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Legal Change: Sources of Law and Legal Culture
Author(s): Alan Watson

Source: University of Pennsylvania Law Review, Vol. 131, No. 5 (Apr., 1983), pp. 1121-1157
Published by: University of Pennsylvania Law Review
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1983]
LEGAL CHANGE: SOURCES OF LAW AND LEGAL

CULTURE
ALAN WATSONt
I. INTRODUCTION
The mostimportant generallegal questions,it seemsto me, both

in theoryand practice,concern,first,
thenatureoftherelationship be-
tweena societyand the legal rulesthatoperatewithinit,and, second,
the forcesthatcause law to change.The questionsare obviouslyinti-
matelyconnected.Yet so littleseriousscholarship-scholarship based
on legal and othermaterialsratherthanon an ideologically predeter-
minedpositionthatdictatestheconclusions-hasbeendevotedto these
questionsthateven decidingwhereto startan investigation or which
lines of research to pursue presents formidableproblems.My
researchesintothe growthof the law, includingthe vagariesof legal
development,' have resultedin fourrelatedbooks;and noneof thelast
threewas foreseenby me whenthe previousone was published.
I wishin thispaperto reconsider mymainconclusions, especially
in thelightofcriticism,and attempta newsynthesis. My approachwas
dictatedby disappointment withthe resultsof traditionalcomparative
t Professor of Law and ClassicalStudies,University ofPennsylvania. M.A. 1954,

LL.B., 1957, GlasgowUniversity; D. Phil. 1960, D.C.L. 1973, OxfordUniversity. I
wish to thankmy friends,Steve Burbank,Michael Hoeflich,and Ann Mayer,who
read a draftof thisDaDerat leastonce,and gave muchneededcriticism.
1
See, e.g., Watson,The Definitionof Furtumand the Trichotomy, 28 REVUE
D'HISTOIRE DU DROIT 197 (1960) (The threefold divisionof theft,into theftof a
thing,theftofuse,and theftofpossession, whichappearedin civillaw countries did not
existin Romanlaw. It was derivedby laterscholarsfroma poorlyconstructed defini-
tionoftheftin Justinian's Institutes
whichled professors deliberatelyto altertheword-
ingofthedefinition in theDigest.);Watson,The Development ofMaritalJustifications
for Malitiosa Desertioin Roman-DutchLaw, 79 LAW Q. REV. 87 (1963) (For a time
theSouthAfricancourtsrecognizedneitherconstructive desertionnorjustificationsfor
desertion, following theviewsof Dutchjurists,notablyHendrikBrouwer(1625-1683)
who mayhave misunderstood theGerman,HenningArnisaeus(died 1636?). But as a
resultof misunderstanding Brouwer,the courtsreverted to the positionof Arnisaeus,
and acceptedbothconstructive desertion
and maritaljustificationsfordesertion.);Wat-
son, SomneCases of Distortionby the Past in Classical Roman Law, 31 REVUE
D'HISTOIRE DU DROIT 69 (1963); Watson,The NotionofEquivalenceofContractual
Obligationand Classical Roman Partnership,97 LAW Q. REV. 275 (1981) (Of all
Romancontracts, onlypartnership involvesthenotionthatthecontracting partiesbene-
fitor sufferloss in theratioof theircontribution, and thisresultedfromthefactthat
partnership originatedin the law of succession.).
(1121)
1122 UNIVERSITY OF PENNSYLVANIA LAW' REVIEW I.Vol. 131:1121
law, legal history,and sociologyof law.

Traditionalcomparative law does not seek systematically to ex-
plain differencesand similaritiesbetweenlegal rulesand approachesto
law in varioussystems.Usually explanationis merelyincidentalto a
primarily descriptivework.Examplescan be chosenfromtwobooksby
notedauthors.J.P. Dawson in OraclesoftheLaw seemsto be content
to considerdifferent systemsof law at different times.2He drawsno
conclusionsembracingthe various systemsfromhis investigations.
BarryNicholasin FrenchLaw ofContract,limitshis efforts to an at-
temptto set out the elementsof a branchof one legal systemas they
appear to someonefamiliarwithanothersystem.3 Howeverexcellent
thesetwo books(and otherslike them)may be, theyrevealverylittle
about the generalfeaturesof legal changeor about the directionof
change,even when theydeal expresslywithsourcesof law and even
thoughtheycontainmuchlegal history.
Legal history seemedto offerbetterprospects foran understanding
oflegal change.Anytheoryoftherelationship betweenlaw and society
mustrest,I believe,on detailedknowledgeof thehistory of individual
legal systems. Indeed,an investigation intoseveralsystems is necessary
if one is to discovergeneralcauses of legal change.The tendencyto
focus on only one systemexplains the threeweaknessescommonly
foundin worksof traditional legal history.The firstderivesfromthe
factthatit is alwayspossibleto findimmediate local causesthatimpel
any legal change.Concentration on one systemmaycause one to over-
look similarchangesin othersystems, all of whichmay be partially
explainedin termsoftransnational factors.For instance,to understand
codificationin Frenchlaw and the sharpdistinction it drawsbetween
publiclaw and privatelaw, it is notenoughto looksimplyat conditions
in France:one mustalso takeintoaccountthefactthatcodification and
a sharpdistinction betweenpublicand privatelaw are bothmuchmore
frequently foundin civil law systemsthan theyare in commonlaw
systems.One mustalwaysask whya particularchangeoccurredand
notanother.Second,concentration on one legal systemmeansthatit is
easyto overlooktheextentto whichthatsystemis indebtedto another.
Englishlegal historians, forexample,frequently have underestimated
the impactof Roman law on Englishlaw.4
The thirdcommonweaknessis thatlegal historianstendto con-
2
J. P. DAWSON,THE ORACLES OF THE LAW (1968).
3 B. NICHOLAS, FRENCH LAW OF CONTRACT V (1982).
1 This does notapplyto all Englishlegal historians, not to J. BAR-
particularly
TON, ROMAN LAW IN MEDIEVAL ENGLAND (Ius RornanumMedii Aevi) partV, at
13a (1971).
1983] LEGAL CHANGE 1123
centrateon changeand innovation. They wishto explainwhyan inno-

vationoccurredwhen it did. But to understandlaw and societyone
must also explain why a legal change did not occur when society
changed,or when perceptions about the qualityof the law changed.
Why,one mustalwaysask,did thelegalchangenotoccurbefore?One
example may suffice.England has permitteddivorce (other than
throughan act of the legislature)since 1857. A.H. Manchesterex-
plains the timingof the changein the law in termsof the demiseof
Utilitarianism(whoseproponents, suchas Bentham,valuedstability of
marriage)as thedominantphilosophy, and itsreplacement by individu-
alism."The similarchangein America,led by Pennsylvania in 1785,is
explainedratherdifferently by L. Friedman.He findsthatonlythen
did themodernconceptofthefamilyreachfruition, and marriage(per-
ceivedas a life-longarrangement when the familywas the centerof
socialorganization,and whendomesticintimacy was greater)was una-
ble to bear the strain.6At the verybest,however,theseexplanations
can onlybe partial.AmongEuropeancountries thatbecameProtestant
at thetimeoftheReformation, Englandwas exceptional in notpermit-
tingdivorce.The dominantview amongProtestant theologiansof the
time,includingthosein England,was thatmarriagewas nota sacra-
ment:it could be dissolvedby humansand shouldnotbe a matterfor
theecclesiasticalcourts.For instance,amongthe"High" schoolofthe-
ology,bothJ. Cosin and H. Hammondexpressedtheviewthatdivorce
and remarriage were bothpossible.The highlyreveredMartinBucer
in a bookdedicatedto King EdwardVI favoreddivorce.The Reforma-
tio Legum Ecclesiasticarum whichwas draftedby Thomas Cranmer,
submitted in 1552, and publishedin 1571, and whichis regardedas a
true index of contemporary Protestant opinion,also favoreddivorce.
The Reformatio was neverenacted.Moreover,it seemsthatfrom1548
to 1602 (apart fromthe reignof Mary) divorceoperatedin practice.7
In thesecircumstances, an explanationofa changein thelaw to permit
divorcein England in the nineteenth century(and ratherearlierin
NorthAmericato whichEnglishlaw had been transplanted) cannot
be restricted
satisfactorily to happeningsand attitudes at thetimeofthe
appropriatelegislation.A convincingexplanationmust also explain
why England was an exceptionto the generalrule that Protestant
countriesintroduced divorce,whytheecclesiastical courtsthereretained
I A. H. MANCHESTER, A MODERN LEGAL

HISTORY OF ENGLAND AND WALES
360 (1980). Benthamhimselfhad favoredthe possibility
of divorce.
" L. FRIEDMAN, A HISTORY OF AMERICAN LAW 183 (1973).
7 See G. E. HOWARD, 2 A HISTORY OF MATRIMONIAL INSTITUTIONS 73-80
(1904).
1124 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 131:1121
f
around
and why(if particularhistoricalfactorsprevailing
jurisdiction,
divorce)in theconditions
1530 accountforthefailureto introduce pre-
vailingafterthe reignof HenryVIII, it tookso long forEnglandto
permitdivorce.
Sociologyof law, as it is usuallypracticed, providestheleasthelp
in understanding legal changeand therelationship betweenlegal rules
and the societyin whichtheyoperate.The lack of a historical dimen-
sion means there is no way to measure the speed-or absence
thereof-ofa responseto changedcircumstances. Equally important,
theemphasison law-in-action blursappreciation oftheextentto which
law may be dysfunctional. In all legal conflictstherewill be winners
and losers,but this by no means necessarilyindicatesthatthe legal
rulesare the bestthatcould be devisedand imposedupon societyfor
the benefitof the winners.The legal rulesmay be undulycumbrous,
complex,or ambiguous.Transactionalcostsmaybe unnecessarily high.
To noticethatin courtactionsan advantagealways restswiththose
able to pay forthebestlegalservicesor thosemostaccustomed to using
legal services-important thoughthatis-does notindicatethattherel-
evantrulesare themostadvantageous thatcouldbe achievedforthese
people. That a society or its ruling elite will nottoleratelaw thatis
destructive of the societyor its elitedoes notimplythattheoperating
rules are the mostsuitableforthe societyor forits elite. That law
generallyoperatesto protectthestatusquo, and henceto protectthose
havingpower,does not in itselfmean thatthe rulesare the bestthat
could be achievedby thepowerelite.8A close scrutiny of theeffect of
law-in-action oftenresultsin a failureto considertheoptionsthatare
availableto, and knowableby,thoseable to effect changesin thelaw.
Thereare,ofcourse,numerousworksoflegalhistory written from
a sociologicalperspective, and they provide many insights.Certainly,
the sociologicalperspective is necessaryforany understanding of legal
development. I am notarguingthattheway law operatesin practiceis
to be discounted.On the contrary, it is veryrelevant.But a focuson
law-in-action leadsto a discounting oftheimportance oflegalrulesand
to a lack of awarenessof theirimperfections and theirimpact.
It wouldappear thattheissuesthatare theconcernof traditional
comparative law, legal history, and sociology of law, and themethodol-
ogyappropriateto thesedisciplines, will notlead scholarsto satisfying
answersto thetwo questionsI posedat the outsetof thisArticle.To
understand thenatureof legal changeand therelationship betweenle-
S
a new powerelitemayuse law to changethestatusquo
In a timeof revolution,
to its own advantage.The principleis thesame.
gal rulesand society,I believeit is necessaryto look at a numberof

legal systemsand at the changesin themovera long periodof time.
What is neededis an approachbased on a combination of traditional
comparative and sociologyof law.
law, legal history,
A firststep,the realizationof theenormousextentof legal trans-
plants,resultedin Legal Transplants.9Borrowing fromanothersystem
is the mostcommonformof legal change.For proofof this,one need
onlyconsiderthe receptionof Roman law in laterEurope;the spread
of Englishlaw throughthe countriesof the commonlaw, even into
partsof the UnitedStatesneverunderBritishrule; the impactof the
FrenchCode civil on the othercivil law systems,and the extentto
whichthelaw ofone statein theUnitedStatesis affected bythatofthe
others.
The powerof law to survivethroughcenturiesis equallyappar-
ent. As a consequencea greatdeal, if not most,of law operatesin a
territory forwhichit was notoriginally designed,or in a societywhich
is radicallydifferent fromthatwhichcreatedthelaw. These phenom-
ena highlight theimpactof authority forlegal change,whethertheau-
thority is thatofa particularlegal systemsuchas thatofancientRome
or of individuallawyerssuch as Blackstone.
A secondbook,Societyand Legal Change,10has essentially nega-
tiveconclusions.It appearedto me thatrulesof Westernprivatelaw
were(and are) outofstepwiththeneedsand desiresbothofthesociety
in whichtheyoperated(and operate)and ofitsrulingeliteto an extent
thatrendersexistingtheoriesof legal development and of therelation-
ship betweenlaw and societyimplausible.Not onlywereand are legal
rulesoftendysfunctional, butawarenessofthisby thosein a positionto
effect changefrequently did not(and does not) lead to improvement of
the law.
In a thirdbook, The Making of the Civil Law,1" thistime re-
strictedto thoseWesternsystemsusuallycalled "civillaw systems," I
attemptedto show that the legal traditionitselfplayedan enormous
role in thedevelopment of legal rulesand approachesto law.
The fourthand mostrecentbook,SourcesofLaw; Legal Change
and Ambiguity, 12 is devotedto the propositionthat for very long
9 A. WATSON, LEGAL TRANSPLANTS, AN APPROACH TO COMPARATIVE LAW

(1974) [hereinafter
citedas LEGAL TRANSPLANTS].
10 A. WATSON, SOCIETY AND LEGAL CHANGE (1977) [hereinafter
citedas LEGAL
CHANGE].
11 A. WATSON, THE MAKING OF THE CIVIL LAW (1981) [hereinafter
citedas
CIVILLAW].
A. WATSON, SOURCES OF LAW; LEGAL CHANGE AND AMBIGUITY (forthcom-
12
ing,University
of PennsylvaniaPress,1984) [hereinafter
citedas SOURCES].
1126 UVIVERSITY OF PENNSYLVANIA LAW REV;IEW [Vol. 131:1121
oftimeWesternsystems
stretches makedo withsourcesoflaw thatare
inadequateforthe development or unambiguouslaw.
of satisfactory
Once again, awarenessof thesedeficiencies in the sourcesof law by
thosein a positionto make improvements frequently does not lead to
reform.
I now wish to put thesefourbookstogether, but in a different
order,in the hope of achievinga synthesis.
II. THE MAKING OF THE CIVIL LAW
Let me startwiththe thirdbookin thesequence,whichhas met

withconsiderable criticismfromJ.P. Dawson."3That criticism, I think,
illustrates
thestrength ofmycase. My centralthemewas thatthelegal
elementsthathavegoneintothemakeupofmodernWesternlegal sys-
temsare everywhere the same. Modernscholars,however,dividemost
of thesesystemsintoeithercivillaw systemsor commonlaw systems.
The difference is the consequenceof civil law systems'adoption,in
wholeor in part,of Justinian'sCorpusJurisCivilisof the sixthcen-
turyA.D. as law of theland or at leastas directand highlypersuasive
authority.'4 Moderncommonlaw systems also borrowedmuchof their
substantive law fromRome.The distinguishing factorbetweenthetwo
typesof systems is thatmoderncivillaw also adoptedtheCorpusJuris
Civilisas theorganizing instrument. The partsoftheCorpusJuristhat
concernus mostare theCode, a collection of legal pronouncements by
theEmperors;theDigest,a collection offragments fromthewritings of
juristsofthelate RomanRepublicand,moreespecially, oftheclassical
period;and the Institutes,an elementary textbookforfirst-year law
students, whichalso had the forceof law. Together these works contain
a huge mass of legal learning.
Dawson rightlypointsout thatthe Digestis "the mostadmired
. . .part of the CorpusJuris,"but he thinksI take fromthe Roman
juristswho are recordedin theDigesttheirpredominant positionand
insteadelevatetheelementary textbook forfirst-year law students,Jus-
tinian'sInstitutes to thisposition(at leastfortheyears1500 to 1800).1o
He rightly saysthatI arguethatinevitably any societythatacceptsthe
CorpusJuris as being in force "gives place of particularhonorto
a
Justinian'sInstitutes,""'and he also quotes(as an exampleof "simi-
'3 Dawson, Book Review,49 U. CHI. L. REV. 595 (1982).

thosethat
14 CIVIL LAW, supra note 11, at 4. I also acceptas civillaw systems
derivefromsuch systems.
'? Dawson, supra note 13, at 596.
'e CIVIL LAW, supra note 11, at 62.
larlyextremestatements'")17 my assertionthat"particularprominence
fallson Justinian'sInstitutes,
becauseit is boththefundamental book
forbeginners and is theauthoritativeattempt to givea systematicstruc-
tureto law."18Dawson has notquite takenmypoint,especiallywhen
he saysthatI makethestudents'handbook"appearas themostimpor-
tantsurviving monument of Roman Law."'19To say,as I do, thatthe
Institutes
will be given"a place of particularhonor"is notto say that
in everyregardtheywill be viewedas the predominant part of the
I
CorpusJuris. merelyarguedthattheirparticularand inevitablerole
was to providethe basic structure of moderncivillaw systems.From
any perspective,theDigestand, to a lesserextent,theCode wouldpro-
vide moreof the substanceof law, and especiallymoreof thedetailed
rules.
Nor is the reasonforthisrole of theInstitutes hardto find:they
weretheonlypartoftheCorpusJurisCivilisin whichthelaw was set
forthin a reasonablysatisfactory, systematic way. To my knowledge,
no one has ever regardedthe arrangement of the Digest as system-
atic-not evenin 533, theyearofitspromulgation-andcriticism ofits
structurehas beenloud and prolonged. Giventheemphasisin teaching
fromtheCorpusJurisand thecorrelative neglectofotherlaw, therela-
tivecoherenceof the structure of the Institutes,and the unsystematic
structureof therestof theCorpusJurisand otherworkson local law,
it was onlyreasonableand naturalto use theInstitutes as the model.
Dawson notesthatI describe"at lengthwritingsof the sixteenth
throughthe nineteenth centuriesthat,appropriating the titleof Insti-
tutes,gave shortand elementary summariesof rules of strictly local
originand application,""aand he saysthat"theselaterInstitutes varied
greatlyin style,arrangement and quality.
'21 But theselaterInstitutes
did not only appropriatethe name institutes,theyalso appropriated
manyofthecharacteristics ofJustinian'shandbook.Aboveall, theyare
shortsystematic summaries oflocal law, and thegreatmajority ofthem
have unmistakably the general(even detailed)arrangement of Justin-
ian's Institutes.2
17
Dawson, supra note 13, at 596 n.3.
18 CIVIL LAW, supra note 11, at 103. I comemuchcloserto the truth,he sug-
gests,whenelsewhereI describetheInstitutes as an "elementarytextbook[that]never
stoodin firstplace as a statement of the law. The Digest and the Code were both
treatedmuchmoreseriously."Id. at 136.
1' Dawson, supra note 13, at 596.
20 Id. at 596-97.
21 Id. at 597.
22 Let me givejust one additionalearlyexamplethatI did notdiscussin mybook
because,althoughit was writtenby a civilianand undercivilianpressures,it was not
producedin a civil law country:John Cowell's InstitutionesJurisAnglicani(1608).
1128 UNIVERSITY OF PENNSYLVANIA LAW' REVIEW [Vol. 131:1121
Even the standardvariationsfromJustinianin thoselaterInsti-

tutes-thefrequent omissionofprocedure and ofcriminallaw-are ex-
plicableonlyon the basis of theciviliantradition: because
the former,
theheroesofthecivillaw systems wereprofessors in what
uninterested
happenedin court;both,becauseRoman procedureand criminallaw
were neglectedby the professors teachingthe CorpusJuris.23
Dawson correctly observesthatsomeof theselocalInstitutes "had
theevidentpurposeofinterposing barriersto thespreadof Romanlaw
by preserving or advancingnew and originalpoints
local idiosyncracies
ofview."24But it thenbecomesevenmoresignificant thatworksofthis
type, such as Georg Beyer's,DelineatioJuris Germanici(1718),
adoptedthe overallstructure of Justinian'sInstitutes.The structure
had becomeendemic,and evenworksintendedto inhibitthespreadof
Roman rulespopularizedthe structure of the Romanhandbook.
Actually,the appeal of Justinian'sInstitutesforthosetryingto
systematise thelocal law was so powerfulthattheInstitutes sometimes
servedas theprincipalmodelforlegal workson subjectsevenwhenit
was inappropriate. For example,it was used as a modelforfeudallaw
in Sam Stryk's(1640-1710) Examen juris feudalis and Alexander
Bruce's(died 1729) Principiajurisfeudalis; forGermanpubliclaw in
J.F. Rhetius's (1630-1707) Institutiones juris publici Germanici
Romani; forGermantownlaw in the seventeenth century,in Lubeck,
Statuta,Stadt-Recht und Ordnungen;and evenfora commentary on
Justinian'sNovellae in P. Gudelinus's(1550-1619) Commentarii de
iure novzsszmo.
Dawson rightlyproceedsto emphasize"the strenuousand con-
certedeffort of medievalmindsto comprehend and adapt to theirown
needsthemassivelegacyin law fromantiquity."2" And he emphasizes
the intellectualdemandson thosewho made use of the enormousvol-
ume of complexliterature. He says,but does not further explain:"It
was a formidable compilationof booklearningwhosetransmission and
elaborationwere almostnecessarily functions of learnedmen,mostof
This shortaccountof Englishlaw is dividedinto booksand chapters,all of which

correspond preciselyin theirplacingand evenin theirtitles,to thebooksand chapters
of Justinian'sInstitutes. Cowell does notevenadd a singlenew chapter.
23 Dawson rightly of local law as "the directde-
says thatI see theseInstitutes
scendantsofJustinian's Institutes,"butdoes notsay thathe disagrees.Dawson,supra
note 13, at 597 n.4 (quotingCIVIL LAW, supra note11, at 65). If he does disagree,I
shouldlike to knowwhatmodelhe thinksinspiredso manyInstitutes fromdifferent
havingstriking
jurisdictions, similaritieswithone anotherand, incidentally,withJus-
tinian'shandbook.
24
Dawson, supra note 13, at 597.
25
Id.
themsponsoredby universities."26 But why,in contrastto earlycom-

monlaw, was thereso muchbooklearning,whoseelaborationwas al-
most necessarilythe functionof learned men, most of whom were
predominantly professors(eveniftheyalso practiced)?For me,thereis
only one satisfactory answer to these questions:Justinian'sCorpus
Juris Civilis was treatedas authoritative. When a complex,ancient,
writtenworkis treatedas important forthe law, the obviousway to
learn it is fromthe booksthemselves, not fromobserving practitioners
at work.The old bookswithall their(and withsubsequentrelated)
complexities will have to be expoundedby learnedmen; the learned
menwill generatefurther elaboration,and theywill teachand studyin
something akin to universitiesratherthanInns of Court."7
It mustbe stressedthatregardingthe CorpusJurisas authorita-
tivein theconditions ofmedievalEurope,resultedin theneglectofthe
remainderof local law (apart fromcanonlaw) in university-style edu-
cation.There are two mainreasonsforthis.First,mostlocal law was
unwritten, to be discoveredas customby the courts;and authoritative
treatment of it was notopen to professors. Second,local law was very
local: professors whowereambitiousformoneyor famewouldwantto
be knownoutsideof theirimmediateterritory, and would opt forthe
international discipline.28
Other local law would be and was down-
graded,and the law in the CorpusJuris becamestillmorestressed.
It was also preciselybecause the tasks of understanding the
CorpusJuris Civilis,of explicatingit, and evenof reinterpreting it to
fitmodernlocal conditions, were so mammoth that,in my opinion,it
tookcenturiesbeforescholarswere able to producenew syntheses, as
Dawson says, "to sketchdesignsfora moreharmoniousand durable
edificeof ideas of a kind that Roman law had neverhad."29What
Dawson omitsto mentionis thatthesedesignsin Franceas well as in
Italy,Holland,and Germanywere,forthemostpart,primarily based
on the structure of Justinian'sInstitutes.These designs,in turn,be-
came the model forthe mostdistinctive featureof moderncivil law
systems, theircivilcodes.Althoughscholarsmaydisagreeas to which
of thetwoelementary handbooks, F. Bourjon'sLe Droitcommunde la
France et la coutumede Paris reduitsen principes,etc.or G. Argou's
Institution au droitFran(ois, was themain influence on the structure
of the FrenchCode civil,no one (I believe)will denythattheirdesign
was derivedfromJustinian's Institutes
and fromsimilarlaterInstitutes
26 Id.
27 See CIVIL LAW, supra note 11, at 24-38.
28 Id. at 27-29.
21
Dawson, supranote 13, at 599.
of local law. The end resultof this enormous,sustainedintellectual

effortwas a legal system,vastlydifferent fromanythingthe classical
Romanjurists(who did not have the benefitof Justinian'sInstitutes)
even knew, and which displays Max Weber's logically formal
rationality.30
Dawson thenturnsto myclaimthat"moderncivilianlaw reports
retain many elementsfromtheir precodification ancestors."31
My
claim,I believe,restson observablefact,and myintention was to show
the durabilityof the legal traditioneven after fundamentallegal
change.Dawson says,"Frenchopinionscan hardlyfollowmodelsde-
rivedfromolden timesbecause Frenchcourtsunderthe old regime
were strictlyforbiddento publishthe reasonsfortheiropinion."32 Al-
thoughit is truethattheFrenchcourtswerethenforbidden to publish
theirreasons,Dawson himselfhas provided,forthe years1600-1789,
accountsof variousunofficial reports,by judges and attorneys alike,
whichdo givethe court'sor theirown reasons.33 Otherexamplescan
be foundin The Makingof theCivil Law.34
Dawson nextturnsto a characteristic thatI ascribeto civillaw
systems, namely,thattheyare moreopen to philosophy thanare com-
monlaw systems.8" This, he says,I attributeto two factors:"first,the
influence ofJustinian's whoseaccountof Romanlaw was so
Institutes,
simplethatphilosophers could understand it (!!)."3f Here Dawson is
'I
For an exceptionally clear accountof Weber's meaning,see Trubek,Max
Weberon Law and theRise of Capitalism,1972 Wis. L. REV. 730.
"'
CIVIL LAW, supra note11, at 52.
82 Dawson,supra note13, at 600. See also J. DAWSON, supra note2, at 286-305.
88 J. DAWSON, supra note2, at 314-38.
4 CIVIL LAW, supra note11, at 44. These seemto be excludedfromconsidera-
tionby a precedingfootnote of Dawson's: "Those datingfrombeforetheyear1800 do
notprovemuch,fortheywerepreparedindependently by privatereporters." Dawson,
supra note 13, at 599 n.13. I do not thinkthatmy argumentthatmoderncivillaw
reportsretainmanyelementsfromprecodification ancestorsis affectedby theobserva-
tionthatmodernreportsare official, and thatearlierreportswereunofficial. Dawson
correctly says:"Germanopinionsare filledwithcitations(notof courseto Romanlaw
butto modernGermancourtdecisionsand thewritings ofmodernGermanjurists)and
also withpages of explanatory and argumentative discourse."Id. at 600. This is cer-
tainlytrue and corresponds precisely,mutatismutandis,to the old Germanreports
wherethecitations wereto theCorpusJuris,thewritings ofjurists,statutes,and court
decisions.I do notrecognizemyown positionin the suggestion attributed to me that
modernGermanHigh Courtopinionsare "extremely formaland meager."Id. at 600
n.15. What I said was thatin comparison withItalianand Frenchreports, theGerman
reportsare "writtenin an even moreabstractform."CIVIL LAW, supra note 11, at
178. PerhapsDawson was misledin thatI said thereportsdo notgivejuristicopinions.
This was said, however,to contrastGermanlaw withFrenchlaw, in whicha jurist's
noteis appendedto the report.
86 Dawson, supra note 13, at 600.
86 Id.
obviouslyprovoked,but I do not see why.What I said was thatthe

Institutesand local Institutes"providea simpleaccountof thelaw and
enablephilosophers to feelthattheyknowthelaw and whatit is about,
and thattheycan discussit comfortably."37 I wonderif Dawson would
denythat,as a matterof fact,Europeanphilosophers, greatand small,
did writecomfortably about law relyinglargelyon Justinian'sInsti-
tutesand also on local Institutes?My secondfactorwas theleadership
in civillaw systems of academicswho weremorewillingand able than
practitioners to build up the systematic,philosophical,and structural
side of the law.38AlthoughEnglandplayeda fullpart in eighteenth
century rationalism,rationalism'seffect
on Englishlaw was minimalin
contrastto its effectin the restof Europe. In my view,one should
expectthisfroma small,self-sufficient groupof practitioners intensely
focusingon litigation.39 Dawson thensays thatthiscalls foran expla-
nationand thatI provideone,namelythatcivillaw systems are opento
philosophy and commonlaw systemsare not.This, he says,"will sat-
isfythose willingto endow 'systems'with human attributes-with
mindsthatopen or close,as the case may be."40
Dawson's own explanationis revealing.Throughoutmostof the
historyof English commonlaw, he finds"an almosttotal lack of
humanresources, thatis, of expositorswho weretrainedand werebe-
lievedto be neededto explain,to organize,and also to criticizethelegal
system."'"But does not thisdearthof such expositorsin England,in
sharpcontrastto continental territories
wherethe Receptionwas most
marked,itselfdemandexplanation?The explanation,I believe,we
have already seen. When an old, complex,writtenwork like the
CorpusJuris Civilis is acceptedas authoritative, the obviousway to
37 CIVIL LAW, supra note11, at 83.

38 Id. at 84.
" Dawson actuallysays that duringthe periodof reappraisalin law in some
continental countries"EnglandproducedonlyBlackstone."Dawson,supra note13, at
601. The logicof thatparagraph(and of thefollowing one) demandsthatthisopinion
is mine.I would denystrongly thatsuch a limitedviewof Englishlegal writingwas
ever mine. See Watson,Justinian'sInstitutesand Some English Counterparts, in
STUDIES IN MEMORY OF J.A.C. THOMAS 181-86 (P. Stein & A. Lewis eds. 1983).
40 Dawson, supra note 13, at 601. This surelyis a debatingpoint.My position
would ratherbe thatlegal systemsdevelopthroughtheoperationof humanintellects.
These intellectsworkon thebasis of theirown knowledge, experience,and originality.
The firsttwoqualitiesdependon theexisting, knownelementsof thelegal systemand
legal education;and in partso does thethird.But in addition,progresswithina legal
systemwill occuronlywhen viewspropoundedare foundacceptableto othersin the
legal community. Views whoseoriginality
standsoutsideofthelegal tradition will find
acceptanceless easily.I do notthinkthereis anything in this,or in mybook,tojustify
Dawson's opinionthatI make"it appearthatin a 'system'a deficiency suchas a mind
thatis closedis congenitaland thereforeincurable."Id.
41
Id.
learn it is frombooks,whichin turnprovokesystematic inquiryinto

the law.42The basic differences betweencivil law and commonlaw
systems flownaturallyfromtheacceptancein theformer oftheCorpus
Juris as authoritative.
Dawson also contestsmyexplanationforthe factthatin modern
times,codificationis a typicalattribute of civillaw systems and is very
muchrarerin commonlaw systems.There is, I argued,a propensity
towardscodification in civil law systems.43 Dawson thinksI have
troubleshowingthispropensity becausethereasonsI giveforsuccessful
moderncodification have littleto do with the civil law tradition.44
These reasonsare: first,theInstitutes, boththe local Institutes,those
variousshortsystematic treatments of local law whichshow thatthe
law can be simplystated,and Justinian'sInstituteswhichshow that
theshorttreatment can be enactedas law; and second,"theconviction
generatedby eighteenth centuryrationalismthatlaw oughtto be the
embodiment ofreason and in beingwritten downcouldbe improved.""4
Now it seemsto me thatthesetworeasonshavea greatdeal to do with
the civil law tradition.The firstbecausethe local Institutes were the
directdescendants ofJustinian's Institutes,thesecondbecausethe En-
lightenment had a muchgreaterimpacton law in civil law systems
preciselybecausetheywere moreopen to philosophy.Dawson says,
"Some earlier advocatesof codification had urged that codification
couldmakelaw moreintelligible by reducingits volumeand complex-
ity,but Watsonrejectsthisexplanation,reasoningthatalthoughEn-
glish law in the eighteenth centurywas whollyunintelligible to the
generalpopulation,codification was noteventhought ofin England."48
Now I neverwouldclaim,and neverhave,thata desireforintelligibil-
ityand simplicity was nota powerfulincentive towardscodification.47
Nor would I claim,norhave I, thatcodification was noteventhought
in
of England. There in
were, fact, numerous advocatesof codification
in England.For example,thereis JeremyBenthamin the eighteenth
century,FrancisBacon and the Levellersin the seventeenth century,
and ReginaldPole in thesixteenth century.48 My concernin The Mak-
ing oftheCivil Law was withtwoquestions:first, whysuccessful codi-
ficationis typicalof civillaw systems but notof commonlaw systems;
42 See supra textaccompanying notes23-28.

48 CIVIL LAW, supra note11, at 99-130.
44 Dawson, supra note 13, at 601-02.
46 Id. at 602.
46 Id.
47 CIVIL LAW,supra note11, at 101.
48 See the quotation given by F.W. MAITLAND, ENGLISH LAW AND THE RENAIS-
SANCE 41-44 (1901).
and second,whysuccessfulcodification emergedrelatively late in civil

law countries. For thesequestionsthesimpleexplanation a desireto
of
simplify the law cannotbe enough.
One pointmade by Dawson may incidentally be veryinstructive
forunderstanding codificationin lands thatacceptedthe CorpusJuris
as authoritative.He pointsto thelaborand timeinvolvedin preparing
a new code insteadof borrowing muchfromone alreadyin forceelse-
where.It took,he observes,eighty-seven yearsfora code to be pro-
ducedin Prussia,and thirty-seven in Germany.49 But theearliestmod-
ern civil code of all, that of Bavaria, the Codex Maximilianeus
Bavaricuscivilis,50whichowes itsimpetusto Prussianinitiatives, took
onlysix years.Workwas begunin 1750,and thecodewas completein
1756. In the intervening years,codes on criminallaw and procedure
had also appeared. The swiftlyproduced Codex Maximilianeus
Bavaricuscivilisis veryheavilyinspiredbyJustinian's Institutes;51the
Allgemeines Landrecht fur die Preussischen Staatenis not.52Arewe to
see in thisonlya coincidence?Or are we to believethatcodification
was relatively easierin territories
whereJustinian's Instituteshad been
treatedas law, and wheretheseInstitutes(or local versionsof them)
were regardedas providinga suitablemodelfora civilcode?
Dawson has his own explanationof civil law codification: "For
thecountries thatled theway in codifying, I wouldascribetheimpulse
notto a kindofunityproducedbytheborrowings fromRomanlaw but
to just the opposite:a legal inheritance that was too diversified and
abundantto be managedotherwise."513 For at leastsix reasonsrelating
to civilcodesor to thegeneralstructure of moderncivillaw systems, I
believethisexplanationis insufficient, eventhougha desireto simplify
the law was one immediateimportant cause of codification.First,it
does notexplainwhycodification occurredat thetimeit did. Second,it
doesnotaccountforthepowerfulroleofJustinian's Institutesin gener-
ally systematizing the civillaw evenbeforecodification. Third,it fails
to explainthe obviouslylargedependenceof mostmoderncodes,both
in arrangement and in the extentof treatment of rules,on Justinian's
and laterInstitutes.It also cannotaccountforomissions,notablyof
commerciallaw, frommostcivilcodes.(My explanationis thatwhat
countsas commerciallaw in civil law countrieswas not includedin
Justinian'sInstitutes.)Fourth,it does notaccountfortheverymarked
4" Dawson, supra note 13, at 602.

'0 See CIVIL LAW, supra note 11, at 102.
"I Id. at 104-05.
52
Id. at 106-08.
"' Dawson, supra note 13, at 603.
divisionbetweenpubliclaw and privatelaw in civillaw systems. (The

formerwas of littleinterestto the Roman legal writers,and was not
treatedin Justinian'sInstitutes.)Fifth,it cannotexplainwhythedis-
tinctionbetweensubstanceand procedureis so sharpin civillaw sys-
tems.Sixth,Dawson's viewcannotexplainwhytheapproachto law is
muchmoretheoretical in civillaw thanin commonlaw systems.
For each of thepointson whichDawson's explanationof modern
codificationis unilluminating, accountofmoderncivillaw
a satisfactory
systems must,I believe,provideanswers.Answersare all to be foundin
the acceptanceof the CorpusJurisCivilisas authoritative.
AlthoughThe Makingof theCivil Law was concerned onlywith
civillaw systems, it is possibleto draw severalconclusions relatingto
generalstudyof legal change.The contrast betweencivillaw and com-
mon law systemsis due to the acceptanceof Justinian'sCorpusJuris
Civilisas authoritative bytheformer and notbythelatter.The accept-
ance ofthiscommonorganizing instrumentallowstheforceofthelegal
traditionto emergeclearlyin different states.It does notmeanthatthe
legaltradition will havelessofan impacton legalchangewhenthereis
no organizinginstrument.
III. SOCIETY AND LEGAL CHANGE
If the legal traditionitselflargelydeterminesthe patternof

change,thenit wouldappearthatlegalsystems are notalwayssensitive
to widerlocal political,social,and economicissues.Legal rulesmaynot
be the bestthatcould be devised,withthe knowledgeavailableat the
time,forthesocietyat largeor fortherulingelite.The themeofSociety
and Legal Change"4was thatmanyimportant rulesof privatelaw in
the West were, and are,dysfunctional. thesis,whichis in flatop-
This
positionto theviewsofmostsociologists oflaw and ofmosttheorists of
law,55is perhapsmosteasilyunderstood whenwe look at a quotation
whichis almostits contrary. In theconcluding paragraphof his book,
A HistoryofAmericanLaw, L.M. Friedman writes:
If by law one meansan organizedsystemof social control,
has law. As longas
any societyof any size and complexity
the countryendures,so will its systemof law, coextensive
withsociety, itswishesand needs,in all theirirra-
reflecting
tionality,
ambiguity, It will followevery
and inconsistency.
twistand turnof development. The law is a mirrorheldup
"I LEGAL CHANGE, supra note10.

"I Friedman,Book Review,6 BRIT. J.L. Soc'y 127 (1979).
againstlife.It is order;it is justice;it is also fear,insecurity,

and emptiness;it is whateverresultsfromthe scheming,
plotting,and strivingof peopleand groups,withand against
each other.All thesethingslaw will continueto be. A full
historyofAmericanlaw wouldbe nothingmoreor less than
a fullhistoryof Americanlife.6
Of course,all this is mereassertion,and rhetoricalassertionat

that.Friedmanhas certainly notattempted to demonstrate in any sys-
tematicway thathis history of Americanlaw is a history of American
life,following everytwistand turnofdevelopment. The theoryis based
on a commonnotionof the relationship betweenlaw and society,but
the theoryis one forwhichsystematic proofis not offered.It is not
proofof sucha theorythatan immediate cause can be foundin a soci-
etyformostlegal changes.
In Societyand Legal Change I was not seekingto put forwarda
positiveviewregarding thepreciserelationshipbetweensocietyand the
legal rulesthatoperatewithinit. RatherI was primarily puttingfor-
ward the negativeproposition thatthe relationship is not as close as
existingtheoriesof legal changeand of law and societysuggest.57 The
elementsofmyargument maybe easilysummarized. All legalrulesare
createdby a cause; and this cause of creationis commonly, but not
always,rootedin social,economic,or politicalfactorsimportant to the
lifeofthesocietyor its leaders.58I wouldnow add thata greatpartof
the cause may be rootedin transnational aspectsof the legal tradition,
whichotherwisehave littleor nothingto do withsocial,economic,or
politicalconditions.Once created,legalrulestendto liveon; forreasons
ofcourse,butoftenforreasonswhichhaveno directimportance forthe
life of the societyor its leaders.Oftenthe legal rules are in obvious
conflict withthe bestinterests and desiresof theordinarycitizensand
the rulingelite,but nonetheless continuein existence.I used the term
'divergence oflaw and society'to indicatenotjust thattherulewas not
thebestfittedto meettheneedsand desiresof a givensociety,butalso
thatthedysfunction was knownto thepeopleconcerned, and especially
"6 L. FRIEDMAN, supra note6, at 595. For a reviewthatadequatelydemonstrates

Friedman'sfailureto takeaccountof the relativeautonomyof law, see Tushnet,Per-
spectizeon theDevelopmentof AmericanLaw: A CriticalReviewof Friedman's"A
HistoryofAmnerican Law," 1977 Wis. L. REV. 81.
67 At best,thereare so manyexceptions to, or anomaliesfor,the main theories
thatthe theoriesthemselves becomecumbersome, vague,and equivocal;and lose their
capacityto explain.One mightcomparethe"awarenessofanomaly"describedby T.S.
Kuhn to theroleit playsin scientific
revolutions. See T.S. KUHN, THE STRUCTURE OF
SCIENTIFIC REVOLUTIONS 62-63, 67-68, 78 (2d ed. 1970).
58
LEGAL CHANGE, supra note 10, at 7.
to thoseable to effect change."9It mustbe stressedthatI am notcon-

cernedwiththephenomenon oftimelag whereit simplytakestimefor
law to catchup withbroadersocietalchange:whenscoresof yearsor
evencenturies intervene betweenthedivergence and thereform, lackof
phase cannotsolelybe due to the pace of societalchange.60I suggest
thatthe dynamiccausal relationship betweenlaw and societywhichis
oftenthoughtto keeptheformer in closeharmonywiththelattersim-
plydoes notexist.Of course,I am notclaimingthatthereis no connec-
tion betweenlaw and society.Rules thatwould be destructive of, or
otherwiseintolerableto, societyor its rulingelitewill be replaced,but
it is a non sequiturto argue fromthatto the conclusionthatlaw re-
flectsthe needsand desiresof societyor its rulingelite.
To demonstrate mythesisI concentrated on legal growthand the
absencethereofin whatare, I believe,thetwomostfamoussystems of
Westernprivatelaw: Roman law and Englishlaw. If numerouscases
of divergence, enduringfor centuries,could be foundthere,then,I
claimed,my thesiscould be accepted.
As I expected,my views have met withmuch opposition.This
criticismresolvesitselfinto six main objections.I thinkit correctto
statethatin generalmy historicalaccuracyhas not been challenged.
The weightof the objectionsrestselsewhere.
A firstobjection,levelledmoststrongly by R.L. Abel, is thatal-
thoughI purported to offera socialtheoryof law, I did notdo so; and
thatin fact,my assertions"simultaneously denythe possibility of any
theoryand contradict bothour dailyexperienceand virtually all schol-
arlyresearchon law in society."1I did notintend,and do notthinkI
claimed,to set fortha social theoryof law in Societyand Legal
Change. My main aims were to show thatexistingtheoriespostulate
too closea relationship betweentheneedsand desiresof a societyor its
rulingeliteon theone hand,and of its legal ruleson theother;and to
suggestsomeexplanationsforthe divergence. Likewise,myassertions,
referred to by Abel,thatsocietytoleratesa greatdeal of inappropriate
law; thatinertiais a seriouscause of divergence; thatthemostimpor-
tantelementin legal development has been the transplantingof rules,
principles,and systematics; and thatthereis no close,inherent, neces-
saryrelationship betweenlegal rulesand thesocietyin whichtheyop-
erate,62 do not,I believe,ruleoutthepossibility ofanytheoryoflaw in
69 Id. at 5.
60 Id. at 7.
" Abel,Law as Lag: Inertiaas a Social TheoryofLaw (Book Review),80 MICH.
L. REV. 785, 793 (1982) (reviewing LEGAL CHANGE, supra note 10).
*" See Abel,supra note61, at 793 (quotingLEGALCHANGE,supra note10, at ix,
society.Rather,theyindicatethatany theorywill have to be complex

and take intoaccount,forinstance,inertiaand transplanting-allthe
causes of divergence in fact-as well as issuesof powerand will. The
theorymustnot assumea simplemechanicaland automaticrelation-
ship betweenlaw and societywith a few admittedbut unimportant
exceptions.
This viewadmittedly contradicts virtuallyall scholarlyresearchon
law in society.But thatmay be, I suggest,because the focusof that
researchis inappropriate, inexact,or insufficient.63 In the natureof
things,traditionalsociologists of law and legal anthropologists cannot
admit that importantlegal rules may be largelydysfunctional; that
would be to denythe possibility of any theoryof legal development
based on sociologicalor anthropological observations. No wonderAbel
is ill at ease.
A groundfordeep misconception alreadymentioned mustagain be
emphasizedto clear it out of the way. Legal sociologists have shown
beyonddoubtthatpersonsable to hirethe bestlawyerswill,on aver-
age, farebetterin legal dealings,in law-in-action, thanwill thosewho
haveto makedo withlesscompetent attorneys; thatthosewhohave
and
frequent dealingswithattorneys or withparticulartypesoflegaltrans-
actionwill on averagefarebetterthanthosewho do not.There is thus
a built-inbias in favorofcertaingroups,who usuallywill be themem-
bersof therulingeliteor thewealthy:thosehavingpolitical,social,or
economicpower,as againstthosewho do not possesssuch power.All
thisis easy to show. But thatshouldnotthenlead to an assumption,
made all too often,thatthe legal rules themselves necessarilybenefit
some recognizableand powerfulgroup,or thattheyare the bestthat
could be devisedforthatgroupand stillbe toleratedby others.Often
thequestionofthefitness ofan actualruleforitspurposesis notraised
by sociologists. If it is, and if the deficiencesof the rule are observed,
thenit will be suggestedthatthe deficiences were notknownto those
concerned, or wereonlyrecently knownand law had notyetcaughtup,
or thatthe powerfulgroupwas notpowerfulenough,or was too pru-
dent,to push througha moreadvantageousrule.
What is missingfromthe sociologists'approachis the historical
element:a precisestudythroughcenturiesof the possibility of persis-
tenceofdefectsin legal rules,principles, and systematics,whencurable
defectswereknownand not remedied.Of course,if suchdefectsexist,
as I claimis thecase,thena theoryexplainingthemwouldhaveto take
79, 130).
"' See supra text accompanying notes 1-8.
1138 UNIVERSITY OF PENNVSYLVANIALAW REVIEW [Vol. 131:1121
accountof the characteristicsof otherlegal systems.In the growthof

humaninstitutions, a patternofharmony alwaysseemsmoreeasilyac-
countedforthandissonance.Sociologists oflaw usuallydo nothavethe
skillsor theknowledge
linguistic ofthehistory ofvariouslegal systems
to beginto construct a theorythatacknowledges thepossibility of seri-
ous long-term divergences.
Legal anthropologistsare worseoff.The primarymaterialneces-
saryto allow themto tracethehistory of individualsystems of "primi-
tivelaw" is simplyunavailable.It is of primarysignificance thatAbel
claimsmy viewsdenythe possibility of any theory.From the stand-
pointof a sociologistof law or of a legal anthropologist thatseems
correct:theyare irretrievably condemned-iftheywanta generalthe-
ory-to claim that law is always functional(with insignificant
exceptions)."
Comparativelegal history offersthechoiceof a different possibil-
ity.The choice,I believe,deservesexploration. The significance of the
extentof the dilemmafacingthosesuch as Abel becomeseven more
apparentwhenone takesaccountof remarkssuchas his: "Since I pos-
sess no expertisein the historicaldata themselves, the objectof this
Essay will be to clairfythattheory and criticise
it fromtheperspective
of contemporary scholarshipin law and social science,"65and "Al-
thoughI knownothingoftheactualfacts,it seemsplausibleto me that
.. ..66 For Abel,theperspective ofmodernsociology of law so obvi-
ouslyleads one to thecorrectresultthatan examination of thedata is
notneeded.He cannotconceivethatthedata of comparative legal his-
torymay suggestpossibilities beyondthe effective scope of traditional
sociologyof law or legal anthropology.
A secondobjectionas statedby Abel is thatI do notmake plain
whetherI am dealingwithlaw in books-juristicwritings, judicialde-
cisions,and the authoritativepronouncements of legislatures-orwith
law-in-action,namelytheactualbehavioroflesserlegal officials or lay
persons,which,it is said, maydiffer.67 He concludesI meantthe for-
mer.The law I dealtwith,says Friedman,is scarely"livinglaw."68I
" The word"functional" is used herebroadly,to includethenotionsof symbolic

and legitimizing But the notionis oftengrosslyabused,sinceeverytimea
functions.
legal ruleor attitudeseemsto contradict theruleor attitudecan be claimedto
a theory,
This notioncannotbe tested.See Langbein,Albion'sFatal
be symbolicor legitimizing.
Flaws, 98 PAST & PRESENT 96, 114-15 (1983).
6" Abel,supra note61, at 785.
' Id. at 801. Actually,whatseemsplausibleto Abel is just downright wrong,as
someonemorefamiliarwiththe relevantdata couldtell him.
67 Id. at 785.
68 different.
Friedman,supra note55, at 127. Friedman'spointmay be slightly
See infratextaccompanyingnotes70-79.
was, as I repeatedlystatedand mustnow emphasize,primarilycon-

cernedwithpositiverulesof law. What I wantedto showwas thatthe
rulesas set down,were notthe mostsatisfactory availableto thesoci-
ety.I do recognizethattherecan be a big difference betweentherules
as theyare authoritatively set down,and as theyare actuallyenforced
by lesserofficialsor used and understood by individuals.But I cannot
acceptAbel's classificationas exhaustive, as basically
or his distinction
meaningful. To a veryconsiderableextentthe behaviorof lesseroffi-
cials is hemmedin and restricted by rulesof positivelaw, and thebe-
haviorof individualsis also affectedby legal rules.If thiswerenotso
therewould be no pointto havinglegal rulesat all. Withoutrulesof
evento imaginea disciplineof sociologyof
positivelaw, it is difficult
law. The contrast betweenrulesof positivelaw and law-in-action is by
no meansabsolute.Of course,ifwhatwas underconsideration was law
thatwas onlyin books,law thatwas not livingand had no practical
impact,then,as I expresslysaid, theobservation thatthelaw was out
of stepwithsocietywould have littleimpact.69 But I soughtto choose
examplesofdivergences wheretheimpactofrulesofpositivelaw either
couldnotbe avoidedor couldbe avoidedonlybytakingpainsand usu-
ally by incurring largetransactionalcosts.
The thirdobjectionto mythesisis thattheexamplesofsurvivalof
dysfunctional law thatI gave are "littlebitsand pieces,leftoverfrom
otherperiods.Very often,these fragments survivepreciselybecause
theyare so minorthatit is hardlyworththe troubleto wipe themoff
thefaceof theearth."70So myexamples,it is said, relateto rulesthat
have eitherno practicalimpactor one so trivialthatit is scarcelyno-
ticed.But let us lookat someof theseexamples.Would an observerof
English law seriouslymaintainthat,despitecriticismfor centuries,
therewas no practicalimpactof thevagariesof land tenureas thesys-
temexisteduntil1925? And thatbeforethelegislation ofthatyear,the
absenceof compulsory registrationof titleof land-a weaknessin the
law that Henry VIII soughtto remedyin 1535-was of no conse-
quence exceptto academicsin theirivorytowers ?7 If the odditiesof
the law of libel, especiallyforunintendedlibel before1952, are ac-
cepted,would the same observerdeny the claim of the Newspapers
Mutual InsuranceSocietyLtd. that"Libel costsa lotofmoney"?. For
6" LEGAL CHANGE, supra note 10, at 126. Oftena legal rule is deliberately
framedto allow officialsdiscretion.But thatsituationis notthemostrelevanthere.
70 Friedman, supra note55, at 127.
7' For theseexamples,see LEGAL CHANGE, supra note 10, at 47-60.
72 See id. at 61-75. The Societyalso observed thatforeveryclaim thatreaches
court,dozensare settled.Id. at 68.
For Abel, however,defamation will have rapidlydeclinedin importance
witha
1140 ULNIVERSITY'OF PENNSYLVANIA LAW REVIEW [Vol. 131:1121
criminallaw, are all the apparentabsurditiesand injusticesflowing

fromtheretention and deformation ofbenefit ofclergy73to be assigned
to the inflamedimagination of scholarsspendingtheirlives "embroi-
deringand decorating somelittleswatchof material". 7 The delusion
of practicalrealitymusthave infected authoritative
legislaturesin view
of the numerous,but sadly not comprehensive, statutesthat they
passed.76In Rome,did it reallymake no practicaldifference in com-
mercethatthe contractof sale-an objectof pridebecauseit couldbe
contracted at a distanceby letteror by messenger-couldnotcontaina
guaranteeagainsteviction or againstlatentdefects
unlesstheparties(or
personssubjectedto theirpower)werefaceto face?76Or thattheRo-
mansneverdevelopeddirectagencythoughthenotionwas well known
to them?77WXasit reallywithoutcommercialsignificance thatbarter
was longnotrecognized as a contract and thatlaw in thisarea always
remainedunderdeveloped ?78
To the foregoing questionsI, forone,wouldnotbe satisfied with
an answerthatsimplysaid,withoutan investigation intothefacts,that
therecouldhave beenno important practicalconsequences sinceother-
wise the law would have been changed.Examplesof divergences can
easily be expandedbeyondthosegivenin the book. One further in-
stancefromEnglandmaysuffice.FredericMaitlandwrote:"The law
of Husbandand Wifeis in an awfulmess(I don'tthinkthata layman
would readily believe how bad it is) . . ..79 The problems arising
fromthatwell-known awfulmess,manyof whichwerewantedby no
recognizablegroup,some of whichin practicecould not be avoided,
someof whichcostmoneyand trouble,werebasedon positiverulesof
law but made theirimpact-surelynottrivial-feltin law-in-action.
thereseemsto be forthosewhodisagree
In thisgeneralconnection
withme an irresistible theircase and exaggerate
to overstate
temptation
examplesoccurin bothFriedmanand Abel.
my position.Illuminating
mass, urban, industrializedsociety;forthose involved"the precise contentof the rules is

irrelevant.The more complex and arbitrarythey are, the better."Abel, supra note 61,
at 799.
73 See LEGAL CHANGE, supra note 10, at 92-94.
74 Friedman, supra note 55, at 129.
76 See LEGAL CHANGE, supra note 10, at 92-94.

76 Id. at 14-22.
77 Id. at 20.
78 As an illustrationof the last point it may be mentionedthat an agreementto
barteronly became a contractand (in the absence of fraud) only had legal consequences
when one party delivered; it could not be made by letter. Imagine the problems for
merchantsin differentcities.
79 C. FIFOOT, FREDERIC WILLIAM MAITLAND 53 (1971) (quoting F.W.
Maitland). For an account that illustratesthe mess, see A. MANCHESTER, A MODERN
LEGAL HISTORY OF ENGLAND AND WALES 361-88 (1980).
The formerobservesthat while partsof Roman law survive,whole

chunkshavegone.80The interesting question,he suggests,is theprinci-
ple of survival,and this he findsin continuedusefulnessto society.
"This is whatkeptthemortgageand thetrustalive,whileotherparts
of medievallaw wentto theirgraves."81But on this I shouldlike to
make threepoints.First,it is veryeasy to overestimate the extentto
whichancientlaw has not survived.Thus, legal institution and legal
rule (at least as law-in-action)do not exist in a vacuum.They are
attachedto social institutions.A legal institution,
in fact,is a social
institutionbackedby legal rulesand lookedat fromthe legal pointof
view. If the social institution disappearsthen so do, or at least so
should,the legal institution and the legal rules.Thus, ancientRome
had a law of slaveryand legal rulesaboutslaverypreciselybecauseit
had thesocialinstitution of slavery.It wouldmakeno sensein estima-
tingtheextentofdisappearanceof Romanlegal rulesin thecontempo-
raryWest to pointout that none of the rules of the law of slavery
survive.In the West the social institutionof slaveryhas gone.Rather
one shouldlookto a place and timein therecentpast wherethesocial
institution survived,such as 19thcenturySpanish America,and con-
sidertheimpactthereof theRomanlaw of slavery.It is worthobserv-
ing,however,thateven whenthe vitalsocial institution has gone,re-
lated legal rules may survivewith importantpracticaldysfunctional
qualities.An obviousexamplewouldbe thesurvivalin Englandofdys-
functional land tenureslongafterthesocialinstitution of feudalism had
otherwisedisappeared.Second,the testformy thesisis not whether
dysfunctional Roman or medievallegal rules still exist,but whether
theycontinuedin operationfora longtimeaftertheyceasedto be func-
tional.Third,I have neverdenied-could anyone?-thatutilityis part
of the principleof survivalof legal rules. Legal rules thatworkwell
obviouslyhave a greaterchanceof survivalthanhave thosethatwork
badly.The questionthatI findneedsan answerand one thatshould
not be givenonly on a priori reasoningis whetherthe principleof
survivalinvolvesmorethancontinuing usefulness.
Abel has his own exaggeration: thatmy constantrefrainin the
bookis "thatmostlaws are useless."82My refrainis verydifferent and
farless extreme, namelythatmuchof law is out of stepwiththeneeds
and desiresof society"to an extentwhichrendersimplausibletheex-
istingtheoriesoflegal development and oftherelationship betweenlaw
80 Friedman,supra note55, at 128.

81 Id.
82 Abel,supra note61, at 797.
1142 UXIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 131:1121
and society."83
The fourth objectionto mythesisinvolvesa complexofissuesthat
can, I think,be reducedto one: theapproach,it is claimed,is too athe-
oretical.Thus, forFriedman,"[t]hroughout the book Watsontellsus
that this or that rule of law is absolutelyfundamental, or basic, or
terriblyimportant: butwe are nottoldwhatit meansto be basic,fun-
damentalor importantor what is so basic about these particular
rules."84J.N. Adamsis troubledbymyavoidanceofconceptslikeclass,
elite,and statusgroups,and he objectsthatI do not distinguish be-
tweenmajorand minorinstancesofdivergence.86 Abel objectsthatmost
of the timeI treat"societyas an undifferentiated, personified whole,"
or that I view "societyas eitheran organicwhole or as a seriesof
interestgroupsutterlydominatedby a monolithic rulingclass."86
On one level this complexobjectionis accurate,and I acceptit
cheerfully and withoutremorse.I did tryto be as atheoretical as was
consistent withthe subject.The studyof legal changeand of law and
societyfroma comparative is in its infancy.The
historicalstandpoint
data have to be collectedcarefully thenanalyzedaccuratelybeforeone
shouldattemptto construct a theory.The data comefirst,and thethe-
ory shouldemergefromthe data. Theoreticaldistinctions, whenthey
would not be helpful,shouldbe avoided.87It was on thisbasis thatI
did nottryto drawa line betweenmajorand minorinstancesofdiver-
gence. The line drawn would have been arbitraryand would have
givenriseto unnecessary and harmfulcontroversy. I also thoughtthat
it wouldhave beenobviousto everyone thatmanyof thedivergences I
discussedweremajor.For instance,thefirstdivergence studiedrelated
to muchof the structure of the Roman systemof contracts, whichhas
been the mostadmiredpartof Romanlaw. The secondconcernedthe
Romanpatria potestas.The powerat privatelaw of the oldestliving
male ancestoroverhis descendants of whateverage or rankwas enor-
mous; forexample,fora verylong timeonlyhe could own property.
This systemcannothavebeeneconomically Nor can one claim
efficient.
the systemsatisfiedsome deep psychological need,since the Romans
83 LEGAL CHANGE, supra note 10, at ix.

84 Friedman,supra note55, at 127.
86 Adams,Book Review,42 MOD. L. REV. 121, 123 (1979).
86 Abel,supra note61, at 787.
87 Naturally,no approach,even in the collectingof data, will ever be entirely
value-free.My own approachin thecollecting ofdata was basedon whatseemedto me
to be bothapparentand oftenoverlooked,namelythat,in Westernlegal systems, many
legal rulesand wholebranchesof thelaw couldbe regardedas fundamentally unsatis-
factoryby thosein a positionto influenceor effectlegal change,withoutthe change
occurring.
soughtassiduouslyto circumvent it. The failuresin Englishlaw until

recentlyto developcompulsory land registration or to deal adequately
withthetenuresystemmust,on any reckoning, be regardedas cases of
majordivergences. The Englishlaw of defamation was thesubjectof a
reportof a SelectCommittee oftheHouse of Lordsin 1843 and oftwo
Commissions, the PorterCommitteewhichreportedin 1948 and the
Faulks Committee whichreportedin 1975. Surely,pace Friedmanand
Abel, thisindicatesthe subjectis important; and all threeCommittees
reportedthatthe law was seriouslydefective.
I do notacceptthatI viewsocietyas an undifferentiated wholeor
as a seriesof interestgroupsutterlydominatedby a monolithic ruling
class. On the contrary,I agreethat,in a well-rounded theorythatin-
tendedto quantifytheextentand causesof divergence, it wouldbe ap-
propriateto explainconceptslikeclass,elite,and statusgroups,butfor
the limitedpurposesof Societyand Legal Change,such explanation
could be and was avoidedfora verygood reason.One difficulty in
quantifying divergences is preciselythe factthatin any societythere
are manyrecognizablegroups,and theirinterests withregardto what
thelaw shouldbe mayoftenbe verydifferent. It maythenbe suggested
thatrules thatare unsatisfactory forthe majoritysuit some powerful
groupand are therefore maintained;and thatthe rules,all takento-
gether,forma pattern"in whichthe variousinterests of groupsand
individualsare represented accordingto theirstrength in thesociety."88
Preciselyto circumvent that difficultyI expressly89 chose instances
wheretherewas no recognizablegroupor class-apart possiblyfrom
lawyers9"-whichhad any interest,economicor social, in resisting
change.Withregardto thedefectsin theRomancontract ofsale which
wouldobstruct commerce, thereis no socialclassofbuyersand a differ-
entone of sellers.91The absenceof registration of titleof land in Eng-
land and the pecularitiesof tenurecouldbenefitno observableclass or
groupand wereharmfulto landowners, preciselythepeoplemostable
to effectchangein thelaw. Substantialdamagesforunintentional libel
were harmfulto newspaperowners,etc.,but thereis no recognizable
groupwho wouldbe likelyto be unintentionally libeledand so benefit:
thereis no class of peoplenamedArtemusJonesor who own restau-
rantscalled "The Spider'sWeb".92It mightbe suggestedthatRoman
88 LEGAL CHANGE, supra note 10, at 9.

89 Id.
90
See infratextaccompanyingnotes126-35.
91 Actually,theruleswouldnotbenefit buyersor sellers.LEGAL CHANGE, supra
note 10, at 15.
92
See id. at 65-66.
1144 LAW' REVIEWV
UNIVERSITY OF PENN>YSYLVA,N\IA [Vol. 131:1121
fathersformeda groupor class, but theywere not a cohesivesocial,

economic, or politicalgroup.In publiclifeno distinctionwas madebe-
tweenmales who were not subjectto paternalpowerand thosewho
were.Sons could,and oftendid,occupythehighestoffices of stateand
werein a goodor eventhebestpossiblepositionto changethelaw. The
approach I adopted in this regarddoes not dismissthe theoretical
framework ofsociologyoflaws; ratherit sidestepsit forthetimebeing.
A fifthobjectionI must regardas perverse.Abel writes:"He
[Watson]examinesa legal rule,asks whetherhe would want such a
ruleifhe werea memberofthatsociety, decidesthathe wouldnot,and
concludesthatthe law servesno purpose."93ContinuallyI soughtto
showthatthoseinvolvedwiththelaw at thetimeand in a positionto
changewereaware of thedefects,
effect withouta changeresulting for
sometime.
Thus, forexample,fromits creation,probablyin the laterthird
centuryB.C., untilaround200 A.D. (or later)the Romancontract of
sale did not usually containinherentwarrantiesagainstevictionor
againstlatentdefects.But the Romans did want warrantiesagainst
evictionand againstlatentdefects.We knowthisbecausethereare lit-
erallyhundredsof textsin the Roman sourceson the subjectof these
warranties.But in the effort to take expresswarrantiesthe greatad-
vantageof consensuality was lost because the onlyway to obtainthe
guaranteeswas bythecontract ofstipulationwhichrequiredtheparties
to be face to face. Also, as is made clear, leavingthe takingof the
warranties to buyersresultedin awkwarddrafting problems.Lest it be
suggested that forlong the Romans were unaware of thepossibilityof
inherentwarranties, let me mentionthatfromat leastthefifth century
B.C. theceremony of mancipatio, thecommonmodeof transfer ofcer-
tainimportant typesofproperty, containan inherent
did precisely war-
rantyagainsteviction.94
Again, it was mentionedabove thatbarteras a legal institution
was long underdeveloped in Rome and neverbecamea commercially
efficient
contract.That theRomansknewthatbarterhad legallyunsat-
isfactoryremediesand thatthematterwas one of importance is easily
demonstrated. The Sabinianschoolofjuristsclaimedthatbarterwas a
formof thecontract of sale and,to provethis,arguedfroma mistrans-
lationof a quotationfromHomer,who was scarcelya legal authority
forthe Romans.They wouldnothave reliedon sucha poorargument
fora weak case if theyhad not thoughtthe mattersignificant. The
9" Abel,supra note61, at 791.

9' See LEGAL CHANGE, supra note 10, at 14-15.
converseargument, whichprevailed,of the rivalProculianschoolwas

based purelyon considerations of legal logicand noton economic,so-
cial, or politicalconsequences: thepricehad to be in money,theysaid,
otherwiseone could notdetermine whatwas the thingsold and what
was the price.95
Roman law did notrecognizethe principleof directagency,even
in thesixthcentury A.D., butthattheRomanswereaware of itscom-
mercialusefulness is shownby theuse theymadeof it fromthesecond
centuryA.D. in theirprovinceof EgyptwhereRoman law was less
strictly applied.96
That thosewiththepowerto effect changesin Englishlaw knew
evenbefore1925 thattheabsenceof compulsory land registrationwas
dysfunctional is obviousfromthestatedintentions of thosewho sought
to introduceit: HenryVIII in the sixteenth century,OliverCromwell
in theseventeenth century, theregistersforMiddlesexand Yorkshire in
theeighteenth century, the 1829 reportof theReal Property Commis-
sioners,and variousacts of the nineteenth century.97
The arbitrary natureof the distinction betweenlibel and slander
and theinjustices causedbyit wereknownto and disapproved ofbySir
JamesMansfield,Lord ChiefJustice,in 1812; theSelectCommittee of
the House of Lords in 1843; F. Carr in 1902; famousscholarssuchas
Sir William Holdsworth,SpencerBower,Sir FrederickPollock,Pro-
fessorE.C.S. Wade, and Professor Winfield;and the Faulks Commit-
tee. Probablyno Englishacademichas supportedthedistinction in this
century, but it stillexists.98
ExamplesshowingthatI am notimposing
my views of dysfunction, but thatthoseinvolvedwere aware of the
defects,can be multiplied.99
To returnfora momentto impliedwarranties againstevictionand
See id. at 19.

" See id. at 20; LEGAL TRANSPLANTS, supra note9, at 33.
97 LEGAL CHANGE, supra note 10, at 56-57.
98 Id. at 63-65.
" The instanceAbel selectsto illustratemyimposition of valuejudgmentsis re-
vealing.I had observed,id. at 34-37, thatit was a weaknessof Roman law thatthe
natureof theunavoidableand important (as to consequences) distinction
betweenmani-
festand non-manifest theftwas neverclarified;and thatit is surprisingthat,to thebest
of our knowledge, theRomansneverdiscussedthebasis of thedistinction. I theninci-
dentallymentioned modernexplanationsof thebasis of thedistinction and arguedthat
one of themwas illogical.Abel seizedon thisclaimof illogicas an illustration of my
imposition ofmyown standardson theRomans.Abel saysthatI "offer[edj no evidence
thattheRomansshared[mylfeelings."Abel,supra note61, at 791. This is quitetrue.
My pointwas, and is, that the law was deficientin not decidingwhat countedas
manifestor as non-manifest theft,
and thatthoughthe Romansknewof the problem,
and exposedit,theyneveraskedwhythedistinction was made.My treatment of mod-
ern scholarlyaccountswas simplyintendedto show thata basis forthe distinction is
hard to find.The Romansofferednone.
againstlatentdefectsin theRomancontract of sale, thereis an insolu-

ble problemherefor those who, like Friedman, believethat"law is a
mirrorheld up againstlife.""'0The problemis thattheRomanjurists
eventuallydid regardsuch warrantiesas inherentin the contract.101
Friedmanand I would bothhold thatthoseable to effectchangere-
gardedinherentwarrantiesas desirable.But Friedmanmusthold ei-
therthatinherent warranties werenotpreviously desirable,or at least
notpreviously desirableto thoseable to makethechange.But no one
who knowsRoman law would thinkthatthe class of peoplewho ef-
fectedthechange,thejurists,had undergone alteration.102And thereis
nothingin Roman economichistoryto suggesteithera changein the
kindsof sale thatwerebeingmade,or in therelativebargaining power
of buyerand seller.103The difficultyforFriedmanis all thegreaterin
thatthe evolutionof inherentwarrantieswas gradual.The insoluble
problemforFriedman,ofcourse,is a generalone,and appliesin many
contexts.
A sixthand verydifferent objection,thatI am apoliticalor anti-
or
political conservative,is bestleftuntillaterin thispaper.
IV. LEGAL TRANSPLANTS
Very littleneed now be said about the subjectof the firstbook,

Legal Transplants."' I thinkit is now generallyacceptedthatin the
West mostof the law of mostjurisdictions is the resultof borrowing
fromelsewhere.More interesting though, and perhapsnot so widely
accepted, is the commonexistenceof a "transplant bias."'105Although
a totallyinappropriate ruleis veryunlikelyto be voluntarily borrowed,
it oftenhappens, and at least in the past usuallydid,that the borrow-
ing systemdoes not systematically searchforthe bestrule fromelse-
100
FRIEDMAN, supra note6, at 595.
101 See, e.g., J.A.C. THOMAS, A TEXTBOOK OF ROMAN LAW 284 (1976).
102 See W. KUNKEL, HERKUNFT UND SOZIALE STELLUNG DER ROMISCHEN
JURISTEN 114 (2d ed. 1967).
103 See, e.g., M. ROSTOVTSEV, THE SOCIAL AND ECONOMIC HISTORY OF THE
ROMAN EMPIRE (P.M. Frasered., 2d ed. 1957).
Book Review,91 L.Q. REV. 292
104 For criticalreviews,see, e.g., Kahn-Freund,
(1975); Seidman,Book Review,55 B.U.L. REV. 682 (1975).
106 Friedman,forexample,doesnotappearto agreewithme. I am notsurethatI
fullyunderstandFriedman'sposition.He says,"thereis a good deal morechoicein
borrowing thanWatsonsuggests.Borrowingis donesystematically." Friedman,supra
note55, at 128 (emphasisin original).If he meansthatone foreign systemis continu-
ally chosenas thedonor,thentheborrowing fromthatsystemmaybe donesystemati-
cally,butthejudgesorjuristswhodo thetakingoftendo notchoosethebestsolutionto
theirlegal problem.If he meansthatbeforeborrowing takesplace thejudgesorjurists
systematicallylook forthe mostappropriatesolutionin a numberof societies,he is
historicallywrong.
19831 LEGAL CHANGE 1147
where,but ratherlooksconsistently to one system,whichat timeswill

not have the mostappropriaterules.The well-knowndependenceof
othersocieties(whichwere politicallyfree)on Roman, English,and
Frenchlaw are cases in point.Oftenthe foreignrules are borrowed
withoutinvestigation into whetherthe rules are the best possibleor
evenappropriate.The main causesof thistransplant bias are, I think
obvious:thegeneralhighstandingofthedonorsystem; thegeneralhigh
prestige,apartfromits law, of thedonorstate;a sharedlegal tradition
of thedonorand borrower; instance,in writ-
and theaccessibility-for
ing or in a code-of the law to be borrowed.
Two examples,notdiscussedin Legal Transplants,frommedieval
Germanymay be chosenas furtherillustrations.'06 In the thirteenth
century, law in Germanywas almostentirelycustomary, and thecus-
tomwas verylocal at that.At thebeginning ofthecentury thereexisted
nowherea writtenofficialor unofficial accountof customary law. But
before1235, probablybetween1221 and 1222 or betwen1221 and
1224, Eike von Repgowproducedhis Sachsenspiegel, 'Saxon Mirror',
an unofficial accountof whathappenedin practicein thebishoprics of
Magdeburgand Halberstadt.As a writtenaccountof legal customsin
one cornerof Germanyit had no rival.Of its two parts,one has sur-
vivedin over150 manuscripts, theotherin over200, and it was trans-
lated intoa numberof Germandialects,back intoLatin (its original
language)at leastthreetimes,intoDutchand, it is said thoughperson-
ally I can findno trace,intoPolish.Its influence
was enormous;it was
theonlyaccount(at thetime)oflaw thatwas accessibleand Germanic,
and it was also of highquality.Thus, evencustomtransplants. A sec-
ond examplecan be foundin thetransplanting of law amongGerman
townswhichtookplace extensively duringthe fourteenth century, al-
thoughsome did take place even beforethat.Towns would adoptthe
townlaw of anothertown,and the "daughter"townsmightin their
turnbe acceptedas "mothers"forlaw by othertowns.The "mother"
townwouldbe selectednotjust forthequalityofitslaw, butbecauseof
its generalhighstandingand also becauseits law was in the tradition
wantedby the "daughter."But the law of themostfamous"mother,"
Magdeburg,was adoptedwidelyevenin Poland.Strangely, in thatin-
stancethelaw ofthe"mother"townwas oftenunwritten and relatively
inaccessible.
lOG
For thesetwo examples,see SOURCES, supra note 12, at 25-50.
1148 U,7NIVERSITYOF PENNSYLVANIA LAW REVIEW [Vol. 131:1121
V. SOURCES OF LAW
SourcesofLaw; Legal Changeand Ambiguity has notyethad the

benefitofcriticism.The mainthemeis thatat varioustimeswithinthe
Westernlegal traditiontherehas been profoundindifference among
thosecapableofmakinglaw aboutthequalityofthesourcesoflaw and
abouttheirfitness fordeveloping ambiguities.
thelaw and forclarifying
A fewexampleswill suffice. Opinionsofjuristswereamongthemost
fruitfulsourcesoflegalgrowthin Rome.The juristsoftendisagreedon
important issuesand whentheydid therewas, withveryminorexcep-
tions,no way of rankingtheiropinions.Many of thedisputesthatwe
knowragedin the secondcentury A.D. existeduntiltheyweresettled
bytheEmperorJustinianin thesixthcentury. For instance,
theProcu-
lian schoolofjuristsheld thata male reachedpubertywhenhe com-
pletedhis fourteenthyear,theSabiniansrequiredactualphysicaldevel-
opment,and Justinianin 529 settledthe disputein favorof the
Proculians.But attainmentof pubertyhad importantconsequences
whichresultedfromthe operationof law and whichcould not be al-
tered by the behaviorof interestedparties.107Problemsmust have
arisenin practice;fatherlessyouthsin theirearlyteensare not,I sus-
pect,freefromthe perilsof mortality. On thisand otherissues,how-
ever,no definitesolutionwas forthcoming for centuries.What does
seem to me to be significant is thatthoughmanyof the mostdistin-
guishedjuristswerealso highrankingpublicofficials and bureaucrats,
notone of themever,so faras we know,arrangedfortheresolution of
such a juristicdisputeby legislation.They seem to have the
preferred
ambiguity.The othersourcesof Roman law also containedserious
defects.08
Similarly,aftertheReceptionof Romanlaw in WesternEuropea
majorsourceof law was the writingsofjurists,professors,and attor-
neys,fromtheeleventhcentury onwards.But no systemeverdeveloped
fordetermining the rankingof individualjurists.There was even no
agreement on the to thedifferent
relativeweightto be attributed types
whetherglosses,commentaries,
ofjuristicwritings, collections
treatises,
briefs.Witha
oflegal advice,or evenattorneys'
ofopinions,collections
107
Whena male'was notin thepowerofhis father(i.e., usuallywhenthefather
was dead), he wouldhavea guardianuntilhe reachedpuberty. He couldentera trans-
actionthatmight(even in theory)injurehis patrimony onlyif he had his guardian's
permission. He couldnotmakea will at all, and if he had beenappointedheirby his
heirwas also appointed(in case theboydied beforepu-
father'swill and a substitute
berty),thenif he did so die, the estatewentto the namedsubstituteheir,notto the
boy'sown heirson intestacy.
108
See SOURCES, supra note12, at 1-24.
fewexceptionssuchas GiovanniBattistade Luca (1614-83),verylittle

attention was evenpaid to thisissue.When,as was veryfrequently the
case, therewas no local statuteon point-statutesin privatelaw were
rare-or customor precedent fromthehighestcourtofthejurisdiction,
therewas notevenagreement regarding whetherone shouldresortfirst
to the authority of thejuristsor to the law of a neighboring state.De
Luca favoredthelatteralternative. What was to countas a "neighbor-
ing state"or how the law of competing neighboring stateswas to be
rankedwas also notestablished, apartfromtheprinciplethatneighbor-
ing did notmean "territorially adjacent"but "similarin law." For ex-
ample, De Luca consideredSpanish fuerosas neighboring law, pre-
sumablyfroma perspective in Naples.'09
In modernEnglandthemostimportant sourcesoflaw are statutes
and precedents. difficult
It is notoriously to findtheappropriate or cor-
rectstatutory law fora numberof reasons.The same subjectmay be
dealtwithin manyActs.In thecase of buildingoperationstherewere,
in 1970, 179 nationalActs and 220 local Acts."0 In 1949, the law
relatingto the validityof a marriagewas containedin as manyas 40
statutes.1"' This problemhas beenrecognizedsinceat leastthetimeof
Sir NicholasBacon,the Lord Keeper(1509-79),and has beentheob-
ject of the (unsuccessful) attentionof KingsEdwardVI (1537-53) and
JamesI (1566-1625),and Sir FrancisBacon (1561-1626).
Likewise,the drafting of individualActsis notoriously poor,and
the standardsof discussionveryinadequate.Parliamentalso has diffi-
cultyin findingtimeto pass muchneededlegislation.In fact,it has
long been knownthatthe Parliament,as presently constituted,is just
notan appropriatebodyformakingsatisfactorily legislation,
intelligible
especiallyofa comprehensive type."It wouldbe as impossibleto getin
Parliamenta reallysatisfactory discussionof a Bill codifying the Law
of Evidenceas to get a committee of the whole House to painta pic-
ture,"said Sir JamesFitzjamesStephenswho wantedthe law of evi-
dencesetout in one Act."2 "It is [a] matterofamazementthatEnglish-
menshouldbe contentto have thelaws by whichtheyare governedin
109 PompeoNeri Badia, who in 1745 was appointed by theGrand Duke of Tus-
canyto preparea code (whichwas nevercompleted), proposedthatthereshouldbe no
recourseto thelaw ofanotherplace becauseoftheconfusion thissystemhad createdin
Tuscany.The Leggi e constituzioni of 1770 of Sardiniaand Piedmont, bk. 3, tit.22, ?
9, did ban recourseto thelaw ofa neighboring place,and sucha ban had earlierbeen
read,by implication,intoa provisionof 1729. The confusion resultingfromtheprac-
tice was well-knownlong beforeanythingwas done about it anywhere;even laterit
continuedelsewhere.See SOURCES, supra note 12, at 51-67.
110 G.W. PATON, A TEXTBOOK OF JURISPRUDENCE 246 (4th ed. 1972).
111 See A. MANCHESTER, supra note79, at 361.
112 G. CHASE, A DIGEST OF THE LAW OF EVIDENCE xxii (1898).
such an inaccessibleshape as theyare; but,no doubt,one explanation

ofthisstateofthingsis thehopelessness ofpassingthroughParliament,
withoutmutilation, any carefullyconsideredexpositionof any great
branchoflaw" wroteSir NathanielLindleyin thecontextofthePart-
nershipAct,in 1890.113RichardCrossmanwrotein his Diaries of a
CabinetMinisterthatwhenhe was a CabinetMinisterhe neverboth-
eredto read anyoftheBills he gotthroughParliamentand thathe did
notbotherto understand theindividualclauses,nordid manyMembers
of Parliament,not even the spokesmanforthe Opposition.He also
wrote that the Oppositionused up their questionson the early
clauses."14In 1981, Lord Hailsham of St. Marylebone,Lord High
Chancellorof Great Britain,claimed:"Parliamentin generaland the
House of Commonsin particularhas longsinceceasedto believethat
its mainbusinessis to act as an efficient But Members
legislature.""'6
of Parliamentare notconcerned. A committee of theunofficialStatute
Law Societyin 1970 issueda questionnaire on qualityof statutelaw to
usersofstatutes, and receivedresponsesfromonly7% ofthoseto whom
it was sent;frombarristers and solicitorstheyreceiveda 10% response.
By farthelowestresponse,2%, was fromtheMembersof bothHouses
of Parliament."'6
It is in thiscontextthatAbel'sobjections thatI am "notreallyan
admirerof liberaldemocracy"'17 and am settingup a "fundamentally
apolitical"theoryoflegislation shouldbe set.118I was suggesting a law-
makingbody intermediate betweenthe courtsand the legislature.'19
This bodywouldbe subordinate to thelegislaturewhichwouldremain
supreme, and its main work would be the preparation of bills which
would becomelaw if notobjectedto by the legislature.Its desirability
stemsfromthelack of interest especiallyforprivateand
in legislation,
commercial law, shownby the presentlegislatures.120
118 N. LINDLEY, A TREATISE ON THE LAW OF PARTNERSHIP 2 (W. Lindley6th

ed. 1893).
114 1 R. CROSSMAN, THE DIARIES OF A CABINET MINISTER 629 (1975).
'"5 Hailsham,ObstaclestoLaw Reform, 34 CURRENT LEGAL PROBS. 279, 286-87
(1981).
'16 See SOURCES, supra note12, at 76-92. For a history
thatrevealsthedefectsin
Englishlawmakingby legislation, see A. MANCHESTER, supra note79, at 32-49.
117
Abel,supra note61, at 806.
118
Id. at 807.
`19 But notwithautocratic powersas statedbyAbel.Id. at 807; LEGAL CHANGE,
supra note 10, at 133. The idea is developedin Watson,Two-TierLaw -A New Ap-
proach to Law-Making,27 INT'L & COMP. L.Q. 552 (1978).
120 One mightthinkof non-legislative lawmakingprocedures in theUnitedStates,
such as courtrulemaking or the pronouncements agencies.See also
of administrative
the suggestionof JusticeStevens,and JusticeBrennan'sresponse.Brennan,Somne
Thoughtson theSupremeCourt'sWorkload,66 JUDICATURE 232 (1983). Thereis also
Englishlaw also has a systemof bindingprecedent. The element

in a decisionthatis bindingis theratiodecidendi,thatis, theproposi-
tionsof law thatthe courtappearedto considernecessaryforitsjudg-
ment.Usuallythecourtwill notdeclarewhatwas theratiodecidendi,
and judges in subsequentcases are therefore forcedto findit them-
selves.This taskmayoftenproveto be quitedifficult especiallybecause
thereis no theoretical
methodforuncovering theratio.This relianceon
precedent maycreatepersistent ambiguity.Obviously,it doesnotneces-
sarilyresultin improvedqualityin the law, becausethe subsequent
courtmay,as thefirstcouldalso havedone,givean unfortunate ratio.
The conclusionI reachedwas thatwhere,as often,the sourcesof law
are inadequateforkeepingthelaw up to date and forremoving ambi-
guity,and the inadequacyis apparentto thoseinvolvedin the system,
then thosewith the capacityto changethe law musthave in facta
positivedisinclinationagainstreformof the sources.The reason for
this,I suggested,is to be foundin grouppsychology. The Romanju-
ristsqua juristsowedtheirprestige and powerto theirskillin handling
abstractlegal problems.To win prestige, theyhad to impresstheirfel-
low jurists with skillful,complexarguments.Solvingdifficult legal
problemsthrough legislationwouldnotwinjuriststheapprovaloftheir
fellows.Similarly,Membersof Parliamentare moreinterested in party
politicsand economicissues than in law reform.Yet much of their
prestigecomesfromtheirroleas legislators, and theyare unwillingto
concedeany of theirpowerin thisregard.
Englishjudges, too, are a groupwith a strongespritde corps.
Much oftheirhighprestigedependson thefactthattheirdecisionsare
bindingin futurecases. Yet theirespritde corpswouldbe endangered
if a judge statedtoo directlythe ratio decidendiof a particularcase
when fellowjudges mightfeelcompelledto voicetheirdisagreement.
Membersofsuchlegal elitesattachmuchweightto theopinionoftheir
fellows.They are unwillingto suggesta courseof actionthatcould
diminishthe prestige,power,or earningcapacityof thegroup.
VI. AN ATTEMPTEDSYNTHESIS
It should still be maintained,I would claim, that legal

rules-including many that have a great impact on practical
life-frequentlyare and have been dysfunctional,
thatis, out of step
withtheneedsand desiresbothofsocietyat largeand ofitsrulingelite,
a growingawarenessin theUnitedStatesthatsomething
is amisswiththe legislative
process.See, e.g., G. CALABRESI, A COMMON LAW FOR THE AGE OF STATUTES
(1982).
and thatthisis notand has notbeenunknownto thosewhocan reform

the law. To a considerable, but as yetunmeasured, and possiblyun-
measurable,extentthis is because the sourcesof law themselves are
ofteninadequateto thetaskofkeepinglaw up to dateand ofremoving
its ambiguities.When thissituationpersistsfora longtimeit suggests
thatthosewho can influence legal changehavea positivedisinclination
againstradicalreform.In addition,the legal traditionitselfplays an
important rolein shapinglegalchangein a numberofways.For exam-
ple, borrowingfrom* other systems,the formtaken by most legal
change,is by no meansalwaystheresultof a systematic searchforthe
best solution.A bias tendsto favorsome particularsystem,and this
bias is rootedto someextentin the legal tradition.Moreover,evenin
timesof revolutionary is theproductof his-
change,thelegal tradition
tory,particularly of legal history.A remarkof Karl Marx is verya
propos:
Men maketheirown history, buttheydo notmakeitjust as
theyplease;theydo notmakeit undercircumstanceschosen
butundercircumstances
by themselves, encountered,
directly
fromthepast.The tradition
givenand transmitted ofall the
weighslikea nightmare
dead generations on thebrainofthe
living.'2'
Fromtheforegoing, it shouldbe obviousthatlaw existsand flour-

ishesat thelevelofidea,and is partofculture.As cultureit operatesin
at least threespheresof differingsizes,one withinanother.As these
spheresdecreasein size law becomesa morepervasiveand dominant
elementin the cultureof thatsphere.The spheresare: thepopulation
at large,lawyers,and the lawmakers.By "lawmakers,"I mean the
membersof that elite group who in a particularsocietyhave their
handson the leversof legal change,whetheras legislators, judges,or
jurists.
For presentpurposes,we mayacceptas a definition of culturein
general the summaryformulationof A.L. Kroeber and Clyde
Kluckhohn:
Cultureconsistsof patterns, of and for
explicitand implicit,
behavioracquiredand transmitted by symbols,constituting
achievements
the distinctive of a humangroup,including
theirembodiments in artifacts; the essentialcore of culture
derivedand selected)
consistsof traditional(i.e. historically
121 BrumaireofLouis Bonapartein K.

Marx, The Eighteenth MARX & F. EN-
GELS, SELECTED WORKS 96 (1968).
ideas and especiallytheirattachedvalues; culturesystems

may,on the one hand,be consideredas productsof action,
on theotheras conditioning elementsof furtheraction.'22
Law, of course,is functional and practical.To someextent,it fa-

cilitatessocialand economiclife.At a minimum, it existsto institution-
alize disputesituationsand to validatedecisionsgivenin theappropri-
ate processwhichitselfhas thespecificobjectof inhibiting unregulated
conflict.It maydo thiswithouthavingtherulesbestadaptedforsociety
as a whole or for leadinggroups.It is important, too, that not all
groupsin a societyare affected by legal rulesto thesame extent.One
group,though,is alwaysaffected: the lawyers.They earn theirliving
by the law. A changethatmade thelaw simpleror less ambiguousor
reducedthe volumeof disputes,actual or possible,could have an ad-
verseeffect on theirincome.In addition,thestock-in-trade ofa practic-
ing attorneyis his or her knowledgeof the existinglaw. A drastic
changecould reducethe mostexperiencedpractitioner almostto the
levelof a beginner.
For a rule to becomelaw it mustbe institutionalized. It mustgo
throughthestagesrequiredforachievingthestatusof law. A new for-
mulationexpressedby a juristmightbecomeacceptedby otherjurists;
or a courtmayuttera judgmentwhichthesystemrecognizes as binding
precedent and makespartof generallaw; or social ideas mightbe put
in the acceptableform,pass throughthe stagesin the legislaturethat
are regardedas necessaryand becomea statute.Because lawyersand
lawmakersare involvedin all of theseprocessesa rule cannotbecome
law withoutbeingsubjectedto legalculture.Equally important, a legal
changemayresultfromlegal culturealone. For example,a juristmay
developa newrulebasedon hisor herstudiesthatmayfindfavorwith
his or her fellowsbecause its logicaleleganceappeals to them.This
does notmean,however, thata ruledevelopedin thismannerwill nec-
essarilyhave no practicaleffects.123
But whenpracticaleconomicor socialreasonssuggestthatthelaw
shouldbe changed,thepressureforsucha changemustalso operateon
theculture.124 If suchpracticalpressurestartswiththelawmakers, it is
onlytheirculturethatis involved;if it startswiththe lawyers,their
1"I A.L. KROEBER & C. KLUCKHOHN, CULTURE: A CRITICAL REVIEW OF CON-

CEPTS AND DEFINITIONS 181 (1952).
1"8 The Proculiansdenied the advantagesof the contract
of sale to barter-like
transactions,
because it would not be possibleto determine
who was buyerand who
was seller.
114 For theimportance of"pressureforces"forlegalchange,see Watson,Compar-
ative Law and Legal Change,37 CAMBRIDGE L.J. 313, 324-26,332-33 (1978).
1154 UNIVERSITY OF PENNSYLVANIA LAW' REVIEWI' [Vol. 131:1121
own cultureis involvedand the pressuremustbe directedagainstthe

cultureof the lawmakers;if it startswiththe populationat large (or
some segmentof it, otherthan lawyers)thenits legal cultureis in-
volved,but the pressuremust,once again,be directedagainstthecul-
tureof the lawmakers,usuallythroughthemediumof lawyers.Thus,
even when practicalneedsand the social pressuresarisingfromthem
determine thata legal changemustoccur,boththetimingand thena-
tureof thechangewill be mediatedthroughthelegal culture,particu-
larlythroughthatofthelawmakers.As Marshal Sahlinssaysin a dif-
ferentcontext:"The generaldeterminations ofpraxisare subjectto the
specificformulations of culture;thatis, of an orderthatenjoys,by its
own properties as a symbolicsystem, a fundamental autonomy. 115
In an earlierworkI soughtto set out the factorsthatgovernthe

legal changesthatare made,and thoseinclude,naturallyenough,the
needsthatare feltby a groupthatactsas a pressureforce.126 But what
has emergedfromthesefourbooksis myappreciation of theenormous
powerof the legal culturein determining the timing,the extent,and
the natureof legal change.Social, economic,and politicalconditions
that affectothergroupswithinsocietyare important, of course,but
theirimpacton thelegal rulesmustnotbe exaggerated. For example,
such conditions may lead to the existenceof barteras a social institu-
tionin a particularsocietyat a particulartime,butthelegal rulessur-
roundingbartermaybe onlya veryapproximate fitofthosedesiredby
tradersand may insteadderivelargelyfromthe influence of the legal
culture.Legal issues,suchas whetherbartershouldbe giventhestatus
of contract;whethera contractof bartercomesinto beingsimplyon
agreement; or whetherwritingis requiredfortheformation ofthecon-
tract;whetherdeliveryalone createsthe obligation;and whetherthe
remedyforbreachis specificperformance, moneydamages,thereturn
of goodsalreadydelivered, or themoneyvalue of deliveredgoodsmay
all be determined, notout of concernforpresentmercantile practiceor
merchants, but rather by thetenetsof the existing legal culture.These
tenets,in turn,may have been createdin the distantpast. Mercantile
practicemayitselfcometo be influenced bytherulesestablished on the
basis of legal culture.
Failureto appreciatethepowerand theautonomy oflegal culture
maylead scholarsintointeresting and illuminating errors.For instance,
the avowedlyMarxistMark Tushnet,in discussingtheAmericanlaw
ofslavery,says:"The insertion ofslavelaw intoa bourgeoisframework
128
M. SAHLINS, CULTURE AND PRACTICAL REASON 57 (1976).
126 Watson, supra note 124. See also, CIVIL LAW, supra note 11, at 182-84; Wat-
son,Society'sChoiceand Legal Change,9 HOFSTRA L. REV. 1473 (1981).
therefore causes new problems, as bourgeoisprinciplesmustaccommo-

date the incompatibleprinciplesof slave law."'27 He feelsthat the
principalproblemthus identified is thatin a bourgeoissocietylabor
poweris consideredfungiblewithmoney,but in slave law "we should
finda reluctance to treatall formsof property, and especiallyslaves,as
reducibleto a commonmeasurein money."1128 If law weredetermined
bythesocialrelationsof production, we wouldexpectto findthereluc-
tance Tushnetposits.But, in fact,in ancientRome, a quintessential
slave society,all privatelaw actionswithoutexception,even those
broughtclaimingownershipof a slave, were formoneydamagesor
penalty.And in nineteenth and twentieth century Germany,a quintes-
sentialbourgeoissociety, actionsforcompensation in moneyare limited
to a few expressexceptionalcases. For instance,even fordamageto
property, the BiirgerlichesGesetzbuch (BGB) section249 givesan ac-
tionforcompensation in kindas theprimaryremedy, thoughthecredi-
torcan choosecompensation in moneyas an alternative.129Section241
says thatthe effectof an obligationis thatthe creditoris entitledto
claimperformance fromthe debtor.130
The claim that cultureis fundamentally autonomouswould be
challenged,I think,by someMarxists.But I am convinced by Sahlins:
"The firstproblem,howto accountforthekindsofgoodsa societywill
produce,theirpreciseformand content, is a questionwithoutanswer
in Marx's theory.. . . The 'systemof needs'mustalwaysbe relative,
notaccountableas suchbyphysicalnecessity, hencesymbolic bydefini-
tion."'131No theoryof economicmaterialism will explainwhy dog is
noteatenin theUnitedStates;whythefleshof steersis highlyfavored
whentheeatingof soyabeanscouldproducethesamematerialresults;
whymenwearor woretiesaroundtheirnecks;or whywomenwearor
woreribbonsin theirhair. If it be suggestedin replyto thelast point
thatin viewoftheireconomicdependence womenhad to appear"femi-
nine"theparticularchoiceofhairribbonsas opposedto neckties would
stillbe withoutexplanation.
The formulation of a cultureis a processof rendering experience
127 M. TUSHNET, THE AMERICAN LAW OF SLAVERY 1810-1860at 158 (1981)

[hereinaftercitedas M. TUSHNET, SLAVERY]. But elsewhere,Tushnethas demon-
strateda keen awarenessof the relativeautonomyof law, althoughapparentlyonly
withina classical Marxist framework. on theDevelopmentof
Tushnet,Perspectives
AmericanLaw: A CriticalRetiezvofFriedman's"A HistoryofAmericanLaw", 1977
Wis. L. REV. 81.
I'l M. TUSHNET, SLAVERY, supra note127, at 157-58.
29 BURGERLICHES GESETZBUCH [BGBI ? 249 (W. Ger.).
130 BGB ? 241.
131 M. SAHLINS, supra note 125, at 148, 150.
meaningful and, as Franz Boas argued,132 "necessarily proceedson a

theory-ofnature,ofman,of man's being in nature.This theory,how-
ever,remainsunformulated by thehumangroupthatlivesit.""33This
unformulated theoryis, ofcourse,sharedby themembers ofthegroup.
The morebasican elementoftheculture,themorediffident a member
of the groupwill be in modifying it and the moreviolentwill be the
attackby thegroupon anyonewho suggestschange.
This viewof thelegal culturebeginsto explainthreeof thestrik-
ing featuresof legal growth.First,even in a timeof consciouslegal
reform, the sourcesof the law are oftennot consideredcandidatesfor
reform. The formalmechanism formakinglegal rulesis morebasicin
theculturethanare individuallegal rules.Second,it providesone ex-
planationforthewell-known phenomenon thatoftenfundamental law
reform, especiallyreform of thesources,proceedsfrom,or is suggested
by,someoneoutsideof thetwo innercirclesof legal culture.The best
illustrationforthisis the factthatthe impetustowardscodification of
thelaw in theinterest of clarityor simplicityoftendoes notcomefrom
lawyersor legislatures and traditional lawmakersbutfromdictators or
otherpowerfulleaderswho havemadetheirreputation in otheractivi-
ties: for example,Lipit-Ishtar,Hammurabi,Moses, Julius Caesar,
Pompeythe Great,Justinian,Frederickthe Great,Napoleon,or Ata-
turk.That theirdominating positioncouldget theirlaws passedmore
easilyis notthe issue: whatmattersis thattheyproposedand pushed
strongly forradicalreform ofthesources.To theextentthattheywere
outsideoftheculture,theywereless influenced by it. They weremore
aware of thedefectsand confusions of thelaw, and less sensitiveto the
and pressuresof the membersof the innerringof the
susceptibilities
legal subculture.Similarly,forSir William Blackstone,Englishlaw
was near-perfection; forJeremyBentham,it was anathema.Creative
judges,too,are oftenoutsidersin somesense,or setapartin someway
fromtheircolleagues:an outstanding exampleis Mansfield,a Scot in
England.AnotherScot in Englandwho,impatient withthecomplexi-
ties of English law, was responsiblefor much reformis Henry
Brougham. 13 In fact,muchof the strugglein Englandin the nine-
teenthand earlytwentieth centuriesforproceduralreform was led by
the public,not by the bar.135
132
See generally,F. BOAS, RACE, LANGUAGE AND CULTURE (1966).
133
M. SAHLINS, supra note 125, at 70 (discussing Boas's theories and works).
134
See J.BAKER, AN INTRODUCTION TO ENGLISH LEGAL HISTORY 186-87(2d
ed. 1979).
136 See Sunderland,The EnglishStrugglefor ProceduralReform,39 HARV. L.
REV. 725 (1926). For the opinion that in the United States the reformof the law of
evidence would not come fromthe bar, see E.M. MORGAN, THE LAW OF EVIDENCE
Third,the conceptof a legal culureI have describedallows fora

betterunderstanding of thetransnationalcharacterof legal change.To
a considerabledegree,the lawmakersof one societysharethesame le-
gal culturewiththe lawmakersof othersocieties.This is particularly
clear when a complex,ancient,writtenworklike Justinian'sCorpus
in a numberofstates.Thus, to
JurisCivilisis acceptedas authoritative
theextentthatlaw is determined byeconomicformsand is notautono-
mous,and to the extentthatthe legal cultureis based on local tradi-
tions,the law of two neighboring territories
need notconverge;but to
the degreethatthe cultureis shaied by the two setsof lawmakers,it
will.
One finalpointshouldbe stressed.If thearguments put forward
hereare sound,thenlaw is oftendysfunctional withregardto societyas
a wholeor groupswithinit. When thisis so, thecause is frequently to
be foundin thelegal tradition.In otherwords,law operatesas culture
not onlywherethe practicaleffects of the rulesare economically,so-
cially, or politicallyindifferent
to as
society a whole, to powerful
groups,or to the rulingelite, but even where they are positively
detrimental.
66 (1927). It is a commonplace in sciencethat

[ailmostalways the men who achievethesefundamental of a
inventions
new paradigmhave beeneitherveryyoungor verynew to thefieldwhose
paradigmtheychange. ... [O]bviouslytheseare themenwho,beinglit-
tle committed rulesof normalscience,
by priorpracticeto the traditional
are particularlylikelyto see thatthoserulesno longerdefinea playable
game and to conceiveanotherset thatcan replacethem.
T. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 90 (2d ed. 1970) (footnote
omitted).

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Legal Change: Sources of Law and Legal Culture

Author(s): Alan Watson

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LEGAL CHANGE: SOURCES OF LAW AND LEGAL

The mostimportant generallegal questions,it seemsto me, both

t Professor of Law and ClassicalStudies,University ofPennsylvania. M.A. 1954,

law, legal history,and sociologyof law.

centrateon changeand innovation. They wishto explainwhyan inno-

I A. H. MANCHESTER, A MODERN LEGAL

gal rulesand society,I believeit is necessaryto look at a numberof

9 A. WATSON, LEGAL TRANSPLANTS, AN APPROACH TO COMPARATIVE LAW

II. THE MAKING OF THE CIVIL LAW

Let me startwiththe thirdbookin thesequence,whichhas met

'3 Dawson, Book Review,49 U. CHI. L. REV. 595 (1982).

Even the standardvariationsfromJustinianin thoselaterInsti-

This shortaccountof Englishlaw is dividedinto booksand chapters,all of which

themsponsoredby universities."26 But why,in contrastto earlycom-

of local law. The end resultof this enormous,sustainedintellectual

obviouslyprovoked,but I do not see why.What I said was thatthe

37 CIVIL LAW, supra note11, at 83.

learn it is frombooks,whichin turnprovokesystematic inquiryinto

42 See supra textaccompanying notes23-28.

and second,whysuccessfulcodification emergedrelatively late in civil

4" Dawson, supra note 13, at 602.

divisionbetweenpubliclaw and privatelaw in civillaw systems. (The

III. SOCIETY AND LEGAL CHANGE

If the legal traditionitselflargelydeterminesthe patternof

"I LEGAL CHANGE, supra note10.

againstlife.It is order;it is justice;it is also fear,insecurity,

Of course,all this is mereassertion,and rhetoricalassertionat

"6 L. FRIEDMAN, supra note6, at 595. For a reviewthatadequatelydemonstrates

to thoseable to effect change."9It mustbe stressedthatI am notcon-

society.Rather,theyindicatethatany theorywill have to be complex

accountof the characteristicsof otherlegal systems.In the growthof

" The word"functional" is used herebroadly,to includethenotionsof symbolic

was, as I repeatedlystatedand mustnow emphasize,primarilycon-

criminallaw, are all the apparentabsurditiesand injusticesflowing

mass, urban, industrializedsociety;forthose involved"the precise contentof the rules is

76 See LEGAL CHANGE, supra note 10, at 92-94.

The formerobservesthat while partsof Roman law survive,whole

80 Friedman,supra note55, at 128.

83 LEGAL CHANGE, supra note 10, at ix.

soughtassiduouslyto circumvent it. The failuresin Englishlaw until

88 LEGAL CHANGE, supra note 10, at 9.

fathersformeda groupor class, but theywere not a cohesivesocial,

9" Abel,supra note61, at 791.

converseargument, whichprevailed,of the rivalProculianschoolwas

See id. at 19.

againstlatentdefectsin theRomancontract of sale, thereis an insolu-

IV. LEGAL TRANSPLANTS

Very littleneed now be said about the subjectof the firstbook,

where,but ratherlooksconsistently to one system,whichat timeswill

SourcesofLaw; Legal Changeand Ambiguity has notyethad the

fewexceptionssuchas GiovanniBattistade Luca (1614-83),verylittle

such an inaccessibleshape as theyare; but,no doubt,one explanation

118 N. LINDLEY, A TREATISE ON THE LAW OF PARTNERSHIP 2 (W. Lindley6th

Englishlaw also has a systemof bindingprecedent. The element