Law and society

Abstract

INTRODUCTION I have long been fascinated by the relationship between law and society. My book, Legal Transplants (Edinburgh, 1974) was written in 1970 but despite my best efforts I could not find a publisher until 1974. Then the book fell stillborn from the press. It took more than a decade before it attracted attention. The main theses are simple: There is no necessary correlation between law and the society in which it operates. Of course, there is some connection but precisely what that is is not inevitable, and may often be tenuous. Law is very much the culture of the lawmakers. Law once created lives on even in very different circumstances, also for a very long time, even for centuries. Law transplants easily, even to very different societies. I would add that governments are usually little interested in making law, especially private law, and leave this task to subordinate lawmakers, such as judges and law-book writers, to whom they do not give the power to make law. THE JURISTS AND THE LAWS IN ROME Let me give a few simple examples. 1 The Roman Twelve Tables of around 451–450 BC drew a distinction between furtum manifestum and furtum nec manifestum, manifest and non-manifest theft. The action for the former was for four times the value of what was stolen, for the latter double. What exactly was the difference between the two? The matter was of dispute among the classical jurists and was not settled even in the time of Justinian.