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.
RkJQdWJsaXNoZXIy MjYyNDk=