search for authority removes the focus to some extent from the precise needs of the particular society. Often what is borrowed is inappropriate. Borrowing is only part, though perhaps the most obvious, of the conjunction of legal culture and legal tradition. The other part is the search for justification within one’s own legal system. The search, cultural as it is, is inevitably backward looking whether it is for judicial precedent or juristic doctrine. Authority, to repeat, is essential for law and functions to create the tradition. To return to legislation. The sole necessary talent of rulers is to remain in power. For this, legislation in most fields of private law at most times is irrelevant. Rulers usually have no need to seek the best law for their citizens. The job of law making is often left to judges and jurists who, however, as I have said, are technically not given the power to make law. This 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 system of private law must be understood primarily in terms of its own legal history, not societal, political and economic history in general210. This brings us inevitably to chaos by which I mean in this context, as a result of legal tradition, an absence of a necessary logical connection between legal rules, institutions and structures on the one hand, and the society in which they operate on the other. This absence of a logical connection entails that the great majority even 209For 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. 210 See, e.g. Watson, The Making of the Civil Law, pp. ixff.
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