of law, later called the historical school, first emerged as an articulate theory in England in the seventeenth cen­tury,38 although it had been implicit in the development of the Western legal tradition from the twelfth century on.39 Only in the early nineteenth century, however, did it break apart from positiv­ism and natural-law theory and become a separate school.40 By the latter part of the nineteenth century it had become the predominant Western legal philosophy, at least in both Germany and America.41 Today it has almost died out completely among the jurisprudes,42 though it remains strong in English and American courts, at least to the extent that the doctrine of precedent and the common law survive.

Historical jurisprudence proclaims that the primary sources of law are not politics and not morality but history, not order and not justice but experience, not will and not reason but tradition, not power and not conscience but community consent, not legislation and not equity but precedent and custom. The founder of the histor­ical school, the great German jurist Savigny, said that the ultimate source of law is the ethos of the people, the Volksgeist, the spirit of the nation as it has manifested itself in different ways in the course of its history. Here the theology of the third person of the Trinity, the Holy Spirit, the God of a common language and a prophetic tradition, is transformed into the secular deity of the nation. His­tory, in this concept, is not merely factual data of the past; it is a tradition; it has purposes to which we are committed. It is group memory, but in an older sense of the word “memory,” as including not only recollection of the past but also awareness of the present and anticipation of the future.43 In law, such temporally extended collective being, or ongoing tradition, has normative significance; we are bound by it.

Prior to the late eighteenth century it was possible for a legal philosopher to hold these three forms of the triune law — its political form, its moral form, and its historical form — in what Chris­tian theologians, speaking of the Trinity, call perichoresis; that is, each of the three interpenetrates the others. Only in the so-called Enlightenment of the latter eighteenth and nineteenth centuries were the links finally severed, in legal philosophy, between positive law and morality, on the one hand, and between each of those and historical tradition, on the other. With the virtual demise of the historical school — among contemporary American writers on jurisprudence I seem to be one of the last of its defenders — the battle­field has been left to the multitude of positivists and naturalists, locked in combat on mutual terms of unconditional surrender. Indeed, as a believer in historicity, I would argue that they cannot pos­sibly be reconciled, except in the context of the ongoing history of a given legal order. That, in fact, is how they are often reconciled by American courts, which in deciding cases will turn a positivist eye to the applicable legal rules, a naturalist eye to the equities of the par­ticular case in the light of the moral principles underlying the rules, and a historicist eye (they do have three eyes!) to custom and to precedent, having in mind not only the precedents of the past but also the significance of their decisions as precedents for the future. A conscientious judge cannot be solely a positivist or solely a natu­ralist or solely a historicist. The three “schools” are three dimen­sions of his judicial role.

Ultimately, however, the belief that the political, the moral, and the historical forms of law constitute a triunity depends upon a prior belief in the triunity of the human psyche, on the one hand, and the tri-unity of the communities, local and translocal, to which we belong — not only the nation but also the other communities from which law is ultimately derived: the family, the neighborhood, the workplace, the religious community, the profession, the ethnic group, the region, and others, including transnational communities. Each of these communities appears in three different forms. Each recognizes itself to be a unified body: this may be said to be its political personality, its structure of authority and its power to act creatively, in St. Augustine’s terms its “will.” Each also has its own inner life; this may be called its moral personality, its conscience, in St. Augustine’s terms its “understanding of itself,” its “reason.” Finally, every real community is motivated to achieve its goals, to re­alize its own historical destiny; this may be called its historical per­sonality, its evolving spirit, in St. Augustine’s terms its memory, its ongoing being in time.44 If these qualities arc not combined, if they do not interpenetrate each other, the community is threatened with disintegration. Indeed, in a community that has separate agencies to represent these separate forms of its life, it is essential that those agencies are coordinated and constitute a single entity.

A Christian jurisprudence would take us one step further. It would contend that the reciprocal interpenetration of the three forms of a community must be understood as part of, and subordinate to, a higher Spiritual Presence — in Christian terms, to the perichoresis of the three forms of the triune God. Otherwise, it becomes difficult, and sometimes impossible, for them to be held to­gether either at the philosophical level or at the practical level. Where rules of positive law conflict with principles of justice, it is often possible to resolve the conflict by resort to its historical con­text – past, present, and future – and by application of norms drawn from historical experience, including its extension into the future. But where all three basic sources of law are in conflict with each other, an act of faith — or, in secular terms, of imagination and courage — is needed to harmonize them. Their synthesis, in such a case, cannot be explained by a purely secular legal philosophy, such as pragmatism, since the three basic sets of norms from which a solution must be drawn are fixed and are at the same time, by hypothesis, irreconcilable by resort to any one of them. It is not merely a “practical” solution that is sought in such a case, but one that reconciles the irreconcilable.45

It was, in fact, the almost total secularization of legal philosophy in the late eighteenth and early nineteenth centuries that led to the divorce of the three major schools of legal philosophy from each other; and more recently, the almost total secularization of public discourse in general has contributed substantially to a corresponding crisis of law on the practical level as well. To a critical extent, the political dimension of law has become dissociated, both in theory and in practice, from its moral dimension, and both have become dissociated from its historical dimension, which has been narrowed almost to the point of irrelevance. A trinitarian jurisprudence can help us to understand the nature of this crisis, and it can provide a key to the reintegration of the three forms of law.

II. A Common Faith to Support the Law of the Emerging World Community

Yet we cannot be saved — in either the material or the spiritual sense of that word — by a legal philosophy alone. Even on the philosophical level, it may be hopeless to try to communicate a Chris­tian jurisprudence to an almost wholly secularized Western legal culture, on the one hand, or to non-trinitarian religious cultures, on the other. Some legal philosophers may be intrigued by the effort to integrate that which without faith is, in some situations, unintegratable. Most will continue to see the jurisprudential problem as one of choice between one of the various forms of positivism and one of the various forms of natural-law theory. The normative character of historical experience will remain an obscure concept, partly because of the loss of any belief in the providential character of history. Why take history seriously if it has no direction, no pattern, no purpose? Why speak of “whence we have come” if we have no sense of whither we arc headed? Why speak of historicity if we have no faith in the future?

This is my second topic: not the remote future, but the future we are now entering, as the twentieth century A.D. draws to a close. Are we not now entering a new age in the history of humankind? More particularly, are we not experiencing (among other things) the emergence of a world society, and the prospective emergence of a world community?

It is hard for me to doubt the providential character of this historical development, which appears to be a culmination of more than five thousand years of human history. Especially in the second mil­lennium of the Christian era, gradually, century by century, all the peoples of the world have been brought into contact with each other; Western Christendom, through its missionaries, its merchants, and its military, gradually made a world around itself. Now as we enter the third millennium of that history, “the West” is no longer the center. All humanity is joined together in a common destiny through global communications, global science and technology, and global markets, on the one hand, and, on the other hand, through global challenges of environmental destruction, disease, poverty, op­pression, and war. Despite two world wars and their aftermath of terrible ethnic, territorial, and ideological conflicts, St. Paul’s ex­traordinary insight, that all persons are made of one blood, has now not only been proved scientifically but has also become an historical reality.

Although most people still think of law in national terms, as the law of the nation-state, the fact is that a whole new body of world law has emerged in the past fifty years. One may refer, first, to the 20,000 international treaties and the five hundred international or­ganizations that are now registered with the United Nations, and second, to international law in a larger sense, including national le­gal implementation of universal standards of order and justice. Even more significant, in my view, are the various kinds of transnational customary law that have been created by communities that cross national boundaries – transnational communities of persons involved in processes of global communications, technology, and financial and commercial markets, as well as in global cultural, scientific, scholarly, athletic, and other types of activities. In virtually all countries of the world, associations of people at various levels of political, economic, and social life are being called upon, and will be called upon increasingly in coming generations, to create legal structures and legal processes of peaceful interchange across cultural and terri­torial boundaries.46

The enormous economic, political, social, and legal significance of these developments is gradually being appreciated by scholars in the various disciplines. Even legal educators are beginning to grasp the meaning of the statement attributed to Benno Schmidt that “the world has replaced the nation as the context in which the profes­sions operate.”

We have not, however, even begun to confront the equally important fact that a common spiritual faith is needed to support the fragile emerging law of the emerging world community, a spiritual faith grounded in history but adapted to a new millennium of global integration. Such a common spiritual faith must draw, I believe, on the resources not only of Christianity, Judaism, and Islam – the traditional theistic religions – but also of various forms of Buddhism, Taoism, and other non-theistic religions, as well as on vari­ous forms of humanism that are not called religions but share with them a passionate commitment to a higher spiritual truth. I believe that we are already entering this new age, which may be called the age of the holy spirit.

I speak of a common spiritual faith rather than of a common ethic, on the one hand,47 or a common religion, on the other.48 It is obvious that people are not abandoning, will not abandon, and should not abandon, their traditional religious communities in order to come together on the basis of some common religious denominator. Moreover, the spiritual faith of which I speak may be shared by many who do not consider themselves to be religious at all. Yet the kind of shared spiritual faith that is needed to support legal struc­tures and legal processes of a peaceful world society has much in common with most traditional religions. In that perspective, it may perhaps be called not “a religion,” but rather “a religious spirit.” In speaking of a spiritual faith, or religious spirit, that is needed to support a legal order that crosses all ethnic, territorial, cultural, and religious boundaries, I start from the fact that every legal order requires for its vitality the support of a belief system that links law not only with morality but also with fundamental convictions about human nature and human destiny. This is an anthropological truism, not a theological proposition, and should therefore be easily accessible to all persons. And it is a matter of obvious importance, although unfortunately it is not taken seriously by our legal schol­ars. In all societies religion and law, in the broad sense of those words, are interdependent and interact with each other. In all socie­ties there are shared beliefs in transcendent values, shared commit­ments to an ultimate purpose, a shared sense of the holy: certain things are sacred. And in all societies, there are structures and processes of social ordering, established methods of allocating rights and duties, a shared sense of the just: Certain things are lawful. The prophetic and mystical sides of religion challenge, and are challenged by, the structural and rational sides of law. Yet the two are interdependent: Each is also a dimension of the other.49

In all societies law derives from religion at least four characteristic ways of channeling and communicating its values – namely, rit­ual, that is, ceremonial procedures that symbolize its objectivity; tradition, that is, language and practices handed down from the past that symbolize its ongoing character; authority, that is, reliance upon decisive written or spoken sources that symbolize its binding power; and universality, that is, the claim to embody all-embracing concepts or insights that symbolize its connection with a higher truth. These four elements — ritual, tradition, authority, and universality — are present, I believe, in the legal institutions of all societies, both literate and non-literate. Like religion, law originates in celebration; it reveres the past; it feels bound by authoritative words and symbols; it invokes an all-embracing moral reality. These are legal emotions, legal passions, that may be said to constitute the religious dimension of law. The widespread conception among contemporary social scientists that law is exclusively secular and rational, and that its tasks are exclusively pragmatic, material, and impersonal, disregards the fact that in all societies, even the most despotic, law has emotional elements, sacred elements, that are in­tended, at least, to help people believe in its inherent rightness.

At the same time, religion shares with law everywhere — despite the enormous variety of particular forms that they take in different cultures — certain types of norms that may be called legal. In all religions there are norms concerning respect for parents as well as prohibitions of some types of homicide, some types of stealing, some types of sexual offenses, some types of perjury, and some types of fraud. Thus, it can be said that the last six of the Ten Command­ments have counterparts in all known cultures. Moreover, the sum­mary of those six Commandments in the Golden Rule, “Do unto others as you would have them do unto you,” is found not only in the New Testament but also in the Talmud, and it has almost exact counterparts in Islam and in Buddhism, Taoism, Brahmanism, Con­fucianism, and Zoroastrianism.50 These injunctions are primarily moral, yet they also have a social and a legal dimension, with struc­tural and procedural consequences.

An awareness of characteristics of law and religion common to all societies is an important antidote to tendencies of modern social thought toward a belief in cultural relativism as well as tendencies of modern political thought toward intense nationalism. It is, indeed, of utmost importance in the world today to affirm that all people everywhere have in common not merely certain physical and psy­chological characteristics but also certain cultural characteristics, and that among these common cultural characteristics arc religion and law — a sense of the holy and a sense of the just.

Yet it would be wrong to suppose that widespread awareness of the common cultural characteristics shared by all the peoples of the world, or even widespread awareness of their common economic, technological, and other material interests, are sufficient to sustain a world order governed by law. As important as it is that strong and imaginative efforts be made to secure such awareness, and to deepen it by study and dialogue, we know from experience, if from nothing else, that even peoples that share both a common religion and a common legal tradition on the one hand, and common material in­terests on the other, are nevertheless entirely capable of going to war against each other. Indeed, the powerful tendencies toward global integration that exist in the world today are being matched by powerful tendencies toward ethnic and territorial disintegration, often reinforced by strong religious sentiments. Blood and soil still command far greater loyalty than our shared transnational eco­nomic, political, and cultural interests as well as our shared transna­tional religious convictions.

We must make a decision in our minds and hearts concerning these historical alternatives. It is not simply a matter of what we prefer. It is a matter, first, of what is historically destined, what corresponds to the purposes for which human life was, and continues to be, created on this planet; and second, it is a matter of mobilizing those spiritual forces throughout the world that are dedicated to ful­fillment of that historical destiny and those purposes.

One is reminded of Alexis de Tocqueville’s discussion of the gradual expansion of political and social equality over the centuries of Western history. Starting in the eleventh century, he wrote, when the clergy opened their ranks to rich and poor, one social class after another achieved greater equality. In his own time, the middle class in France and elsewhere in Christian Europe had risen up and abolished the privileges of the aristocracy, and he predicted that in the future the working class would struggle for and achieve equality with the middle class.51 To a certain extent, Tocqueville the aristocrat deplored these developments. Yet he believed that they were providential and that therefore one must accept them and make the best of them.52 For Tocqueville, history was a progressive revelation of divine will. Similarly, I believe, global integration is providential, and we must make the best of it, regardless of our parochial loyalties.

“Providential,” or “destined,” does not mean “fated.” “Providen­tial” means, literally, “foreseen”; and for fulfillment of what is fore-seen, a voluntary response is required. Similarly, “destined” refers to our intended destination, not our inevitable destination.

Our intended destination is global integration — not global homogenization, not a diminution of cultural differences and territorial allegiances, but a bringing together of the diverse constituencies of the world into a transcendent human family. But we must ask, Who will respond to the call to bring this about? In answering that question we think first of the many hundreds of thousands of economic entrepreneurs, technologists, environmentalists, scientists, and others, from all countries, who have an immediate economic or pro­fessional stake in transnational trade and investment, transnational communications, transnational cooperation to prevent destruction of the world’s environment, the transnational advancement of scientific and other forms of knowledge, and similar causes. We think also of the host of lawyers and other advisors who are associated in these endeavors. We think of international civil servants and other persons working in the United Nations and in its non-governmental organizations. We think also of the statesmen of the various nations of the world who are struggling to create a peaceful world order through treaties and agreements and other means of cooperation, while at the same time protecting their respective national interests.

Yet we cannot rely solely on these economic, social, and political agencies to overcome the forces of disintegration in the world. As we experience the process of gradual creation of a world order, with a common economic and legal structure, we must recognize that a central ingredient of that process is a common commitment to a higher spiritual truth that transcends all loyalties of blood and soil. Such a common commitment, or faith, is needed to hold together people of different nations, different cultures, and different religions. It is an inchoate faith, lacking in dogmas. It is a belief in a sacred spiritual reality that is guiding the process by which the destiny of humanity, its ongoing history on the planet, is to be fulfilled.

The age of the holy spirit, the third millennium in the history of Christianity,53 is an ecumenical age. In it, all who share a belief in a Spiritual Presence, both theists and non-theists, all who speak the language of a higher spiritual faith, all who seek a higher truth, are called to join in giving a foundation of ritual, tradition, authority, and universality to the emerging common law of mankind. The seekers of the world are called to unite against those skeptics who claim that there is no truth higher than the self-interest of the individual or the tribe or the territory, and no law higher than the will of the political authority. They are also called to unite against those dogmatists who believe that they have already found the entire truth and whose minds are closed to new inspiration. The seekers of a higher spiritual truth are called to unite to give to the emerging law of the emerging world community the same kind of emotional com­mitment, the same kind of loyalty, the same kind of sanctity, that has been given in the past to the legal traditions of the nation.

The key to the age of the Holy Spirit is Logos — the Word, the living language of prophecy on the one hand, and of community on the other. It is the language of language itself, the language of “communification.” It is the language, therefore, of those who are now establishing legal relations across ethnic and territorial boundaries and who are thereby helping to create a common legal language of a world society. With divine guidance, it can become the common law not only of a world society but also, in time, of a world community.

Conclusion

In the first part of this presentation, I have tried to show that a legal philosophy which combines the conflicting schools of positivism, natural-law theory, and historical jurisprudence bears an im­portant relationship to a trinitarian theology. In law, the divisive powers of Will, Reason, and Memory — or, in their social forms, Politics, Morality, and History — interpenetrate each other and form a triune reality. The political aspect of law, law as an instru­ment of the transcendent will of the lawmaker, corresponds to the divine form of the creator, the lawgiver; in Christian terms, the Fa­ther. The moral aspect of law, law as an expression of an immanent reason and conscience, corresponds to God as redeemer, or brother; in Christian terms, the Son. And the historical aspect of law, law as an embodiment of the ethos and traditions of the community, its life in time, corresponds to the Christian doctrine of the Holy Spirit. One may, of course, and I believe should, accept the integration of the three major schools of legal philosophy, regardless of one’s acceptance or rejection of a trinitarian theology. Nevertheless, something like a leap of faith is required to insist on the threefold, or tri­une, character of the law in those instances when all three of its forms seem to be in conflict with each other — when legislation and justice and precedent seem to lead in three different directions.

In the second part of this presentation, I have tried to show that in the historical context of an emerging and still most fragile global order, a transnational, cross-cultural, inter-religious commitment to the search for a higher spiritual truth is needed if the ethnic and territorial and cultural (including religious) forces of disintegration are not to frustrate the formation of a world society and, eventually, a world community. I have called the new age into which mankind is entering the Age of the Holy Spirit; this is an ecumenical image, which not only corresponds to Christian tradition but is also congenial to adherents of other religions as well as to those humanists who disclaim religious affiliation but nevertheless hold some values to be sacred. I believe that only a shared faith in the common destiny of mankind gradually to form a world community will pro­vide the vision and the emotional support necessary to the continued creation of a world order governed by law. There is an intimate connection between the creation of such a world order and an integrative jurisprudence. In the new age which mankind is entering, the legal processes necessary to sustain a world society are being established partly by legislation, reflecting the poli­cies of official bodies, and partly by judicial and quasi-judicial ac­tion, reflecting official principles of justice in the application of laws, but chiefly by unofficial processes of negotiation and agreement among those who participate in the establishment of various types of transnational relations. It is primarily through the language of con­tractual negotiation and agreement that transnational customary law has developed in the past and will continue to develop in the next generations. A higher spiritual power is already at work here in making it possible for persons of different cultures and different reli­gious beliefs to understand each other and to create a common legal language.

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.”54 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, to which I have already referred. 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.”55 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.


* Robert J. Woodruff Professor of Law, Emory University, and James Barr Ames Professor of Law, emeritus, Harvard University. The collaboration of Charles J. Reid, Jr.. Research Associate in Law and History, Emory University, is gratefully acknowledged.

1 “You shall love your neighbor as yourself, I am the Lord …” “You shall love the Lord your God with all your heart, with all your soul, and with all your might.” Leviticus 19:18, Deu­teronomy 6:5; quoted by Jesus as “the summary of the Law” in Mark 12:25-31.

2 Oliver W. Holmes. Jr.. The Common Law i (1881).

3 Id.

4 Id.

5 John 1:1.

6 The tint of the “words” was not a commandment at all: “I am the Lord thy God who brought thee out of the land of Egypt, out of the house of bondage.”Exodus 20:2. In the Jewish tradition this, taken by itself, is counted as the first of the ten “words.” Christians later combined it with the second. “Thou shalt have no other gods before me,” Exodus 10:30, thus making it sound more like a commandment.

7 Genesis 1: 1-31.

8 In a recent book. Professor Milner Ball emphasizes the source of “the Word” in the He­brew dabar, which in the context of St. John’s Gospel he interprets as a divine command to lead a sacrificial life of service. Milner S. Ball, The Word AND the Law (1993). Ball struggles with Jesus’s statement to the Apostles that while the secrets of the Kingdom of God have been disclosed to them, to others they will remain impenetrable parables. Id. at 106-08. He interprets this passage as a call to the followers of Christ to seek meaning in everyday experience. Ball disclaims an intention to “make a linear argument or advance a set of propositions toward a conclusion designed to compel readers’ assent by the force of its logic.” Id. at 1-2. Instead, he makes his point through narrative, by relating the experiences of seven people who, through their engagement in the law, have responded creatively to the divine Word. Id.; see generally Frank S. Alexander, Speaking Theologically: A Review of Milner S. Bait. The Word and the Law. 42 Emory L J. 1081 (1993) (book review).

9 Acts 2:1-14.

10 The word “person” as used in this context meant — and means — something quite differ­ent in Christian theology from what it has come to mean in current secular speech. In the first centuries A.D., the Latin word persona,like the Greek word prosopon,, meant “face,” or “aspect,” or “role.” When applied to the Trinity, it meant something more than that. Exactly what it meant, however, was the subject of fierce theological debate. The orthodox view speaks of one “essence” or “substance” and three “persons” through whom that essence is manifested. I use the word “form” as a modern translation of the ancient word “person” in trinitarian theology, with the connotation that the one God appears in three different forms.

11 Cf. The New Jerome Biblical Commentary 951 (Raymond E. Brown et al. eds., 1990) (providing commentary on the Gospel According to St. John): The Anchor BIBLE. The Gospel According to John, 3-36 (William F. Albright et al. eds. & Raymond E. Brown trans., 1966) (same).

12 See generally Joseph Moingt. Théologie Trinitaire de Tertuluen (1966) (discussing Tertullian’s theories).

13 See generally Catherine Mowry LaCugna. God for Us: The Trinity and Christian Life 81-109 (1991) (discussing St. Augustine and the Trinitarian economy of the soul).

14 See Karl Rahner. The Trinity (Johannes Feiner et al., eds., & Joseph Donceel, trans., 1970).

15 For a discussion of Moltmann’s theories, see Jürgen Moltmann. History and the Triune God: Contributions to Trinitarian Theology (1992) [hereinafter “MoltmanN. His­tory”]; Jürgen Moltmann. The Trinity ano the Kingdom: The Doctrine of God (Margaret Kohl trans. 1981) [hereinafter “Moltmann. Trinity”].

16 Christian theologians identify the “immanent” Trinity with the reciprocal relationships of Father, Son, and Spirit to each other, and the “economic” Trinity with the three forms of mani­festation of God’s activity in the world. The “economic” Trinity, in turn, is treated as part of “salvation history” (a translation of the German Heilsgeschichte), which stresses the continuing manifestations of God’s will in the world and the transcendent character of history lived out in the Christian era. Cf. Rudolf Schnackenburg et al.,Heilsgeschichte, 5 Lexikon Für Theologie und Kirche 147, 153-156 (Josef Höfer & Karl Rahner, eds., 1960).

17 Genesis I: 26-27.

18 “Messianic Judaism is Judaism that takes seriously the belief that Jewish history … is a prelude to an extraordinary act of God, by which history will come to its climax and the reconcili­ation of God and man, and man and man, realized.” David R. Blumenthal, Michael Wyschogrod, in Interpreters op Judaism in the Late Twentieth Century 393, 396 (Steven T. Kati. ed., 1993). The difference from Christianity is that the climax and ultimate reconciliation.is only in the future. However, “[e]ven for Christians, the eschatological redemption and consummation has still to take place: there has been a delay in the ‘parousia.’” Hans Küno. Judaism — Between Yesterday and Tomorrow 344 (John Bowden trans., 1992). At the same time, the emphasis of leading Jewish thinkers such as Abraham Heschel on both Biblical and post-Biblical prophesy as a revelation of God’s presence in the human soul and of his compassion for human suffering brings Judaism closer to the Christian belief in the Incarnation. See e.g., Abraham Heschel, The Prophets (1962).

19 The metaphor of divine fatherhood is used only occasionally in the Hebrew Scriptures. Some examples are: Deuteronomy 32:6 (quoting Moses as saying, “in the hearing of the whole assembly of Israel, Do you thus repay the Lord, foolish and senseless people? Is not he your father, who created you, who made and established you?”); Isaiah 64:8 (“Yet, O Lord, you are our father: we are the clay, and you are our potter.”); Isaiah 63:16 (“For you are our father, though Abraham does not know us and Israel does not acknowledge us.”);Malachi 2:10 (“Have we not all one father? Has not one God created us?”). The Qur’an, on the other hand, “while it has 99 names for Allah, avoids the name ‘Father,’ which from Muhammad’s standpoint was hopelessly compromised by the tribal religions of Arabia, with their belief in the children of the gods.” Hans Köng et al., Christianity and World Religions: Paths or Dialogue with Islam. Hinduism, and Buddhism 120 (Peter Heinegg trans., 2d ed. 1993). Nevertheless, the Qur’an, like

. both the Hebrew Scriptures and the New Testament, presents God as the all-wise and merciful creator and lawgiver, and hence in a metaphorical sense as the parent of the human race. Cf. id. at 72 (“We describe human beings as God’s children, and God is not just the Lord, but the Father, too. This sort of language is just not heard in Islam, but we must consider the reason for that: A child for the Arabs is always a son. and God has no son; he does not ‘beget.’ That formula is impossible, because it has trinitarian associations. In point of fact, God’s mercifulness contains a good deal of the fatherliness that we look upon as typically Christian.”).

Here and throughout this article I have intentionally varied the use of initial capital letters, depending on the theological context, in referring to the forms in which God’s activity and pres­ence are manifested.

20 Genesis 1:2.

21 Joel 2:28-32.

22 See Michael E. Lodahl. Shekhinah / Spirit Divine Presence In Jewish and Chris­tian Religion 42-65 (1992) (discussing the divine presence and the Shekhinah): Moltmann Trinity, supra note 15, at 29-30 (discussing the relationship between God and the Shekhinah). In the Jewish tradition, distinctions among the forms in which God is experienced are less sharp than in the Christian tradition; nevertheless, his presence as a holy spirit is sometimes stressed. Thus the Psalmist says, “O God … take not thy holy spirit from me.”Psalms 51:11. Later rabbinic writings vary widely in their interpretation of the manifestation of the holy spirit. In the thirteenth century, Maimonides specifically identified the outpouring of the holy spirit [ruah kadosh) with the gift of prophecy. Maimonides. Laws of the Foundations or the Torah 7:1; cfRabbi Joseph B. Soloveitchik. Halakhic Man 129-30 (Lawrence Kaplan trans., 1983) (discussing Maimonides). Abraham Heschel follows Maimonides in describing the prophet as a man filled with the holy spirit (ish ha-ruah), which Heschel also renders as a transcendent “divine pathos.” See Heschel. supranote 20 at 317, 483-88 (1962) (discussing and defining pathos); cf. Edward K. Kaplan, Metaphor and Miracle: Abraham Joshua Heschel and the Holy Spirit,56 Con­ servative Judaism, 4, 17 (1994) (“For Heschel, modern Judaism is a religion of the Holy Spirit …”).

23 Karen Armstrong. A History of God: The 4000-Year Quest of Judaism, Christianity, and Islam 138 (1993). Although Islam powerfully stresses the Oneness of Allah, angels also play a significant role in Islamic theology, and especially in prophetic revelation. See Sachiko Murata, The Angels, in Islamic Spirituality 324, 338-43 (Seyyed H. Nasr ed., 1987) (discussing mankind and the angels); Louis Gardes, Les Anges en Islam, 21 Studia Missionalia 207, 211-12 (1972) (discussing God’s use of the Angels).

24 There are, of course, many different forms of Buddhism. Taoism, Hinduism, and other non- theistic religions, and almost any generalization about them all is bound to require qualifications. Hans Küng has pointed out that although the Buddhist belief in dharma, or truth, does not generally include a belief in a transcendent reality, nevertheless, in Mahayana Buddhism, the idea of dharmakaya, or body of truth, does in fact “manifest divine qualities: a different dimension be­yond or within phenomena, a true reality.” Küno, supranote 19, at 592.

25 See Paul Tiluch. Christianity and the Encounter or the World Religions 58 (1963) (“All religions … grow out of a sacramental basis, out of the experience of the holy as present here and now … But no higher religion remained on this sacramental basis; they tran­scended it, while still preserving it …”). The definition of religion as “the sense of the holy” was a principal theme in the writings of Rudolf Otto. See Rudolf Otto, the Idea of the Holy (John W. Harvey trans., 1968); cf. Friedrich Heiler. Prayer: A Study in the History and Psychology of Religion xv (Samuel McComb. trans. & ed. 1932) (“[P]rayer is the heart and centre of all religion.”); see also Mircea Eliade. Cosmos and History: The Myth of the Eternal Return 21-23 (Willard R. Trask trans., 1959) (discussing the divine origins of religious rituals); Mircea Eliade. Images and Symbols: Studies in Religious Symbolism (1969).

26 Lewis Thomas. The Fragile Species 123 (1992) (“Altruism is one of the strange biologi­cal facts of life, puzzling the world of biology ever since Darwin … [B]ut an even deeper scientific quandary is posed by the pervasive existence of cooperative behavior all through na­ture.”). In the last pages of the book. Dr. Thomas struggles with the question whether there exists “something like a mind at work, adrift somewhere around or over or within the mass” of “living species, all engaged in some kind of thought.” Id. at 192. He goes on to write: “[M]y friends will object to the word ‘mind,’ worrying that I am proposing something mystical, a governor of the earth’s affairs, a Presence … Not a bit of it, or maybe only a little bit …” Id.

27 See St. Augustine. Confessions, 317-18 (E. B. Pusey tram., 1907)

Now, the Three I spake of are, To Be, to Know, and to Will. For I Am, and Know, and Will: and I Know myself to Be, and to Will: and I Will to Be, and to Know. In these three, then, let him discern that can, how inseparable a life there is, yea one life, one mind, and one essence, yea lastly how inseparable a distinction there is, and yet a distinction.

Id.; cf. St. Augustine. The Trinity 271-89, 308-09 (Roy Deferrari et al. eds. 4 Stephen McKenna trans., 1963) (discussing the trinity of the mind, knowledge and love). Leonardo Boff has stated:

To elucidate unity in trinity and trinity in unity, Augustine produced two famous analogies with human beings, who are created in the image and likeness of God: he speaks of mind, knowledge, and love (mens, notitia, amor),or memory, intelligence and will (memoria, intelligentia, voluntas). Each of these terms contains the others: the mind knows and loves, knowledge supposes mind and love, love implies mind and knowledge. The three form the human soul, which is continuous life and action in complete simultaneity of action and being.

Leonardo Boff. Trinity and Society 56 (Paul Burns trans., 1988) (endnotes omitted).

St. Augustine’s insights into the “vestiges” of the Trinity in the human soul were amplified in the thirteenth century by the great Franciscan scholar St. Bonaventure, especially in his book Itinerarium mentis in Deum. See Bonaventure, The Soul’s Journey Into God. in Bonaventure 80-85 (Ewert Cousins trans., 1978). For a discussion of Bonaventure’s definition of memory, see infra note 43 and accompanying text.

A recent book devoted to the three-fold character of the human psyche as analyzed by scholas­tic writers, including St. Bonaventure, focuses on their discussion of reason and will and neglects their discussion of the temporal character of “being.” See Edouard-Henri Weber. La personne humaine au XIIIE siècle: L’Avenement chez les Maitres parisiens de l’acception moderne de l’homme (1991).

28 See Moltmann. Trinity, supra note 15, at xii-xiii (“The triune God is community, fellow­ship, issues an invitation to his community and makes himself the model for a just and livable community in the world of nature and human beings.”). Raimundo Pannikar analogizes the three persons of the Trinity to the three persons of grammar represented by the pronouns “I,” “Thou.” and “He / She / It,” and “We,” “You,” and “They,” which are present in all known languages. He states:

The Trinity appears then as the ultimate paradigm of personal relationships … An I implies a thou, and as long is this relation is being maintained, it implies also a he / she / it as the place where the I-thou relation takes place. An I-thou relation implies equally a We-you dimension, which includes the they in a similar way as the he /she / it is included in the I-thou.

Raimundo Pannikar. The Trinity and the Religious Experience of Man xv(1973); see ‘ also Boff, supra note 27, at 236-37 (discussing the Trinity and the three divine persons).

29 The eminent German theologian Wolfhart Pannenberg has adumbrated a theological foun­dation for an integrative jurisprudence similar in a very general way to that presented in the following pages. He has written about the tension between the conception that the validity of law is grounded in the created order and the conception that it is grounded in Christ. He resolves this tension by grounding the validity of law in the historical character of human reality. Pannenberg does not, however, relate these three sources of the validity of law (which I associate with the political, moral, and historical dimensions of law) to the three persons of the Trinity, nor does he expressly relate the historical character of humanity, and therefore of law, to the working of the Holy Spirit.See Wolfhart Pannenberg, Toward a Theology of Law, 55 Anglican Theological Rev. 395 (1973).

30 See Harold J. Berman. Law and Revolution: The Formation of the Western Le­gal Tradition 165-98 (1983); Law and Belief in Three Revolutions, in Harold J. Berman. Faith and Order: The Reconciliation of Law and Religion 83-139 (1993) [hereinafter “Berman. Faith and Order”].

31 Raimundo Pannikar states that each of the world religions, in its own fashion, strives to­ward synthesis of the three spiritual attitudes that are reflected in the Christian doctrine of the Trinity, and that “the kairos of our time” is to bring the religions together on this basis. Pannik- kar. supra note 23, at 43.

Trinitarian tendencies can also be found in all of the world’s legal systems, but Donald Kelley surely goes too far in stating that Gaius’s three-fold division of Roman law into persons, actions, and things corresponds to, and even gave rise to, the Christian “myth” of the Trinity. See Don­ald R. Kelley. The Human Measure: Social Thought in the Western Legal Tradition 118-19 (1990). This juxtaposition is effectively rebutted in John Witte, Jr.’s review of Kelley-s book: John Witte. Jr.. From Homer to Hegel: Ideas of Law and Culture in the West. 89 Mich L Rev 1618, 1634 (1991) (book review).

32 See Harold J. Berman. Toward an Integrative Jurisprudence: Politics, Morality, History, 76 Cal. L. Rev. 779, 779 (1988) (discussing “integrative” jurisprudence and the three schools of Western legal philosophy), reprinted inBerman. Faith and Ordex, supra note 30, at 289

33 Id. at 780.

34 Id.

35 Id.

36 Id. at 781, 784-85.

37 Id. at 783-85.

38 Id. at 788-89.

39 Harold J. Berman. The Origins of Historical Jurisprudence: Coke. Selden. Hale. 103 Yale L. J. 1651 (1994) [hereinafter “Berman. Origins”].

40 See generally Friedrich Karl von Savigny. of the Vocation of Our Age For Legislation and Jurisprudence (Abraham Hay ward trans., 1975).

41 “The historical school … was dominant in Continental Europe and in America in the last half of the nineteenth century.” Roscoe Pound. 1 Jurisprudence 63 (1959).

42 Alan Watson, in the course of examining positivist and natural-law justifications of the validity of customary law, disdains to discuss historical jurisprudence at all, on the ground that “Savigny’s … general theory of law … is today universally rejected … ”Alan Watson. The Evolution of Law 48 (1985).

43 This is St. Bonaventure’s definition of memory. See Bonaventure, supranote 27, at 80-81. It corresponds to the concept of “the temporally extended self” developed by the eminent cognitive psychologist Ulric Neisser. See Ulric Neisser. Five Kinds of Self-knowledge. I Philosophical Psychology 35. 46-50 (1988). Neisser defines the extended self as “the self as it was in the past and as we expect it to be in the future, known [to itself] primarily on the basis of memory.” Id. at 46. “What we recall depends on what we now believe as well as on what we once stored.” Id. at 49.

44 Here I depart from St. Augustine, who would identify “being” with the first person of the Trinity, and “will” (including “love”) with the third person. St. Augustine, supra note 27, at 16. I would ascribe “love” to all three persons equally, but would relate “will,” in the sense of author­ity, primarily to the first person, and “being” (in the temporal sense) primarily to the third person.

45 The resort to politics, morality, and history in determining what the law is, and how it should be interpreted and applied, does share some common features with pragmatism, in that it is directed to achieving consequences that have maximum practical value. If analysis of what the positive law requires, what natural law requires, and what the particular legal tradition requires all lead to the same judgment, that judgment will have maximum acceptability. Conflicts between positive law and natural law may be susceptible of resolution in the light of the legal tradition. If, however, all three are thought to be in conflict with each other, then practical consequences must be taken into account, but the determination of those consequences is not solely a rational process. A principal method of reconciliation of the three sources of law when they are in conflict may be found in the dictates of conscience. The theory of a resort to conscience in the application of the law, in order to overcome defects due to the necessary generality of legal rules and principles, was developed by Lutheran jurists in the sixteenth century. See Harold J. Berman & John Witte, Jr., The Transformation of Western Legal Philosophy in Lutheran Germany. 62 & Cal. L. Rev 1575, 1635-50 (1989) (discussing Johann Olderdorp’s theory of divine law, natural law. and posi­tive law).

46 A striking example of an effective international community is that of persons engaged in international commerce, which I have described elsewhere as,

the transnational community of exporters and importers, shipowners, marine insur­ance underwriters, bankers, and others — a community which has a European history dating from the twelfth century and which in the twentieth century has become not merely a Western but a worldwide community, held together by innumerable negotia­tions and transactions among its participants as well as by its own processes of self-government, including its own [lex mercatoria and its own] procedures for mediation and arbitration of disputes.

Harold J. Berman. Law and Religion in the Development of a World Order.52 Soc. Analysis 27 (1991) reprinted in Berman. Faith vnd Order, supra note 30, at 283.

47 In 1933, 250 religious leaders from around the world, in a Parliament of the World’s Reli­gions, signed a “Declaration of a Global Ethic.” which affirmed “the fundamental unity of the human family on Earth” and proclaimed “the full realization of the intrinsic dignity of the human person, the inalienable freedom and equality in principle of all humans, and the necessary solidarity and interdependence of all humans with each other.” The Declaration, which was drafted by Hans Küng, stated that “[b]y a global ethic we do not mean a global ideology or a single unified religion beyond all existing religions,” but rather “a fundamental consensus on binding values, irrevocable standards and personal attitudes.” Parliament of World Religions’ Global Ethic. Nat’l CaTH. Rep.. Sept. 24, 1993, at 11. Missing from the document, however, is any reference to a transcendent spirit that inspires or demands the kinds of commitment to the strengthening of a world society and the creation of a world community for which the Declaration calls.

48 Religion is a social and individual relationship, vitally realized in a tradition and com­munity (through doctrine, ethos, and generally ritual as well), with something that transcends or encompasses man and his world: with something always to be under­stood as the utterly final, true reality (the Absolute, God, nirvana). In contrast to philosophy, religion is concerned at once with a message of salvation and the way to salvation.

Hanj Küng et al.. Christianity and the World Religions: Paths to Dialogue xvi (Peter Heinegg trans., 1986). This definition is useful for the purpose for which it is intended, namely, as a basis for furthering interreligious dialogue, understanding, and tolerance among the world reli­gions, a goal which Küng believes it is necessary to achieve before there can be world peace. As in the case of the Global Ethic of the Parliament of World Religions, supra note 48, the recognition that different religions have common features provides an important basis for mutual understand­ing but does not provide a common determination to form strong bonds of community.

49 See Berman. Faith and Order, supra note 30, at 8-15 (discussing the common elements of law and religion).

50 Christianity: “All things whatsoever ye would that men should do to you. do ye even so to them: for this the Law and the Prophets” Matthew 7,12. Judaism: “What is hateful to you, do not to your fellowmen. That is the entire Law: All the rest is commentary” Talmud. Shabbat 31a. Brahmanism: This is the sum of duty: Do naught unto others which would cause you pain if done to you” Mahabharata 5, 1517. Buddhism: “Hurt not others in ways that you yourself would find hurtful” Udana-Varga 5, 18. Confucianism: “Sure it is the maxim of loving badness: Do not unto others that you would not have them do unto you” Analects, 15, 23. Taoism: “Regard your neigh­bor’s gain as your own gain, and your neighbor’s loss as your own loss” Tai Shang Kan Ying P’ien.Zoroastrianism: “That nature alone is good which refrains from doing unto another whatso­ever is not good for itself Dadistan-i-dinik 94, 5. Islam: “No one of you is a believer until he desires for his brother that which he desires for himself” Sunnah. H. D. Rost. The Golden Rule: A Universal Ethic (1986); see also C S Lewis. The Abolition of Man (1947) (pro­viding appendix: “Illustrations of the Natural Law Drawn From Various Sources”).

51 See 1 Alexis de Tocqueville. Democracy in America 3-6 (Phillips Bradley ed., 1945, orig. ed. 1838); cf. 2 Id. at 199 (forecasting the emergence of gender equality).

52 The gradual development of the principle of equality is, therefore, a providential fact. It has all the chief characteristics of such a fact: it is universal, it is lasting, it con­stantly eludes all human interference, and all events as well as all men contribute to its progress … If the men of our time should be convinced by attentive observation and sincere reflection that the gradual and progressive development of social equality is at once the past and the future of their history, this discovery alone would confer upon the change the sacred character of a divine decree. To attempt to check democ­racy would be in that case to resist the will of God; and the nations would then be constrained to make the best of the social lot awarded to them by Providence.

1 Id. at 6-7.

53 54. Such a millennial prophecy is reminiscent of that of the Calabrian Abbot Joachim of Fiore (1135-1202), who counted the time of the Hebrew Scriptures as the age of the Father, dominated by the Law, the time of the Christian Church prior to the thirteenth century as the age of the Son, dominated by Grace, and the time soon to come as the age of the Holy Spirit, dominated by Love. See Morton W. Bloomfield, Joachim of Fiora: A Critical Survey of his Canon, Teachings, Sources, Biography and Influence. 13 Traditio 249, 264-68 (1957); see generally Bernard McGinn. The Calabrian Abbot Joachim of Fiore in the History of Western Thought (1985).

Joachim prophesied that the third “Johannine” age would last forty generations and that all mankind would be united under the leadership not of the Roman Catholic priesthood, as in the previous age, but of monastic “spirituals.” The Franciscan order, founded soon after Joachim’s death, was strongly influenced by his teaching, as were many strands of Protestant thought in the sixteenth century. Joachim’s teachings were denounced by the Fourth Lateran Council in 1215 and later came under strong attack by Thomas Aquinas, among others. They nevertheless con­tinue to be influential insofar as they embody the belief that divine revelation was not exhausted in the New Testament and in the previous tradition of the Church, but would continue to introduce fundamental changes in human history. Perhaps what is most remarkable in Joachim’s prophecy, viewed from the perspective of the twentieth and twenty-first centuries, is its assumption that in a new age all mankind would be brought together in a spiritual unity.

Biblical textual support of the belief in new divine revelation in an age of the Holy Spirit may be found in Jesus’s statement, “I have yet many things to say to you, but you cannot bear them now. When the spirit of truth comes, he will guide you all into the truth.” John 16:12-13; cf. Pierre Teilhard de Chardin. Christianity and Evolution 142-44 (Rene Hague trans., 1969).

Contemporary appreciations of the Joachimite prophecy include that of Jürgen Moltmann. Moltmann. Trinity, supra note 15, at 203 (“But in fact, ever since the middle ages, there is hardly anyone who has influenced European movements for liberty in church, state and culture more profoundly than this twelfth-century Cistercian abbot from Calabria …”); see also Moltmann. History, supra note 15, at 91-104.

The vision of a new age presented in this paper is indebted to that of Eugen Rosenstock-Huessy, who divided the Christian era into three millennia, the first of which was concerned primarily with the Church’s conversion of pre-Christians from many gods to one God; the second of which has been concerned primarily with the establishment of the Papacy as a worldly power, the rise of (Protestant) national states, and the scientific conquest of the world of nature; and the third of which is to be concerned primarily with the creation of one human society. Rosenstock-Huessy defined the Christian era as a whole as “the self-conscious period of mankind during which man is making a purposeful effort toward unity and universality … The story of salvation on Earth is the advance of the singular against the plural …one God, one world, one humankind.” George Allen Morgan. Speech and Society. The Christian Linguistic Social Philosophy of Eu­gen Rosenstock-Huessy 48 (1987) (citations omitted).

54 Genesis 11:1-9.

55 Acts 2:1-13.

 

Epilogue: An Ecumenical Christian Jurisprudence

Contents

EPILOGUE: AN ECUMENICAL CHRISTIAN JURISPRUDENCE

By Harold J. Berman

“I say as do all Christian men that it is a divine purpose that rules,
and not fate.”” – King Alfred’s addition to “Boethius “

Contributors to this volume have brought together a panoply of distinguished nineteenth- and twentieth-century Christian philosophers who sought to counteract the secularism of the prevailing legal theory and to restore an understanding of the spiritual foundations not only of law but of political and social institutions generally. Leo XIII, Maritain, Murray, Kuyper, Bonhoeffer, Niebuhr, Solovyov – these and others represented here are great names, and they have important Christian messages for persons who seek to think deeply about the nature and functions of law in society. Most twentieth-century legal philosophers, however, paid little or no attention to those messages. In the nineteenth and twentieth centuries, and into the twenty-first, prevailing scholarly thought in North and South America and in Europe, including Russia, has simply ignored the various versions of Christian jurisprudence presented in these chapters.

The divorce of modern Western legal scholarship from its Christian heritage is usually attributed to a decline of Christian faith in the West, at least among scholars, since the so-called Enlightenment of the late eighteenth century, and to the accompanying tendency in all the social sciences to look to political, economic, and other material factors, rather than to moral or spiritual values, in explaining social institutions and public policies. Yet responsibility for the radical separation of prevailing legal thought from its Christian philosophical roots lies not only with the secularists, I shall contend, but also with modern Christian philosophers themselves, including those represented in this important volume.

The first error that I would charge to modern Christian philosophy as reflected in these chapters is the separation of the Roman Catholic jurisprudence of so-called natural law, with its emphasis on the moral dimensions of law, from the Protestant jurisprudence of positivism, with its emphasis on the political dimensions of law, and further, the separation of both natural law theory and positivism from historical jurisprudence, with its emphasis on the source of law in the ongoing traditions of the culture whose law it is. Each of these three major schools of legal thought – natural law theory, positivism, and the historical school – has a portion of a greater truth; none of them, standing alone, meets the challenge that Christian faith presents to legal thought. Only by combining them, as indeed they were once combined in Western thought, into an integrative ecumenical jurisprudence will a Christian legal philosophy again become convincing – a Christian jurisprudence in which tensions between the moral and the political concepts of the law of a society are resolved in the light of the society’s historical experience, its memories of the past and its anticipations of the future.

A second related error that I would charge to modern Christian legal philosophy, as reflected in these chapters, is its failure to take adequate account of the providential character of human history, including both the providential spread of Christianity during the first two millennia of the Christian era to people in virtually all parts of the world, and the providential challenge of the third millennium of the Christian era gradually to create a world society governed by world law. To understand this challenge, and to meet it, requires, again, an ecumenical jurisprudence that integrates the political insights of positivism with the moral insights of natural law theory and the historical insights of the historical school. In an emerging world society, this must be, moreover, a jurisprudence that draws not only on traditional Christianity but also on related spiritual values of non-Christian philosophies.

In proposing an ecumenical Christian jurisprudence I shall examine each of these two weaknesses that contemporary Christian jurisprudence has shared with its secular counterparts: its failure to draw together the three major schools and its failure to meet the challenge of an emerging world law.

I.

An ecumenical Christian jurisprudence is premised on the recognition that each of three major schools, which split apart and took their present form in the late eighteenth through the twentieth centuries, has isolated one of the three basic dimensions of law, and that it is both possible and important to bring the three dimensions together into a common focus.1 Indeed, the integration of the three is implicit in the trinitarian Christian faith which, prior to the mid-eighteenth century, virtually all leading Western philosophers and jurists avowed.2

The Roman Catholic natural law jurisprudence of Thomas Aquinas and his successors, including in this volume Pope Leo XIII and Jacques Maritain, identifies law primarily with a God-given moral sensibility embedded in human nature itself, and especially in inborn reason. It stresses as the principal source of positive law what in the English courts to this day is called “the law of reason,” applicable to the interpretation and correction of legal rules that without such interpretation or correction would work gross injustice. Roman Catholic natural law theory does, however, recognize that there is also a moral value, a moral purpose, in the maintenance of political order through formal legislation and other forms of positive law that express the will of the lawmaker. Only where the lawmaking authority promulgates rules or commands actions that violate fundamental principles of legality itself must it be said, according to natural law theory, that such rules or actions lack the character of law. Indeed, this principle of natural law may be written expressly into the positive law itself, as it is, for example, in the Fifth and Fourteenth Amendments to the United States Constitution, under which courts have the power and duty to deny the validity of legislative or administrative acts that violate “due process of law” – a fourteenth-century English phrase that was, in fact, first used to translate the Latin jus naturale, natural law.

In contrast to natural law theory, the Protestant positivist jurisprudence of Martin Luther’s followers, including in this volume Abraham Kuyper and Reinhold Niebuhr, identifies law primarily with the policies of the lawmaker, “the state,” expressed in the form of a more-or-less self-contained body of rules “posited” (hence “positivism”) by the state and enforced by state sanctions. As key terms of natural law theory are justice, consent, hearing, and equity, so key terms of the positivist school of jurisprudence are order, power, legislation, rules. Nevertheless, the Protestant positivism of Luther and his followers, though it attributed human law primarily to will rather than to reason, to politics rather than to morality, also affirmed that law itself is ultimately of divine origin, expressed in the Biblical commands of the Decalogue to honor one’s parents (constitutional law), not to murder (criminal law), not to violate sexual mores (family law), not to steal (property law), not to bear false witness against another (contract law), and not to covet what is one’s neighbor’s (tort law).3 In positivist theory, human law is in fact primarily an expression of the will of the lawmaker. At the same time, virtually all versions of positivism stress that legislators ought to use their reason to enact laws that are just, and that judges and administrators ought to apply such laws equitably. Thus the main difference between traditional predominantly Protestant and predominantly Roman Catholic legal theories lies in their respective interpretations of the relationship between the “is” and the “ought”: Protestant positivists would separate them; Roman Catholic naturalists would combine them. In cases of conflict between the two, the Protestant positivist, in analyzing and interpreting the law, would subordinate the “ought” to the “is,” the reason inherent in law to the will of the lawmaker; whereas the Roman Catholic naturalist would subordinate the “is” to the “ought,” the will of the lawmaker to the reason inherent in law.

Viewed historically, these two approaches to law were originally two sides of a single coin. The important differences between them had as much to do with ecclesiology as with soteriology: In the twelfth and thirteenth centuries the Roman Catholic Church had a vested interest in interpreting the law of secular authorities in terms of moral values defined by the Church, while in the sixteenth century Protestant supporters of the establishment of national churches, under royal authority, had a vested interest in distinguishing legal from moral values in the event of conflict between the two. Thus naturalism prevailed in the jurisprudence that predominated in Roman Catholic Europe in the period from the twelfth to the fifteenth century, and positivism prevailed in the jurisprudence that predominated after the Protestant Reformation of the sixteenth century. What determined the differences were primarily historical factors. For in the Western legal tradition what gave the society’s law its meaning was its source not only in moral values, as Roman Catholicism stressed, and not only in political values, as Lutheran jurists stressed, but also in society’s historical values – its source, that is, in the ongoing legal traditions of an evolving Christian culture. This, indeed, is a third dimension and a third measure of law: its correspondence to the historical memory of the society which produces it and is controlled by it.

The third major school, historical jurisprudence, emerged as a separate school only after Roman Catholic and Protestant Christianity had ceased to be the underlying foundation of Western legal philosophy. Founded in the early 1800s by the great German jurist Karl Friedrich von Savigny, the historical school attacked both the natural law theory and the positivist theory, both of which by this time had largely separated not only from their Christian roots but also from each other. Also, with the increasing decline of the sense of the cultural unity of Europe, it was not accidental that the historical school stressed the sources of law in the history not of Europe as a whole but of the individual nations – in Savigny’s work, the German people. It was the legal traditions of the German people, the Volk, that gave direction, Savigny wrote, to the future of German law. Germany, he wrote, was not ready for, and not yet the place for, the codification of the civil law that had been introduced in France. Moreover, the theory of natural rights that had been written into French law did not correspond to the ethos, the Volksgeist, of the German people. The primary source of law, he wrote, is not morality and not politics, but history; not reason and not will, but tradition; not equity and not legislation, but custom and precedent. It is the living group memory of the people whose law it is.

Historical jurisprudence, in one form or another, came to be the predominant legal theory of the nineteenth and early twentieth century, not only in Germany but throughout Europe and in the United States. It was congenial to the nationalism of that era, since it was the historical ethos of each nation that was then seen to be the source of that nation’s law. Gradually the common Christian heritage of the legal institutions of the nations of the West came to be forgotten. As historical traditions were increasingly overtaken in the later twentieth century by technical rationality and by state power, historicity succumbed to positivism and virtually disappeared as a “school” of legal philosophy. In England and the United States historicity has, to be sure, survived in the doctrine that courts are bound by the holdings of previous decisions and that their adaptations of such holdings to new situations constitute precedents to be followed in future cases. Also in constitutional cases American courts re-interpret the language of an ancient written document in the light of the meanings it has gradually acquired during more than two centuries. Yet despite these judicial practices, English and American legal philosophers, with rare exceptions, no longer make continuity with, and adaptation of, legal traditions a fundamental basis of law.

Will, reason, memory – these are three interlocking qualities, St. Augustine wrote, in the mind of the triune God, who implanted them in the human psyche when He made man and woman in His own image and likeness.4 Like the persons of the Trinity itself, St. Augustine wrote, the three are inseparable and yet distinct. He identified will (voluntas) with purpose and choice, reason(intelligentia) with knowledge and understanding, and memory (memoria) with being – that is, the experience of time. Thus, for St. Augustine memory included not only recollection of the past but also awareness of the present and anticipation of the future; it characterizes what a distinguished contemporary psychologist of memory has called “the temporally extended self.”5 God the Father is the primary source of will, or purpose; God the Son is the primary source of reason, or understanding; and God the Holy Spirit is the primary source of memory, or being in time. Yet the three are one. In the thirteenth century the great Franciscan scholar St. Bonaventure amplified St. Augustine’s insights into the “vestiges” of the Trinity in the human psyche,6 and in recent decades some Christian theologians have ascribed the divine tri-unity of characteristics not only to the individual human mind but also, in a tentative way, to social formations.7 Their applicability to law is particularly striking, for law is indeed a product of will, reason, and memory – of politics, morality, and history – all three; and the synthesis of the three is the foundation of an ecumenical Christian jurisprudence.

In the language of trinitarian theology, official lawmakers reflect in a human way the authority, the will, of God the Father, God the Creator, God the Lawgiver, in enacting and enforcing rules that embody the policies, the will, of the state. To that extent, positivist theory is right: Law is, indeed, a body of rules promulgated and enforced by lawmakers and their agents. At the same time, the naturalist’s assertion that law is founded in morality, as understood by reason, is also right, corresponding – again, in an incomplete and human way – to the trinitarian doctrine of the holiness and redemptive power of God the Son, the God-man, who in his Resurrection offers to persons of good will the reign of peace and justice. Finally, the historicist also has one-third of the truth in the assertion that the primary source of law is not politics and not morality, but history; not order and not justice, but experience; not power and not conscience, but the cultural ethos; not legislation and not equity, but precedent and custom; not will and not reason, but ongoing memory. In the nineteenth century the historical school, taken separately, transformed the theology of the third person of the Trinity, the Holy Spirit, into a belief in the sanctity of the spirit of the nation.

Prior to the mid-eighteenth century it was possible for a Christian legal philosopher to hold these three forms of the triune law – its political form, its moral form, and its historical form – in what Christian theologians, speaking of the Trinity, call perichoresis; that is, each of the three interpenetrates the other. Only in the so-called Enlightenment of the later eighteenth and nineteenth centuries were the links finally severed, in legal philosophy, between positive law and morality, on the one hand, and between each of those and historical tradition, on the other. With the virtual demise of the historical school in the mid-twentieth century, the battlefield is left to the multitude of positivists and naturalists, locked in combat on mutual terms of unconditional surrender. Indeed, a believer in historicity would argue that they cannot possibly be reconciled except in the context of the ongoing history of a given legal order. That, in fact, is the way in which they are often reconciled by American courts, which in deciding cases will turn a positivist eye to the applicable legal rules, a naturalist eye to the equities of the particular case in the light of moral principles underlying the rules, and a historicist eye to custom and to precedent, having in mind not only the precedents of the past but also the significance of their decisions as precedents for the future. A conscientious judge cannot be solely a positivist or solely a naturalist or solely a historicist. The three “schools” are three dimensions of his judicial role.

Ultimately, however, the belief that the political, the moral, and the historical forms of law constitute a tri-unity depends upon a prior belief in the tri-unity of the human psyche on the one hand, and on the other hand, the tri-unity of the communities, local and translocal, to which we belong – not only the nation but also the other communities from which law is ultimately derived: the family, the neighborhood, the workplace, the religious community, the profession, the ethnic group, the region, and others, including transnational communities. Each of these communities appears in three different forms. Each recognizes itself to be a unified body: this may be said to be its political personality, its structure of authority and its power to act creatively, in St. Augustine’s terms its “will.” Each also has its own inner life; this may be called its moral personality, its conscience, in St. Augustine’s terms its “understanding of itself,” its “reason.” Finally, every living community is motivated to preserve its traditions and to achieve its goals, to realize its own historical destiny; this may be called its historical personality, its evolving spirit, in St. Augustine’s terms its memory, its ongoing being in time. If these qualities are not combined, if they do not interpenetrate each other, the community is threatened with disintegration. Indeed, in a community that has separate agencies to represent these three separate forms of its life, it is essential that those agencies be coordinated and constitute a single complex entity.

A Christian jurisprudence takes us one crucial step farther. It contends that the reciprocal interpenetration of the three forms of law must be understood as part of, and subordinate to, a higher Spiritual Presence – in Christian terms, to the perichoresis of the three forms of the triune God. Otherwise, it may be difficult, and sometimes impossible, for them to be held together either at the philosophical level or at the practical level. Where rules of positive law conflict with principles of justice, it is often possible to resolve the conflict by resort to its historical context – past, present, and future – and by application of norms drawn from historical experience. But where all three basic sources of law are in conflict with each other, an act of imagination and courage, an act of faith, is needed to resolve the conflict. Their synthesis cannot be explained by a purely secular legal philosophy, such as pragmatism, since the three basic sets of norms from which a solution must be drawn are fixed and in such a case are at the same time, by hypothesis, irreconcilable by resort to any one of them. It is not merely a “practical” solution which is sought in such a case but one that consciously reconciles the irreconcilable.

II.

If the first major defect of nineteenth and twentieth century Christian philosophy of law was its failure to integrate the major schools of jurisprudence in an ecumenical Christian perspective, the second was its failure to apply that jurisprudence to explain and support the gradual emergence of a world society governed by a gradually emerging body of world law. Missing, above all, from the writings of modern Christian philosophers has been the belief in the providential character of history. To judge from the writings of our latter-day Christian sages, the God of history, who was so active in the centuries just before and just after His incarnation in the Messiah, now seems to have gone largely into retirement. Why take contemporary history seriously if it has no direction, no pattern, no purpose? Why speak of whence we have come if we have no sense of whither we are headed? Why speak of historicity if we have no faith in the transition of the past into a new future?

Yet from a Christian perspective is it not providential that gradually, century by century, millennium by millennium, all peoples of the world have been brought into contact with each other? And is it not providential that in the course of two millennia Christianity has gradually spread to all parts of the world and is now affirmed by more than one-fourth of the world’s population? As in the first millennium of the Christian era the peoples of Europe were progressively converted from tribal polytheism to a belief in the one God, Father of all, so in the second millennium Western Christendom, through its missionaries, its merchants, and its military, carrying the banner of the Son, gradually made an entire world around itself. Now, as we enter the third millennium, the West is no longer the center, and the world’s Christians are called on to live peaceably with adherents of other faiths, united with them by the Holy Spirit.9

In our new interlocked multicultural world, all humanity has been joined together in a common destiny through global communications, global science and technology, and global markets, on the one hand, and on the other hand, through global threats of environmental destruction, disease, poverty, oppression, and war. Despite two world wars and their aftermath of terrible ethnic, territorial, and ideological conflicts, St. Paul’s extraordinary insight that “every race of man” is “made of one blood to inhabit the whole earth’s surface”10 has now not only been proved scientifically but has also become an historical reality. Except for extremists of various religious denominations and of various ethnic movements, the peoples of the world are seeking ways of fulfilling what from a Christian perspective is God’s plan – that the human race shall ultimately be united in a world community.

Here law plays a significant role. The global economy is supported by a growing body of world law governing trade and investment and finance. The new technology of worldwide communications is also subject to a growing body of transnational legal regulation. Tens of thousands of cross-border nongovernmental associations work with intergovernmental organizations to introduce legal measures to reduce sources of world disorder and to overcome world injustices, to prevent destruction of the world environment and pollution of the world atmosphere, to prevent the spread of world diseases, to resolve ethnic and religious conflicts that threaten world peace, as well as to promote world travel, world sports, world leisure activities, and other good causes that affect all peoples and that require regulation in order to be carried out in a just and orderly way.

And here the insights of a trinitarian jurisprudence are of critical importance. As we enter the third millennium of the Christian Era, St. Augustine’s triune God calls on His children, individually and collectively, to manifest their political will, their moral reason, and their historical memory, in the creation of a body of world law that will support and guide the gradual development of the emerging world society into a world community.

Above all, the historical dimension of a trinitarian jurisprudence gives direction to the evolution of world law. Historically, the Christian concept of a law of nations embraced principles and doctrines common to the world’s major legal systems.11 It included, for example, universally recognized principles and doctrines of mercantile law – principles and doctrines that today remain part of the domestic law of every nation-state – such as the rule that a negotiable bill of lading is a document of title through whose transfer the risk of loss or damage to goods in transit can be shifted to subpurchasers; or, to give another example, that a banker’s letter of credit gives an exporter an absolute right of payment by the confirming bank upon his presentation of the appropriate shipping and other commercial documents. These and a multitude of other features of the world law of mercantile transactions are derived from the historically developing customs of the transnational community of merchants, bankers, carriers, underwriters, and their lawyers, who for centuries have constituted a world community of “friendly strangers,” as Lon L. Fuller called them,12 held together by common traditions and common trust. The emerging world society is built in part on the historical foundation of such communities.

A special place among such world citizens is occupied by participants in world sports. More than 200 different sports are organized at the world level, with rules that are the same everywhere and competitions usually regulated by universal standards. An Arbitration Court of Sport has been established in Lausanne, Switzerland, to which athletes are to submit disputes arising in the course of participation in Olympic sports. In the words of John Boli, sports are “the most visible ritual dramatizing the world polity.” Sports, he adds, “express and help shape the subjective axis of world culture, building and ritually displaying individual, national; and human moral values.”13 The role of world sports in symbolizing and effectuating a world society is shared by world games such as bridge and chess, world music, and a host of other universal leisure activities that are governed by universally accepted rules and standards.

Mercantile law and the law of sports are only two examples of many bodies of customary world law that have been created to govern the new world society that has emerged in the wake of two world wars. In the economic sphere, a customary law of transnational investment and transnational finance is developing, supported (as are customary mercantile and banking law) by multilateral intergovernmental treaties and conventions. There is worldwide protection of rights of intellectual property. Protection of the world’s environment is increasingly subject to transnational legal controls, as is protection of various kinds of universal human rights. Not only piracy, as before, but also genocide is now a universal crime that may be prosecuted wherever the offender is captured. Moreover, the Statute of the International Criminal Court, to which as of this writing more than ninety nations have subscribed, gives that court jurisdiction over murder, rape, apartheid, and various other “crimes against humanity,” when committed as part of a widespread or systematic attack directed against any civilian population.

These developments reflect a universal belief in law, shared by people of all cultures. Every lasting society has what anthropologists have called “justice forums” for the peaceful resolution of conflict; in every society there exists a peaceful procedure for hearing serious complaints and charges against offenders.14 Every society recognizes that persons involved in such complaints and charges should have the opportunity to be heard, that the hearing should be before an impartial tribunal, that the tribunal should decide according to principles generally applicable to the kind of dispute before it.

Not in all societies is the tribunal required to be independent of other authority. Not in all does an accused person have the right to be represented by counsel. Yet in all there are general rules of procedure. And it is out of the universal ethic of a fair hearing that substantive legal rights and duties – of contract, of property, of civil liability for injury, of punishment of crime, of association, of taxation and other public controls of the economy, of constitutional liberties, and the rest – have emerged in one form or another in virtually all cultures.

Although some religions and philosophies, including some branches of Christianity, have minimized the spiritual value of law, with its emphasis on formal procedures and general principles of justice and order, all cultures have accepted the global ethic of a fair hearing, expressed in the ancient Latin maxim, audi alteram partem, “hear the other side,” as a common article of faith. Often, to be sure, disregarded or abused in practice, it is nevertheless universally believed in as a sacred instrument of peaceful resolution of conflict.

That Christianity values law highly is apparent from the essays in this volume. That Christians now live – providentially – in an emerging world society, and are challenged to help to create a body of law that will support that society against threats to its unity and will guide it toward increasingly just and increasingly intimate community interrelationships, is a thesis that needs amplification by Christian philosophers if the secularization of Western legal thought is finally to be overcome.

Standing alone, neither contemporary Christian natural law theory, represented especially in Roman Catholic philosophy, nor contemporary Christian legal positivism, represented especially in Protestant philosophy, nor contemporary Christian historical jurisprudence, now adumbrated in some Russian Orthodox philosophy, can meet the legal challenge presented by the coming together of all the peoples of the world, with their various cultures, various ethnicities, and various belief systems. An ecumenical Christian legal philosophy is needed, which traces world law to all three forms of the triune God in whose image the human psyche is created – political will, moral reason, and historical memory – and which thereby can overcome the tensions and reconcile the conflicts that hold back the fulfillment of God’s millennial plan to bring order, justice, and peace to a world community.


1 See Harold J. Berman, “Toward An Integrative Jurisprudence: Politics, Morality, History,” California Law Review, vol. 76, no. 4, p. 779 (1988).

2 Spinoza, of course, was an exception. Also it has been argued that John Locke was a Unitarian in his religious convictions. Yet as a faithful member of the Church of England, Locke professed, at least, a Trinitarian faith. In any case, Locke is exceptional, occupying a prominent place in both late seventeenth and late eighteenth century thought. He was a supporter of the Glorious Revolution, which brought the Calvinist Duke William of Orange to the English throne in 1689, yet his writings could be drawn upon a century later by Jeffersonian democrats.

3 See Harold J. Berman, Law and Revolution, II: The Impact of the Protestant Reformations on the Western Legal Tradition (Cambridge, Massachusetts, 2003), pp. [to be supplied]. Cf. John Witte, Jr., Law and Protestantism: The Legal Teachings of the Lutheran Reformation (Cambridge, 2002).

4 See St. Augustine, On the Trinity, Books 8-15. Gareth B. Matthews, ed., Stephen McKenna trans. (Cambridge, 2002), pp. 58-59 and 200-202. St. Augustine struggles with the fact that each of the three qualities of the human psyche is distinct yet all three are one, and that each corresponds to a different person of the triune God. See also St. Augustine, Confessions 13.11.12 (“The three … are, To Be, To Know, and To will, For I am, I know, and I will. In that I know and will, I am. And I know myself to be and to will. And I will to be and to know.”)

5 Ulric Neisser, “Five Kinds of Self-knowledge,” Philosophical Psychology, vol. 1, p. 35 (1988) at pp. 46-50. Neisser defines the extended self as “the self as it was in the past and as we expect it to be in the future, known [to itself] primarily on the basis of memory.” Id. at 46. “What we recall depends on what we now believe as well as on what we once stored.” Id. at 49.

6 Bonaventure, The Soul’s Journey into God, trans, with Introduction by Ewert Cousins (New York, 1978).

7 See Jürgen Moltmann, History and the Triune God: Contributions to the Trinitarian Theology (New York, 1992) at xii-xiii. (“The triune God is community, fellowship, issues an invitation to his community and makes himself the model for a just and livable community in the world of nature and human beings.”) Raimundo Pannikar analogizes the three persons of the Trinity to the three persons of grammar represented by the pronouns “I,” “Thou,” and “He/She/It,” and “We,” “You,” and “They,” which are present in all known languages. He states:

The Trinity appears then as the ultimate paradigm of personal relationships …An I implies a thou, and as long as this relation is being maintained it implies also a he/she/it as the place where the I-thou relation takes place. An I-thou relation implies equality, a we-you dimension, which includes the they in a similar way as the he/she/it is included in the I-thou.

Raimundo Pannikar, The Trinty and the Religious Experience of Man, xv (New York, 1973); see also Leonard Boff, Trinity and Society, Paul Burns trans. (New York, 1988).

8 Wolfhart Pannenberg has adumbrated a theological basis for an integrative jurisprudence similar in some respects to that presented in these pages. He has written about the tension between the Lutheran conception that law is grounded in the ethics of the created orders (Stände, estates) namely, church, family, and state, and the twentieth century Barthian conception, followed by some leading German theologians, that grounds law in “Christological principles,” which, however, Pannenberg does not attempt to define here. He resolves this tension by grounding law in “the historicity of man,” that is, the historical character of all human reality. “Positivism in law,” Pannenberg writes, “can only be overcome by a theory that makes the radical historicity of legal formulations comprehensible in their concrete variety ….” Pannenberg, “Toward a Theology of Law,” Anglican Theological Review, vol. 55, p. 397 (1973). And later (p. 407): “A theology of law is in its proper province only when the foundations of law appear within the horizon of history.”

9 This insight into the relationship of the three millennia of the Christian era to the three persons of the Trinity is drawn from a great and greatly neglected Christian philosopher and historian of the twentieth century, Eugen Rosenstock-Huessy. See his The Christian Future: Or the Modern Mind Outrun (New York, 1946), reprinted with Introduction by Harold Stahmer (New York, 1966), pp. 113-131. See also his Heilkraft und Wahrheit: Konkordanz der politischen und der kosmischen Zeit (1952, reprinted 1991), pp. 35ff.

10 Acts 17:26. Cf. Genesis 1:27-28: “And God created man in His own image .. male and female created He them. And God blessed them and God said to them, be fruitful and multiply and fill the earth.”

11 Prior to the late eighteenth and early nineteenth centuries the law of nations (jus gentium) was understood to include not only what later came to be called international law but also common features of the various major systems of municipal law. See [to be supplied]. In 1789 Jeremy Bentham invented the term “international law” to refer solely to the law based on treaties and agreements between nation-states. See Harold J. Berman, “World Law,”Fordham International Law Review, vol. 18, no. 5 (1995).

12 See Lon L. Fuller, “Human Interaction and the Law,” The American Journal of Jurisprudence, vol. 14, p. 1 (1969). Fuller employs the notion of a spectrum or scale of relationships, running from intimacy at one end, as in the average family, to hostility at the other, with a “place midway that can be described as the habitat of friendly strangers, between whom international expectancies remain largely open and unpatterned.” Id at 27. The latter area, he writes, is “the area where contractual law is most at home and most effective.” Id. at 29.

13 See unpublished paper of John Boli in possession of the author.

14 See Laura Nader, “The Life of the Law – A Moving Story,” Valparaiso University Law Review, vol. 36, p. 655, and sources there cited. Anthropologists, Nader writes, “have been able to document the universal presence of justice forums…. Indeed, social psychologists have argued that the justice motive is a basic human motive that is found in all human societies…”