Bryn Mawr Classical Review

Bryn Mawr Classical Review 2001.10.28

Alan Watson, The Evolution of Western Private Law Expanded Edition.   Baltimore:  The Johns Hopkins University Press, 2001.  Pp. 320 + xii.  ISBN 0-8018-6484-4.  $55.00.  

Reviewed by Gerald J. Russello, New York City

In The Evolution of Western Private Law, Alan Watson ("W.") presents a comprehensive theory of legal change from Rome to the modern era. Long known for his work in Roman law and the law of slavery, W. here ranges across the breadth of the Western legal tradition, ancient, medieval and modern, in an effort to understand the process of legal change.

His study of the evolution of Western private law leads W. to strong conclusions about its development. W. states in his Preface that the title of the book "indicates a belief that law does not arise solely from the conditions of the society in which it operates, but there is a pattern or patterns of development that transcend state or national boundaries" (ix). W. is strongly in the camp of those who consider law as an autonomous discipline, with its own standards of the norm and evolution, which are largely resistant to cultural influences beyond the law itself. The law itself provides the impetus for change. The book therefore approaches its subject from an internal perspective, and there is little cross-disciplinary effort here in the sense of seeking explanations for legal developments in larger social, economic or political changes.

The book is divided into eleven chapters. The first four chapters deal, respectively, with what W. describes as the four basic sources of Western private law: legislation, jurists, judges and custom. The first of these sources, while important to modern day legal practitioners and scholars, was of minimal value in the ancient world. Indeed, as W. demonstrates, until the modern era private law was essentially not a concern for the state, other than to see that the system was stable. In Rome, for example, the private law was encapsulated in only a handful of statutes, most importantly the lex Aquilia and the statutes relating to testate succession. In the second chapter, dealing with the jurists, W. devotes a section to "the Roman System of Contracts," which explores this "most original part of [the Roman] system and the most admired" (33). W. uses the contract stipulatio to explain the development of the Roman contractual system as a whole. Other contracts developed, W. posits, only as derogations of stipulatio; the idea of creating an extremely flexible contract, adaptable to many circumstances, apparently did not occur to the Romans, W. thinks, and so their legal tradition dictated the types of arrangements in which they could engage. "[I]ndividual Roman contracts emerged--certainly because of societal needs--at a pace and with characteristics dictated by legal reasoning."

Chapters Five and Six use concrete examples to demonstrate how these factors interacted in particular legal contexts. The fifth chapter, "Legislation and Jurists: French Délit," concentrates on examining the uses the French Code Civil put to Roman law. Chapter Six, "Jurists, Judges, Customer, Legislation: Water Rights," employs this prosaic area of the law to illustrate his theory of legal change. In each of these chapters, W's aim is to uncover how Roman patterns of thought influenced modern legal systems, even where the decisions of those systems faced radically different circumstances. These studies are necessarily highly detailed and sophisticated, but they repay the effort. Part of W.'s thesis is that legal traditions develop in particular ways and that the best means of understanding what the lawyers, judges and jurists are doing is to pay close attention to their reasoning.

W. then moves on to larger analyses of his theory of legal change. Chapters Seven and Eight each deal with "Legal Transplants." Chapter Seven examines the Reception of Roman law by much of Western Europe, and Chapter Eight describes other "Receptions," such as those of the Libri Feudorum and the French Code Civil. Even here, W. is careful to trace the enormous influence Rome had on the development of, for example, the law of the Visigothic kingdoms. Chapter Nine, "The Case of English Common Law," tries to explain why the Reception of Roman law did not take place there to any substantial extent and therefore why England remained (and largely remains) a common-law country. The penultimate chapter, "Humanism, The Law of Reason, and Codification" looks at the three most important extra-legal bodies of thought on the evolution of private law in the West. The final chapter offers W.'s concluding thoughts.

W. contends that the existence of legal borrowing has not been properly recognized as a strong feature of Western legal thought. Indeed, W. concludes that "borrowing has been the most important factor in the evolution of Western law in most states at most times" (193). The individual states that were heirs to the Roman tradition of course borrowed from it extensively in designing their own legal systems. Using several case studies, W. concludes that the existence of borrowing outweighs any other external social or political factors in developing legal systems. Thus, he spends a good deal of time examining the adoption of Swiss law, at the urging of Ataturk, by Turkey in the 1920s. W. contends that, for private law at least, the substance is less important than the fact of its existence. Like Napoleon (who urged the adoption of a uniform French Code civil) before him, Ataturk "was much more motivated by a desire to make law accessible than to make it conform to a particular political or social ideal" (8). Even systems formerly thought to be outside of the usual Western dichotomy of civil-law and common-law systems, such as the socialist legal systems of the then-Soviet Union and eastern Europe, on closer inspection also bear strong traces of their history. Indeed, throughout this study W. treats law and politics as operating largely in separate spheres.

Evolution begins with a basic description of the history and structure of the Corpus Juris Civilis. In Rome, the legal system was mainly the result of private jurists not legislators. The jurists left the greatest early mark on legal reasoning, and W. suggests their influence is due almost entirely to the circumstances at Rome in the period following the expulsion of Tarquin in 451 B.C. Specifically, W. focuses on the struggles between plebeian efforts at legal reform and patrician resistance. The result--in which members of the all-patrician College of Pontiffs became the sole interpreters of the law--had enormous consequences for the subsequent history of Western law.

The Roman political scene, for W., created two marked characteristics of Western law: first, and somewhat paradoxically, it represents an insulation from the larger social and political world; and second, a deep reliance on prior decisions to interpret current issues. The success of this legal reasoning carried through the medieval reception of Roman law was in part due to the lack of widespread formal legal systems that could compete with the comprehensive inheritance of Rome, but in part because the lands that once were Roman were used to this style of thought and accorded it wisdom and authority. W. explains this process as "the non-Roman area of law receives rules of Roman law, and to some extent, the non-Roman element is seen in Roman terms" (28). A third feature due almost completely to the example of Rome and the Corpus is the desire on the part of most countries to codify their law and the desire of later jurists to conform their studies to this example.

The common law of England presents an unusual case: once part of the Roman Empire, it nevertheless retained a legal system somewhat independent of the continental reception. W. acknowledges this problem for his general argument, stating "if the Reception was so natural, then I ought to explain why it did not also occur in England," (234), as it did, for example, in Scotland. The great English legal historian John Baker has written that England was largely immunized from the waves of interest in the Roman law that swept Europe, first after the rediscovery of the Digest in the twelfth and thirteenth centuries, and again at the close of the Middle Ages. Although the English jurists were not completely isolated from the Roman Reception, the legal structure in England was so different from the rest of Europe as to make wholesale borrowing unlikely. W., like Baker, finds one reason for England: legal isolation in its complex series of writs and pleading procedures, which took up far more of the English lawyer's study and practice than reading the jurists. "The need to have a writ to bring the case before the court meant that high priority was centered on that and on proof, rather than on systematic development of legal rules" (242). It should be noted in this context that, unlike other European nations, English law schools were almost nonexistent; lawyers trained--until quite recently, in fact--at "Inns" that were more like professional associations rather than universities. This factor, combined with several others that W. mentions, such as the resistance of the strong feudal structure of England to the ancient categories and concepts of Rome--resulted in English law remaining unique and the source of the great Western rival to the civil-law tradition.

In the last chapter, W. summarizes his conclusions by stating: "[l]egal change comes about through the culture of the legal elite, the lawmakers, and it is above all determined by that culture" (p. 264). While his examples, from the Visigoths through Turkey, fully illustrate his thesis, the study would have benefited from an extended analysis of more recent borrowings. For example, the common-law system, imported from Britain is operating in as widely divergent places as Nigeria and India. An analysis of the evolution of the law (and, more specifically, the conforming of older, indigenous legal systems to it) would have been in place here. Though beyond the scope of his study, a companion survey of criminal law in the West would provide an appropriate counterpoint to this work and might deepen W.'s analysis. The judicial treatment of the insanity defense to crimes, for example, as set out by Daniel Robinson and others, owes very much to larger social, religious and political factors, and perhaps less to the internal workings of the law that W. posits here.

Nevertheless, The Evolution of Western Private Law is an innovative look at the development of the Western legal tradition. It makes an important contribution to the literature on legal history, and W. has carefully examined the sources and the relevant primary documents. Although highly detailed and somewhat technical, W writes with great clarity and the book should appeal beyond specialists or legal historians. It will be of interest to advanced students and scholars of law, legal history or sociology.

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