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Society And Legal Change 2Nd Ed

Society And Legal Change 2Nd Ed

ALAN WATSON
Foreword by Paul Finkelman
Copyright Date: 2001
Published by: Temple University Press
Pages: 168
Stable URL: http://www.jstor.org/stable/j.ctt14bszw6
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  • Book Info
    Society And Legal Change 2Nd Ed
    Book Description:

    In this first U.S. edition of a classic work of comparative legal scholarship, Alan Watson argues that law fails to keep step with social change, even when that change is massive. To illustrate the ways in which law is dysfunctional, he draws on the two most innovative western systems, of Rome and England, to show that harmful rules continue for centuries. To make his case, he uses examples where, in the main, "the law benefits no recognizable group or class within the society (except possibly lawyers who benefit from confusion) and is generally inconvenient or positively harmful to society as a whole or to large or powerful groups within the society."

    Widely respected for his "fearless challenge of the accepted or dominant view and his own encyclopedic knowledge of Roman law" (The Encyclopedia of Historians and Historical Writing), Watson considers the development of law in global terms and across the centuries. His arguments centering on how societies borrow from other legal systems and the continuity of legal systems are particularly instructive for those interested in legal development and the development of a common law for the European Union.

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    eISBN: 978-1-4399-0591-3
    Subjects: Sociology
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Table of Contents

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  1. Front Matter (pp. i-iv)
  2. Table of Contents (pp. v-vi)
  3. FOREWORD Legal Change, Legal Transplants and the Scholarship of Alan Watson (pp. vii-xii)
    Paul Finkelman

    In 1977 Alan Watson, then a professor of Civil Law at the University of Edinburgh, publishedSociety and Legal Change, which is now brought out in its first American edition. Since then Watson has become one of the world’s foremost scholars of legal history. Much of his work has been in Roman law, where he is generally recognized as the leading expert in the English-speaking world. Similarly, his work on the law of slavery is especially valuable. HisRoman Slave Law(1987) is the definitive work in the field. His masterfulSlave Law in the Americas(1989) illustrates the range...

  4. PREFACE TO THE SECOND EDITION (pp. xiii-xvii)
  5. PREFACE (pp. xviii-xix)
    Alan Watson
  6. ABBREVIATIONS (pp. xx-xx)
  7. Chapter 1 INTRODUCTION (pp. 1-11)

    Writers have long been fascinated by the relationship between law and society. As G. Sawer puts it:

    The material content of a legal system has always been seen to reflect in some sense the needs or demands of societies, whether of all societies or of a particular historically conditioned society or of a particular society considered as a type in a range of types.¹

    For many, law is intimately connected with the society in which it operates. For instance, among leaders of Western legal thought we have Montesquieu:

    The political and civil laws of each nation … must in fact be so particular to the people...

  8. Chapter 2 ROMAN LAW: THE SYSTEM OF CONTRACTS (pp. 12-22)

    The obvious starting place for such an investigation is Roman law which is not only the fountainhead of Western jurisprudence but has been and still is regarded as one of the finest creations of the human spirit.

    It would be generally accepted that no part of Roman law has been so admired or so influential as the law of contracts. Yet that system of contracts had grave defects. It would, of course, be unfair to criticise the Romans for not developing contracts to the point that we have, or, with hindsight, to judge them for not producing a general theory...

  9. Chapter 3 ROMAN LAW: PATRIA POTESTAS (pp. 23-30)

    Patria potestas, the power of a Roman head of family over his children and remoter descendants, was the core of the Roman law of persons. In the second century A.D. the jurist Gaius could write:

    Also in ourpotestasare the children whom we beget in civil marriage. This right is peculiar to Roman citizens; for scarcely any other men have over their sons a power such as we have. The late emperor Hadrian declared as much in the edict he issued concerning those who petitioned him for citizenship for themselves and their children. I am not forgetting that the...

  10. Chapter 4 ROMAN LAW: FURTHER POINTS (pp. 31-46)

    In the preceding two chapters we looked at fundamental weaknesses in the Roman system of contracts and the inconveniences ofpatria potestas. A similar look at other branches of law would show, I believe, equally grave defects where law was and remained for a very long time badly out of step with society. But instead of choosing one further field of law for appraisal I should like to consider first in this chapter some important legal distinctions, then some additional points. Both the practice and the growth of law are largely a matter of drawing distinctions, and the quality of...

  11. Chapter 5 ENGLISH LAW: REAL PROPERTY; TENURE AND REGISTRATION (pp. 47-60)

    There is no better way to begin looking at the long continuous development of English law and the traditional attitudes of lawyers than by pondering the words of William Blackstone uttered at the opening of the Vinerian lectures on October 25, 1758.

    The mischiefs that have arisen to the public from inconsiderate alterations in our laws, are too obvious to be called in question; and how far they have been owing to the defective education of our senators, is a point well worthy the public attention. The common law of England has fared like other venerable edifices of antiquity, which...

  12. Chapter 6 ENGLISH LAW: LIBEL AND SLANDER (pp. 61-75)

    The significance of the law of defamation is well stressed by E. C. S. Wade:

    Defamation is the branch of the common law which closely affects what is perhaps the most important of the political freedoms, that of speech and criticism. Its operation at all times affects the existence of a free press.¹

    English law draws a distinction in defamation which seems to be unknown to systems not founded on the Common Law; a defamatory statement is libel if it is cast in a form which is not purely transitory, but slander if oral (and unrecorded) words or gestures. Naturally...

  13. Chapter 7 WIDER PERSPECTIVES (pp. 76-86)

    It is, in fact, much easier to make out the case that English law to a marked extent is, and has been, out of step with its society than it is for Roman law. It may be thought that in the preceding two chapters I have made things too simple for myself by choosing notorious examples. In a sense the charge is just, but it is in the nature of things for this work to choose obvious and non-controversial examples. If one wants to demonstrate that rules of law do not jibe with the wishes or needs of society and...

  14. Chapter 8 LEGAL SCAFFOLDING (pp. 87-97)

    Several times before mention has been made of the development of a back-up system, a scaffolding of legal rules which is dictated by the need to modify the rather more basic rules. This legal scaffolding is of special interest in the present enquiry and we shall examine some particular examples.

    To start with an instance which has already been mentioned; from its origins probably in the third century B.C. until at least the second century A.D. the Roman consensual contract of sale did not contain an inherent warranty against eviction or against latent defects. The scaffolding which developed to cope...

  15. Chapter 9 LEGAL TRANSPLANTS (pp. 98-114)

    It would, I hope, be generally accepted that at most times, in most places, borrowing from a different jurisdiction has been the principal way in which law has developed.¹ This is as true today when one state in the U.S.A. will take over what has been worked out in another, or when England follows New Zealand, or Scotland, Sweden or France, as in the centuries of the Reception of Roman law and earlier.

    What seems more difficult to accept, though, are the implications of legal borrowing on such a scale. If the law in one country is very largely the...

  16. Chapter 10 CAUSES OF DIVERGENCE (pp. 115-129)

    It will have already become apparent from the preceding chapters if it was not apparent before — that for radical law reform something like legislation is usually needed. (For Rome I am here including within the term ‘legislation’, magistrates’ Edicts which were so important in the Republic and Imperial constitutions.) It will also have become apparent that often legislation is not forthcoming, at least for centuries. The basic reason for this is quite simply that the body or individual which has control over legislation on private law often has insufficient time or interest for law reform since it is usually...

  17. Chapter 11 SOME CONCLUSIONS (pp. 130-139)

    The general argument of this book has been, it will be recalled, not that private law fails to mirror the needs and desires of society or its ruling élite, but that to a very considerable extent law is out of step with such needs and desires.¹ This divergence, it has been maintained, is so great that none of the theories of the development of law or the relationship between law and society are acceptable even though each, or at least some, may contain much accurate observation. If the argument is correct various conclusions follow.

    The first conclusion must simply be...

  18. Chapter 12 STUDY OF LEGAL DEVELOPMENT (pp. 140-146)

    The conclusion that the relationship between legal rules and the society in which they operate is more tenuous than is usually supposed makes the questions of how, why and when legal developments occur more, not less, interesting and important. Each development seems to require a rather potent cause. If one were to investigate the causes of development one would find, I think, that no simple formula could be laid down, but each case had to be regarded individually. Yet one can, I believe, make a start on a systematic, rational study of the factors causing law to develop. In this...

  19. Index (pp. 147-148)