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

Legal questions are continually asked to which there is no answer in the custom and for which there is no legal machinery to settle the scope of principles or rules. Standard methods develop to help fill gaps in the law, whether this is to choose other folks’ custom as one’s own subsidiary custom, or to treat another town as one’s “mother” in legal matters and send there for a reply to a legal problem, or habitually to resort to the rules of another system. But whatever approach is adopted, the overwhelming tendency is to turn to a more developed legal system. Great disparity in legal structure or sophistication is no bar to borrowing. But the more complex law is likely to have been the product of a more developed economy: the Custom of Paris is looked to by small, rural southern French towns; the law of thriving Magdeburg, by remote Polish settlements; Roman law, by wandering German tribes. Not only is the borrowed law “foreign” law; it is also the law of economically and politically different cultures. Customary law is above all to be found in court decisions, and is discovered by the judges whether there was a custom or whether a “custom” was invented by the judge or, more likely, borrowed by the judge from elsewhere. Customary law when it is accepted as law is judge-made law and hence is subject to the influence of the legal tradition. As judge-made law, it is, moreover, “official” law; customary law is law only insofar as it is acceptable to the rulers.

The extent to which legal rules in customary (and, indeed, other) systems do not fit the society particularly well and are even disfunctional is often concealed by a failure to distinguish clearly between the societal institution and the legal institution. A legal institution is a social institution that has been given legal effectiveness and is being regarded from the legal point of view. Without the social institution of slavery there will be (in almost all cases at least) no legal institution of slavery. In a society exclusively of small peasant farmers there may be law for small peasant farms but not for high-rises. We have been told nothing about how well law functions in a society when we learn that it does not exist apart from its relevant social institution. That without peasant farms or high-rises there will be no law about peasant farms or high-rises does not entail the conclusion—apparently often assumed—that, because in a society there is law about peasant farms and there are peasant farms and there are no high-rises and no law about high-rises, the law is in congruence with the society.

When we turn to more developed law, we find the same phenomena. Society has its input, which may be vigorously expressed or be tacit but demonstrated by obvious needs, overwhelming or minor. The legal tra-

dition shapes the law that comes out: divisions, classifications, types of remedy, scope of rules and exceptions, all matters of great practical consequence. As a result of societal pressure, say, the law has to be changed: the resulting law will usually be borrowed, from a system known to the legal elite, often with modifications, to be sure, but not always those deemed appropriate after full consideration of local conditions. The input of the society often bears little relation to the output of the legal elite. This remains true no matter what the principal sources of law are, though the relative impact of societal forces and the legal tradition on these varies from one source to another.2

Thus, the direct link between a society and its law is tenuous, whether the law is customary or formed by professional full-time lawyers. Legal development depends on the lawyers’ culture. When an issue arises, whether in theory or in practice, and requires a legal answer, the lawyers habitually seek authority. Hence it is that to an enormous extent law develops by borrowing from another place and even from another time. This borrowing may follow a systematic search for the best law, but typically some system is chosen to be the prime quarry; Roman law after the rediscovery of the Corpus Juris Civilis, the French Code civil after its promulgation. The principal reason for the choice of quarry is that its law is accessible because it is written down. This law will also be more elaborated (because it has to provide an answer) and will have the general admiration of the lawyers. The full appropriateness of the particular foreign rule for the borrowing system will not then be investigated: it is usually enough that the foreign rule is not obviously and seriously inappropriate. That does not mean that such a foreign rule will inevitably be borrowed or be borrowed without alteration, but only that within the legal tradition there exists a strong predisposition in favor of borrowing and, at that, from the individual preselected system.3 When no authority can be found, false authority may be adduced.

A revolution may occur in law or in society. With revolution in law, the legal tradition continues but with appropriate modifications: the basis of the law has been changed. With revolution in society the aim must also be to revolutionize law. The legal tradition is then replaced by another legal tradition in whole or in part.

Law, then, despite its practical impact, is very noticeably the culture of the lawyers and especially of the lawmakers—that is, of those lawyers who, whether as legislators, jurists, or judges, have control of the accepted mechanisms of legal change. Legal development is determined by their culture; and social, economic, and political factors impinge on

legal development only through their consciousness. This consciousness results from the lawmakers’ being members of the society and sharing its value and experiences, though of course they are members with a particular standing. Sometimes this consciousness is heightened by extreme pressures from other members of the society, but always the lawmakers’ response is conditioned by the legal tradition: by their learning, expertise, and knowledge of law, domestic and foreign.

This book has been both descriptive and explicative; but I should like to conclude with a message. The theme of this book (as of others I have written) is that law is largely autonomous and not shaped by societal needs; though legal institutions will not exist without corresponding social institutions, law evolves from the legal tradition. To understand law in society, one must be fully aware of the impact of the legal tradition. Whether, for reform of the law in the future, the impact of the legal tradition can be reduced is very doubtful. But the message is that for satisfactory law in society one must have a satisfactory legal tradition. The main thrust of law reform must be to ensure that the means of making law are the best possible for the society. In this context, specific, abid- ing—indeed, natural—features of the culture deserve express mention. Law is treated as existing in its own right: it is being in conformity with “lawness” that makes law law. Hence, first, the means of creating law, the sources of law, come to be regarded as a given, almost as something sacrosanct, and change in these even when they are obviously deeply flawed is extremely difficult to achieve.4 Second, law has to be justified in its own terms; hence, authority has to be sought and found.5 That authority (in some form, which may be perverted) must already exist; hence, law is typically backward-looking. These two features make law inherently conservative.6

My conclusions are simple. Legal change comes about through the culture of the legal elite, the lawmakers, and it is above all determined by that culture.

But law is not the culture of the legal elite alone and it is not the only culture of the legal elite. As to the first of these conclusions, law is also the cultural heritage of other lawyers and of society at large. But to effect change, other lawyers and other members of society have to operate on and through the legal elite, whereas the elite can initiate change on its own.7

As to the second of these, the law-making elite also partakes of the general culture of society. Thus, where the society as a whole or its ruling elite is cosmopolitan or innovative, the law-making elite will tend

to be cosmopolitan or innovative. The general culture has many strands and many roots, resulting from geography, history, economics, politics, religion, and so on and it is as part of the general culture that these factors influence law making. But what has to be stressed is, as we have seen, the very powerful role that the legal culture itself has on law making. The law-making elite comes to regard law as existing in large measure in its own right, as an end in itself, as having its being distinct from other institutions of society.

Legal change also comes about by organized pressure from outside of the legal elite. But when it does, the emerging law is still given its contours by the law-making elite.8

Two restrictions should be set forth right at the end of this book so that their importance should not be ignored. The first is that the argument here is not that the law-making elite is never aware of, and fully responsive to, wider societal conditions. It may well be and often is, and the legal rules on a particular topic may well be entirely satisfactory for those making use of them. At times, for instance, the business community may have such close contacts with some part of the legal elite in the shape of academics whom it hires as consultants that their concerns are very much the same, and a view of law is proferred that is in harmony with commercial interests. Even then, of course, in a developed system that view of law put forward by academics will prevail only if it is also adopted by judges and legislators, who, in their turn, are also of course blinkered by their own part of the tradition. My point is only that members of the legal elite shape the legal rules, that they are fixed within their cultural tradition, and that to a very considerable extent the rules often do not meet the needs and desires of those who use them, which is not a matter of immediate concern to the legal elite. No better illustration of this can be found than in English land law, which for centuries until(at the earliest) was very unsatisfactory for landowners and was beneficial to no one (except practicing lawyers). Those who had no property had no concern with the rules; those who had were also those who as judges and legislators were in a position to change the rules. But (in Oliver Cromwell’s phrase) the “tortuous and ungodly jumble” of English land law was to prevail for centuries.9 A glance at the confused and unsatisfactory state of the law (for those using it) in the contemporary United States on copyright infringement with regard to the fair use of factual works should point a warning to those who believe American law is in harmony with the needs of law users.10

The second restriction ought not need mentioning; I am concerned

with the development of the legal rules themselves, not with how the legal rules operate in society. For reasons at least partly connected with the wider society, the same legal rule may operate to different effect in different societies; and in the same society to different effect in different groups. The present book is written on the premise that actual legal rules, as authoritatively set forth, have themselves an impact.11

. For the argument, see Watson, Making of the Civil Law.

. The nature of the legal process will not be much discussed in this book because from Roman times onward the basic approach in the West has been unitary, but see Chapter .

. An Inquiry into the Law of Negro Slavery in the United States of America

(Philadelphia, ), p. xxxvi.

. Thus, parts of Chapter derive from my Making of the Civil Law (chap.

), Roman Law and Comparative Law (Athens, Ga., , chap. ), Failures of the Legal Imagination (chap. ), and my paper, “The Evolution of Law: Continued,” Law and History Review ( ): ‒ ; of Chapter from

Making of the Civil Law (chap. ); of Chapter from Roman Law and Comparative Law (chap. ) and “Evolution”; of Chapter from “Evolution”; of Chapter from Failures of the Legal Imagination (chap. ); of Chapter from “The Transformation of American Property Law: A Comparative Law Approach,” Georgia Law Review ( ): ‒ , and “Aspects of the Reception of Law,” American Journal of Comparative Law ( ): ‒ ; of Chapter from Making of the Civil Law (chap. ), Roman Law and Comparative Law (chap. ), and “Evolution”; of Chapter from “Evolution”; and Chapter from Making of the Civil Law (chaps. and ).

.

. On the question of dating, see D. Liebs, Hermogenians Iuris Epitome (Göttingen, ).

. C. Deo auctore §§ , ‒ .

. A typical exaggeration occurs in Jolowicz and Nicholas, Historical Introduction, p. : “Full power was given to cut down and alter the texts, and this extended even to the works of ancient leges or constitutions which were quoted by the jurists.” But C. Deo auctore § gives power to change quotations from laws and constitutions only where the compilers find they are non recte scriptum (incorrectly set down). It is only to be expected that the decision of the commissioners on the correct reading was to be treated as final. For the full argument against interpolations of substance, see Alan Watson, “Prolegomena to Establishing Pre-Justinianic Texts,” T.v.R. ( ): ‒ ; J. H. A. Lokin, “The End of an Epoch: Epilegomena to a Century of Interpolation Criticism,” in Collatio Iuris Romani, vol. , ed. R. Feenstra et al. (Amsterdam, ), pp. ‒ .

. For this proposition, see now, above all, Watson, Failures of the Legal Imagination, pp. ‒ .

. I use this term government as consistently as possible to indicate the individual or group that has, individually or collectively, both the highest ex-

‒

ecutive powers in the state and the right to issue legal commands in the form of statute or a close approximation.

. See, e.g., Buckland, Textbook, p. ; Kaser, Privatrecht, : ; Thomas,

Textbook, pp. ‒ , ‒ .

. Advances is, of course, an ambiguous term. I do not think a precise explanation need be proffered, but I am thinking of changes in the law that had a long-term impact.

. See, e.g., Rotondi, Leges Publicae, p. . But A. M. Honoré, for instance, prefers a date between, say, and B.C: “Linguistic and Social Context of the lex Aquilia,” Irish Jurist ( ): ‒ , esp. .

. On all of these, see G. . ‒ .

. See, e.g., Rotondi, Leges Publicae, pp. ‒ .. See, e.g., Kaser, Privatrecht, : .

. For details, see, e.g., Alan Watson, The Law of Succession in the Later Roman Republic (Oxford, ), pp. ff.

. For the argument, see Alan Watson, The Spirit of Roman Law (Athens, Ga., ), pp. ‒ .

. We need not consider which assemblies were responsible for private law legislation.

. As can be calculated from Rotondi, Leges Publicae.

. See, e.g., the Portuguese Ordenaçoes Filipinas ( ), . .. See, e.g., Robinson, Introduction, pp. ‒ .

. See Watson, Failures of the Legal Imagination, pp. ‒ .

. Ibid., pp. ‒ .

. See, e.g., Milsom, Historical Foundations; F. Reynolds, The Judge as Lawmaker (London, ), p. .

. See now Alan Watson, Law Out of Context (Athens, Ga., ), pp.ff.

. Wieacker, Private Law, pp. ‒ . The original idea of Frederick William of was even more a redaction of Roman law; see W. Wagner, “Die Wissenschaft des gemeinen römischen Rechts und das Allgemeine Landrecht für die Preussischen Staaten,” in Wissenschaft und Kodifikation des Privatrechts im Jahrhundert, ed. H. Coing and W. Wilhelm (Frankfurt am Main, ), pp. ff.

. Gerald Strauss, Resistance, and the State (Princeton, N.J., ), p. . See his subsequent pages for information on these reformations.

. See, e.g., Eckhard Maria Theewen, Napoleons Anteil am Code civil (Berlin, ).

. See L. Juliot de la Morandière, Droit civil, vol. (Paris: Dalloz, ),

p..

. See Fenet, Travaux préparatoires, : ff.

. Ibid., : .

. Ibid., : ‒ .