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Society And Legal Change 2Nd Ed

Alan Watson

Publication Year: 2001

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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Published by: Temple University Press

Contents

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pp. v-

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Foreword by Paul Finkelman

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pp. vii-xi

In 1977 Alan Watson, then a professor of Civil Law at the University of Edinburgh, published Society 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...

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Preface to the Second Edition

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pp. xiii-xvii

When Douglas Grant, publisher of the first edition, invited me to consider republication of this book I was delighted. Then I was surprised to find that I wished to make no changes. The message of the book remains as it was in 1977. But a short preface seems appropriate. My starting point is a recent comment by Charles Donahue with which I am partly in agreement.

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Preface

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pp. xviii-xix

The argument of this book is that in the West rules of private law have been and are in large measure out of step with the needs and desires of society and even of its ruling elite; to an extent which renders implausible the existing theories of legal development and of the relationship between law and society. The ability and readiness...

Abbreviations

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pp. xx-

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Chapter 1: Introduction

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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...

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Chapter 2: Roman Law: the System of Contracts

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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...

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Chapter 3: Roman Law: Patria Potestas

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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 our potestas are 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...

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Chapter 4: Roman Law: Further Points

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pp. 31-46

In the preceding two chapters we looked at fundamental weaknesses in the Roman system of contracts and the inconveniences of patria 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...

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Chapter 5: English Law: Real Property; Tenure and Registration

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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;...

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Chapter 6: English Law: Libel and Slander

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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...

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Chapter 7: Wider Perspectives

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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...

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Chapter 8: Legal Scaffolding

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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...

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Chapter 9: Legal Transplants

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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,...

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Chapter 10: Causes of Divergence

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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...

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Chapter 11: Some Conclusions

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pp. 130-139

The general argument of this book has been, it wiII be recalled, not that private law fails to mirror the needs and desires of society or its ruling elite, 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...

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Chapter 12: Study of Legal Development

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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...

Index

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pp. 147-148


E-ISBN-13: 9781439905913

Publication Year: 2001