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.
RkJQdWJsaXNoZXIy MjYyNDk=