Legal Culture versus Legal Tradition? The dichotomy is unreal in most circumstances. But not in all. Legal culture is legal tradition, and legal tradition is legal culture. But with an exception. Those living the culture, namely lawyers including judges and law professors, are usually unaware of the tradition. They are often unaware of, and indifferent to, history. (I would like readers to know that I am dealing only with private law. Constitutional law is beyond my expertise). My fascination with legal culture and legal tradition results from my work as a comparative legal historian. Comparative legal history is largely an unexplored field. It confronts dramatically the basic issues of the relationship of law to society, and of the factors in legal change: why change occurs when it does, how it does, and the direction of change. It promotes answers that are radically different from those proposed by sociologists of law and historians of one legal system.203 Yet the subject will continue to be under-exploited. None-theless, in my view, an understanding of it is vital for the development of a common law for the European Union. 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 its contacts with foreign legal history. I seek in this chapter to discuss 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 as irrelevant with a resulting 203 For my views on comparative legal history see, e.g., Alan Watson, Legal Transplants: an Approach to Comparative Law, 2d ed. (Athens, GA., 1993); Society and Legal Change, 2d ed. (Philadelphia, 2001); Roman Law and Comparative Law(Athens, Ga., 1991); The Making of the Civil Law (Cambridge, Mass., 1981); Law out of Context (Athens, GA,2000); The Evolution of Western Private Law(Baltimore, 2001); Legal History and a Common Law for Europe(Stockholm, 2001).
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