Authority of Law; and Law Institutet för Rättshistorisk Forskning . Olin Foundation . Grundat av Gustav och Carin Olin
Serien III Rättshistoriska Skrifter Femte Bandet , GC
Authority of Law; and Law Alan Watson s
For Rosie McCulloch
Claes Peterson Pablo Sandoval åtta. tryckeri ab - -- -
Transformations of law: Justinian’s Institutes .., ; Stair; Mackenzie Appendix , Appendix , Appendix Justinian’s Corpus Iuris Civilis: Oddities of Legal Development; and Human Civilization The Ten Commandments and the Nature of Law Appendix , Appendix , Appendix Jesus and the Gerasene/Gaderene Demoniac ( .-) Armchair Lawyers: the Case of the Roman lex Aquilia Rationale of Law; and Authority
The Failure of Scottish Legal Education in the th Century, and the American Civil War Legal Culture v. Legal Tradition
main theme of this book is the overwhelming importance of authority for legal development. This necessary search for authority often prevents the rational development of a law fit for the society in which it operates.1 Even where authority should be least necessary for law making - statute law - legislators call in aid a higher authority than the power of the state. That the law may depend solely on force is denied. The need for authority accounts in large measure for the most striking feature of legal development: legal transplants. Such is the need for authority that even inappropriate law will be borrowed from the most acceptable donor. In the process the law may be transformed, but traces of the original will inappropriately survive, even for centuries. Again, despite the attribution, the authority is not infrequently a fake. 1 For a recent theoretical discussion of authority see Ton Hud, ‘Authority, Law and the Roman Experience’, Viva Vox Iuris Romani: Essays in Honour of Johannes Emil Spruit (Amsterdam, 2002), pp. 39 ff. T
Likewise, the need for authority is very often the cause of the phenomenon of long survival of dysfunctional law, even when the harmful effects are well-known, and when those who suffer are the elite with power to change the law. Because of the need for authority a break with the past is not easy. Closely associated with the need for authority should be the rationale for the legal rule or institution. And that there is a connection is obvious. But to characterize the connection in absolute terms is not easy. A legal rule may come into being without the rationale being expressed. Perhaps it was too obvious. But then, the rule may be seen to be not always appropriate. At that stage the law will usually not be changed, but the rationale will be ignored. Even when the rationale is expressed and is well-known it may he ignored when society changes but the law remains the same. It is in the nature of things that this study is primarily historical. It is not inappropriate that much space is devoted to Roman law, which has been the most admired and most influential secular legal system. Without its use as authority, modern western law would be very different. Alan Watson
eight lectures in this volume, though delivered on separate occasions, are interconnected and deal with my present preoccupations.2 To me the development of law and its relationship with the society in which it operates is mysterious. This relationship is more tenuous than scholars seem to think and does not appear to be a constant. Lawmaking depends on the imagination of law makers which often does not square with social reality. The overwhelming feature of law is the need for authority which 2 The first, delivered in Edinburgh, on 12 November 2001, as the Annual Stair Society Lecture will appear elsewhere with variations. I could not refuse its publication in a Stair Society Miscellany volume edited by Hector MacQueen. It appears here because it is fundamental to what I set out to do. T
is often hard to find, and often faked. From this need comes the immense use of legal transplants, and the astonishing longevity of unsuitable law. Of the four sources of law, legislation, custom, judicial decision and juristic opinion, only legislation can be free from this need for authority; but it is not. More-over, at most times in most places governments are little interested in making private law or even in the rules of criminal law. They leave much of law making to lesser beings who, indeed, are not directly given authority to make law. Each lecture deals with specific rules or specific events. I am not at ease with general theories of law and society. But I must insist that the particular topics with which I deal, though each is important in its own right, have a wider significance. They are not uniquely peculiar. If I had been giving a series of lectures to the same audience this Introduction would have been the concluding talk. It contains some material not discussed in the Lectures. In Lecture , I discuss one feature of legal transplants: legal transformation. When law moves from one society to another it may undergo change or appear very different in its new environment. I chose as my topic the Roman treatment of natural law and ius gentium (which has more than one meaning). In classical Rome natural law was a focus of attention for the philosophically minded, and there was more than one approach. But the Roman jurists were not interested in legal theory, only in positive law. So they gave natural law a meaning that meant it could be discarded and left undiscussed. Natural law was defined as law that applied to all animals including humans, hence it was nothing more than instinct, not law at all. (Though natural law does occasionally appear in other Roman legal contexts, it is not seriously discussed as a theory or general guide for conduct.) Moreover, Justinian’s Byzantine compilers stuck closely to the substance of their Roman sources. Thus, in the Institutes and also
in the Digest, with the borrowing of Roman law, fiercely Christian Byzantium appears to be godless. The law may not have been transformed, but the society had been. I also note in the talk that ius gentiumis confusingly used with several meanings in the Institutes. Unsurprisingly, the main text has been mistranslated to this day. Of course, frailties in the text of the Institutes were noticed early, and later accounts of natural law take Christianity especially into account. Still the need for authority is so great that strong traces of Justinian, including illogicalities, remain. As illustrations I look at two very different institutional writings fromth century Scotland, those of Lord Stair and Sir George Mackenzie. Along the way I bring in the strong impact of authority for legislation even in a totalitarian state such as Nazi Germany. I have a lengthy appendix on Rudolf Sohm whose Iustitutionen was first published inand in a later edition it is still in print. The long quotation is entirely proto-Nazi: law is for the preservation of the Volk, the people, not for the security of the individual. Only, Volk is not defined as it was later as the Aryan community. My interest in this is precisely that Sohm’s book is on Roman private law, was the standard textbook for first-year law students, and would be well-known to all law professors, practicing lawyers, law students and Nazi party officials, including Hans Frank the first president of the Academy for German Law. The law in the quotation is far removed from Roman private law. My contention is that Nazi law was easier to accept by the German legal elite because the principles on which it was based were already treated as correct and vital in a basic teaching book. So, obviously, it is wholly appropriate. Olivia Robinson has urged me that there should be a separate chapter on this subject. I agree, but with reluctance and resignation I accept that I have not the necessary skill or knowledge to show exactly how Sohm impacted on Nazi
theory. Accordingly, I wish in this Introduction and Lecture to call attention to Sohm (and others) as forerunners of Nazi law. Sadly, legal education may have an impact on real life. At the end of the Lecture I stress, on authority for the transformation of law rather than for the creation of fresh law, that its impact is not just on theoretical issues but also on practical law. I choose to mention the Roman law of damage to property, a topic to which I return in Lecture. The issue is a general one, and I could have chosen many other examples of transformation. The borrowed law is much changed, but the old law retains an unnecessary impact. A prime example is the Roman contract of mandatum, mandate, and mandat in the French code civil of . The Roman contract of mandatum was elegantly constructed.3 It was a consensual contract in which one party agreed to do something gratuitously for another. That no reward was intended was an essential necessity for the contract.4 If a money payment was intended, the contract was locatio conductio, hire, unless the arrangement involved an ars liberalis, a liberal art, in which case there was no contract. If a reward was intended but not in money there was again no contract but the action called condictio might be permitted if one party had performed his share. The code civil which is very confused, turns matters on its head. Thus, article reads: “Mandate is gratuitous, unless there is agreement to the contrary,” The Belgian E.R.N. Arntz comments: “Mandate is gratuitous by its nature but is not essentially so as in Roman law. The authors of the code understood that in the state of our society and our habits, very different from that of the Romans, mandate is more often remunerated than gratuitous, and that the remuneration is a suitable indemnity for the work and loss of time.”5 The survival of mandat as a 3 D. 17.1. 4 Matters were somewhat changed when the action to or against the procurator became the actio mandati. 5 Cours de Droit Civil Français, 4, 2d ed. (Brussels, Paris, 1880), 155.
separate contract in French law is not readily and rationally explicable.6 In addition, Arntz points out the inconsistencies in the articles on mandat, and these he reasonably attributes to disagreements during the drafting of the articles. Yet here there is again irony. An issue for the draftsmen was whether there could be a tacit mandate, and the resolution was affirmative. Arntz notes the difficulties arising from the debates. But he gives as his first and prime example: “The married woman has a tacit mandate from the husband for the expenses of the household.”7 But it does not seem possible to see here within the marriage a specific contract of mandate. If she fails to buy necessary goods, how can the husband sue on the bilateral contract of mandate? For Lecture I remain with the Byzantine Emperor Justinian’s Corpus Iuris Civilis. It is, after all, the most authoritative legal work the western world has known, and at the same time is itself in very large measure a massive transplant from classical Roman law. The whole enterprise and its success are extremely surprising. Justinian began with making a collection of rulings of the Emperors. This is not surprising in itself since there were precedents, and for long such rulings had been virtually the only source of new law. This Code was published in April . In December Justinian ordered the compilation of a collection of Roman juristic texts, theDigest. Thus, the Code and the Digest were not thought of as a unit. Roman jurists had stopped writing books around A.D., so the Digest contains virtually no texts after that date. It is usually said that Justinian’s instructions to the compilers included making substantive changes to bring the law up to date. This is a misunderstanding, probably due to the fact that Justinian’s bizarre method of legislation is almost beyond 6 Except perhaps as a strange reminiscence of the Roman concept of artes liberales? Some professional services are so noble that they should not be regarded as hire. 7 Cours, 4, p. 153
comprehension. The compilers were given no authority to change the substance of the texts, and there is almost no interpolation of substance. For example, the jurists were all pagans, hence no mention is made of Jesus, apostles, saints or fathers of the church. In fact, the term god occurs in only twelve texts and on their face we cannot tell whether this is a pagan deity or the Christian God. Justinian devotes book title to a history of the law, of public offices and of the jurists. Roman jurists, with the exception of Pomponius and Gaius, were little interested in legal history, and the title contains only extracts from them. Both stopped writing shortly after A.D., hence for Justinian legal history stopped then. The great jurists, Papinian, Ulpian and Paul, who are later, do not appear. For historical reasons dating back to the th century B.C., the Roman jurists wrote little on public law, hence that balance remains in the Digest, which accordingly is overwhelmingly about private law. Indeed, since Byzantine administration was very different from that of classical Rome, much of what is said about public law had long been obsolete. The jurists had written almost entirely in Latin, hence that is the language of the Digest even though most of even the educated citizens of the early Byzantine empire could not understand it readily. Somehow connected with the compilation of the Digest is the lost work known as the Fifty Decisions which was meant to settle disputes among classical jurists. The collection is revealing in at least two ways. First, it emphasizes that the compilers of the Digest were not authorized to change the substance of juristic texts, otherwise theFifty Decisions would have been superfluous. Secondly, it shows that Roman jurists were not seriously interested in law reform: otherwise important civil servants such as Julian, Papinian, Ulpian and Paul, would have had the law settled by a ruling of the Emperor. The jurists’ interest and their prestige depended on their skill (and its recognition) in legal interpretation.
The compilers of the Digest were instructed not to repeat what was set out elsewhere which can only mean in theCode. Hence, although theDigest does not truly reflect Byzantine legal conditions, it also gives a very partial picture of Roman law even as set out by jurists. Much of what they wrote would be incorporated in rulings of the Emperors. A secondCode (which has survived) was issued in. Presumably the intention was to incorporate the Fifty Decisions, and this accounts for its loss. The final part of Justinian’s codification -- we need not here deal with the later Novellae - was the brilliant idea of an elementary firstyear students’ textbook with the force of statute. The conception was brilliant but the execution less so. The book was planned from but work on it began only when the Digest was completed, and both Digest and Institutes were to come into effect on the same day. Justi-nian would not want the enforcement of the Digest to be delayed, so the draftsmen of theInstitutes were under extreme time pressure. The model was to be the Institutes of Gaius written just after the middle of the second century. What is truly strange is that the draftsmen were not only in a rush but had in front of them as they worked only classical elementary textbooks: not even the Digest and the Code. When these institutional books were inadequate or inappropriate the draftsmen relied on their memory which was often faulty. Thus, on earnest money in sale they give different law from that in Justi-nian’s own ruling in the Code; the nature of liability for damages caused by animals is fundamentally different from the law in the Digest; and parts of real security law are garbled. Above all, the law of ac-tions which was very different from the procedure of classical Rome is largely incomprehensible. Not surprisingly, when the Institutes be-came the model for many writings on local law, especially in the th century, the law of procedure was typically omitted. Thus, Justinian’s famous codification is distinctly odd, a fact that
is generally downplayed by scholars, presumably unwittingly. I suspect that this is due to the success it enjoyed in the Reception. Authority counts for so much in law. But the historical irony for this authority and Reception must be stressed. If the work had been in Greek -- a language virtually unknown in the West until after the fall of Constantinople to the Turks in -- the Reception could not have occurred. Without the Institutes -- the only really systematic part of the compilation -- the Reception would have been much more difficult, if it could have occurred at all. If the compilation had adequately reflected social and political realities of early Byzantium it would not have fitted easily into Western Europe. And how could fiercely Catholic Western Europe have coped with law resonating with fiercely Byzantine orthodoxy? These first two lectures set the scene for the third, on the Ten Commandments. I hope I have already demonstrated that law does not develop in a straightforward way. This is true even of legislation. Legislation is often not forthcoming -- this is true for ancient Rome, and also accounts for the Reception. When lawmakers on the grand scale, such as Justinian, appear, it is usually hard to see in their legislation any precise social, political or economic message. I wish to examine the Ten Commandments from this perspective. In this connection I must stress that in what follows my concern is not with historical accuracy but with the tradition in Exodus. For my argument it is irrelevant whether or not God gave the Commandments to Moses. The tradition, accurate or not, corresponds, I suggest, to a general pattern of law making. Law, I have already stressed, must be authoritative. Legislation is different from other sources of law, such as judicial decisions, in that it alone proceeds directly from the government or ruler. And governments and rulers have only one essential talent: to remain in power. Everything else is subordinate. It is not necessary to provide the best
law for the people but only to ensure that the people will not rebel. Or better still, to provide law that will ensure continuing support. Throughout history, propaganda has been an important tool of rulers. The tradition of the Ten Commandments fits this interpretation. For me, despite their high authority and the great respect paid to them, the Ten Commandments have surprising features just as had Justinian’s treatment of ius naturale and ius gentium, and just as had Justinian’s Corpus Iuris Civilis itself. Their success is just as astonishing to me. Their appearance in U.S. court rooms is in flagrant contradiction to the doctrine of separation of church and state. The surprising features are that the laws divide into two parts, on the behavior of men towards God, and on inter-relations between humans. The first appears as the more important not just because it comes first but also because it is much more detailed. A bigger surprise - - astonishing, in fact -- is the nature of the rules on inter-personal relations. We are told that there should be no murder, no theft and no adultery. So what? It is not just that the rules are banal, but what is contained within each offense is not expressed, nor, moreover, is the essential matter of the appropriate penalty. Then, one has to honor one’s father and mother. This is so vague as to have no legal content as is shown by the experience with modern civil codes such as those of France and the Netherlands that have adopted similar provisions. Then, the reason or the penalty for the law is “That your days may be long upon the land that God gave you.” What does this mean? How can it be enforced? The final command is not to covet what is your neighbor’s. Coveting is an act of the imagination, in itself invisible to others. Finally, the laws are remarkably unthreatening in tone. I should perhaps add a further surprise: God’s insistence that when he gives the laws to Moses the people are to be excluded from seeing him. My explanation for all this is that in the tradition Moses is a leader in trouble, and he wishes to retain power. Moses’ authority comes
from God. God appointed him as the Israelites’ leader to bring them out of captivity in Egypt. Since Moses protested that he was slow of speech, God appointed Aaron to speak for him to Pharaoh. For God, Aaron is very much a subordinate but he appears to the Egyptians and Israelites as close to being on a level with Moses. During the Exodus, the Israelites were faced with threatening problems, one after another. The Israelites continually blamed Moses, with Aaron in the background. Moses’ father-in-law warned him he was wearing himself out, hearing law suits all day long, and told him he must find a solution. And God intervenes with the Ten Commandments on Mount Sinai. When Moses returns from the mountain he finds that there has been a revolt against God, and therefore against himself, with Aaron very much involved. The revolt is ruthlessly crushed though -- not atypically -- Aaron is coopted. Moses was appointed leader by God and his authority depended on God. Moses was a leader in constant trouble with his own people. He needed further authority that only God could provide. Moses’ leadership depended on his authority which derived directly from God. Hence the Ten Commandments. On the theories about leadership and legislation that I am proposing it is only to be expected that the stress in the commandments would be on the relationship with God. That bolsters Moses’ authority. He had little interest in inter-personal law -- that did not relate to his authority, that was not the ground of the Israelites’ objection to him-- hence the weakness of these provisions. It remains to mention the last provision against coveting, which seems purposeless. Not at all. Moses’ rule was threatened when Aaron coveted his position. The fourth Lecture takes us on to new ground which is nonetheless interrelated. Law is everywhere, even when this is not expressed. It must have authority, though this need not be spelled out. This law need not be that of a state -- in this case it is of a higher
religion, but equally it could be of a trade organization or other body to which one belongs. In Mark’s Gospel, Jesus was at this point in territory inhabited mainly by Gentiles. In fact, the territory was part of the Roman empire, part of the province of Syria. This is not expressly set out unless it is alluded to when the unclean spirit says his name is “Legion,” but he probably only means that the spirits are many. There may be no covert reference to the Roman army. Jesus meets a demoniac who lives in or among the tombs. The poor lunatic is therefore religiously and legally unclean because, of necessity, he overshadows corpses. This fact is not mentioned. Swine, including their mass suicide, are prominent in the episode. Pigs are notoriously unclean. Again this fact is not mentioned. There is no sign that Jesus became unclean under Jewish law. Having cured the demoniac, Jesus refuses to have him as a disciple. In Mark, the point of the episode is that Jesus’ message is not to the Gentiles. Law is not mentioned but it is all-pervasive. Indeed, it does not have to be mentioned, because its presence is known and is accepted as authoritative. A major facet of the Lecture is, of course, that law is everywhere but often not noticed. To give two contemporary everyday examples. First, sexual intercourse. Law is not at the forefront of the parties’ minds. But legally it may matter if your partner is someone else’s spouse, is under age though does not look it, if you are HIV positive, if your apparently happily willing partner is drunk enough to be incapable of consent, if you have oral sex (which until very recently was sodomy according to the law of Georgia). An equally everyday event is shopping in a supermarket. Is a tacit contract established when you enter the store? What liability is imposed, and on whom, if you drop a jar of pickles whose debris cause another customer to fall and be injured? Is the store liable if you pick
up intending to buy a bottle of beer which explodes and blinds you, if the label warns you of danger? Is the store liable for injury caused by another customer whom its employees have allowed to enter? Is it liable for the act of an assistant who had been carefully selected and trained? There will (usually) be answers to these questions, but that is not my point. For me the issue is that we go about our business without much thinking about the law that is nonetheless authoritative. Again, law is everywhere, and I have long been fascinated by the extent to which scholars in other disciplines fail to do justice to their own subjects by ignoring or misunderstanding law.8 An interesting example occurs in volume one of the distinguishedReligions of Rome by Mary Beard, John North and Simon Price.9 They write: “The precise and apparently legalistic formulae of this and other vows has often given the impression that Roman vows were ‘contractual’ in the sense that the gods were seen as laid under an obligation by the mere fact of the taking of the vow. Whatever the individual worshiper may have hoped, in this case (and in general) that is not what the words state or imply.” But , indeed, the vow is extremely legalistic, and has an analogue in the early formal private law contract of stipulatio. The contract is unilateral, only the promissor being bound, but the contract may be made under a condition. Thus: “Do you promise that if I give youasses, you will deliver to me the slave Stichus, that I will have control over him, and that he is free from hidden defects?” “ I promise.” The promissee is not bound to giveasses, but if he does, the promissor is under an obligation to deliver Stichus on the stated terms. Likewise in the vow. The gods are under no obligation to perform, but if they do, the promissor - the Roman people - is under the 8 See, e.g. Alan Watson, Ancient Law and Modern Understanding(Athens, GA., 1998), pp. 34 ff. 9 (Cambridge, 1998), at p. 34.
obligation to fulfill the terms of the vow. The difference between the contract and the vow is that inevitably the speech act in the vow is only that of the promissor. In LectureI return to Roman and Byzantine law, to thelex Aquilia which, much later, set the standard for liability for negligence in most of the western world. The importance of the statute for subsequent development of the law of torts cannot be exaggerated. I concentrate on chapter that dealt with the wrongful killing of slaves and fourfooted herd animals. My interest is in the measure of damages which was the highest value the slave or animal had in the past year. We are not told the rationale of this, a fact that is typical of the Roman jurists. They seem not to be interested in discussing the motivation behind legal rules. For me, a reasonable explanation would be that in an early agricultural society the value of a slave or herd animal could fluctuate greatly from season to season -- in winter an agricultural slave could work less, and the risk of death was greater -- and the statute sought to protect the owner against loss. Still, a more rational approach would have been to award as damages the cost of a replacement, plus interim loss of income. But absurdities in the statute became clear in at least three situations. First, the slave had been previously injured and lost a great deal of his value, the owner recovered for the loss, then within a year the wretched slave got himself killed. The owner would get the highest value the slave had in the past year, notwithstanding what had already been received by the owner. Secondly, an outsider appointed the slave his heir by will. The owner ordered the slave to accept the inheritance which he did, so the inheritance became the property of the owner. Then the slave was killed. If one counted back a year, the slave was much more valuable between the death of the testator and the slave’s acceptance of the inheritance. Thirdly, the slave is wounded mortally and is subsequently polished off by some-
one else. What is to count as the time of killing for the first mortal blow? The issue is crucial, again if we take into account an inheritance or legacy to the slave. But the issue is not settled in Roman law. The sensible approach for jurists, especially those who were top bureaucrats, would have been to have issued an imperial ruling that would replace thelex Aquilia. But a jurist’s reputation did not depend on the legal reform but on his skill in interpretation. So, for this law, the jurists adopted a new and narrow interpretation of “killing”, and distinguished it from “furnishing a cause of death”. The remedy for the latter would have no reference to the slave’s value in the past year. It is worth stressing that there is no moral difference between killing and furnishing a cause of death. The statute was not replaced, not even in the great Byzantine codification of Justinian. But, by that time the distinction between killing and furnishing a cause of death was even more absurd because the old system of procedure which drew a sharp distinction between one action and another had disappeared. This system could not last forever, and during the Reception the lex Aquilia lost its most peculiar features. Still, even at the present time in South Africa the main action for delict is on Aquilian liability. Lecture is a patchwork, with the patches being of unequal dimensions. Law by its nature must have authority. Each legal rule must have its rationale. But what is the connection between authority and the rationale of law? Is there one connection or may there be many? Must the rationale be expressed? Must it be known to, or understood by the users of the law? May the rationale change yet the law remain the same? The lecture returns to themes in the preceding lectures, but using different examples. Authority, in various guises is central to law: to enforce the law, and to make it acceptable. Every legal institution and rule must, I suppose, have at least one rationale. But often the ratio-
nale is not set out, or circumstances may make the rationale irrelevant or worse. Even top legal scholars will discuss the rules and effects of an institution such as theft at Rome or the Rule against Perpetuities in the U.S.A., with no attempt to explain why the institution has the parameters it has, or even the usefulness of the institution. For English law I adduce a paradox. Sir Edward Coke, a man of great authority, claimed in the th century that one could not know law without knowing the reasons for it. Yet until very recently, it was forbidden to refer in court to Hansard, the verbatim report of speeches in the British Parliament. Both views existed side-by-side. This need for authority also accounts in large measure for the longterm survival of legal rules that are harmful to the elite who are well able to have the law changed. The need for authority is so extreme that it also accounts in large measure for the prevalence of legal transplants, the most fruitful source of legal change. When necessary, the authority will even be feigned. I give one example of the effect of the need for authority on borrowing. In situations that were remarkably similar and related to navigable rivers, both Scots law and South African law turned to Rome where geographical and climatic conditions were different and where, above all, the Roman law was unknowable. Then for the U.S.A. , I content myself with one example, the notorious Rule against Perpetuities in property law which is so complicated that the Supreme Court of California held it was not negligence for an attorney of ordinary standards to fail to understand it, thus causing loss to his clients. Understanding of the Rule is vital for any will that is made where the provisions are complex in the slightest. It plays a decisive role in the movie, Body Heat. It arose in England in very different economic, political circumstances, with (perhaps) specific rationales: yet some highly-regarded American books on property law for first-year students feel no need to explain its rationale. The separa-
tion of authority of law (in more than one sense) from the authority of the rationale is alive and well in America. For this introduction I have one further example of bizarrerie. Justinian’s Digest .., concerned with the contract of sale reads: The issue is significant both socially and legally. At Rome each contract was specifically defined, and actions, formulae, were designed for each contract. If sale and barter were the same contract, then the formulae for sale were those appropriate to barter. Sale was a welldeveloped contract, barter surprisingly was not. The Sabinians wanted to extend the benefits of the contract of sale to barter. But they needed a rationale. Usefulness could not be adduced; such was not the jurists’ way.10 But they had no legal authority. So they chose to use a text from Homer11 on the argument that it shows sale and barter being treated as the same arrangement. Homer was no authority for Roman law, and the Sabinians had too much sense And today it is a matter for doubt whether one can talk of sale when no money passes, as when I give an outer garment to receive a tunic; Sabinus and Cassius hold such an exchange to be a sale, but Nerva and Proculus maintain that it is barter, not sale. Sabinus invokes as authority Homer who, in the lines which follow, relates that the army of the Greeks bought wine with copper, iron, and slaves: “Then the long-haired Achaeans bought themselves wine, some with money ( αλκ ), others with splendorous iron, ox-hides, oxen themselves, or slaves.” These lines, however, suggest barter not purchase, as also do the following: “And now Jupiter, son of Saturn, so deranged the mind of Glaucus that he exchanged his armor with Diomedes, son of Tydeus.” Sabinus would have found more support for his view in which this poet says elsewhere: “They bought with their possessions.” Still the view of Nerva and Proculus is the sounder one; for it is one thing to sell, another to buy; one person again is vendor and the other, purchaser; and, in the same way, the price is one thing, the object of sale, another; but, in exchange, one cannot discern which part is vendor and which purchaser. 10 See, e.g. Alan Watson, and Khaled Abu El Fadl, ‘Fox Hunting, Pheasant Shooting, and Comparative Law,’ 48American Journal of Comparative Law(2000), pp. 1ff. at p. 20. 11 Iliad, 7.472 ff.
to argue that he was. But they had no other argument, and authority is needed, so they simply cite him as evidence for the proposition that sale and barter are the same. The Proculians who claimed sale and barter were not the same contract countered with another argument from a text of Homer.12 The text as it stands provides no justification. The explanation is that the following words of the Homeric quotation here dropped off 13 “bronze ( αλκ ) for silver.” The Proculians’ argument was that the Sabinians had mistranslated the word αλκ as “money”, whereas the proper translation would be “bronze.” This modern approach is entirely persuasive, but what could the Byzantines have made of the dispute? The phrase “bronze for silver” is omitted from all the manuscripts. Here we have an extreme example for the subject of this book. For the eminently rational idea of making sale and barter one contract the jurists had no authority. But it was needed. So the Sabinians incongruously drafted into service a text of Homer. This was countered by a different text to show that the Sabinians had mistranslated. The last and vital clause of the second quotation dropped off, leaving the argument senseless. But no one seemed to notice or care. If authority had not been needed, a problem would scarcely have existed. In a contract of exchange of goods for goods, both parties could have been treated as having the obligations of sellers. In lecture I give an extreme example of happenstance and the power of the need for authority. If Scottish legal education in the th century not been ineffectual, the American civil war would have occurred at a different time under different leadership with possibly a different outcome. I gave a first version of this lecture at Harvard Law 12 Iliad6.234 f. 13 For the argument see David Daube, ‘The Three Quotations from Homer in Digest 18.1.1.;’ 10 Cambridge Law Journal (1949), pp. 213 ff.
School in, and was warned by my host to expect an antagonistic reaction. He was accurate in his prediction. But the nature of the disagreement is instructive. I claimed that, following England that followed Scotland, the Frisian Ulrich Huber was accepted in the U.S.A. as the basis of theory of conflict of law. The audience accepted this. It also accepted (I think) my understanding of Huber. It also accepted my claim that Joseph Story misstated Huber, and that Story’s version became doctrine in the U.S. The disagreement was over my claim that Story’s misstatement of Huber was the result of a simple misunderstanding. The argument put to me was that Story’s version must have been based on political motivation. For this I still find no basis. For me, much of legal development is mysterious. For many others, a logical, political, economic solution can and must be found for the relationship between law and society. The final lecture is general though set in the context of a new law for the European Union. It deals with the importance of comparative legal history for understanding the growth of law.
Legal rules and institutions are mysterious. Most people at most times in most societies regard law -- or at least private law -- as appropriate to the society. No doubt with some justification. And many scholars regard law as having some kind of close permanent relationship with the society in which it operates, whether this is “The Spirit of the People”, or the power of the ruling elite. Yet it is remarkably difficult to find such a relationship at the level of a detailed examination of legal practice and development. Views such as those of Morton Horwitz that “I seek to show that one of the crucial choices made during the antebellum period was to promote economic Transformations of Law: Justinian’s Institutes . pr., ; Stair; Mackenzie LECTURE I
growth primarily through the legal, not tax system”,14 fail to convince when one looks critically at his account of the actual case law.15 On the other hand, it is easy to show that in the most innovative legal systems of the western world, Roman law and English law, rules and institutions that were harmful to the elite who had power to change the law remained in place for centuries.16 Much law is dysfunctional and is obviously so. Law in a society can only be explained by its history, often its ancient history and frequently by foreign legal history. I seek in this talk to explain part of this phenomenon. Law operates, or should operate, on the basis of social reality, but it is the product of human imagination. Often reality and imagination do not mesh. It should be borne in mind that most legal scholars, apart from legal historians, are impatient with legal history and ignore it with a resulting misunderstanding of law.17 In their turn, legal historians fail to explain its importance for today. The core of law is authority. Law must be authoritative. If law is totally ignored it scarcely deserves the name of law.18 But what makes legal rules and institutions authoritative? In different ways in different societies patterns for authority emerge. Most of the peculiarities of law -- and they are legion -- are to be explained by the search for and the reliance on authority. Authority -- and it is needed -- is 14 The Transformation of American Law, 1780-1860, (Cambridge, Mass., 1977), p. xv. 15 For criticism of Horwitz’ exegesis of contract law see A.W.B. Simpson, ‘The Horwitz Thesis and the History of Contracts,’ 46University of Chicago Law Review(1979), pp. 533ff.; John Barton, ‘Contract and Quantum Meruit: The Antecedents of Cutter v. Powell,’ 8Journal of Legal History (1987), pp. 46 ff.; of property, Alan Watson, The Evolution of Western Private Law(Baltimore, 2001), pp. 169 ff. 16 See, e.g., Alan Watson, Society and Legal Change, 2d ed. (Philadelphia, 2001). 17 This is one of the themes of William M. Gordon’s Stair Society lecture in 1999: ‘The Civil Law in Scotland’, 5Edinburgh Law Review(2001), pp. 130 ff. John Cairns and Olivia Robinson have observed: “Watson has thereby laid down a major challenge for legal historians, comparative lawyers, and sociologists of law. It is a challenge that has rarely been taken up:’ Critical Studies in Ancient law, Comparative Law and Legal History, (Oxford, 2001), p. xvii. Alas that this is so. For a response to critics see Alan Watson, ’Legal Change: Sources of Law and Legal Cultu-re,’ University of Pennsylvania Law Review(1983), pp. 1121 ff. 18 See, e.g. Hans Kelsen, The Pure Theory of Law, (Berkeley, 1934), pp. 10; 30 ff.
often obscure, and frequently faked. The need for authority is at the heart of both the impact of past legal history - including the survival of inappropriate law - and of borrowing law from elsewhere. Thus, the prevalence of legal transplants, the main method of legal development, is in large part due to the need for authority. This talk primarily concerns the notion and role of authority in law. The parameters of the talk are four, which can be divided into two subsections. Thus: The four are closely linked. Thus, why borrow? One reason is, of course, that it is easier to borrow than to create rules and institutions from new. A more significant reason, I suggest, is the need for authority. In the absence of legislation, which typically has been scarce for private law, law making is left to subordinates -- judges and jurists -- who, however, are not given power to make law.19 They must justify their opinion. It will not do to say “This is my decision, because I like the result.” They must seek authority. When this is not available in their own system, they seek it elsewhere, and if it cannot be found they fake it or transform it.20 There is more to the issue. One system comes to be regarded as the most suitable donor: Justinian’s Corpus Iuris Civilis or the French code civil or the Chileancódigo civil of Andrés Bello.21 Reliance on this system provides the authority that is required. Somehow {Legal Borrowing {Authority {Tradition {Chaos 19 See, e.g., Alan Watson, Roman Law and Comparative Law(Athens, Ga., 1991), pp. 97 ff. 20 For me the most interesting transformation is to be found in the Frenchcode civil on torts, arts. 1382-1386: cf. Alan Watson, The Evolution of Western Private Law(Baltimore, 2001), pp. 113 ff. 21 For this last see M.C. Mirow, ‘Borrowing Private Law in Latin America: Andrés Bello’s Use of the Code Napoléonin Drafting the Chilean Civil Code’ 61 Louisiana Law Review(2001), pp. 295 ff.
that system is more authoritative than others. Inevitably this search for authority removes the focus to some extent from the precise needs of the particular society. Often what is borrowed is inappropriate. The need for authority even for legislation is obvious. Totalitarian regimes oftendo not rely simply on force for justification; other regimes may not even stress the need for government. Thus, in ancient times, the claim is frequently made that the law is given to a political leader by a god. The notion of the ’Divine Right of Kings’ gave legitimacy not only to the form of government but to its pronouncements. In modern revolutionary states radical governmental views of the nature and function of law are supported by a reliance on well-known ideas. Thus, for instance, the sophisticated Nazi theory of law rests obviously on Savigny’s famous work of , and it was mediated through Rudolph Sohm’s extremely successful textbook of Roman law for first-year law students.22 This Institutionen, Geschichte und System des römischen Pivatrechts, the basic introduction to law, actually reached its th edition in Leipzig in.23 Subsequent editions were produced in turn by Ludwig Mitteis and Leopold Wenger, and the book is still in print. It is almost certain that Hans Frank, the first president of the Akademie für Deutsches Recht, would have used Sohm’s textbook. That Sohm knew the work of Savigny and Jhering - also an influence on Nazi law - is certain; he refers to both with the highest approval. Sohm’s conception of law must be regarded as proto-Nazi though, like Savigny, he never defines Volk. What is truly remarkable is not only that Sohm intensifies Savigny’s theory, but that a work on Roman private law should be a stepping stone to the culmination of Hans Frank’s theory of law. Thus, the basic ideas were 22 For more detail see Alan Watson, Legal History and a Common Law for Europe (Stockholm, 2001) pp. 172 ff. 23 Since the work is not always familiar to modern scholars, I submit in appendix 2 my translation of the relevant passage from §7. I am grateful to Frank Stewart of the Hebrew University of Jerusalem for calling my attention to this passage.
well-known to the Nazi legal elite, to almost all practicing lawyers and law students, before they were given a concrete formulation by Hans Frank. Without such familiarity, acceptance of Nazi legal ideas might have met with more resistan- ce. Sadly perhaps, legal education may have a profound impact on society. The conjunction of legal borrowing and the need for authority in law results in legal tradition. The notion of a legal tradition means that, though there will be frequent anomalies, there will be an overall logical progression from point A through point B to point C. Thus, one can talk of a “Western Legal Tradition” with its divisions into civil law systems and common law systems. The startling and upsetting conclusion is that a legal system must be understood primarily in terms of its own legal history, not societal, political and economic history in general24. This brings us to chaos by which I mean in this context an absence of a necessary logical connection between legal rules, institutions and structures, and the society in which they operate. This absence of a logical connection entails that the great majority even of lawyers cannot explain the reason for the law. Why was the subordination of women’s property rights in the early nineteenth century so much greater in the eastern U.S. than in Mexico? Why is or was there a Rule against Perpetuities in England and the U.S. when there was not and is not a similar rule in Scotland or continental Europe? Why is the heading of title four, chapter of the Frenchcode civil ‘of delicts and quasi-delicts’ when the terms do not occur again, and when the distinction between them is never explained? Why in the same code are there only five articles on torts but on the relatively unimportant contract of mandat, mandate? Why is there such a vague provision in the code (article) as “The child, of whatever age, owes honor and respect to his father and mother?” Why was the abolition of a 24 See, e.g. Alan Watson, The Making of the Civil Law(Cambridge, Mass., 1981) pp. ixff.
similar provision in the old Dutch civil code so hotly opposed in the preparation of the recent new code when the article had never been applied? Why is there, especially in civil law countries, such a sharp division between public and private law? Why is religion, so fiercely partisan in early Byzantium, so scarce in the Byzantine Justinian’s Digest and Institutes? It goes without saying that authority is necessary to law and is, in general, a good thing. In this talk I want to call attention to aspects of this need for authority that are usually overlooked but cause law to have an unexpected, perhaps unwanted, configuration. Authority is the core of law, but the search for it often leads to an imbalance between law and the society within which it operates. In the past I have stressed the extreme extent of legal borrowing, and the significance of this for legal development and of the relationship between law and society. I stick to this opinion. Without an understanding of legal transplants there can be no understanding of law in society. But this borrowing illuminates the ultimate fundamental importance of the search for authority. When a rule, institution, concept or construct is borrowed it frequently undergoes change. This is particularly so when there are intermediaries between the original and the recipient. Often, indeed, the original may be transformed. Yet even then the original may, because of its authority, have an impact on the shape of the recipient which is otherwise unnecessary, and which serves to confuse and complicate the law. The need for authority needs to be emphasized. In this talk I will deal with one striking example of the need for authority, for transplanting, and for transformation: the treatment of ius naturale, ‘natural law’, ius gentium(a term with more than one meaning) and ius civile, ‘the particular law of a state’ at the very beginning of Justinian’s Institutes and in th century Scotland as exemplified by Lord Stair and Sir George Mackenzie. But I must insist that
RkJQdWJsaXNoZXIy MjYyNDk=