Sources of law, legal change, and ambiguity

189 Pages·1998·8.258 MB·English

by  Watson, Alan

Sources of
Law, Legal Change,
and
Ambiguity
This page intentionally left blank
Sources of
Law, Legal Change,
and
Ambiguity
Alan Watson
PENN
UNIVERSITY OF PENNSYLVANIA PRESS
Philadelphia
Copyright © 1984 University of Pennsylvania Press
Afterword copyright © 1998 University of Pennsylvania Press
All rights reserved
Printed in the United States of America on acid-free paper
10 9 8 7 6 5 4 3 21
Published by
University of Pennsylvania Press
Philadelphia, Pennsylvania 19104-4011
Library of Congress Cataloging-in-Publication Data
Watson, Alan.
Sources of law, legal change, and ambiguity.
Includes index.
i. Law — Sources. 2. Law reform. 3. Law — History and criticism. I. Title.
K28o.W37 1984 340 83-21783
ISBN 0-8122-1639-3 (pbk, alk. paper)
far Carleton B. Chapman
This page intentionally left blank
Contents
Acknowledgments viii
Abbreviations ix
Introduction xi
I
Sources of Law in Ancient Rome 1i
II
Europe before the Reception:
The Example of Germany and Northern France 25
III
Reception and Partial Reception:
Italy, France, and Scotland 51
IV
English Law in the Modern Age 77
V
Legal Department and Confusion
of Sources 93
VI
Two-Tier Law 111
Notes 133
Afterword to the 1998 Edition 159
Index 163
Acknowledgments
The Biddle Law Library of the University of Pennsylvania provided
me with many of the volumes needed for this study, but a Fellowship
from the American Bar Foundation enabled me to pursue my researches
abroad, notably at the Max-Planck Institut fur europaische Rechtsge-
schichte in Frankfurt, the National Library of Scotland in Edinburgh,
and the Law Library of the University of Oxford. To the members of all
these institutions I express my gratitude, as well as to my friends, John
Barton, Robert Black, Michael Hoeflich, Neil MacCormick, Maria
Smolka, Wolfgang Wagner and Armin Wolf, who read all or most of
the book in typescript and were generous with helpful criticism. For the
errors that remain I wish to plead the second defence of Sir George
Mackenzie in the Advertisement to the second edition of The Institutions
of the Law of Scot/and (1688). Chapter 6, "Two-Tier Law," with minor
alterations, formed the first part of an article of the same name originally
published in the International and Comparative Law Quarterly, 27 (1978),
552fT. I am grateful to the editors for their permission to republish it
here.
Many of the works used for this study are not easily accessible, hence
to show the evidence on which I base my argument I have often pre-
ferred to quote at length rather than paraphrase. For the same reason I
usually reproduce the original in addition to giving my own translation
into English.
Abbreviations
c.
Codex Justiniani
C. Th. Codex Theodosiani
D. Digesta Justiniani
G. Gai Institutiones
h. t. The same Title of Justinian's, Di-
gest as the previously cited text.
J. Justiniani Institutiones
Jolowicz & Nicholas, Historical H. F. Jolowicz & B. Nicholas, His-
Introduction torical Introduction to the Study of
Roman Law, 3d ed. (Cambridge:
Cambridge University Press,
1972)
Kaser, R. Pr. 1,2 M. Kaser, Das romische Privatrecht
2d ed. , vol. i (Munich: Beck,
1971); vol. 2 (1975)
LQ.R. Law Quarterly Review
Nov. Novellae Justiniani
Thomas, Textbook J.A.C. Thomas, Textbook of Ro-
man Law (Amsterdam: North
Holland, 1976)