A second conclusion is that rules, institutions, concepts and structures transplant easily. For the lawmaker the simplest approach to the problem in front of him is to borrow from elsewhere. After all, this approach provides him with authority and e\en with an exampie. Mv suggestion is that the lawmaker realize the enormous frequencv of transplants and recognize that though to borrow will make his task simpler-it sa\ es him from the toil of thinking, never easv-the borrowed law mav not be ideal. A third conclusion is that often one svstem such as Roman law or French law becomes the svstem to borrow from, even when it is not appropriate. 1 can think of no more striking examples than two recent cases from Scotland and South Africa respectitely on public rights in 'public' and 'na\ igable' ri\ ers, in which there was some discussion of Roman law. It is not just that in climatic conditions Rome was remarkablv different from Scotland and South Africa, and each of these from one another. The Roman law is, in fact, unknowable!'' .\t the verv least the standard pattern for borrowing is that lawmakers look at onlv a small number of svstems. My suggestion is that lawmakers should be on their guard against facilely borrowing from an approved system. Fhey should be conscious of what thev are doing, as thev often are not. A fourth conclusion is that se\eral systems may habitually borrow from the same source, such as Roman law. My suggestion is that for a common law for the E.U. we should not take a simplistic \ iew of the worth of a 'common core.' In the .\ge of Reason one fundamental secular view of natural law was that it was the 'law of reason.' This law of reason, it was thought, was not to be found after deep reflection by the few, but was accessible to most people without much thought. Howcould this, almost innate, law be 9 See now, Alan Watson, 'Aspects of Reception of Law,' 44 AlCL {1996), pp. 335ff., at pp. 346ff. 168
RkJQdWJsaXNoZXIy MjYyNDk=