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Comparative Law and Legal Change

Published online by Cambridge University Press:  16 January 2009

Alan Watson
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Extract

Law, of course, exists in society and for society's needs. It is a man-made construct to facilitate social activities. Law is inconceivable without society. Societies vary greatly, and so do legal rules. A perennial question is “Do legal rules reflect a society's desires, needs and aspirations?” The answer which is ordinarily given or is just assumed is positive though minor qualifications are usually urged. And yet, the two most startling, and at the same time most obvious, characteristics of legal rules are the apparent ease with which they can be transplanted from one system or society to another, and their capacity for long life. With transmission or the passing of time modifications may well occur, but frequently the alterations in the rules have only limited significance.

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Articles
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The Cambridge Law Journal , Volume 37 , Issue 2 , November 1978 , pp. 313 - 336
Copyright
Copyright © Cambridge Law Journal and Contributors 1978

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References

1 I am well aware that the abstraction “society” cannot have needs, desires or aspirations. But I unashamedly use the term “society” to designate the persons, considered as an entity, who inhabit a particular territory.

2 For a recent example see Friedman, L. M., A History of American Law (New York, Simon & Schuster, 1973), p. 595.Google Scholar

3 See, e.g., Watson, A., Society and Legal Change (Edinburgh, Scottish Academic Press, 1977), pp. 61Google Scholaret seq. The same work contains numerous other examples of longevity.

4 Society and Legal Change.

5 Watson, A., Legal Transplants (Edinburgh, Scottish Academic Press; Charlottesville, University Press of Virginia, 1974); the quotation is on p. 9.Google Scholar

6 Legal Transplants, p. 4; see also Tur, R. H. S., “The Dialectic of General Jurisprudence and Comparative Law” (1977) 22 Juridical Review 238Google Scholaret seq.

7 For recent discussions see Kahn-Freund, O., “On Uses and Misuses of Comparative Law” (1974) 37 M.L.R. 1Google Scholaret seq.; Watson, A, “Legal Transplants and Law Reform” (1976) 92 L.Q.R. 79Google Scholaret seq.; Stein, E., “Uses, Misuses—and Nonuses of Comparative Law” (1977) 72 Northwestern University Law Review 198Google Scholaret seq.

8 The same conclusion is reached though by a different route in Legal Transplants, pp. 1 et seq.

9 Quoted by Robins, R. H., Short History of Linguistics (London, Longmans, 1967), p. 171.Google Scholar

10 Course in General Linguistics, ed. by Bally, C., Sechehays, A. and Riedlinger, A., translated by Baskin, W. (New York etc., McGraw-Hill, 1966), p. 6.Google Scholar

11 See e.g., Lawson, F. H., A Common Lawyer Looks at the Civil Law (Ann Arbor, Michigan Law School, 1957)Google Scholar; Merryman, J. H., The Civil Law Tradition (Stanford, Stanford University Press, 1969)Google Scholar; Zweigert, K. & Kötz, H., Introduction to Comparative Law, 1, 2, translated by T., Weir (Amsterdam, etc., North Holland, 1977).Google Scholar

12 I am thinking primarily of Maine, H., e.g., Ancient LawGoogle Scholar (various editions) and of Diamond, A. S., Primitive Law Past and Present (London, Methuen, 1971)Google Scholar; See already, Legal Transplants, pp. 12 et seq.

13 Though comparative lawyers often treat as the particular value or point of their subject what is really the value or point of studying a foreign system e.g. that it permits a better understanding of one's own law.

14 Vom Beruf unsrer Zeit für Gesetzgebung und Rechtswissenschaft, 3rd ed. (Heidelberg, Mohr, 1840), p. 10.

15 Constitutional History of England (Cambridge, Cambridge University Press, 1908), p. 21.Google Scholar Maitland's accuracy is not our prime concern since we are most interested in his attitude.

16 This is not true of all courts, e.g., the U.S. Supreme Court.

17 For one view relating to a particular time and place see Horwitz, M. J., The Transformation of American Law 1780–1860 (Cambridge, Mass., Harvard University Press, 1977).Google Scholar

18 See already, e.g., Kocourek, A., “Factors in the Reception of Law,” Studi in memoria de A. Albertoni (Padua, Cedam, 1938), pp. 233Google Scholaret seq.; Watson, A., Society and Legal Change, pp. 98Google Scholaret seq.

19 See, e.g., Twining, W., Karl Llewellyn and the Realist Movement (London, Weidenfeld and Nicolson, 1973), pp. 270Google Scholaret seq.

20 Der Kampf um's Recht 20th edit. (Vienna, Danz, 1921).Google Scholar

21 For a recent discussion see Dworkin, R., Taking Rights Seriously (London, Duckworth, 1977), pp. 31Google Scholaret seq.

22 See the Donner Report published on 26 August 1976.Google Scholar In his statement that day, the Dutch Prime Minister, Mr. Joop den Uyl, did also declare that the right to criminal prosecution had lapsed. But leading Dutch professors of constitutional law claimed that Prince Bernhard was liable to prosecution. For another instance of discretion of which very many would approve see Coombs, M., “Juvenile Curfew Ordinances and the Constitution” (1977) 76 Michigan Law Review 109.Google Scholaret seq.

23 Formerly the Austrian Civil Code, the Allgemeines biirgerliches Gesetzbuch, reasonably contained separate provisions for Jewish marriages: see §§ 123–136.

24 Though where the Source of Law is juristic doctrine, and the writings of a particular jurist have great weight, the Pressure Force relating to a particular rule may be very slight.

25 The Nature of Law (Edinburgh, Edinburgh University Press, 1977).Google Scholar

26 Cf. Nature of Law, pp. 114 et seq.

27 Instructive is Offer, A., “Origins of the Law of Property Acts 1910–1925” (1977) 40 M.L.R. 505Google Scholaret seq.

28 See Watson, A., “The Rise of Modern Scots Law,” in La formazione storica del diritto moderno in Europa 3 (Florence, Olschi, 1977), pp. 1167Google Scholaret seq.

29 Simpson, A. W. B., “Innovation in Nineteenth Century Contract Law” (1975) 91 L.Q.R. 247Google Scholaret seq. at p. 251.

30 See already the example set out in Society and Legal Change, pp. 140 et seq.

31 On the issue, see now, e.g., Unger, R. M., Law in Modern Society (New York, Free Press, 1976), pp. 1Google Scholaret seq., and the works he cites.

32 Act to provide for the Codification of the Laws of Lower Canada relative to Civil Matters and Procedure 1857, 20 Vict. c. 43.

33 s. 4.

34 See, e.g., McKnight, J., “Some Historical Observations on Mixed Systems of Law” [1977] Juridical Review 177Google Scholaret seq. Possibly the early fusion of law and equity is one result of the civil law influence.