Учебный год 22-23 / Watson - The Evolution of Western Private Law

functions related to the practical life, but it also operates at the level of culture, especially regarding the culture of the law-making elite, which has the power to make changes in the law. And a living culture is not examined by those who live it. Three typical features of law as culture are pertinent to the present failure of legal imagination, though none will be examined here in depth. First, codified legal rules are resistant to removal or replacement. Second, society and lawyers on a day-to-day basis can tolerate much inappropriate, even absurd, law. Third, legal rules, when available in an accessible form, can readily be borrowed often without an inquiry into their effectiveness.

With regard to the first feature, four of the five articles remain unchanged in the current French Code civil, though there has been subsequent relevant legislation. Article has undergone modification but mainly with regard to liability for persons for whom one is responsible, and for things under one’s guard, though only in minor respects.

With regard to the second feature, we should perhaps talk less of a failure of the legal imagination than of an excess of the legal imagination. S. F. C. Milsom has well stated the issue for the history of English common law:

The life of the common law has been in the abuse of its elementary ideas. If the rules of property give now what seems an unjust answer, try obligation; and equity has proved that from the materials of obligation you can counterfeit the phenomena of property. If the rules of contract give what now seems an unjust answer, try tort. Your counterfeit will look odd to one brought up on categories of Roman origin; but it will work. If the rules of one tort, say deceit, give what now seems an unjust answer, try another, try negligence. And so the legal world goes around.44

Much of Milsom’s book, however, serves to demonstrate that though the counterfeits (as he calls them) work, they do not work well; and often indeed the counterfeits cannot be created at the right time. In France, articles and have always been interpreted as meaning that for one’s own act, liability was based on fault that the victim-plain- tiff had to prove. At first, liability for animals under article was based on fault that was presumed but, by the late nineteenth century, liability was strict and the owner or the person using the animal was liable unless he could show force majeure, the act of a third party or the fault of the victim. Interpretation of article has been reasonably stable: if a building collapsed,45 the owner was not excused from liability just because he established that he was free from fault, for example, if

he had charged a competent builder with the maintenance of the building or if it was humanly impossible to uncover the defect. The greatest variation in interpretation—desperate attempts to make some social sense of the provision—has occurred with regard to liability under article for things under one’s guard. The range of interpretations has been enormous and will not be examined here, but it has swung from liability only if the keeper could be shown to be at fault, through liability if the thing was defective even if this was not known to the keeper, through strict liability that can be rebutted only if the keeper proves cas fortuit, force majeure, or a cause étrangère that cannot be imputed to him. It has even been held that when a thing in motion (such as an automobile) is under the control of the keeper, the keeper is liable under article for damage caused by the thing (even when it is not defective) unless he can show cas fortuit, force majeure, or cause étrangère. Under this interpretation, an automobile driver may be liable without fault under article , ignoring articles and .46

As to the third typical feature of law as culture—the easy transplanting of rules without an inquiry into their effectiveness—we can even make a random choice of examples. Thus, the Code civil for the lands of the king of Sardinia of gives the French provisions verbatim.47 The Dominican Republic took over the Code civil in and translated it into Spanish only in ; the French provisions remain unaltered to the present day as articles to of the Codigo civil. The Italian Codice civile of simply translated the French articles as articles to but with the addition of article fixing liability in solidum if several persons were liable for the delict or quasi-delict.

I wish to clarify what I am claiming from the example of articles to . I am not asserting that the French Code civil is nothing but a modernized version of Roman law—the articles themselves show that much was not received—nor am I claiming that the explanation of each article of the Code civil is to be found in Roman law. I am claiming that the articles of the Code civil (and I would extend this to all legislation, I think) can be fully understood with regard both to their form and their substance only if there is an inquiry into the cultural history behind them, and this inquiry must often span centuries and countries. I would also claim that the force of a reception, in this case of Roman law, is not to be judged simply by the acceptance of rules and structures, but by the extent of dependence on a foreign system.

Articles to do not stand alone in this regard. I should like to mention only a few other oddities in the French Code civil without,

however, detailing their history. The first paragraph of article reads: “Error is not a cause of nullity of the agreement unless it falls upon the very substance of the thing that is its object.” The meaning of “substance” is not further clarified and is the subject of much doubt. Scholars likewise dispute the obscure error in substantia in Roman law, its meaning, its acceptance by jurists, and its scope.48 The model or models for the French drafters are not apparent nor is their intention. The article in the projet, article of “Du Consentement,” was accepted in the Conseil d’Etat without discussion on Brumaire, an ( ).49 In explaining the reasons for the article in the Code civil before the Conseil d’Etat, Bigot-Préameneu, after mentioning “la substance même de la chose,” said: “It is by following this rule that one must decide with Barbeyrac and Pothier that error in the motivation of the agreement is only a cause of nullity in the case where the accuracy of these motifs can be regarded as a condition on which it is clear that the parties intended their contract to depend.”50 And Mouricault said: “It is necessary that the error bore on the very substance of the thing or on the motive which determined the agreement,” and he referred to Pothier twice in the immediately succeeding discussion.51 Likewise, Favard, though he is less explicit regarding the meaning of “substance,” cites Pothier in the connected context of the avoidance of contract because of fraud or force.52 And subsequent commentators53 and judges have considered Pothier’s views to be very relevant in the interpretation of the article. But it must be doubtful if Pothier’s formulation was immediately before the eyes of the projet’s drafters. Pothier wrote: “Error avoids the agreement, not only when it is as to the thing itself, but also when it is as to the quality of the thing that the parties had principally in mind, and which constitutes the substance of that thing.”54

Pothier thus clarified the notion of substance, giving it a meaning it never had in Roman law. Although it can be assumed that the French codifiers intended to follow Pothier’s view, the absence from article

of anything resembling his formulation of the meaning of substance suggests that they had a simpler model before them, such as perhaps G. Argou, Institution au droit françois: “With respect to error, that only vitiates the contract of sale when it is met with in regard to the substance of the bought thing.”55 In the seventeenth and eighteenth centuries, throughout Europe there were many books like Argou’s that one might term “Institutes of local law,” and which in their arrangement and subject matter had their foundations in Justinian’s Institutes. French books

of the institutional type seem to have had a strong influence on the structure of the Code civil.56 Thus, we have here another, but simpler, instance of a reception of Roman law in which the Roman rules were rejected. The compilers presumably followed the opinion of Pothier, which was not that of any Roman jurist. But Pothier retained the use of the Roman terminology, “substance,” and some later writers, like those of the institutes, did not expound on the nature of error with regard to substance. Lack of clarity as to the meaning of the simple-sounding Code civil provision ensued. There were at least two failures of the legal imagination: of Pothier, in retaining the Roman terminology (at least when he was not much more explicit as to the extent that his theory diverged from the Roman), and of the codifiers, in failing to see the full ambiguity of the word substance, given its past history.

Another example could be the famous doctrine of “cause.” Article reads “The obligation without cause, or on a false cause or on an illicit cause, can have no effect.”

I do not need to say much here, since the story is well known. As is agreed, the modern idea does not appear in Roman law or in early French law.57 Causa does, of course, make its appearance in the Roman legal sources, but its role in the field of obligations is ambiguous at best. D. . . . tells us that when there is no causa, there is no obligation on account of agreement. And D. . . . reads to the effect that whether a master is debtor to his slave or vice versa is to be computed ex causa civili. Causa appears more prominently as a basis for acquisition of ownership by delivery or prescription.58

In French law, the notion basically goes back to Domat (though there are canon-law forerunners),59 who sets out a precise scheme, with contracts divided into types: bilateral, unilateral but for a consideration, and gifts.60 Pothier was rather less explicit,61 the discussions of the article in the Conseil d’Etat were not a little confused,62 and article lacks all clarity on the meaning of cause. Not surprisingly, the early commentators called attention to the obscurity of article .63 More recent writers have concentrated their efforts not only on defining and refining the nature of cause but also on discovering its practical value and theoretical validity. Although it seems likely to retain some place in French law, cause, for many French legal writers and for more outsiders, is thought to have little practical value and to be theoretically incorrect and unnecessary.64 At the very least, there would, I think, be general agreement that the practical importance of cause has often been grossly exagger-

ated and that theoretically its significance is difficult to explain. But, as the treatment in Domat and others shows, it obviously is another example in which Roman law rules were not accepted but formed the basis of discussion in French law until codification,65 and to some extent influenced the later rules.

What I have been concerned with here is above all legal rules and their formation, not law in action, not how in lawsuits or administrative dealings the law can be manipulated for the benefit of particular individuals or groups. And it must be admitted by all, I think, that though law in action may differ from law in books, law in books has, at the very least, a very powerful effect on how law can be manipulated in practice.

It is extremely significant that both the legislators of Napoleonic France and powerful academic theorists of earlier ages were so little interested in the impact of the rules of delict on particular groups or in the social effect of the rules concerning the basis of liability. The rules were taken over, with no apparent interest in their effect, from ancient roots from which some parts have been chopped. Admittedly, the legislators at times used language such as “nothing belonging to someone else can injure another with impunity,” but this seems intended to be a justification of a predetermined rule, not an argument toward a rule.

With liability for things under one’s guard under article , there is undoubtably social awareness among both professors and judges in their interpretations. But there is also a legal culture, as the cases indicate. An interpretation, whether of judges or professors, becomes established and may remain stable for years, despite a failure to achieve the social result sought by those who originally favored the interpretation.

There is thus an underlying theme in this chapter as in this book as a whole: the legal tradition, as an intellectual, cultural force, plays an extremely important but largely unrecognized role in law making—even in legislation and even at a time when a new beginning is stressed. Legal rules, even in legislation, have an intellectual, dogmatic history, not just a social, political, or economic history. Law is not an end in itself but can only be a means to an end. Yet often the end or ends to which the law is a means do not stand clearly before the eyes of the lawmakers.66

Moreover, as I argue more fully in Chapter , legal academics, too, are often so blinded by the tradition in which they work that they misconceive what they are doing. Thus, it is not particularly surprising to find modern French scholars claiming that certain applications of the

lex Aquilia can be explained according to the modern theory of risk. Still it is off-putting to find the same scholars declaring that the Roman praetorian edict de effusis vel deiectis can only be explained by the theory of risk, by responsibility for the acts of things under one’s guard (article), while they show no awareness that liability for things under article derives from that edict.67

, ,,

Water Rights

This chapter considers the interrelations of the four sources of law as they relate to one subject—water rights. I concentrate, in turn, on the impact of the legal tradition itself on the development of law, as well as the scarcity of legislation; juristic reasoning, especially in the absence of authority in the local system; fake authority; and the complex course of legal development, whose study often requires comparative legal history.

Aspects of water law are the subject matter, but the reader will understand that the subject is by way of example only. I concentrate on one aspect of law in various systems to show the richness of the material.

’

The general issue for consideration is, To what extent, in what ways, and with what remedies, may an owner of land be restrained by his neighbor from using his land in a way that is otherwise lawful in order to avoid causing a financial loss or reducing a financial benefit to the neighbor? In this section, I look only at one issue concerned with water law: flow to a neighbor’s land. The problem, of course, is that almost any agricultural, domestic, commercial, or industrial use of water by one landowner will have an impact on other landowners.

The starting point in the granting of legal remedies has a considerable impact on the unfolding of the law. Legislators, judges, and jurists alike are so blinkered by the legal tradition that it is hard for them to change the thrust of the law. In addition, in the absence of comprehensive, satisfactory legislation, subordinate lawmakers such as judges and jurists may well hold differing analyses of the law over a long pe-

, , ,

riod of time. It is not always true that one successful approach replaces another. The older approach may also continue. In reviewing the issue of water rights, I consider first Roman law, then French law.

Roman Law

The Roman approach to the water usage problem is, at first glance, deceptively simple. The Twelve Tables, the famous codification of Roman law around ‒ B.C., gave a remedy si aqua pluvia nocet (if rainwater does damage; Tab. VII. a). Precision on the original scope of the remedy is not possible,1 but this clause of the Twelve Tables set the scene for future development. By the first century B.C. at the latest, the praetor (the elected official in control of the courts) had issued a model formula for the action: “If it appear that the work was done on the estate at Capena, from which rainwater injures the estate of Aulus Agerius (plaintiff ), on account of which Numerius Negidius (defendant)2 ought to ward off that water from Aulus Agerius, if that matter is not restored at the discretion of the judge, etc.”3 This formulation of the issues remained the basis of the law even in the sixth-century reign of the emperor Justinian. The cause of action was available only when the injury was the result of “work done” (opus factum), it was restricted to injury in the country (D. . . . , ‒ ; Ulpian, Edict ), and the thrust of the action was for restitution of the status quo ante. Consistently with this, even in the republic of the first century B.C., jurists interpreted “if rainwater does damage” to mean “if it can cause damage” (D. . . , Pomponius, Plautius ; D. . . , Ulpian, Edict ). Pecuniary damages were awarded only for loss occurring after the beginning of the action.4

As was usual in Roman law, this brief formulation in the praetor’s edict depended for its impact on interpretation by the jurists. Key elements of the remedy are not described. Still, the formula set the ground rules, and it must be emphasized at the outset that never again in the development of this area of the law did the Roman state intervene by legislation—though, as noted later, three interdicts of limited significance were issued by the praetor.

Only a few of the main elements of the water usage law need be considered here: the nature of the opus factum, which would give rise to the action; the impact of the formulation si aqua pluvia nocet (if rainwater does damage); and the harm that was treated as actionable.

The following discussion from Ulpian, a jurist active in the early third century A.D., is probably the most significant description of the requisite opus factum:

Quintus Mucius says this action is not available on account of that work which was done with a plow in order to cultivate a field. But Trebatius would make an exception not for work done with a plow to cultivate a field but only for plowing to secure a crop of grain. . But Mucius said that even ditches made to drain fields were made in order to cultivate a field, but they ought not to be made so as to cause the water to flow in one channel. Thus, one ought to make one’s own field better in such a way that one does not make one’s neighbor’s worse. . But if he can plow and sow even without water channels, Mucius says he is liable for such, although he seems to have acted in order to cultivate the field: but if he could not sow unless he made the channels he is not liable. But Ofilius says it is lawful to make water channels for the purpose of cultivating a field if they are all made to run in the same direction. (D. . . . ‒ ; Ulpian, Edict )

As in other areas of the law, the basic legal positions seem to have been fixed as early as the last century of the republic. Of the three jurists mentioned in the texts, Quintus Mucius was consul in B.C., Trebatius was a protégé of Cicero, and Ofilius belonged to Julius Caesar’s inner circle.5 Even the differences of opinion between them expressed in the texts seem, surprisingly, never to have been resolved.

What is striking at first glance (and remains so even after reflection) is the extremely wide scope that the jurists gave to opus factum. Almost all works done by humans on land that would increase the flow of harmful water on another’s land would give rise to an action. Although Quintus Mucius would allow an exception for plowing for agricultural purposes, Trebatius would restrict even this to the shallow plowing needed for grain crops, and apparently would not even make an exception for the rather deeper plowing needed for vines and olive trees (Columella, De re rustica, . . ). Mucius would also allow an exception for making water channels only when they were needed for planting and sowing; but even then he would permit an action against a landowner who allowed the surplus water to run onto a neighbor’s land in one channel. Ofilius, however, would seem to be rather more lenient toward a landowner’s using water for irrigation, even though a neighbor suffered loss from the surplus.

Alfenus, another jurist of the first century B.C., is recorded as having expressed a clear view simply (D. . . ; Alfenus, Digest ). A landowner could not be restrained from plowing as he wished, even if by placing his furrows in a different direction his neighbor would be uninjured. On the other hand, if he made water channels that did, or even might, injure a neighbor through the flow of water onto his land, he

, , ,

could be compelled to fill them in (D. . . . ‒ ). Thus, plowing was unexceptional, but irrigation or drainage was not. Pupils of Servius, of whom Alfenus himself was one, are recorded as holding that the action to ward off rainwater could be brought when someone planted willows and as a result water overflowed and injured a neighbor’s land (D. . . . ; Ulpian, Edict ). A slightly broader view of unexceptional activity may have been current in the first century A.D., when Labeo disallowed the action when the work was done for the gathering of fruit crops of any kind (D. . . . ).

There is an element of ambiguity in the treatment of the subject by Ulpian, the jurist whose works were most used by the compilers of Justinian’s Digest. At one point Ulpian writes that Sabinus and Cassius, both jurists of the first century A.D., held that man-made works all came within the scope of the action unless they were for the purpose of cultivating a field (D. . . . ). Almost immediately afterward, however, Ulpian says that the same jurists wrote that the action would lie when man-made water channels caused injury by an increased or changed flow (D. . . . ). Presumably these jurists, Labeo and Ulpian, intended that all nonagricultural work would give rise to the action where damage might result, and that some, but not all, agricultural work would be excluded from the scope of the action. Their view, then, would not represent a change from some views expressed in the preceding century.

As has been said, the action required opus factum, a man-made work that increased or changed the flow of water onto neighboring property in such a way that harm could result (D. . . . ). Some jurists, however, were prepared to interpret this requirement in a manner giving a very wide scope to the action.

It is recorded in Namusa that if flowing water blocks its channel with dung and from its overflowing it damages a higher field, an action can be brought against the lower proprietor that he allow the channel to be cleared: because this action is available not only for constructions made by man, but in all circumstances which we do not want to occur. Labeo approves a view contrary to that of Namusa, for he declares that the very nature of the field may change of itself, and everyone ought to bear this with equanimity whether his position was made better or worse. Therefore, he says even if the condition of the ground is changed by an earthquake or great storm, no one can be compelled to allow the place to be restored to its former condition. But even in this case we admit the claim of fairness. (D. . . . ; Paul, Edict )