legal sources.205 The core of law is authority. Law must be authoritative. If law is totally ignored in practice it scarcely deserves the name of law.206 But what makes legal rules and institutions themselves 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 often obscure, and frequently faked. The need for authority is at the heart of both the impact of past legal history - including the long 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. 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 this 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.207 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.208 There is more to the issue. One system comes to be regaded as the most suitable donor: Justinian’s Corpus Iuris Civilis or the French code civil or English law in the form of William Blackstone’s Commentaries on the Law of Englandor the Chileancódigo civil of Andrés Bello.209 Reliance on this system provides the authority that is required. Somehow that system is more authoritative than others. Inevitably this 205 Very instructive is Kees Bezemer, What Jacques Saw(Frankfurt am Main 1997). 206See, e.g. Hans Kelsen, The Pure Theory of Law, (Berkeley, 1934), pp. 10; 30 ff. 207 See, e.g., Watson, Roman Law and Comparative Law, pp. 97 ff. 208For me the most interesting transformation is to be found in the Frenchcode civil on torts, arts. 1382-1386: cf. Watson, Evolution, pp. 113 ff.
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