Here is an insightful section from Harold Berman outlining the ways in which historical frameworks (e.g. ancient, medieval, modern) can obscure rather than clarify:
In addition to nationalist fallacies, legal historiography has suffered also from religious fallacies, both Protestant and Roman Catholic, which have obscured the continuity between the Catholic Middle Ages and post-Reformation modern European history. To these have been added also the fallacies of the Enlightenment, which discovered a Renaissance contemporaneous with the Reformation, as well as the fallacies of Marxist theory, which discovered a Rise of Capitalism contemporaneous with the Renaissance and Reformation. The obscuring of the continuity between medieval and modern has also obscured the discontinuity between the periods before and after the Gregorian Reform of the Catholic Church in the late eleventh and early twelfth centuries. As a result, the background of the Western legal tradition in the communitarian folklaw of the Germanic, Celtic, and other peoples of Europe of the sixth the eleventh centuries has largely been forgotten. (Berman, Law and Revolution, 539)
One reply on “Berman on Historical Fallacies”
Berman’s Law and Revolution is one of the greatest works of legal history. Full of insights about the continuity and discontinuity of the Western legal tradition.