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Harold J. Berman, authority on origins of Western law

Email|Print|Single Page| Text size + By Douglas Martin
New York Times News Service / November 22, 2007

NEW YORK - Harold J. Berman, a former Harvard professor whose expertise in Russian law took him to a Soviet courtroom to fight for royalties owed Arthur Conan Doyle, and whose forceful scholarship altered thinking about Western law's origins, died on Nov. 13 in Brooklyn. He was 89.

His daughter Jean Berman announced his death.

Mr. Berman, a resident of Atlanta who had a summer home on Martha's Vineyard, wrote 25 books and more than 400 articles on subjects as diverse as Russian culture and comparative legal history. They were published in 20 languages.

He taught for 37 years at Harvard Law School, where he was the Ames professor of law. Before he reached mandatory retirement age, he joined Emory University School of Law as the Robert W. Woodruff professor in 1985 and taught for two more decades.

Mr. Berman relished unexplored intellectual geography. When he decided to study Soviet law as a World War II Army veteran at Yale Law School, there was no one to teach it. So he taught himself, starting with the Russian language.

The language training served him well in Moscow in 1958, in the first case he ever argued. Representing the estate of Arthur Conan Doyle, creator of Sherlock Holmes, he sought to extract royalties from the Soviet state on millions of Conan Doyle books sold in the Soviet Union. Winning in a Moscow city court, he later lost the case on appeal to a higher Russian Federation court.

At the time, he was a professor at Harvard Law School, one of the first Yale graduates to have that title. His research there questioned whether the commonly understood underpinnings of Western law were too narrow. Inspired by Eugen Rosenstock-Huessy, who taught him at Dartmouth as an undergraduate, Mr. Berman saw Western history as a river whose course was repeatedly changed by transforming revolutions. But Mr. Berman added important wrinkles: the importance of law as an independent historical force - not just a reflection of other forces, such as economics - and an emphasis on the link between religious tradition and law.

His most influential work was "Law and Revolution" (1983), which rejected the old idea that modern legal systems began in the 16th century. He argued that the 11th century rise of papal authority with its own canon law jump-started modern law.

The journal Constitutional Commentary said in 2005 that the book had become "the standard point of departure for work in the field." The American Political Science Review said, "This may be the most important book on law in our generation."

In 2004, Mr. Berman published "Law and Revolution II: The Impact of the Protestant Reformation on the Western Legal Tradition." This explored how the 16th century German Reformation and the 17th century English Revolution gave birth to a new civil order apart from religion. Soon, marriage certificates came from civil agencies, and church law governed only churches.

Mr. Berman often left the ivory tower. In 2005, he joined the religious broadcaster Pat Robertson in writing a brief to defend the Ten Commandments monument on the grounds of the Texas Capitol. He called the commandments a foundation of Texas law, and noted that the Declaration of Independence invoked God.

Harold Joseph Berman was born on Feb. 13, 1918, in Hartford. Under a theory he enunciated in 2006 for The Fulton County Daily Report, an Atlanta legal and business newspaper, he said that he, like all children, had been a law student from a young age.

"A child says, 'It's my toy.' That's property law," he said. "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."

Mr. Berman graduated from Dartmouth, where he was editor in chief of the college newspaper. He studied legal history at the London School of Economics and earned a master's degree in history from Yale.

After a year at Yale Law School, he was drafted into the Army and later awarded a Bronze Star for his work as a cryptographer. After finishing at Yale, he taught at Stanford for a year and joined Harvard in 1948.

In the 1950s, even when McCarthyism reigned, Mr. Berman often visited the Soviet Union to study and teach. He was a frequently cited source of news about changes in Soviet law in the 1950s, when Communist leaders were liberalizing government and society after Stalin's death.

His stays were so long that he enrolled his children in Soviet schools. His wife, the former Ruth Carol Harlow, started Moscow's first PTA. On one trip, he drove the family's VW van across Europe to Moscow.

According to the Atlanta Journal-Constitution, Mr. Berman's trips attracted the attention of J. Edgar Hoover, then the FBI director, who wrote on a memo: "Who is this kook, anyway?" The professor liked the quote so much he wanted it on his gravestone, Jean Berman told the paper.

After the fall of the Soviet Union, he founded the American Law Center in the capital.

In addition to his daughter and his wife, of 66 years, Mr. Berman leaves his sons Stephen, of Ashland, Ore., and John, of São Paulo; another daughter, Susanna Omac of Temecula, Calif., seven grandchildren; and two great-grandchildren.

Mr. Berman had planned a third volume and possibly a fourth in his Law and Revolution series. Speaking to the Fulton County newspaper, he was philosophical about the prospects of finishing.

"It's up to God - if he wants to read it or not," he said.

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