Answering to a Higher Authority: The Life and Legacy of Harold J. Berman
Harold J. Berman, who taught law at Harvard for 37 years and at Emory University for two decades, said that he, like all children, started studying the subject at a very young age.
Belief in law comes from early childhood,” he said. “A child says, ‘It’s my toy.’ That’s property law. A child says, ‘You promised me.’ That’s contract law. A child says, ‘He hit me first.’ That’s criminal law. A child says, ‘Daddy said I could.’ That’s constitutional law.”1
Berman died at age 89 in 2007, a short time after celebrating his 60th anniversary as a law professor. He pioneered the study of law and religion. He is best known for his book, Law and Revolution: The Formation of the Western Legal Tradition (1983), of which the American Political Science Review said, “This may be the most important book on law in our generation.”2 As recently as 2005, Constitutional Commentary called Berman’s book “the standard point of departure for work in the field.”3 Berman said it took him 40 years to write Law and Revolution . “Of course, I was doing others things as well,” he added.4
Born in Hartford, Connecticut, in 1918, Berman graduated from Dartmouth and then earned a master’s degree in history from Yale. He served in the U.S. Army from 1942 to 1945 as a cryptographer, for which he received the Bronze Star Medal. After completing a law degree at Yale, he began his Harvard career in 1948. Harvard requires professors to retire at 70, so at age 67 Berman joined the faculty of Emory Law School and continued teaching there the rest of his life.
Berman’s main contention is that law is a foundational principle of Western society that derives its moral and religious dimension from God as the first lawgiver.
“You can’t have law without beliefs,”5 said Berman, who became even more convinced of that principle after a great crisis in his life. In 1939, he was studying legal history at the London School of Economics. “At that time I was a lukewarm believer in Judaism,” he said. “I was, and still am, very conscious and proud of my Jewish heritage.”6 In fact, as a boy in school, when his classmates were singing, “Onward Christian Soldiers,” he and some friends changed the lyrics and sang, “Onward Jewish Soldiers”!7
Here is his account of his personal crisis in 1939: To be a scholar is to search for truth. And to search for truth is to be open to the possibility that some discovered truth will lay claim to one’s allegiance. In my own case, the truth that “set me free” first appeared to me at the outbreak of World War II, when I was twenty-one years old. I was in Europe, where I had been studying European history for a year. While I visited Germany, Hitler announced on the radio that Germany had invaded Poland. It was literally the outbreak of the world war, and many of us fled for France. The stations were crowded with peasants carrying potatoes and animals and personal effects. The earliest train I could catch left at midnight.
I thought that Hitler’s invasion of Poland would lead to the total destruction of human civilization. I felt as one would feel today if all the major powers were to become involved in a full-scale nuclear war. I was shattered—in total despair. There, alone on that train, Jesus Christ appeared to me in a vision. His face reminded me of one of the Russian icons that I would later see—heavily scarred and tragic— not suffering but bearing the marks of having suffered. I suddenly realized that I was not entitled to such despair, that it was not I but another, God himself, who bore the burden of human destiny, and that it was rather for me to believe in him even though human history was at an end.
When the train arrived in Paris early that morning, I walked straight to the Notre Dame cathedral and I prayed a personal prayer to God for the first time in my life. My wife, who is a Protestant, asks me how I could become a believer in Christ without having read the Gospels. My answer is that that is how the first disciples became believers.8
That encounter with Jesus never altered his appreciation of his Jewishness. In fact, it may have strengthened it. As Edward McGlynn Gaffney, Jr., law professor at Valparaiso University, recalls:
To Jews troubled by his acceptance of Jesus, he could offer the reassurance that he was never a supercessionist. He did not imagine that the newness of the covenant into which he entered by becoming a Christian was defined by nullifying the older alliance between the divine and the human called the people of Israel. . . . No bigot could safely utter a word of contempt or scorn for Jews in the presence of this great Christian.9
Boris Ossipian first met Berman when he was a visiting lecturer at Moscow State University. Berman invited Ossipian, who now manages a Moscow law firm, to serve as a visiting scholar at Emory University in November 1992. Ossipian’s first memories of that visit are invitations to the Berman home to celebrate Thanksgiving, Hanukkah, and Christmas.10
Berman’s newfound faith had a significant impact on his academic work. “God is the Lord of our minds as much as he is the Lord of our ‘hearts,'” Berman explained. “Nothing is discovered without his help “11
When the American Center for Law and Justice (ACLJ) invited Berman in 2005 to co-author a brief to the Supreme Court, it was no shot in the dark. The ACLJ wanted Berman because he was a prominent legal historian. The brief in Van Orden v. Perry argued that the state of Texas had the constitutional right to display a monument of the Ten Commandments on the grounds of the State Capitol. The high court upheld the constitutionality of the display.
Jay Sekulow, chief counsel of the ACLJ, co-wrote the brief with Berman. Berman wrote the entire first half of the brief. When Sekulow received it, there was no need for any editing.
“You don’t want to do any correcting of what Harold Berman wrote,” he explained. Sekulow first met Berman while completing his last year of law school at Emory University.
Sekulow, who like Berman is a Jewish believer in Jesus, explained the basis of the Supreme Court decision: “The fact that the Commandments hold a religious meaning for many does not render them unconstitutional. The Texas decision recognizes the fact that the Commandments have played a vital role in the development of Western law.”12
In an interview, Berman made it clear that he was not arguing in favor of government establishment of religion. “I’d be outraged,” he said, “if someone wanted to place a painting of Jesus’ Last Supper in a courthouse.”13
The courts have used Berman’s legal histories to support several judicial writings about church-state relations. In 2003, upholding a Ten Commandments monument outside a Pennsylvania courthouse, a panel of the Third Circuit referenced Berman’s statement that English common law, on which American law is based, was founded on the Ten Commandments.14
Berman’s interest in law and religion was frowned upon in his earlier days of teaching.
“I remember asking the Dean of Harvard Law School when I was an assistant professor whether we shouldn’t have a course in law and Christianity,” Berman recalled, “because . . . Christianity had such an important influence on the development of the history of law in the West. And he looked at me and said . . . well, it might be an extra curricular seminar not for credit.”15
But Berman pressed on. In the 1950s the Oklahoma Law Review published some of his articles on law and religion. In the late 1960s and early 1970s he began to write more extensively on the subject. The series of lectures he delivered at Boston University in 1973 was published as The Interaction of Law and Religion , which laid the foundation for more work in the field.
A college student, John Witte, Jr., wrote to Berman in 1982 to ask whether he should go to Harvard Law School to study with him or do graduate work in law, history or philosophy elsewhere. Berman wrote Witte a warm letter, encouraging him to find a place for his faith in his legal studies. Witte decided to study law at Harvard.
A couple of years after Berman joined the staff at Emory, he recruited his former pupil to join him. Witte now serves as director of Emory’s Center for the Study of Law and Religion. “He shaped my work at its foundations, and I am still building on what he taught me,” says Witte. “How could I not be influenced by a man who wrote such sentiments to a youngster he had never met?”16
Witte was not the only young person impressed by Berman’s kindness and humility. Author Kelly Monroe Kullberg tells of her initial encounter with Berman:
With fear and trembling I, then a 28-year-old visiting grad student, “cold call” approached the office of the prodigious scholar Harold Berman at Harvard Law School. I asked him to write for our collection of stories, Finding God at Harvard . He couldn’t have been kinder to me. He said he’d do his best to write something. He did. It was on the nature of Judeo-Christian versus pagan scholarship.
However, over time the vision for the book became more clearly personal, confessional really—the kind of writing that academicians can find quite difficult. Sheepishly, I hiked over again to Professor Berman’s office. He said he’d consider adjusting his essay. A few weeks later a letter and floppy disk arrived in my mailbox. It was postmarked “Harold Berman” and I rejoiced as I read the final two pages of his story of escaping Hitler’s armies invading Poland, and on that train having such an encounter with Jesus Christ.
I thought, “I’m glad I asked.” And I began to show other writers Professor Berman’s story, which gave courage to the many other contributors to tell their own, so deeply and honestly. Many of us are grateful for his life, and his powerful story in Finding God at Harvard .17
David Bederman, a law professor at Emory University, remembers his colleague this way: “What always impressed me was not just Hal’s incredible productivity and brilliance, but his abiding faith and his love of family. So whenever I think of Hal, I picture him with Ruth and their children and grandchildren, enjoying Sunday brunch together— the apotheosis of a scholarly life balanced with a deep appreciation of what makes life worth living.”18
Berman took twenty years to complete the second volume of Law and Revolution , published in 2004. He planned to write Volume III to cover the American and French Revolutions. At age 88, Berman told an interviewer that he also wanted to write about the Russian Revolution. He said that would probably need to go into a fourth volume.
“There’s a Volume IV?” the interviewer asked in surprise, given Berman’s advanced age.
“I might not have time for it,” Berman admitted regretfully, with a smile. “It’s up to God if he wants to read it or not.”19
Witte, his friend and colleague at Emory for 22 years, spent time alongside Berman’s hospital bed the week before he died. In between animated conversations, Berman would drift off into a nap. Witte describes Berman’s fourth nap on the final day of his visit:
When he fell asleep this time, however, it was different. He lay on his back and slowly a big smile crept over his face. He kept reaching straight up into heaven with both hands, grasping eagerly and mumbling excitedly about what he was seeing. His family and caretakers said he had done the same thing at home the last few days— seeing scrolls in the mirror, then books on the ceiling, which he sought to reach and to open. When he awoke from this last nap, Hal smiled and said, “I think it’s time for you to go. It will soon be time for me to go, too.” And then, with a big hug, we said our final goodbye.20
- Meredith Hobbs, “Translating Western Law into Chinese,” June 14, 2006,
- Douglas Martin, “Harold J. Berman, 89, Who Altered Beliefs About Origins of Western Law, Dies,” November 18, 2007, http://www.nytimes.com/2007/11/18/us/18berman.html
- Hobbs, op. cit.
- Jonathan Ringel, “Law Professor Backs Commandments Displays,” March 2, 2005, http://www.law.com/jsp/article.jsp?id=1109597703111
- Harold J. Berman, “Judeo-Christian Versus Pagan Scholarship,” in Finding God at Harvard , edited by Kelly Monroe Kullberg (Intervarsity Press: Downers Grove, IL, 2007), p. 291.
- W. Cole Durham Jr., “Revivifying the Field of Law and Religion,” Emory Law Journal , Volume 57, no. 6, 2008,
- Taken from Finding God at Harvard: Spiritual Journeys of Thinking Christians by Kelly Monroe Kullberg. Copyright(c) 2007 by Kelly Monroe Kullberg. Used by permission of InterVarsity Press, P.O. Box 1400 Downers Grove, IL 60515. www.ivpress.com
- Edward McGlynn Gaffney, Jr., “In Memory of an Interactive Pioneer, Harold Joseph Berman (1918–2007),” Emory Law Journal , Volume 57, no. 6, 2008,
- 10. Boris Ossipian, “How Professor Harold Joseph Berman Became My Teacher and Friend,” Emory Law Journal , Volume 57, no. 6, 2008,
- Berman, op. cit., pp. 293-294
- Anonymous, “ACLJ: Thousands of Ten Commandments Monuments Stay in Place with Supreme Court Ruling on the Issue,” June 27, 2005,
- Ringel, op. cit.
- Ringel, op. cit.
- Center for the Study of Law and Religion, Emory University, interview with Harold J. Berman, October 2007, http://www.law.emory.edu/index.php?id=4577
- Kelly Monroe Kullberg, personal communication with the author, January 9, 2009.
- David J. Bederman, “The Customary Law of Hal and Ruth,” Emory Law Journal , Volume 57, no. 6, 2008,
- Hobbs, op. cit.
- John Witte, Jr., “A Tribute to Harold J. Berman,” Emory Law Journal , Volume 57, no. 6, 2008,