Watson Comparative Law and Legal Change

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Cambridge Law Journal, 37 (2), November 1978, pp. '313-336Printed in Great Britain.

COMPARATIVE LAW AND LEGAL CHANGE

ALAN WATSON *

I

Law, of course, exists in society and for society's needs.' It is aman-made construct to facilitate social activities. Law is incon-.ceivable without society. Societies vary greatly, and so do legalrules. A perennial question is "Do legal rules reflect a society's'desires, needs and aspirations? " The answer which is ordinarilygiven or is just assumed is positive 2 though minor qualificationsare usually urged. And yet, the two most startling, and at the!same time most obvious, characteristics of legal rules are the.apparent ease with which they can be transplanted from one system-or society to another, and their capacity for long life. With trans-mission or the passing of time modifications may well occur, butfrequently the alterations in the rules have only limited significance.

For several years now the transmission and longevity of rules-have been my main legal interest and, at the risk of repetition, Iwish once again to approach the topic from another angle. My aimis to present a picture of the relationship between a society andthe legal rules which operate in it.

. To indicate the scale of transplanting it is enough at this stageto call attention to the reception-in the widest sense-of Romanlaw and the spread of English common law. The system of privatelaw which was set out in the sixth century by Justinian's compilersfor the early Byzantine Empire could be, and was, taken over invery large measure and made to operate in most of the countries'of Mediaeval, Renaissance and even nineteenth-century Europe:in Catholic, Calvinist and Lutheran territories, in agriculturalnations, in trading cities ruled by. a merchant oligarchy, in-monarchies and republics alike. From Europe this received .lawin turn could be, and was, transplanted directly or through theinfluence of a European code, notably the French Code civil, to.Quebec, Louisiana, South America, much of Africa (notably South Professor of Civil Law, Edinburgh University. This paper is a revised version

of a University of London Special Lecture delivered at King's College on 6February 1978, and the author wishes to dedicate it to Otto Kahn-Freund.I am well aware that the abstraction " society" cannot have needs, desires oraspirations. But I unashamedly use the term " society " to designate the per-sons, considered as an entity, who inhabit a particular territory.

:2 For a recent example see L. M. Friedman, A History of American Law (NewYork, Simon & Schuster, 1973), p. 595.

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Africa), Ceylon, Japan and elsewhere. What was received was noteverywhere the same, and very substantial modifications tookplace. But that there was a reception of massive proportions can-not be gainsaid. No Western European country was free fromthe influence of Roman law, though in England and to a lesserextent in Scandinavia no large-scale reception can be said to havetaken place. England's own common law became in its turnanother great legal export; to the larger part of Canada and theUnited States, to Australia, New Zealand, India and elsewhere.One can claim without fear of contradiction that at least in theWestern world transplanting has been the major feature in legalchange for the last thousand years.

The second characteristic, longevity, is equally striking. Thecontract of sale, the most common and important contract, in allcountries of the contemporary Western world is very obviously theRoman contract of the second century A.D. The individual con-tracts as they are set out in modern civil codes are recognisablythe contracts of Gaius' Institutes written also in the second cen-tury. The distinction to be found in common law countries betweenwritten and oral defamation-libel and slander-results from parti-cular conditions in England in the sixteenth century, and survives.despite numerous attacks from the nineteenth century onwards.3The M'Naghten rules, devised in 1843, to determine whether anaccused is to be treated as insane or not, remain in use in Englandand elsewhere despite the advances in medicine and psychiatry.

The same two characteristics are equally apparent in thestructure of legal systems. The fundamental division, particularlynoticeable in civil law countries, between private law and publiclaw derives from a distinction made by the Romans in their earliestdays. To a very marked degree modem civil codes exclude topicsnot dealt with in Justinian's Institutes of the year 533 A.D. Thegrouping together of contract and delict (or tort) as "the law ofobligations " is unchallenged at least in the civil law world, andagain derives from Roman law. But is the concept a useful one?And do contract and delict really have much in common which-sets them apart as a unit distinct from say, family law (especiallymarriage) and succession? The answer seems to be negative. Noother feature of law is indeed so obvious as these two characteristicsof transplanting and longevity. From these facts we are entitledto draw three conclusions.

First of all, to a large extent law possesses a life and vitality of

3 See, e.g., A Watson, Society and Legal Change (Edinburgh, Scottish Academic-Press, 1977), pp. 61 et seq. The same work contains numerous other examples:of longevity.

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its own; that is, no extremely close, natural or inevitable relation-ship exists between law, legal structures, institutions and ruleson the one hand and the needs and desires and political economy,of the ruling dlite or of the members of the particular society onthe other hand. If there was such a close relationship, legal rules,institutions and structures would transplant only with great diffi-.culty, and their power of survival would be severely limited.Changes in societal structure would always entail changes in thelaw.

It might be suggested that an alternative first conclusion ispossible, namely that human societies, both past and present, have.so much in common that legal rules, institutions and structuresmay admirably suit several societies or their ruling dlite and con-tinue to exist through centuries. And that, moreover, in manysituations, at least two legal rules suit equally well, and one will,be chosen in a rather arbitrary fashion primarily because it already-exists elsewhere, and once accepted there will be little reasonfor change. There is some truth in this, but even if it were the-whole truth it would not-as we shall see-affect the import ofthis paper. Hence I do not feel the need to combat this alternative-conclusion. Yet I do not believe it is more than part of the truth.Elsewhere I have maintained-and have no wish to repeat the.arguments which must stand on their own merits-that privatelaw in most countries of the Western world is in large measure out-of step with the needs and desires of all classes of society and yet,can continue unchanged for centuries.'

A second conclusion is that legal rules, in addition to being-part of the social structure, also operate on the level of ideas. Onthis basis law develops by transplanting, not because some such rulewas the inevitable consequence of the social structure and wouldhave emerged even without a model to copy, but because theforeign rule was known to those with control over law making andthey observed the (apparent) benefits which could be derived fromit. What is borrowed, that is to say, is very often the idea. If this-conclusion is accurate then it also follows that the accessibility-forwhatever reason-of the foreign rule will play a considerable rolein its influence, and that legal development by transplanting derivesfrom the expertise of the lawyers who know the foreign rule ratherthan from the common consciousness of society.

One can, indeed, go a little further. Often when an idea is'borrowed those responsible have no direct experience of how well-the rule works in practice. This was obviously the case when in

.4 Society and Legal Change.

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the Middle Ages Roman law began to revive in Western Europeafter centuries of neglect; and when the framers of the Constitu-tion of the United States took over the inexact ideas of Montesquieuon the separation of powers in England. In the latter instancewhether Montesquieu was or was not known to be inexact isirrelevant.

The third conclusion is on a very different level. Yet it is sup-ported by the first two and even by the alternative to the firstconclusion. It emerges that an exceptionally good and even the-best approach to understanding and knowing law, what it does andwhat is demanded from it is through the history of the rules, theirorigin, development and transformation, above all when the sameor a historically related rule can be observed in different systems.When several systems borrow a rule from the same source, and thecourse of development varies from one system to another-in one-perhaps no alteration occurs at all-the factors which produce thechanges can be isolated and evaluated. The precise role of econo-mic and political circumstances, the influence of individualswhether lawyers or not, the part played by tradition, the moral'ideas of the society and so on can be plotted in detail.

This relationship between one legal system and another whichis the result of borrowing is, I believe, the heart of comparative-law. In an earlier work I argued that comparative law " as anacademic discipline in its own right, is a study of the relationship,above all the historical relationship between legal systems orbetween rules of more than one system." I This approach is toonarrow in two respects. First of all, the study of wider aspects oflaw-apart from the substance of the rules-in more than onesystem, even where a relationship is not claimed, can reveal a greatdeal about the nature of law. I am thinking specifically of matterssuch as the role which can be played in legal development by thedifferent sources of law, the general appropriateness of legal rulesfor the society in which they operate, and the delineation of legal'concepts. Secondly and more importantly, if a subject can be-regarded under two heads, as an academic discipline and as a,study with practical importance, then the two heads must beclosely connected in their basic object, and both should be con-sidered together. If comparative law as an academic discipline is-primarily the study of relationships between legal systems orbetween rules of more than one system then comparative law as astudy with practical importance must also, above all, be concerned'

5 A. Watson, Legal Transplants (Edinburgh, Scottish Academic Press; Charlottes-ville, University Press of Virginia, 1974); the quotation is on p. 9.

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with relationships between systems or their rules. I hope to shownow that this is the case.

Whatever else comparative law is, it must involve the investiga-tion of legal rules, structures, approaches and techniques in morethan one system or society. Comparative law must itself be amethod or, as some might prefer, a science. So much can be takenfor granted. But comparative law as a practical study cannotsimply be knowledge of more than one system or society: it mustbe knowledge which has some direct and obvious utility. What isthis direct utility? It can scarcely be urged with conviction thatthe utility is the profit to be derived by a lawyer with knowledgeof more than one legal system who thereby is admitted to practisein all these jurisdictions. That may, indeed, be the motive-and aproper motive-for the lawyer to learn foreign law, but it cannotbe the answer to the question. For otherwise, the study involvedwould not be comparative law but of the individual foreign systemsin question. Even if one were to admit-which I would not '-thatcomparative law could simply be the study of one or more foreignlegal systems, one could not concede that the learned lawyer'sextra earning capacity was the direct utility of comparative law.On that basis, instead of a method comparative law would be thestudy of a body of law, hence directly similar to the study of afield like mercantile law. And no one would want solemnly toargue that the utility of mercantile law is that it provides a decentliving for a lawyer with knowledge of it. Nor can the utility ofcomparative law really be the reduced fee which a client mightpossibly have to pay one lawyer-who is admitted in two jurisdic-tions-instead of two lawyers. Any utility here can scarcely bemore than marginal. The only serious answer, it seems to me, isthat the utility is the improvement which is made possible in onelegal system as a result of the knowledge of the rules and struc-tures in another system. This improvement may occur in variousways. A lawyer pleading in court may urge that on a disputed pointa foreign rule provides a satisfactory solution and should be adop-ted. A textbook writer may do the same. A body established topropose reforms may examine foreign systems and consequentlyoffer suggestions for alterations in the domestic system. A legisla-ture, influenced by foreign law, may pass a reforming statute. Anation may adopt a foreign code or use it as a model.

What these ways all have in common is that they concernborrowing. Comparative law as a practical study is therefore about

6 Legal Transplants, p. 4; see also R. H. S. Tur, "The Dialectic of GeneralJurisprudence and Comparative Law" (1977) 22 Juridical Review 238 et seq.

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legal. transplants, the desirability and practicality of borrowing fromanother legal system. What knowledge is needed oris appropriatefor" this comparative law is a separate issue which need not betreated here.7

Since both sides of comparative law should have the sameobject we could also by this route have reached the conclusionthat the academic discipline of comparative law is primarily a studyof the relationship between systems that is established by borrow-ing.' The discipline must concern the borrowings that have takenplace, must be more than descriptive, and must try to account forthe particular transplant. Just as we should consider comparativelaw as a method valuable in law reform, so we should see compara-tive law as a method or (as some might prefer) a science related tolegal history, and one whose end is to help us to understand thecourse of legal development and the connection between a societyand its law. But whereas comparative law as a practical study dealswith the transplants which are appropriate and how they should andcan be made, the academic discipline deals with the transplantswhich have been made, why and how they were made, and thelessons to be learned from this.

The area of study claimed for comparative law is, thus, precise.Yet it is also of enormous importance. Comparative law as apractical study is and has been the most potent influence onWestern legal development as a whole; as an academic disciplineit is the best approach to understanding the nature of law and itsrelationship with society.

If it is proper to distinguish between comparative law as anacademic discipline and comparative law as a practical study, andbetween that academic discipline and the learning of one or moreforeign systems, then, it seems to me, the discipline makes fullsense and is truly worthwhile only if it leads or may eventually leadto a theory about law and legal development. This theory may bepartial or complete. Perhaps a comparison-which, however, shouldnot be pressed-with comparative linguistics may be illuminating.By the early nineteenth century at the latest, a person whose nativetongue was English and who taught and was alone professionallyinterested in the French and German languages would not have

7 For recent discussions see 0. Kahn-Freund, "On Uses and Misuses of Com-parative Law " (1974) 37 M.L.R. 1 et seq.; A Watson, "Legal Transplants andLaw Reform" (1976) 92 L.Q.R. 79 et seq.; E. Stein, "Uses, Misuses-andNonuses of Comparative Law " (1977) 72 Northwestern University Law Review198 et seq.

8 The same conclusion is reached though by a different route in Legal Transplants,pp. 1 et seq.

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described himself as a comparative linguist. The discipline of"Comparative Linguistics" was recognised to be somethingdifferent in kind from the study of one or more languages. Again,no comparative linguist would have been content to point out thata particular object or reiationship might be designated by rathersimilar sounding words in different languages--e.g., mother,Mutter, mater, more, madre, etc.-or even to report that the resem-blances resulted from borrowing. He would want to demonstratethat the differences and similarities in the words could be accoun-ted for, on the basis of the rules of sound-shifts, and that thelongevity of recognisably similar forms and the transmission ofverbal forms could be used to build up a (partial) theory oflanguage. At the beginning of that century R. Rask wrote: "Ifthere is found between two languages agreement in the forms ofindispensable words to such an extent that rules of letter changescan be discovered for passing from one to the other, then there isa basic relationship between these languages."' Any approach tosuch a theory of language would have to be based on research ofa historical character and which concerned languages that wererelated in some way or, for points of detail, that had some degreeof contact. A century later Ferdinand de Saussure declared:

The scope of linguistics should be: (a) to describe and tracethe history of all observable languages, which amounts to tracingthe history of families of languages and reconstructing as faras possible the mother language of each family; (b) to determinethe forces that are permanently and universally at work in alllanguages, and to deduce the general laws to which all specifichistorical phenomena can be reduced; and (c) to delimit anddefine itself."5

If we could consider a scope for comparative law similar to(a) and (b)-the equivalent of (c) will emerge shortly-our firstobservation must be that some distinguished comparative lawyershave felt the need to look at the history of families of law. 1 Yetdetailed histories of families have not so far been attempted.Comparatists have been less active-properly no doubt given thedifferences between law and language-in reconstructing the

9 -Quoted by R. H. Robins, Short History of Linguistics (London, Longmans,1967), p. 171.

20 Course in General Linguistics, ed. by C. Bally, A. Sechehays and A. Riedlinger,translated by W. Baskin (New York etc., McGraw-Hill, 1966), p. 6.

11 See e.g., F. H. Lawson, A Common Lawyer Looks at the Civil Law (AnnArbor, Michigan Law School, 1957); J. H. Merryman, The Civil Law Tradition(Stanford, Stanford University Press, 1969); K. Zweigert & H. Katz, Introduc-tion to Comparative Law, 1, 2, translated by T. Weir (Amsterdam, etc., NorthHolland, 1977).

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mother law of each family: for civil law systems that task has beenleft to the Romanists. As for an object akin to (b), that type ofscholarly legal investigation has not been indulged in by com-paratists with the exception of a few persons interested in primitivelaw who have looked rather for patterns of development in unrela-ted systems than for factors of change in related systems and who,however, seem to me to be remarkably careless with their evi-dence. 2 Yet I would suggest that the opportunity and the gloryof a discipline of Comparative Law lies precisely in the discoveryof the forces that are permanently and universally at work in allsystems of law and in the deduction of the rules to which all specifichistorical legal phenomena can be reduced.

It can, of course, very properly be argued that though thescience of comparative linguistics developed through the use' ofthe historical method that does not mean that other social sciencesshould develop in the same way. But what I wish to stress is thatthe need for a historical approach in comparative law appearsclearly, even without any analogy from comparative linguistics.What the analogy with comparative linguistics does do is indicatethat such an approach might lead to an understanding of thegeneral rules which govern the nature of law, and which deter-mine how law changes.

Not all advances in the understanding of language and itsdevelopment depend either on a historical investigation or on thestudy of related tongues. Much can. be learned about the socialrole of language from observations such as that some Eskimopeoples have numerous words to designate the quality of snow,but no word which simply means snow; or that English is parti-cularly rich in the vocabulary relating to horses. Likewise muchcan be learned from the study of the structure of various langu-ages. Mutatis mutandis, similar investigations can teach muchabout the nature and role of law. It should also be observed thatto a great extent the most celebrated contemporary work in linguis-tics is not historical in character; indeed, it is not even compara-tive in its methodology. It may well be that at some point in time,the biggest advances in understanding law achieved through look-ing at various systems will occur by a non-historical investigationof unrelated systems. But illuminating though such investigationmay now be for law in a very general way, we are still at the stagewhere even the basic factors in legal change are not understood.

12 1 am thinking primarily of H. Maine, e.g., Ancient Law (various editions) andof A. S. Diamond, Primitive Law Past and Present (London, Methuen, 1971);See already, Legal Transplants, pp. 12 et seq.

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For that is needed the historical approach focused on relatedsystems.

To end this section I should like to set out my understanding ofcomparative law in a series of assertions.

(a) Comparative law as an academic discipline is distinct froma study of one or more legal systems."x

(b) Comparative law as a discipline should lead to a theoryabout law.

(c) At this stage of our knowledge comparative law should beprimarily concerned with historical relationships betweenlegal systems. These relationships are the result of trans-plants; and borrowing is, in fact, the main way law changes.

(d) Comparative law teaches which transplants have takenplace and-also of significance-which have not; the cir-cumstances in which they occur; the modifications adoptedat the time of borrowing and subsequently; when, howand why transplants are a success, partial success or failure;and consequently when, how and why total innovationsoccur.

(e) Therefore any theory emerging from comparative law willbe about legal change and about the relationship betweenlegal structures and rules and the society in which theyoperate. At this stage of our knowledge comparative lawmust be in large measure a historical discipline.

It would, I believe, be universally admitted that some degree ofcorrelation must exist between law and society. For any theory toemerge from comparative law, it must be possible to delineate pre-cisely this correlation; and this delineation should be in terms offactors that help to bring about or inhibit legal change. As alreadymentioned I have argued that legal rules by no means accuratelyreflect the needs and desires of society and its ruling ilite and thata considerable disharmony tends to exist between the "best" rulethat the society envisages for itself and the rule that it has. Anytheory of legal change must be able to take full account of thislack of phase.

II

It is possible, I believe, to characterise the factors which are rele-vant for legal change, and the factors which, within certain limits,determine the particular change, and Control the' relationship

13 Though comparative lawyers often treat as the particular value or point of theirsfibject what is really the value or point of studying a foreign system e.g. thatit permits a better understanding of one's own law.

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between legal rules and the society in which they operate. What ismore difficult and probably impossible without a great deal moreresearch is to estimate the relative value of the individual factorsand to assess whether the relative value varies in accordance withdiscoverable principles. However that may be, the interactionbetween the individual factors would seem on a priori grounds tobe much more important than their relative value and to be decisiveThese factors and their interaction can be set out in tabulated form.The discussion of these factors may seem to take us beyond andeven away from comparative law but what must be kept in mindis the prevalence and great importance of legal borrowing. It isprecisely this borrowing-and the relationship between systemswhich it brings about-which enables us to assess the contributionof the various factors and to measure comparatively the growth ofthe different systems.

These factors I will consider-mainly because of my ignorance-only in terms of the Western legal tradition. It may be that anyviews propounded here have relevance only for that tradition. Ishall not be distressed if any theory of legal change that couldeventually be derived from the factors relates only to Western law.On the other hand, the same factors may also be relevant else-where, and their interaction may be similar, though this might beobscured by the greater prominence of what I will call theDiscretion Factor.

These relevant factors I should like to call-and will in amoment describe or define-Source of Law, Pressure Force, Oppo-sition Force, Transplant Bias, Law-shaping Lawyers, DiscretionFactor, Generality Factor, Inertia, Felt Needs. There is a dangerof some overlap in these terms, and we can, I think, dispense withLaw-shaping Lawyers as a separate factor. Whether Law-shapingLawyers should be classed as a separate factor or not, their im-portance for legal change will justify a separate description here.How these nine-or should it be eight?-factors do interact willbe set out in section III.

Source of Law. The course of development of a legal system, Ibelieve, may be influenced to a considerable extent by the natureof the predominant source or sources of the legal rules, whethercustom, judicial precedent, juristic doctrine, statute or code. Sucha proposition does not seem to have attracted much direct atten-tion but would, I think, be generally acceptable even to those whomost believe that an inevitable close relation exists between asociety's laws and the society itself or its ruling class. Thus, Fried-rich von Savigny held that legislation, enacted for a higher political

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purpose, could (fruitlessly) corrupt the development of the law,and prevent law from being wholly the "Spirit of the People." 'Again for Marxists, the prominence of particular sources of lawand their working would reflect the class struggle just as much asthe rules and their operation do. The proposition is, moreover,implicit in many scholarly statements. Thus, F. W. Maitlandexpressly claimed that the extensive legislation of Edward I pre-vented any further Romanisation of English law.' 5 The implica-tion of the relevant passage is that, without such legislation,Romanisation of English law could have, and probably wouldhave, continued. England, of all Western European countries (withthe limited exception of Scandinavia), alone escaped an overwhelm-ing Romanisation of its law. If this can be attributed by Maitland toextensive legislation, then legislation is very powerful indeed.

Legislation obviously is markedly different in character fromjudicial precedent. When law develops from precedent, the lawmust always wait upon events, and, at that, on litigated events; itwill always be retrospective. The scope for development of legalprinciples-especially in the short term-is very restricted, andthere can be no organised systematic development. Many importantquestions may remain unanswered. Social and economic factorsdetermine who is financially able to litigate, hence there will be abias in the structure of the law. The individual legal decision maytake into account the morality of the parties in a way which con-fuses legal issues (which are general) with moral issues (which areparticular to this case), and very specific social factors which mayinfluence the particular decision will tend to affect the law. Ingeneral there will be no opportunity for a wide ranging discussionwith other lawyers of the possible ramifications of the decision;those scholars who believe that the life of the law is experienceshould concede that in a precedent-based system the law may beconstructed on very little experience of the wide issues involved.Furthermore, the law is difficult to find, and then is difficult tolearn, a fact that has consequences for the development of law.Moreover, as many attempts to show the contrary would seem toprove, there is no way of defining precisely the ratio decidendi ofa particular case: only when there is a line of cases does it becomepossible to discover the principle underlying even the first case.Most markedly, perhaps, law based on precedent is slow to change.

1L Vorn Beruf unsrer Zeit fiir Gesetzgebung und Rechiswissenschaft, 3rd ed.(Heidelberg, Mohr, 1840), p. 10.

1 Constitutional History of England (Cambridge, Cambridge University Press,1908), p. 21. Maitland's accuracy is not our prime concern since we are mostinterested in his attitude.

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Legislation operates very differently. It can and generally doesprovide primarily for the future. It can be very systematic, generalin its purposes, and removed from individual particular cases. Itcan make drastic speedy reforms. Development by legislation canhave a very satisfactory explicit or implicit theoretical base: andcan thus point the way to further reform.

For ease of exposition I have written as though an availableSource of Law had everywhere the identical characteristics andeffects. This is, of course, a gross oversimplification. Juristic doc-trine in the early Roman Empire was not the same thing as inseventeenth-century Holland. But each Source of Law does haveits own typical features and interacts in its own way with the otherfactors of change.

Before we leave Source of Law I would like to stress one point.The source of law available for the use of the law maker was normallynot made today. When for instance English law develops by pre-cedent it does so not because precedent is a creation made fortoday's world but because at some time in the past precedent wasestablished as a source of law. For the English law maker a codecannot be the starting point of a new development since no legalcode was made yesterday. In other words I am suggesting-at thisstage no more than that-that if the source of law available to alaw maker does have effects on the pattern of legal development,then the law that emerges will have been subject to some forcesdependent on the past history of the system rather than on presentreality.

Pressure Force. By this term I mean the organised person, per-sons, recognisable group or groups who believe that a benefit wouldresult from a practicable change in the law. The power to changethat the Pressure Force can wield varies in accordance with (a) thesocial and economic position of its members and (b) its capacityto act on a particular Source of Law. Pressure Forces ofdifferent make-up have varying effects upon the individual Sourcesof Law, and the sources have a different response to pressure.

Legislation is particularly subject to Pressure Forces. Thus ina modern democratic state, voters who are a relatively small propor-tion of the whole but see themselves as having a common interestmay come together and exercise what seems to be a dispropor-tionate amount of pressure on legislators who feel that the group'svote may be important for their own re-election. Gay Liberationmovements in the U.S.A. would be an example of such a group.Likewise large corporations or business interests may wield theirpower (resulting from economic strength) in a very organised

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fashion to achieve results which are beneficial neither to themajority nor the nation as a whole. Mutatis mutandis, similar pres-sures can be exercised by other groups in non-democratic states.

Legal development by precedent is much less affected by Pres-sure Forces. To begin with, the judge-at least in virtually alljurisdictions-is not supposed to make law; hence he must be lesssusceptible to direct pressure from an organised group. Moreover,he is normally not meant to be swayed by general policy issues. 16Secondly, in most jurisdictions, the judge is not elected and hisfuture is not dependent upon voters. Thirdly, his role is not seenas primarily political. A consequence is that even in jurisdictionswhere the judge is elected he will often be blamed less even bythe Pressure Force for not bending to their suasions. Fourthly, ina law suit there are always at least two opposing parties; there willbe an Opposition Force as well as a Pressure Force. Fifthly, in aparticular law suit the issues may not be clear-cut. Despite theforegoing, development by precedent is actually open to a widerrange of Pressure Forces. Corporations and business interests canstill operate as a Pressure Force at the level of the courts. So cangroups like Gay Liberation movements. Often their involvementhas to be indirect, by supporting financially, by sympathetic pub-licity or otherwise the suit of a person who is directly involved andhas legal standing. But the courts are also available to many in-dividuals who believe they have a right which should be vindicated.Legislatures are much less open to claims by individuals who donot form part of a powerful or large and organised group. Butnot all individuals can sue. Litigation is expensive and frequentlythe vindication of presumed rights and hence the possibility ofdeveloping the law by precedent is restricted in practice to personswho are either well-off or in receipt of legal aid.

As a source of law juristic doctrine is very largely immune fromPressure.Forces. The reason is simply that for the most part juristicdoctrine is recognised as creative of law simply because of theparticular author's high intellectual prestige among his fellowjurists. To be obviously directly influenced by a Pressure Forcewould lessen the respect paid to a jurist's opinions. Moreover,juristic doctrine in its classic form, in the published writings of ajurist, achieves the status of law only when it comes to be accepted,which 'frequently is not for years. Thus, there is often little pointin a Pressure Force directing its attention to influencing juristic doc-trine. The main exception is where'the Pressure Force has greatpower and standing, 'and, it is hoped, longevity: an established

16 This is not true of all courts, e.g., the U.S. Supreme Court.C.L..-5 (2)

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Church, the ruling family, or the party in a totalitarian state. Notonly can such a Pressure Force influence directly and indirectlyjuristic doctrine-and stifle contrary opinion-but the doctrineitself (and its authors) can gain strength and respect from otherjurists because of its relation with the accepted orthodoxy.

It seems appropriate here to return for a moment to a directconsideration of the Sources of Law. Pressure Forces often, ob-viously, operate in their own interests; frequently, too, they have,and are influenced by, their own ideology. To a variable extentthis must also be true of the Sources of Law. Clearly, at one endof the spectrum it can only happen rarely that juristic doctrine isin the interest of the jurist; at the other end legislation is oftenof immediate benefit to the legislators. Again, legislation must veryfrequently bear a close relationship with the ideology of the legis-lators. Juristic doctrine, though it may also be animated by ideo-logy, yet stamped as it is with the need to persuade, is most likelyto be successful when any ideology which appears therein is agree-able to those with the power to accept or reject. Precedent, too,will at times rely heavily on the judge's ideology."

Opposition Force. This is the exact converse of Pressure Force:the organised person, persons, recognisable group, or groups whobelieve that harm will result from a suggested change in the law.There will be, on this .view, no Opposition Force unless the personor recognisable group etc.. who would be adversely affected by thechange is organised. Frequently, the organising does not occur, andthe Opposition Force is not noticeable or is even negligible. Oftenthe persons who will be adversely affected by proposed legislationwill be far more numerous than those who will benefit, but thegains or presumed .gains of each member of the latter group willbe extensive, whereas the harm to each individual in the formergroup may be small. Hence it easily happens that legislation whichis overall harmful and is generally rather unpopular is passedwithout much opposition.

Transplant Bias. Law, I claimed, develops mainly by borrowingrules and structures from elsewhere. This can be the cheapest andmost efficient'way of changing the law and can at the same timegive the most satisfactory result; it is very possible that a borrowedrule could be the most, appropriate for the borrowing society (orat least the most appropriate that could then be imagined by theborrowing society). But by Transplant Bias I do not mean the17 For one view relating to a particular time and place see M. J. Horwitz, The

Transformation of American Law 1780-1860 (Cambridge, Mass., HarvardUniversity Press, 1977).

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extent of borrowing. Rather, the term Transplant Bias is used todenote a system's receptivity to a particular outside law, which isdistinct from an acceptance based on a thorough examination ofpossible alternatives. Thus, it means for instance a system's readi-ness to accept Roman law rules because they are Roman lawrules, or French rules because they are French rules. This recep-tivity will vary from system to system and its extent will dependon matters such as a linguistic tradition shared with a possibledonor, the general prestige and accessibility of the possible donor,the training and experiences of the local lawyers."'

Particularly clear light would be thrown upon the operationof this factor by an examination of the so-called mixed systemsof law. Scotland, South Africa, Louisiana and Quebec, for instance,have borrowed extensively (directly' or indirectly) from the twomajor systems of'Rome and England. Sometimes but by no meansalways they have borrowed and retained the same parts from eachsystem. A comparison of the rules of the law of trust and fidei-commissum and of persons below the age of majority and ofliability for animals in all three jurisdictions would be very reveal-ing. In the present context it would also be particularly interestingto explain in detail why now the civil law tradition is very muchstronger in Quebec than in Louisiana.

Resistance to particular borrowings-again very noticeable inthe mixed systems especially in Quebec and Scotland-is also ofrelevance here. For example, at the present time Louisiana, aloneof the states of the U.S.A., has not adopted the Uniform Commer-cial Code. (And yet, the U.C.C., common law code though it is,owes more than a little to civil law tradition.) 19

The factors determining legal growth interact. Transplant Biasinteracts in particular with the Sources. of Law., The voluntaryadoption of a foreign code-which, happens frequently, even withno change-shows Transplant Bias at its most extreme. Juristicdoctrine is also very susceptible as the reception of Roman law incontinental Europe shows; academic writers seem to come easilyunder the sway of. grand -foreign systems. Perhaps precedent isleast affected by Transplant Bias. Where judges do borrow fromforeign law, -and this does, of course, often happen, the value ofthe foreign rule for the borrowing system is frequently -carefullyweighed.

Is See already, e.g., A. Kocourek, "Factors in the Reception of Law," Studi inmemoria de A. Albertoni (Padua, Cedam, 1938), pp. 233 et seq.; A. Watson,Society and Legal Change, pp. 98 et seq.

19 See, e.g., W. Twining, Karl Llewellyn and the Realist Movement (London,Weidenfeld and Nicolson, 1973), pp. 270 et seq.

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Law-shaping Lawyers. Lawyers are very well placed to act asPressure Forces or Opposition Forces. Their knowledge of legalrules and of how law actually works means that they are particu-larly conscious of how the existing law or a change in the lawaffects their well-being. But apart from that-which would notjustify the consideration of lawyers as a separate factor for legaldevelopment-a legal 61ite that shapes the law exists in developedsystems at least. Thus, legislation is usually drafted by lawyers whomay or may not be members of the legislature; the shape or formof a precedent will be determined by the judge; juristic doctrineas a Source of Law is virtually indistinguishable from the formin which it is cast, except that its validity depends on recognition.The law which emerges will therefore tend to be strongly influencedby the knowledge of this legal dlite, by its imagination and trainingand by its experience of the world and of legal ideas. Thus, forinstance, the absence of a satisfactory law school in a particularterritory will affect its legal dlite. The top lawyers will be eitherinadequately trained or trained in a foreign system and this willhave an effect upon their knowledge and outlook and hence uponany legal rule which they help to shape. Properly, Law-shapingLawyers should not be considered a separate factor in legaldevelopment; their role is adequately covered by the concepts ofSource of Law-drafting, shaping of the law, is inseparable fromlegislation, for instance-and Transplant Bias. Nonetheless, Law-shaping Lawyers give law such a particular flavour that their roledeserves to be stressed, and will be set out, though in parenthesis,in the equation which follows.

Discretion Factor. A marked and important aspect of law-which has never been treated comprehensively; nor is this theplace for a full discussion-is the great scope that it gives todiscretion. Some degree of discretion seems to be an inevitableelement in any developed legal system. This discretion may be ofindividual parties, of the judge, of the executive or actually builtinto the legal rules. Thus, in very many legal systems a husbandwith an adulterous wife may, but need not, divorce her. The veryrare system, like that of Rome under Augustus, which imposes asanction upon a husband who fails to divorce a wife whom hecatches in adultery, horrifies us by its rigidity and inhumanity.Again, in many systems, parties to a particular contract have free-dom to alter the application of some general rules of law; and inthe event of a breach of contract the injured party may, but neednot, sue. In such situations modern law would not accept thegeneral proposition associated with the, name of* Rudolf von

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Comparative Law, and Legal Change

Ihering 2o that there exists a moral obligation to fight for one'slegal rights. Nor is there any insistence that at this level formallegal justice demands that similar situations be treated alike. Thepeople involved are left a choice. Moreover at times when legalrules impose particular forms of acting if an object is to beachieved and these rules may not be directly evaded, individualsmay, acceptably, achieve the object indirectly though at the cost of'some pain, trouble and expense. Often, too, a judge has discretionin the severity of the sentence that he imposes. Until the DivorceReform Act 1969, a divorce could be granted in England only if oneparty alone were guilty of a matrimonial offence; but where bothhad committed an offence the judge could exercise his discretionin favour of one party and grant the decree. Again, rule scepticsare very conscious that a judge has discretion in the sense thatoften he may, but need not, regard a rule or principle as determin-ing the law in a case.21 The discretion that is usually discussed isthat of the executive to prosecute crime and normally this is con-sidered socially undesirable. But there was general satisfaction inthe Netherlands when the Dutch Government decided that PrinceBernhard should not be prosecuted for corruption; this despite theacceptance of his guilt, and the revulsion at his conduct. 22 Like-wise many (old) criminal statutes or established rules of commonlaw are never invoked; indeed a public outcry might follow ifthey were. For Scotland one might think of a prosecution forhomosexual activity between consenting male adults. Discretionalso may be written into the actual law itself; the law may offer achoice of, say, various recognised formalities for entering a validmarriage. On a very different level of discretion the law may-evenat times quite properly-treat separate groups in a disparatefashion: thus it may be reasonable, to have separate rules onmonogamy or polygamy for, e.g., Christians and Moslems.2"

Law is but one instrument of social control. In some particularsituations the immediate reaction to a problem will be recourse tolaw, in other situations recourse to law may be had only after

20 Dcr Kampf um's Recht 20th edit. (Vienna, Danz, 1921).21 For a recent discussion see R. Dworkin, Taking Rights Seriously (London,

Duckworth, 1977), pp. 31 et seq.22 See the Donner Report published on 26 August 1976. In his statement that day,

the Dutch Prime Minister, Mr. Joop den Uyl, did also declare that the right tocriminal prosecution had lapsed. But leading Dutch professors of constitutionallaw claimed that Prince Bernhard was liable to prosecution. For another instanceof discretion of which very many would approve see M. Coombs, "JuvenileCurfew Ordinances and the Constitution (1977) 76 Michigan Law Review109. et seq.

23 Formerly the Austrian Civil Code, the Allgemeines biirgerliches Gesetzbuch,reasonably contained separate provisions for Jewish marriages: *see 123-136.

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hesitation, in still others law will rarely be invoked. Societies alsodiffer in the use made of law to resolve disputes.

Thus, the extent to which specific rules of law do in fact regu-late and within narrow limits control conduct and factual situationscan vary greatly. The extent to which the rules permit variations,or can be evaded (albeit at some relevant cost) or need not orwill not be invoked is the Discretion Factor. The effect of discre-tion is obviously to provide choice, thus lessening for those whohave the choice the impact of seemingly undesirable requirementsor consequences. Hence the Discretion Factor in general widensthe acceptability of a legal rule, but there are two exceptions. First,if discretion is abused-and often it can be, especially executivediscretion-a violent reaction may ensue. Secondly, in restrictedcircumstances the very possibility of discretion existing for others,for instance the availability of divorce, may cause moral or religiousoutrage among a powerful group who will attempt to impose theirviews upon the law. But whether in general or in these two excep-tions, the Discretion Factor powerfully influences the state of thelaw and its development.

Generality Factor. Legal rules typically regulate several verydifferent recognisable groups of people, or apply to different typesof transaction or situation. Thus, in the United Kingdom marriageand divorce laws are the same for atheists, Catholics, Moslems andHindus. The rules relating to immovable property are basicallythe same whether the property is in a city, island, fertile valley orremote inhospitable mountain. We are here, of course, not speak-ing of the number of persons or the number of actual situationsinvolved, but of the number of types and range of persons and situa-tions. The greater the generality, the wider the range of situations,the more difficult it is to find a rule that is recognisably fitting.Thus, the greater what we can call the Generality Factor, the less-concordance a rule will have with what seems precisely needed.And the greater the Generality Factor in a proposed change, thegreater the difficulty of finding agreement on the appropriate rule,hence the greater the difficulty of effecting change.

Earlier in this paper it was claimed that the interaction betweenthe individual factors was decisive for legal change. That needs tobe stressed here. The greater the generality, I have just said, thegreater the difficulty of effecting change. But that statement wasmade when the Generality Factor was looked at in isolation. Inpractice the Generality Factor interacts to a considerable extentwith the Pressure Force and the Opposition Force. When a sug-gested change is of great particularity the Pressure Force backing

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it may-but will by no means necessarily-be of little influence,hence the reform is most unlikely to succeed, especially if theSource of Law available is legislation. When the suggested changehas considerable generality, it is unlikely to satisfy all interestedgroups and is likely to call an Opposition Force into being.

Inertia. For law to be changed there must be a sufficientlystrong impulse directed through a Pressure Force operating on aSource of Law.2" This impulse must overcome the Inertia, thegeneral absence of a sustained interest on the part of society andits ruling dlite to struggle for the most " satisfactory" rule. Society'sessential stake in law is, I have argued elsewhere,2" order, and iforder is maintained there may be no consuming interest in theprecise nature of the particular rules and their reform. There isnormally a desire for stability; and moreover, society and, in parti-cular, the ruling dlite have a generalised interest in no change. Manylaws, at any given time, have no direct impact on the lives of mostof the inhabitants: this is true of matters as diverse as the groundsfor divorce, conveyancing, defamation, adoption and guardianship.(It may be worth noting that the greatest experts on such matters,the lawyers specialising in divorce, conveyancing, etc., are alwaysdirectly affected by the state of the law. A change that makes forgreater efficiency may not be actively sought for by the experts ifit might reduce their earnings.) There is frequently little know-ledge of law (except among the lawyers); and still less of the possi-bility of reform. A mystique-encouraged by the lawyers-surrounds law and makes an approach to law and possible changesin law difficult for laymen. The undoubted respect which existsfor law because it is law 11 favours the status quo; it is what it is,that is regarded with something approaching reverence at times,not what it could be made to be. A mythology of fundamentalsuperiority (for the particular society at least) grows up aroundlaw, among lawyers and laymen alike; in France for the Code civil,in England for the common law, and in Scotland for Scots law.Traditional western legal training, with its emphasis on black-letterlaw, restricts the lawyer's perception of "inefficient " legal rules,and of their concern to him. Above all there is a considerable costto every law reform, and priorities have to be weighed with regardto limited resources. Thus, legislatures have to be willing to devotetime, academics their intellectual energy, and so on, before eventhe possibility of change can exist. Legal changes also have social24 Though where the Source of Law is juristic doctrine, and the writings of a

particular jurist have great weight, the Pressure Force relating to a particularrule may be very slight.

2A The Nature of Law (Edinburgh, Edinburgh University Press, 1977).28 Cf. Nature of Law, pp. 114 et seq.

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costs: to lawyers who have to adjust, to individuals who had actedon the basis of the law known to them, and so on. As a result, forchange to occur, the benefits, especially the short term benefits,must be seen to outweigh the costs. It could be plausibly arguedthat a span of centuries was needed for the introduction of com-pulsory land registration in England largely because, although thelong term benefits were apparent, the immediate costs at any onetime were high.27

As a factor in the relationship between law and society, Inertiahas been grossly underestimated. Societies can, and in practicefrequently do, tolerate much law which does not correspond towhat is "needed " or is efficient. Inertia is composed of particularelements which can be identified. For instance, the Anglo-Indiancodes and the systems of land registration adopted in the BritishCommonwealth but not in England (or only partially and belatedly)provide insights into Inertia in England.

Felt Needs. Legal rules should fulfil various purposes in society,some of which may be distant, others nearer. The purposes desig-nated by the term "Felt Needs" are to be understood as the pur-poses which are known to, and thought appropriate by, the PressureForce-not by the ruling lite or by the society as a whole-thatoperates on a Source of Law.

The elucidation of what are Felt Needs presents difficultiesboth practical and, more especially, theoretical. A full treatmentof the problem will not be given here. But Felt Needs are primarilydiscoverable through a combination of word, deed and effect; whatthe Pressure Force says is wanted, how its constituents act bothbefore and after the legal change, and how the change actuallyaffects the interests of the Pressure Force.

There are, of course, other needs which are recognised to existby the members of the community; and which can be better metby a change in the law. Such needs may be general, well-recog-fiised and may exist for a long time. They are of great importancefor anyone interested in society and in the relationship betweenlaw and society. But unless they are supported by an active PressureForce they are not Felt Needs as understood here.

III

With the use of these factors. it is possible, I suggest, to presentmodels for legal development and the relationship between legalrules and society.27 Instructive is A. Offer, " Origins of the Law of Property Acts 1910-1925 " (1977)

40 M.L.R. 505 et seq.

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Thus, a legal rule is stable when Felt Needs, weakened by theDiscretion Factor, activating the Pressure Force as affected by theGenerality Factor, to work on the relevant Source of Law, are lessthan Inertia plus Opposition Force.

Some legal change will occur when Felt Needs, weakened bythe Discretion Factor, activating the Pressure Force as affected bythe Generality Factor, to work on the Source of Law, are greaterthan Inertia plus Opposition Force.

The factors placed on either side of each model all interactwith their peers, but the models try to indicate the main thrust ofthe interaction. Thus, the Discretion Factor diminishes the extentto which Needs are felt; in turn it is these Felt Needs which rousethe Pressure Force to work on altering the law, a result that can beachieved only through a Source of Law; and so on.

The precise relationship between legal rules (both particularand in general) and the society in which they operate can beexpressed as the balance between two opposing sets of factors, thefirst which inhibits change, the second which determines the changethat is proposed. Namely, on the one hand: Inertia plus OppositionForce. On the other hand: Felt Needs, weakened by the DiscretionFactor, activating the Pressure Force as affected by the GeneralityFactor, to work on the Source of Law, all as modified by TransplantBias (and Law-shaping Lawyers).

A legal change occurs when the force of the second set of fac-tors increases so as to become greater than the force of the firstset of factors, but the balance and the relative weight of thefactors determine the nature of the change.

It will be noticed that nowhere in this model does society atlarge or its ruling dlite appear as factors. This, I believe, accordswith reality. Legal change is triggered off by Pressure Forces, notby the society at large, or its ruling dlite. It can and frequently musthappen in states of different complexions that the Pressure Forceand the society or the Pressure Force and the ruling dlite are co-extensive. Indeed, in a non-democratic state it may easily be thecase that the ruling lite operates very directly on the principalSource of Law to the extent that for legal change the will of theruling dlite is solely and immediately decisive: by diktat of theparty in a modern totalitarian state, by the declaration (in properform) of the king in an absolute monarchy. The extent to which inany jurisdiction the Pressure Force and the society: or its rulingdlite are the same must be determined by specific investigation. Buteven if the Pressure Force was always the society at large or alwaysits ruling olite, the legal rules would, still not usually be the most

C.L.J.


efficient and most suitable that the society or its 61ite could devise.Elements which produce a marked lack of phase are above all,Inertia, then the Transplant Factor and the Source of Law. It is inthe interaction of the factors discussed above that the answer liesto the most complicated and troubling questions of legal develop-ment. For instance, it is often claimed that commerce and law,especially the law of contract, are intimately linked, and that it iseconomic growth which produces changes in the law of contract.And it would be very odd, indeed, if economic growth did not resultin legal change. Yet when we move from the level of ideologicaltheorising to look at actual historical instances, we are faced witha picture perplexing in its complexity. For instance, between theyears 1633 and 1665 contract law in Scotland changed enor-mously."s There was a rediscovery of a general law of contract,of general principles. The main contracts, such as sale, began forthe first time in Scotland to be recognisably the law of today. Yetthese years are famous for their economic stagnation. In contrast,in England which was much more developed economically andcommercially, it is, we are told, even for a much later time "notalways easy to identify and formulate the doctrine that is latentin the sources." 29 However many contracts there were, and how-ever many actions were brought on contracts, there could scarcelybe said to be a general law of contract or general principles ofcontract before the nineteenth century.

The relevance and usefulness of the approach suggested in thispaper derives from the long history of many modem legal rules andprinciples, particularly when the rules orginated in Roman law orEnglish law. Very often it is possible to study in several systems themodem versions of a Roman or English rule and trace the course ofthe changes that have occurred. It is frequently easy to comparethe value of factors such as Inertia, Transplant Bias and Source ofLaw in the various systems, hence of the other factors, and to tracetheir interaction.

IVNothing said up to this point should induce the supposition that Ibelieve in a crude determinism. An examination of factors shouldmake it possible to explain more easily why a particular developmentoccurs. Existing elements in a society may determine the options

28 See A. Watson, "The Rise of Modern Scots Law," in La formazione storica deldiritto moderno in Europa 3 (Florence, Olschi, 1977), pp. 1167 et seq.

29 A. W. B. Simpson, " Innovation in Nineteenth Century Contract Law" (1975)91 L.Q.R. 247 et seq. at p. 251.

30 See already the example set out in Society and Legal Change, pp. 140 et seq.

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known or knowable, hence available, but they do not, I think,predetermine the necessary outcome. 31

A very different position may be urged as an objection to thispaper, namely that an examination of the various factors wouldshow such diversity of possibilities that no theory could be developedof the growth of law in the West, except on such an obvious levelas to be nothing but banal. I would not want to deny that veryparticular individuals or events, whose existence and time or placecould not be foretold, have an impact on legal growth. But even ifit could be shown that the diversity of possibilities proves that nogeneral theory of legal growth can be sustained, that -in itself wouldbe a valuable conclusion.

Yet it seems that a general theory of legal growth-at least forthe Western world-should be possible. The reason for this con-fidence is that it is certainly possible to trace a pattern of develop-ment. One example among many which immediately springs tomind-and would be worthy of examination-is the phenomenonof codification. Codification of private law has since the eighteenthcentury come to be almost an inevitability in civil law systems, andyet remains a rarity for the common law. This pattern cannot beexplained away on the basis of unrelated facts existing in the differentcountries.

To isolate the general factors at work in legal change it might,in fact, be appropriate to seize a decisive moment, such as codifica-tion and explain why it occurred at all, why in that territory itoccurred at the time it did and not before, why the code was eithera new creation for that territory or was borrowed in large measureor virtually entire from elsewhere; and if the latter, why the particularmodel was selected. Likewise, it could be important to explain theabsence of codification in other systems.

In this context, the systems whose rules are largely a mixture ofcivil law and common law will lend themselves particularly well toanalysis in a pilot study. Thus, the first code of Louisiana is as earlyas 1808. Its structure owes much to the French Code civil of 1804or the project of 1800, but whether the substantive law is basicallyFrench or Spanish is vigorously disputed. Louisiana had becomepart of the United States in 1803. The civil code of Quebec cameinto force in 1866 but the Act providing for the codification waspassed in 1857. By that Act, the relevant French codes were toprovide the model as to structure 32; but the substantive law was to

31 On the issue, see now, e.g., R. M. Unger, Law in Modern Society (New York,Free Press, 1976), pp. 1 et seq., and the works he cites.

a-1 Act to provide for the Codification of the Laws of Lower Canada relative toCivil Matters and Procedure 1857, 20 Vict. c. 43.

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be the existing rules of Lower Canada, 3 hence the importance as asource of the Coutume de Paris, which had been introduced in 1663.The preamble to the Act includes among the reasons for its pro-mulgation " the great advantages which have resulted from Codi-fication, as well in France, as in the State of Louisiana," and alsorefers to the linguistic problems for the inhabitants who may knowonly one language when some of the law is in French and the rest inEnglish. Lower Canada had become a British colony in 1763. Why,one should ask, was the civil code of both Louisiana and Quebecrelatively so independent in substance of the French Code civil,which was slavishly followed in parts of Europe and Latin America?And why is the civil code of Quebec more than half a century laterthan that of Louisiana? Texas won its independence from Mexicoin 1836, and was an independent republic until 1845, when it wasannexed by the United States. Its legal system, certainly in the mid-nineteenth century, could count as a mixed system 14 but the lawwas never codified Why not? In South Africa the Cape is of particu-lar relevance. The law of the province of Holland was introduced in1652 when the Cape was occupied by the Dutch; the colony passedto Britain-after a previous occupation-in 1814 as part of the peacesettlement of the Napoleonic wars. Even today the law of the Republicof South Africa is very much a mixed system with an emphasis onRoman-Dutch law. Yet, although the Dutch accepted a version ofthe French Code civil in 1809, and introduced their own civil code,the Burgerlijk Wetboek, in 1838, South African law has never beencodified. Nor has the law of another mixed system, Scotland, despitethe availability of excellent local models in Stair's Institutions of theLaw of Scotland, first published in 1681, and Erskine's Institute ofthe Law of Scotland of 1773.

33 s. 4.34 See, e.g., J. McKnight, "Some Historical Observations on Mixed Systems of

Law" [1977] Juridical Review 177 et seq. Possibly the early fusion of law andequity is one result of the civil law influence.

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Documents

Watson Comparative Law and Legal Change