code civil that general rules relating to a diminution of water eame into being. Anglo-.\merican water law, with its basis in torts, is \er\’ different.^^ Roman law is not unique. Idsewhere, toti, as in Idiglish law, the early past casts long shadows, and determines much that is to come. "This is \er\' much true of Idiglish common law though the relative absence of systematization renders demonstration rather more diffficult. 'The great Idiglish legal historian, S.l'.Cd Milson, saws it best when writing of land law: "'The rules under which so much of the wealth of Idigland was held for so much of its history were made and unmade b\’ these processes, so e.xtraordinarv when looked at as a whole and backwards, so reasonable step Iw forward step." ' .\ particular e.xample, famous for its comple.xities, from Idiglish land law (originally) is the Rule Against Perpetuities which still bedet ils much of .\merican law.^’ f urther examples from fdiglish law, chosen not quite at random wotdd be 'Benefit of Cderg\ ' which for centuries rendered criminal law farcical, and the long-li\ed, historically dominated, distinction between libel and slander.’" 1 ha\ e chosen extreme examples for this chapter, but often it is the banal-seeming instances that are the most enlightening. .\ minor, but extremeh’ significant e.xample is the histor\' of the contract v>i maildatum. 'The Roman consensual contract of niandatinn existed at the latest in 12:^ b.c:. ” It arose when one person agreed to act gratuitous1\' on behalf of another. The absence of am' remuneration was of the 24 For the full argument, see e.g. Watson, Evolution, pp. i38ff. 25 Historical Foundations of the Common Law (Boston, 1981), p. 199. For more on Milson's account of the development of English common law see Watson, Evolution, pp. 55ff. 26 See e.g., A.W.B. Simpson, Introduction to the History of the Land Law, 2d ed. (Oxford, 1986), pp. 223ff. 27 See, e.g., Watson, Society, pp. 92ff. 28 See, e.g., Watson, Society, pp. 6iff. 29 See Alan Watson, Contract of Mandate in Roman taw(Oxford, 1961), p. 22. 77
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