Comparative Jurisprudence (II): The Logic of Legal Transplants

Author(s): William Ewald

Source: The American Journal of Comparative Law, Vol. 43, No. 4 (Autumn, 1995), pp. 489-510
Published by: American Society of Comparative Law
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 WTIlT,TAM
EWALD

Comparative Jurisprudence (II): The Logic

of Legal Transplants

I.
In a flood of books and articles examining the history of Western
law, Alan Watson has proposed a theory of legal change: the theory,
roughly stated, that the growth of law is principally to be explained
by the transplantation of legal rules.1
WILLIAM EWALD is Assistant Professor of Law and Philosophy, University of Penn-
sylvania. This is the second of a series of articles attempting to re-examine the foun-
dations of comparative law. The first in the series is, "Comparative Jurisprudence (I):
What was it Like to Try a Rat?," 143 Penn. L. Rev. 1189 (1995). I should like to thank
Stephen Burbank for his comments on an earlier version of this article, and for first
having pointed out to me the importance of Watson's work for legal theory.
1. Watson's writings to date fill some twenty books and one hundred articles.
They touch on much of Western legal history, but are centered on Roman Law and its
subsequent influence in continental Europe. His chief works include: Contract of
Mandate in Roman Law (1961); The Law of Obligations in the Later Roman Republic
(1965); The Law of Persons in the Later Roman Republic (1967); The Law of Property
in the Later Roman Republic (1968); The Law of the Ancient Romans (1970); The Law
of Succession I The Later Roman Republic (1971); Roman Private Law Around 200
B.C. (1971); Law Making in the Later Roman Republic (1974); Legal Transplants: An
Approach to Comparative Law (1974; 2d ed. 1993) [hereinafter Transplants]; Rome of
the XII Tables; Persons and Property (1975); The Nature of Law (1977); Society and
Legal Change (1977) [hereinafter Society]; The Making of the Civil Law (1981) [here-
inafter Making]; The Sources of Law, Legal Change, and Ambiguity (1984); The
Evolution of Law (1985) [hereinafter Evolution]; Roman Slave Law (1987); Failures of
the Legal Imagination (1988); Slave Law in the Americas (1989); Studies in Roman
Private Law (1991); Legal Origins and Legal Change (1991); Roman Law and Com-
parative Law (1991) [hereinafter Roman and Comparative]; The State, Law, and Reli-
gion: Pagan Rome (1992); Joseph Story and the Comity of Errors (1992); International
Law in Archaic Rome: War and Religion (1993).
Watson's articles that are most relevant to the present topic are: "The Definition
of Furtum and the Trichotomy," 28 Revue d'Histoire de droit 197 (1960); "The Devel-
opment of Marital Justifications for Malitiosa Desertio in Roman-Dutch Law," 79 Law
Q. Rev. 87 (1963); "Some Cases of Distortion by the Past in Classical Roman Law," 31
Revue d'Histoire de droit 69 (1963); "Roman Private Law and the Leges Regiae," 82
Journal of Roman Studies 100 (1972); "Personal injuries in the XII Tables," 43 Tijd-
schrift voor rechtsgeschiednis 213 (1975); "Legal Transplants and Law Reform," 92
L.Q. Rev. 79 (1976); "Comparative Law and Legal Change," 37 Cambridge L.J. (1978);
"Two-Tier Law - A New Approach to Law Making," 27 Intl. & Comp. L.Q. 552
(1978); "Society's Choice and Legal Change," 9 Hofstra L. Rev. 1473 (1981); "The No-
tion of Equivalence of Contractual Obligation and Classical Roman Partnership," 97
Law Q. Rev. 275 (1981); "Legal Change: Sources of Law And Legal Culture," 131 U.
Pa. L. Rev. 1121 (1983); "An Approach to Customary Law," 1984 U. Ill. L. Rev. 561
(1984); "The Evolution of Law: The Roman System of Contracts," 2 Law & Hist. Rev. 1
(1984); "The Future of the Common Law Tradition," 9 Dalhousie L.J. 67 (1984); "Law

489
490 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

This theory, if it is true, is of great importance, not only for legal

history, but also for comparative law (which it supplies almost auto-
matically with both a subject-matter and a method) and for legal phi-
losophy (which it supplies with an original and contentious view of
the relationship between law and society). For Watson's theory flies
in the face of some of the most treasured preconceptions of modern
legal thought. Since the time of Montesquieu it has frequently been
assumed, sometimes explicitly, more often tacitly, that the law
changes in response to forces external to law - that law reflects the
power relations of society, or the workings of the market, or the ideol-
ogy of possessive individualism, or the promptings of the judicial sub-
conscious, or the cunning of the Weltgeist, or the self-interest of the
dominant class, or the political ideology of the age; that, because law
does not possess an autonomous existence, legal scholars should
steep themselves in other disciplines, such as sociology, or anthropol-
ogy, or philosophy, or economics, or literary criticism, or critical
theory.
Watson's historical writings are centered on Roman law, and
have investigated, in exacting detail, the gradual spread, by legal
transplantation, of Roman law rules throughout continental Europe.
Again and again he points to a fact which, to be sure, has often been
remarked upon, but whose importance for legal philosophy few have
noticed before his work, namely, the extraordinary persistence, into
the present day, of rules that were first struck upon by a leisured
class of slave-holding Italian aristocrats - men who pursued law as
a hobby, and who have been dead for nearly two thousand years.
It is easy to see why Watson's theory has radical implications. If
legal rules can be readily transported from society to society; if the
very same rules of contract can operate in the worlds of Julius Caesar
and the medieval Popes, of Louis XIV, of Bismarck, and of the twenti-
eth-century welfare state; if law changes, not in response to external
pressures, but to the internal requirements of the legal system itself,
then the idea of a Grand External Theory of Law - the idea of law
reduced to sociology or economics or class politics - must be a fata
morgana, a pipe-dream of scholars who are entranced by the claims
in a Reign of Terror," 3 Law & Hist. Rev. 163 (1985); "A House of Lords' Judgment,
and Other Tales of the Absurd," 33 Am. J. Comp. L. 673 (1985); "Legal Evolution and
Legislation," 1987 B.Y.U. L. Rev. 353 (1987); "Evolution of Law: Continued," 5 Law &
Hist. Rev. 537 (1987); "The Structure of Blackstone's Commentaries," 97 Yale L. J.
795 (1988); 'The Transformation of American Property Law: A Comparative Law Ap-
proach," 24 Georgia L. Rev. 163 (1990); "Roman Law and English Law: Two Patterns
of Legal Development," in II diritto privato europeo: Problemi e perspettivi (Atti del
convegno internazionale, macerata 8-10 giugno 1989) 9 (Luigi Moccia ed. 1993);
"Chancellor Kent's Use of Foreign Law," in The Reception of Continental Ideas in the
Common Law World, 1820-1920, 45 (Mathias Reimann ed. 1993).
Watson summarizes his view of comparative law and of the evolution of the Civil
Law systems in Rudolf B. Schlesinger, Hans Baade, Mirjan Damaska & Peter Herzog,
Comparative Law: Cases-Text-Materials (5th ed. 1988) at 309-10.
19951 THE LOGIC OF LEGAL TRANSPLANTS 491
of high theory, but who have not adequately studied the way in which
law, as a matter of historical fact, actually develops.
Watson's contributions to legal history have been widely appreci-
ated, as have his contributions to comparative law. But the signifi-
cance of his work for legal philosophy has largely gone unnoticed. In
large part, I think, this is because Watson's theory is sufficiently com-
plex, and, as he presents it, sufficiently bound up with the discussion
of intricate historical details, so that one can easily misunderstand
its force and its relationship to the historical data. Indeed, Watson
himself has presented his theory in a somewhat loose and intuitive
fashion; he has, over time, and in different contexts, changed his
formulations, sometimes claiming one thing and sometimes another,
with the consequence that his theory has frequently been
misunderstood.
In this article I therefore propose to try to explain, in abstract
terms and as far as possible unencumbered by historical minutiae,
what Watson's theory is and why it seems to me important; and I
shall attempt to explain why it has been open to so much misinter-
pretation. In particular I shall argue that most of the confusions sur-
rounding Watson's theory can be traced to a failure to pay adequate
attention to the logical structure of his argument, and to the logical
structure of the views he is concerned to oppose.
But I have a wider purpose in this undertaking than simply to
understand Watson's theory. I have argued at length in the first arti-
cle in this series that comparative law is in need of radical overhaul,
and the arguments I make there are closely related to my interpreta-
tion of Watson's theory. Very roughly, and somewhat polemically,
what I wish to say about Watson is this. Two souls dwell within his
breast; we can call them, for reasons that will emerge, Weak Watson
and Strong Watson. Both Watsons argue against what I shall call
the mirror theory of law, i.e., the theory that law is the mirror of some
set of forces (social, political, economic, whatever) external to the law.
Weak Watson opposes this theory weakly and cautiously; Strong
Watson opposes it strongly and, I think, recklessly. The difference
between the two Watsons is precisely the logical difference I just al-
luded to.
That difference is of crucial importance for the following reason.
Weak Watson's argument, I believe, is adequate to devastate the
traditional mirror theories, at any rate in their cruder (and therefore
more influential) forms. It is a major theoretical advance; and if it is
correct (which I believe it is) it opens the door to the new style of
comparative law which I have dubbed "comparative jurisprudence." I
have sought in my other piece to say what the landscape looks like on
the other side of that door.
492 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

Strong Watson, in contrast, is a menace to himself and to others.

He looks on the surface like the more radical of the two Watsons; but
once you get to know him, you find that he is hopelessly antique. If
we follow his advice, we shall never get to the new landscapes; in-
deed, not even to the door. We will, in fact, end in a place where
Watson the great scholar of Roman law has no business to be: with
the traditional style of comparative-law scholarship that scorns ideas
and fixes its gaze lovingly on the black-letter rules of the private law.
That style of scholarship, I contend, is bankrupt; and in the other
piece I give several examples of ways in which Watson has, it seems
to me, been betrayed by his stronger self. My purpose here is to dis-
tinguish the weak twin from the strong: to praise the former, and
banish the latter.

II.
It will be helpful if we begin by considering the group of theories
Watson is arguing against. I propose to call those theories "mirror
theories of law," and wish to make three points about them.
The basic flavor of a mirror theory is given by the following quo-
tation from a distinguished American legal historian, who says that
he conceives of law:
not as a kingdom unto itself, not as a set of rules and con-
cepts, not as the province of lawyers alone, but as a mirror of
society. It takes nothing as historical accident, nothing as
autonomous, everything as relative and molded by economy
and society. This is the theme of every chapter and verse.2
The essence of the view seems to be this:
Nothing in the law is autonomous; rather, law is a mirror of
society, and every aspect of the law is molded by economy
and society.
The first point to notice about mirror theories is that they do not
constitute a single theory, but rather a class of theories. This fact is
crucial for determining the logical structure of the arguments that
can be deployed against them, and, in particular, for determining the
logical structure of Watson's argument. So, for example, the view I
have just quoted is but one representative of a familiar class of theo-
ries that take the form:

2. Lawrence Friedman, A History of American Law 12 (2d ed. 1985). Here is

another representative quotation from the end of the same book:
As long as the country endures, so will its system of law, coextensive with
society, reflecting its wishes and needs, in all their irrationality, ambiguity,
and inconsistency. It will follow every twist and turn of development. The
law is a mirror held up against life.
Id. at 595.
 1995] THE LOGIC OF LEGAL TRANSPLANTS 493

Nothing in the law is autonomous; rather, law is a mirror of

X, and every aspect of the law is molded by X.
In other words, this class of theories varies according to the choice of
X; and, depending upon the particular theory in question, X can be
assigned different (non-legal!) values: geography, religion, the
Weltgeist, market economics, power-relations, the interests of the
dominant class, or whatever.
Such mirror theories have a long and distinguished pedigree.
Historically they seem to have appeared first in the eighteenth cen-
tury,3 and to have received their most influential statement in the
works of Montesquieu, who declared that:
[The political and civil laws of each nation] should be so
closely tailored to the people for whom they are made, that it
would be pure chance [un grand hazard] if the laws of one
nation could meet the needs of another...
They should be relative to the geography of the country;
to its climate, whether cold or tropical or temperate; to the
quality of the land, its situation, and its extent; to the form
of life of the people, whether farmers, hunters, or shepherds;
they should be relative to the degree of liberty that the con-
stitution can tolerate; to the religion of the inhabitants, to
their inclinations, wealth, number, commerce, customs,
manners.4
Similar statements have been made by Savigny, Hegel, Marx, Jher-
ing, Pound, and many other thinkers of lesser note.5
The second point about mirror theories is that, not only do they
vary according to the choice of X, but they also vary along a second
dimension, which might be called the dimension of strength. Given a
particular choice of X, a strong mirror theory takes some such form
as:
Law is nothing but X
or:
Law is wholly explicable in terms of X
or:
Given a knowledge of X, it is possible to calculate the rules of
law that will hold in the given society.
A weak mirror theory, in contrast, claims only:
Law and X are closely related

3. Schroder, "Zur Vorgeschichte der Volksgeistlehre. Gesetzgebungs- und

Rechtsquellentheorie im 17 und 18 Jahrhundert," 109 Zeitschrift der Savigny-Stif-
tung fiir Rechtsgeschichte (Germanische Abteilung) 1 (1992).
4. Charles de Secondat Montesquieu, De l'esprit des lois, book I, ch. 3 (Des lois
positives) (1748).
5. Numerous quotations are given in Watson, Society, supra n. 1, at 3-4.
494 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

or:
A knowledge of X is useful (but perhaps not sufficient) for
understanding the rules of law that hold in a given society.
Plainly there is a continuum here, and a mirror theory can be more or
less strong depending on how close it asserts the relationship be-
tween X and a society's laws to be.
There are some interesting parallels and dissimilarities between
the two dimensions I have identified. The dimension of strength is a
continuum, depending on how close one takes the relationship be-
tween law and X to be; whereas the choice of X is the choice of a more-
or-less discrete subject-matter: economics, or geography, or whatever.
But it should be noticed that, as in the quotation from Montesquieu
above, X need not be a single subject: thus, a mirror-theory might
hold that law is a mirror, not just of economics, but of economics and
politics and climate. This fact complicates the analysis, and gives us
a second, derivative sense in which a mirror theory can be strong or
weak; to distinguish this sense from the first sense, I shall speak of
the theory as being (relatively) tight or loose. A tight mirror-theory
takes X to be a single, narrowly-defined non-legal subject, whereas a
loose theory takes X to be a broader range of non-legal subjects. So a
strongly-phrased, tight theory might hold:
Law is nothing but economics;
whereas a strongly-phrased, but looser theory, might hold:
Law is nothing but economics, politics, power relations, and
the ideological consciousness of the age.
It should be clear that, as a mirror-theory becomes either weaker or
looser, it becomes easier to defend and less likely to arouse contro-
versy. But so long as the subjects encompassed by X are external to
the law (as they are, say, in the quotation above from Montesquieu)
the dimension of looseness is of less theoretical importance than the
dimension of strength. For the central question Watson is concerned
to answer is:
To what extent can law be explained in terms of non-legal
factors?
and this is primarily a question about the strength of any given mir-
ror-theory. For this reason in the discussion that follows I shall ig-
nore the dimension of looseness.
It is important to observe that many of the thinkers mentioned
above have advocated a mirror-theory in a strong form, and that the
strong form of the theory has had considerable practical influence.
Perhaps the most conspicuous example is Savigny's Volksgeist the-
ory, i.e., the theory that law must reflect the spirit of the nation.6 But
6. Friedrich Carl von Savigny, Vom beruf unserer zeit fur gesetzgebung und
rechtswissenschaft (1814). I raise some doubts about the correctness of this strong
 1995] THE LOGIC OF LEGAL TRANSPLANTS 495

other, more modern examples abound. For example, Otto Kahn-

Freund's theory of comparative legislation - a revised version of
Montesquieu's theory - is very carefully nuanced, and allows that
legal institutions may be more-or-less deeply embedded in a nation's
life, and therefore more-or-less readily transplantable from one legal
system to another; but nevertheless at one end of the spectrum law is
so deeply embedded that transplantation is in effect impossible.7
More generally, the acceptance by legal thinkers of a mirror theory,
and in particular of a strong version of a mirror theory, can exert a
powerful influence on the academic study of law, determining, for in-
stance, whether one finds the writings of Marx or Foucault or game-
theorists relevant to the understanding of labor-law doctrine, or
whether, say, legal historians should concentrate their gaze narrowly
on the development of legal rules, or should instead investigate the
wider social or economic or political context.
The theories Watson is concerned to discuss are strong versions
of mirror theories; and this raises the third observation. Observe
that the strongest version of a mirror theory has the form of a logi-
cally universal proposition: that is, it makes an assertion about every
rule of law, saying that all rules are "molded by economy and soci-
ety." And the crucial logical point is that the negation of a universal
proposition is not a universal but a particular. That is, to refute the
universal proposition one need only exhibit a single counterexample,
i.e., a particular rule that is not molded either by economy or by soci-
ety; it is not necessary to slip into the trap of making the assertion
that no rule is ever molded by economy and society.
Again, the fact that a mirror theory can be more-or-less strong
complicates the analysis. Few of the influential mirror theories take
the strongest and most categorical form; most slide into some qualifi-

interpretation of Savigny in Ewald, "Comparative Jurisprudence (I): What it was Like

to Try a Rat?," 143 Penn. L. Rev. 1189, 2031, n. 288 (1995). In fact this interpretation,
which Watson endorses (id.), seems to me to get Savigny backwards; but that is not an
issue that matters for the purposes of the present paper.
7. Kahn-Freund, "On Uses and Misuses of Comparative Law," 37 Mod. L. Rev. 1
(1972). Kahn-Freund arranges legal rules and institutions along a spectrum that
ranges from the "mechanical" (which is relatively easy to transplant) to the "organic"
(which is not). He summarizes his thesis as follows:
the degree to which any rule ... or institution ... can be transplanted, its
distance from the organic and from the mechanical end of the spectrum still
depends to some extent on the geographical and sociological factors men-
tioned by Montesquieu, but especially in the developed and industrialized
world to a very greatly diminished extent. The question is in many cases no
longer how deeply it is embedded ... but who has planted the roots and who
cultivates the garden. Or, in non-metaphorical language: how closely it is
linked with the foreign power-structure ....
Id. at 12-13. For Watson's response to Kahn-Freund, see Watson, "Legal Transplants
and Law Reform,"92 L.Q. Rev. 79 (1976); for a continuation of the discussion, see also
Stein, "Uses, Misuses- and Nonuses of Comparative Law," 72 NW. U. L. Rev. 198
(1977).
496 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 43

cations. If the theory maintains, not that all rules are molded by eco-
nomics, but only that most are, then a single counterexample will not
suffice. One needs several counterexamples, and counterexamples of
a centrality and power sufficient to call the plausibility of the particu-
lar mirror-theory into question. But there is no need to produce as
well an affirmative theory of the relationship between law and
society.
Mirror theories are thus logically quite complex, and vary along
several dimensions: they both constitute a class of theories (depend-
ing on which variables X the theory treats as the determining factors
of law), and they can vary in terms of their logical strength.
Let us now consider how, as a logical matter, one is to argue
against such a complex and slippery class of theories. If Watson is to
show that the most influential of these theories are untenable, he
must show, for each of the familiar choices of X, that the (relatively
strong) mirror-theories associated with X are inadequate to explain
the nature of the legal system, i.e., that law is not, in fact, in any
interesting sense a reflection of X. Perhaps the most direct way to do
this (and the way he in fact adopts) is to consider the evolution of a
single legal system over time. That is, if a particular mirror theory
asserts that
Legal rules (or at any rate a weighted majority of legal rules)
are a reflection of X
he will attempt to show, for important clusters of legal rules, that
those rules have remained constant over long stretches of time, while
the underlying facts X have undergone significant variation. (The
more important the rules, the longer the stretch of time, and the
more significant the underlying variation, the stronger is his counter-
example to the proffered mirror theory.) At any rate, this is the gen-
eral strategy; though the details, as we shall now see, are more
complex.

III.
As I mentioned at the outset, Watson's writings are voluminous
and their principal concern is to delve into the history of the civil law
systems; his central theoretical claims must therefore be extracted
from the various historical discussions in which they are embedded.
Although Watson's remarks on legal theory are widely scattered and
at times loosely stated, it seems to me that the principal aspects of
his theory can be summed up in five theses. (I offer these theses as
what philosophers call a "rational reconstruction" of his theory; they
are not thus stated in his writings.)
(1) The Comparative Law Thesis. Comparative law should
be concerned, not simply to study foreign law, but to
 1995] THE LOGIC OF LEGAL TRANSPLANTS 497

study the relationship between law and society.8 This

thesis (as presented by Watson) divides into two parts:
(a) The Actual Relationships Thesis. Comparative
law is the study of the influences that have actually
taken place between one system of legal rules and
another.9
(b) The Legal History Thesis. Because the actual in-
fluences take place over protracted periods of time, com-
parative law will consequently have a large historical
component.10
I do not propose to discuss these claims at any length, and they will
play little role in the arguments that follow. Although Watson fre-
quently insists on the actual relationships thesis (a), this particular
thesis seems to me not to follow from his more general thesis (1)
about comparative law; in fact it constitutes a needless restriction on
the subject. One of the delights of comparative law should be to as-
certain the ways in which different, unrelated societies have tried to
solve similar legal problems; but Watson's thesis (a) would preclude,
say, a comparison of the property law of feudal England with that of
feudal Japan - a comparison that, at least prima facie, might be
expected to shed light on the relationships between law and society.
Since thesis (a) seems to me unnecessary to Watson's project, I
shall simply discard it as an irrelevance. His thesis (b), in contrast,
seems to me essential, although not for the reason he gives. He
seems to base thesis (b) on thesis (a). But (b) in fact follows directly
from (1). For if one is to study the relationship, within a given soci-
ety, between law and some external social phenomenon X, one must
allow X to vary, and see how law changes in response; and this can

8. Thus in the Afterword to the second edition of Legal Transplants, Watson ob-
serves: "My notion was that the study of legal developments in a number of states
would, by uncovering patterns and divergences, best reveal societal concerns, and
how law responds." Watson, Transplants, supra n. 1, at 107. See also id. at 1-21, and
Watson, Roman and Comparative, supra n. 1, at 97.
9. Thus he says:
Comparative Law as an academic discipline in its own right is the other side
of the coin, an investigation into the legal transplants that have occurred:
how, when, why and from which systems have they been made; the circum-
stances in which they have succeeded and failed; and the impact on them of
their new environment.
The quotation occurs in Schlesinger, et al., supra n. 1, at 309.
10. Comparative Law, then, if it is to be an intellectual discipline in its own
right, is something other than the study of one foreign system (with glances
at one's own), and overall look at the world's systems or comparison of indi-
vidual rules or of branches of law as between two or more systems, and I
would suggest that it is the study of the relationship of one legal system and
its rules with another. The nature of any such relationship, the reasons for
the similarities and the differences, is discoverable only by a study of the
history of the systems or of the rules; hence in the first place, Comparative
Law is Legal History concerned with the relationship between systems.
Watson, Transplants, supra n. 1, at 6.
498 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

only be done by considering historically how law has evolved over

time.
The next three theses are the core of Watson's theory and of his
argument against the various strong mirror-theories. They are:
(2) The Roman Law Thesis. The Roman Law Thesis comes
in two forms:
(a) The Strong Roman Law Thesis. Roman law is the
only thing we need to consider in explaining the mod-
ern civil law systems: Given the initial acceptance of
Justinian's Corpus Juris Civilis, "everything else
follows.""
(b) The Weak Roman Law Thesis. Roman law is the
most important thing we need to consider in explain-
ing the differences between the common law and the
civil law.12
These theses are based on Watson's historical studies of the influence
of the Corpus Juris Civilis on the development of the civil law in Eu-
rope; and those studies investigate, not just the influence exerted by
the acceptance of the substantive rules of the Digest, but also the
more subtle influence of the Institutes on such matters as legal educa-
tion or the way in which the civil law systems arrange the various
legal sub-disciplines.
These Roman law theses are the empirical core of Watson's argu-
ment against the mirror theories. They are also the foundation for
the next thesis.
(3) The Transplants Thesis. As a matter of observed fact,
legal borrowings have been the "most fertile" source of
legal change in the Western world.13 The rules of Roman
law have been transplanted in bulk into most of the
countries of Continental Europe, and form the founda-
tion of their legal systems; in addition, within a legal sys-
tem change often occurs as a result of internal
borrowing, when a new rule is developed by analogy to
an old rule on a different subject.

11. Thus Watson writes:

After the initial acceptance [of Justinian's Corpus Juris], everything else, in-
cluding the dominant role of the universities in shaping legal thought, would
follow. For this process, once started, to be explicable, no reference need be
made to further societal factors, including the general political structure or
the organization of practicing lawyers.
Watson, Making, supra n. 1, at 32-33.
12. "Anhistorical dependence on Roman law is, in fact, the common characteristic
of the civil law systems. .. ." Id. at 3.
13. "[T]ransplanting is, in fact, the most fertile source of development. Most
changes in most systems are the result of borrowing." Watson, Transplants, supra n.
1, at 95. See also Watson's comments in Schlesinger, et al., supra n. 1, at 309.
 1995] THE LOGIC OF LEGAL TRANSPLANTS 499

Here, again, Watson states the implications of his observations in

two forms, sometimes seeming to assert that comparative law is
equivalent to the study of legal transplants,14 and sometimes assert-
ing the weaker claim that comparative law should be centrally (but
not exclusively) concerned with the study of legal transplants.15
Two things should be noticed about the transplants thesis. First,
Watson, on the basis of his historical investigations into Roman law,
has now begun to move to conclusions about the methodology of com-
parative law in general. This might seem like a plump non sequitur;
however, Watson's work implicitly contains a complex, underlying ar-
gument that would justify the move. The argument involves numer-
ous historical considerations that I cannot go into here; but, briefly,
Watson argues that the "transplant bias" of Western legal systems is
grounded in the nature of the legal profession. Lawyers (whether
they act as legislators, judges, or scholars) constitute an elite law-
making group within society; into their hands has been entrusted the
task of interpreting, preserving, and developing the law. On the ba-
sis of historical observation we can make certain general comments
about how they have done this. As a group, lawyers exhibit certain
distinctive characteristics. They are creatures of habit; they tend to
view legal rules as ends in themselves; in altering the law they seek
either to play down the extent of the change, or to borrow a rule from
some foreign legal system with great prestige and authority. In brief:
Law is treated [by the legal elite] as existing in its own right;
it is being in conformity with lawness that makes law law.
Hence, first, the means of creating law, the sources of law,
come to be regarded as a given, almost as something sacro-
sanct .... Secondly, law has to be justified in its own terms;
hence authority has to be sought and found. That authority
(in some form, which may be perverted) must already exist;
hence law is typically backward-looking. These two features
make law inherently conservative.16

14. Watson provides a summary description of his approach to comparative law in

Schlesinger, et al., supra n. 1, at 309:
Comparative Law is a study of the connections between systems which have
some relationship. As a practical subject Comparative Law is a study of the
legal borrowings or transplants that can and should be made; Comparative
Law as an academic discipline in its own right is the other side of the coin, an
investigation into the legal transplants that have occurred: how, when, why
and from which systems have they been made; the circumstances in which
they have succeeded and failed; and the impact on them of their new
environment.
15. The main type of relationships between systems arises because one sys-
tem borrowed from the other, or because both borrowed from a third. Since
borrowing - often with modifications - is the main way in which the law of
any Western system develops, at the centre of study of Comparative Law
should be Legal Transplants.
Watson, Society, supra n. 1, at 141.
16. Watson, Evolution, supra n. 1, at 119.
500 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

The crucial point to notice is that, if this argument about the nature
of the legal elite is correct, then legal transplants will constitute the
chief mechanism of legal change for law in general, and not just for
the history of Roman law.
The second point to notice is that this same argument about the
legal elite is crucial to Watson's argument against the mirror theo-
ries. Recall the logical structure of those theories: they form a class
varying according to the choice of X, and they vary in strength. Were
Watson to show, for various choices of X, that the resulting strong
mirror theory fails to account for the historical facts, he would have
provided only a superficial and (as it were) negative account of the
failure of various mirror theories. That is, he would have told us that
certain theories fail to work; but he would not have explained, at a
deep level, why they fail, and he would have given us no affirmative
reason for believing that, in principle, no mirror theory is likely to
succeed where the existing theories have failed.
But his discussions of the culture of the legal elite fill this gap.
For if lawyers are as bound by the legal tradition, by the need for
authority, by the need to appear to be moving in accordance with pre-
cedent as his account suggests; if, for their legal justifications, they
look principally to the legal tradition itself, and not, as a rule to any-
thing outside of that tradition, then strong mirror theories as a class
are unlikely to provide an accurate account of the evolution of law.
(It is important here to bear in mind the logical structure of the
argument Watson needs to make. He does not need to show, in order
to refute a strong mirror-theory, that lawyers never look outside the
legal tradition; he need only show that often they do not. The power
of the facts he adduces about the legal elite is that, if true, they sug-
gest a conclusion even stronger than the one he needs: that, not only
often, but usually, lawyers look to the legal tradition rather than to
economics or sociology or politics.)
These theses and their supporting arguments have an important
corollary:
(4) The Insulation Thesis. The development of the civil law
is the result of "purely legal history," and can be ex-
plained "without reference to" social, political, or eco-
nomic factors.17
Once again, Watson's insulation thesis comes in two versions. In
some moods he is uncompromising, and states his thesis as what

17. For example, Watson says:

[According to Kahn-Freund,] 'No amount of planned or unplanned har-
monization can expunge the traces of political or social, as distinct from
purely legal, history.' Contrary to this opinion, the main differences in com-
mon law and civil law systems, which are generally to be found in approaches
to law and to structures, are primarily the result of purely legal history.
Watson, Making, supra n. 1, at 38.
 1995] THE LOGIC OF LEGAL TRANSPLANTS 501

might be called the strong insulation thesis; informing us, for exam-
ple, in a striking passage, that
The lesson of history, in fact, is that over most of the field of
law, and especially of private law, in most political and eco-
nomic circumstances, political rulers need have no interest
in determining what the rules of law are or should be (pro-
vided always, of course, that revenues roll in and that the
public peace is kept). Rulers and their immediate under-
lings can be, and often have been and are, indifferent to the
nature of the legal rules in operation. This simple fact is
often overlooked; indeed, it is habitually denied. But failure
to accept it is the greatest cause of misunderstanding the na-
ture of law, the relationship of law and society, and the
course of legal development.18
(Notice here that the claim is not about Roman law or Western law,
but about law in general.)
In other moods he is more guarded, and adopts what might be
called the weak insulation thesis:
No reasonable person would wish to deny that to some ex-
tent a people's law is peculiar to it, that the law does reflect
that people's desires and needs.... It is easy to agree that a
legal rule is often the result of social engineering especially if
we consider only case law, or a statute when it is passed.
And who would deny that much of law reflects the interests
of the ruling elite?19
Watson's actual position is, I think, the more nuanced weaker posi-
tion; but at times he slides to the stronger position. (This is an impor-
tant fact, and I believe the slide affects his practice of historiography.
But I shall not discuss this matter here, since my concern is solely to
understand the fundamentals of his argument against the mirror
theories of law.)
It should also be observed that Watson deploys two sorts of argu-
ment against the mirror theories. First is the general argument I
have already noted; that is, the argument that, because of the cul-
tural attributes of the legal elite, law will tend to develop by trans-
plantation rather than by creation ex nihilo, and will tend to reflect
the legal tradition rather than anything extrinsic to the law. Second,

18. Watson, Roman and Comparative, supra n. 1, at 97-98.

19. Watson, Society, supra n. 1, at 4. Or again:
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 elite,
but that to a very considerable extent it is out of step with such needs and
desires. This divergence, it has been maintained, is so great that none of the
theories of the development of law and society are acceptable even though
each, or at least some, may contain much accurate observation.
Id. at 130; emphasis added; footnote omitted.
502 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

however, Watson advances numerous arguments of detail - specific

counterexamples to the claims of the mirror theories. For these
counterexamples to be persuasive, Watson must show that they are
not mere incidental blemishes on the mirror theories, but go to the
heart of the issue. He accordingly describes numerous examples20 in
which the following conditions are satisfied:
(1) The legal rules are inefficient in the sense that:
(a) the rules, both from our point of view and from
the point of view of members of the society, benefit no-
body within the society; and,
(b) the rules, both from our point of view and from
the point of view of members of the society, harm either
the society as a whole or harm some large and powerful
group within the society;
(2) these inefficiencies are known to the legal elite, who
also know of the possibility of changing the rules, and who
have the power so to change them; and,
(3) the rules and the inefficiencies are nevertheless al-
lowed to persist for centuries.
Watson concludes from these counterexamples that:
Legal rules, once created, live on. They are frequently re-
mote from the experience and understanding of non-lawyers,
and are kept in existence by factors such as the absence of
effective machinery for radical change, by indifference, by ju-
ristic fascination with technicalities, and by lawyers' self-
interest.21

IV.
It should be evident from the foregoing discussion that Watson's
argument and the mirror theories he contests both have a complex
and intricate structure, and that his arguments have far-reaching
implications for legal scholarship.
As a result of this logical complexity Watson's argument is easy
to misunderstand, and in particular it is important to observe the
way in which he relates historical facts to his theoretical conclusions.
It is especially important to observe that the Insulation Thesis is a
consequence of the earlier theses, and not their foundation. In other
words, the argument is not:
Law is insulated from social change; therefore legal evolu-
tion must take place by the transplantation of legal rules

20. The examples include: the English system of land tenure, Roman contract
law, the Roman paterfamilias, the medieval doctrine of "benefit of clergy." See, Wat-
son, Society, supra n. 1, at 12-22, 47-59, 23-30, and 92-96.
21. Id. at 8.
1995] THE LOGIC OF LEGAL TRANSPLANTS 503

but rather:
History shows that, because of the nature of the legal profes-
sion, legal change in European private law has taken place
largely by transplantation of legal rules; therefore, law is, at
least sometimes, insulated from social and economic change.
This is an important point, because the historical argument presents
specific and testable empirical evidence for the more general insula-
tion thesis; if (as some critics have done) one gets the argument back-
wards and starts with the more general thesis, Watson will appear to
be first stating an implausible and unsupported doctrine about the
nature of law in general, with the result that the entire argument is
left hanging in the air.
Watson himself often tends to slide towards the strong versions
of his theses, and we must therefore try to understand both why he
does so, and the limits of what his argument is capable of
establishing.
First, it should be noticed that, strictly speaking, his conclusions
about the method of comparative law do not follow from the premise
about the "fertility" of legal transplants. For even if most existing
legal rules in most Western legal systems arose through borrowing
and transplantation, it might still be the case that comparative law
should study the exceptional moments of transition, when a legal sys-
tem has created something entirely novel - just as, in the study of
domestic American law, one concentrates, not on the routine cases
that, in terms of sheer quantity, make up the overwhelming bulk of
cases that enter the legal system, but rather on the exceptional cases
that re-define the law. (This observation, although it is important for
the methodology of comparative law, is not central to the discussion
of the mirror theories, so I shall not argue the point further.)
Second, as a logical matter Watson's Insulation Thesis is bound
by the limits of his data. His theories are based principally on his
investigations of Roman law, and specifically of Roman private law.
He is therefore not entitled to claim that law in other, non-Western
cultures obeys the Insulation Thesis: this may well be true, but it is a
conclusion that requires further argument. Nor, indeed, by the same
token, can he claim that European public law is insulated from polit-
ical, economic, and social forces. That conclusion is most likely
false,22 and when Watson is being precise he is careful to state his
conclusions as conclusions about private law only.23
There are, I believe, three reasons for Watson's tendency to slide
to an unacceptably strong statement of his position. First, as we have

22. I have made this argument in Ewald, "The American Revolution and the
Evolution of Law," 42 Am. J. Comp. L. 1 (supplement volume 1994).
23. Watson, Roman and Comparative, supra n. 1, at 271-72; Watson, Society,
supra n. 1, preface.
504 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 43

seen, the argument he advances is so complex that it is easy to lose

track of the various qualifications that must be added - especially
when the presentation of the theory is intermingled with the analysis
of historical details; so that it becomes easy to assert more than has
in fact been established. Second, the theories he opposes have such a
complex structure that he is in a manner pressed to exaggerate his
claims; for a mirror theorist can accommodate most counterexamples
simply by weakening the mirror theory, but refusing to abandon it.
So it is a temptation to preempt this maneuver by making unnecessa-
rily categorical assertions that, for example, "political leaders need
have no interest in determining what the legal rules are or should
be."
Third, it is important to observe that Watson is not hostile to
theories about the relationship between law and society,24 and there-
fore not hostile to pronouncing general theories. Indeed, such hostil-
ity would be hard to reconcile with his view of comparative law. But
for precisely this reason the strong version of the insulation thesis is,
in the end, both less interesting and less in keeping with his general
approach than the more nuanced weak version. For a theory that
says that there is no significant relationship between law and politics
(or society, or economics, or religion, or whatever) leaves us with
nothing further to say. Whereas the weaker version lays stress on
the complexity of the phenomena, pointing out that the relationship
between law and society is neither non-existent, nor a simple mirror-
ing, but a subtle and intricate interrelationship that must be studied
case-by-case.

V.
Let us briefly take stock of where we are. Watson's criticism of
the mirror theories is, as we have seen, far more complicated than it
appears on the surface. It offers numerous subtle enticements to-
wards oversimplification, and in particular towards a confusion of
two quite different claims, one negative, and the other positive: on
the one hand, the denial that law is a mirror of society; and, on the
other, the claim that law is entirely insulated from society.
There is reason to fear that the complexities of Watson's argu-
ment have led to widespread misunderstanding of his theory. The
point can be illustrated by considering the criticisms of Watson that
have been made by the legal sociologist Richard Abel. Abel is one of
the few scholars to have attempted to grapple with Watson's argu-
ment in detail and to evaluate its importance for the social theory of
law. But it seems to me that he falls victim to precisely the logical

24. Thus one book begins by announcing: "In this book I seek to present a general
and coherent view of the nature of legal change which is independent of a particular
time and place." Watson, Evolution, supra n. 1, at ix.
1995] THE LOGIC OF LEGAL TRANSPLANTS 505

misunderstandings I have outlined above, and that these misunder-

standings are the source of several subsidiary misunderstandings.25
Abel's discussion explicitly revolves around issues of logical
structure. He begins his analysis with a blunt confessio ignorantiae,
admitting at once that "I possess no expertise in the historical data
themselves,"26 and saying that, rather than dispute about the facts,
he will "clarify"Watson's theory, and "criticize it from the perspective
of contemporary scholarship in law and social science"; he proposes to
uncover its "conceptual structure" and reveal its "political ideology."27
Abel levels a number of accusations against Watson's work.
Watson's concept of law, he says, is so "vague"28that "confusion is the
inevitable result."29 Watson's reasoning is "simplistic," "implicitly
anti-theoretical," and "mystifying."30 In addition Abel levels the fol-
lowing specific charges:
(1) Monolithic structure of society. Watson treats society "as an
undifferentiated, personified whole," and ignores the differences be-
tween "interest groups, strata, or classes."31
(2) Imposition of values. Watson imposes his own value-judg-
ments on the societies he studies, and judges the appropriateness "of
every law by a single standard - whether it promotes efficient social
engineering."32
(3) A-historicism. Moreover, Watson has "a tendency to be both
ethnocentric and ahistorical."33 Watson's a-historicism is related to
his imposition of his own values on the societies he studies:
He judges the 'appropriateness' of every law by a single stan-
dard - whether it promotes efficient social engineering -
despite the fact that law has been viewed as capable of ready
manipulation to serve consciously chosen ends only during
the past few hundred years and even then primarily in
Western nations.34

25. Watson has himself replied to Abel's famous or notorious attack; see Watson,
"Legal Change: Sources of Law and Legal Culture," 131 U. Pa. L. Rev. 1121 (1983).
My criticisms of Abel take a different tack, and focus on the logical aspects; but, as
Watson shows with gusto and glee, there are things to be said about Abel's knowledge
of history as well.
26. Abel, "Law as Lag: Inertia as a Social Theory of Law," 80 Mich. L. R. 785
(1982).
27. Id.
28. Id. at 785.
29. Id. at 786.
30. Id. at 788 and 794.
31. Id. at 787.
32. Id. at 791, 792, 793.
33. Id. at 792.
34. Id. at 793.
506 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

(4) The uselessness of law. Watson believes that "most laws are
useless," "serve no purpose," "have no meaning," and are "both point-
less and socially harmful."35
(5) Political conservativism. Watson has "a basically conserva-
tive world-view"; he is "not really an admirer of liberal democracy";36
he attempts to "trivialize the political";37like Karl Popper and Robert
Nisbet, his apolitical scholarship seeks "to confute radicals, notably
Marx and later Marxists, who maintain that historical trends do exist
and should be used to further progressive causes."38
(6) Not a theory. Finally, Abel asserts that, "[p]erhaps the most
serious problem with Watson's theory is that it is not a theory at
all."39
Abel's accusations, it seems to me, all rest on a misunderstand-
ing of the logical structure of Watson's argument. Abel takes Watson
to be asserting the Insulation Thesis in its strongest form:
In fact, in reacting against the prevailing theoretical frame-
work, Watson has not escaped it but merely turned it upside
down. He appears to be asserting that law has never been
congruent with society, is not presently used for social engi-
neering, and does not express class domination.40
But Abel has here fallen into precisely the logical trap I identified
earlier, namely, a confusion of "sometimes not" with "never." And
from this error, I believe, all his other misunderstandings of Watson's
argument flow.
Take, first, "the most serious" problem with Watson's theory,
namely that it "is not a theory at all." If by theory is meant a positive
theory of the relationship between law and society, this observation is
correct, but harmless. For Watson's purpose is to argue that the mir-
ror theories fail to fit the historical facts. And, as we saw, to accom-

35. Id. at 791, 797, 798, 799.

36. Id. at 806.
37. Id. at 803.
38. The full quotation reads:
This perhaps unconscious concealment is consistent with his basically con-
servative world view. Nor is the connection between conservatism and
apolitical interpretation accidental. Those who have denied the existence of
pattern in history-scholars like Karl Popper and Robert Nisbet-have been
political conservatives seeking to confute radicals, notably Marx and later
Marxists, who maintain that historical trends do exist and should be used to
further progressive causes.
Id. at 803.
I note in passing that Abel is mistaken in his reasoning in this passage. Histori-
cist theories have been advocated both by radicals (like Marx) and by social conserva-
tives (like Savigny): there is no necessary connection between a belief in laws of
history and political radicalism. (Indeed, Hegel's followers notoriously divided into
two hostile political camps, the radical "Left Hegelians" and the conservative "Right
Hegelians." Both camps affirmed "the existence of pattern in history.")
39. Id. at 793.
40. Id. at 790 (emphases added).
 1995] THE LOGIC OF LEGAL TRANSPLANTS 507

plish this he need only provide a string of counterexamples; he does

not in addition need an affirmative theory of law and society.
Consider now the charge that he views society as a monolith.
The mirror theories assert that legal rules reflect the interests of soci-
ety, or of some group within society. In response, Watson must sup-
ply examples of legal rules that reflect the interests of no group
within society.41 But plainly the fact that he is able to provide some
such counterexamples does not commit him to the proposition that
the interests of all groups always coincide.
The situation is somewhat more complex for charges (2) and (3),
the charges that he is a-historical and that he measures all values by
a single yardstick. For here there is an important split within the
mirror theories. Some mirror theorists, like Marx, treat law as a re-
flection of economic relations, and measure law by a standard of eco-
nomic efficiency that is constant across cultures. Others, like
Savigny, allow a greater degree of cultural relativity, and allow that
values can vary from Volksgeist to Volksgeist. Watson accordingly
chooses counterexamples that fail by every yardstick: our own, and
the yardstick of the culture under study, and of every significant sub-
group within that culture. But the fact that, in these examples, we
and the foreign culture are in agreement does not commit him to the
proposition that all cultures can or should be measured by twentieth-
century Western standards.
As for the charge that "most laws are useless," Watson's argu-
ment is merely that the legal rules discussed in his particular
counterexamples are "dysfunctional"; but this conclusion says noth-
ing about laws in general.
The accusation of conservativism is more puzzling; it appears to
have arisen in the following way. First, Abel interpreted Watson as
advancing the theory that there is no relationship between law and
society. Then he concluded that Watson must actively approve of
legal inertia; ergo, that he is a political conservative. Indeed, at one
point Abel declares:
What is singularly lacking in [Watson's] view is any notion
that law ought to lead society, ought to be an instrument for

41. That the choice of these examples was deliberately motivated by the logical
points I have been discussing is clear from the following quotation:
In other words, I will look for examples where the law actively benefits no
recognizable group or class within the society (except possibly lawyers who
benefit from confusion) and is generally inconvenient or positively harmful
either to society as a whole or to large and powerful groups within the soci-
ety .... [O]ne advantage of this way of proceeding is that we need not
concern ourselves with the definition of such sociological concepts as stratifi-
cation, class, power.
Watson, Society, supra n. 1, at 9.
 508 THE AMERICAN JOURNAL OF COMPARATIVELAW [Vol. 43

radical change, from which I infer that he opposes such

change.42
But to describe a phenomenon is manifestly not ipso facto to applaud
it; one may also describe in order to deplore, and Abel's interpretation
of Watson can not survive a careful (or even a casual) reading of the
text. Watson repeatedly speaks of"dysfunctional" legal rules, calling
them "absurdities" or "unsuitable" or "inappropriate" or "out of step
with society"43-terms that scarcely suggest warm approval. His po-
sition on legal reform is rather that the mirror theories can conceal
the difficulty of change by suggesting that there is a Panglossian pre-
established harmony between law and society,44 and in accordance
with this insight he has proposed changes to the law-making process
precisely in order to overcome the inertia of the present system.45
Professor Abel's curious accusation that Watson is "ethnocentric"
and "a-historical" we can, I think, safely leave Watson to discuss with
his historical and linguistic peers. My present enterprise was merely
to point out that Abel's remaining accusations rest on a failure to ap-
preciate the logical distinction beween "never" and "sometimes not."

VI.
If the foregoing argument has been correct, then, if we are to in-
terpret Watson's theory correctly, it is important to bear in mind the
logical distinction between, on the one hand, negating the mirror the-
ories, and, on the other, offering an affirmative theory of the relation-
ship between law and society. With this distinction in hand, we are
now in a position to evaluate Watson's accomplishment, which is an
accomplishment both destructive and constructive.
On the destructive side, it seems to me that even the weak ver-
sions of Watson's theses are adequate to scupper the traditional mir-
ror theories that have so dominated modern legal thought. Legal
theorists are no longer entitled to make glib assertions about the pre-
established harmony between law and society: that law "mirrors"so-
ciety or that it "fits society like a glove." For Watson has shown that
those a priori assumptions are open to too many exceptions to be ten-
able as a general theory of law.

42. Id. at 802.

43. E.g., in Society, at 84, 130, 132, and passim; it should perhaps also be re-
marked that he has written articles with titles like "AHouse of Lords' Judgment and
Other Tales of the Absurd," and books with titles like Failures of the Legal Imagina-
tion or Joseph Story and the Comity of Errors.
44. Thus he asserts that "if legal rules have to be fought for and legal improve-
ments result from battle, then the fight for change is, in general, not vigorous
enough." Watson, Society, supra n. 1, at 133. Or again: "[I]f we want to have a legal
rule suited to our needs we must in many instances cleanse it from its history, take it
right away from our existing tradition." Id.
45. See his "Two Tier Law - a New Approach to Law Making," 27 Int'l. & Comp.
L.Q. 552 (1978).
 1995] THE LOGIC OF LEGAL TRANSPLANTS 509

It is tempting, as we saw, to pass beyond this important negative

conclusion to something like Watson's Strong Insulation Thesis, i.e.,
to the general thesis that law is radically insulated from economics,
sociology, and politics. But I have urged that we should resist the
temptation. There are essentially two reasons. First, although Wat-
son's examples suffice to undermine the mirror theories, they do not
yet provide an adequate foundation for a full-blown theory of law and
society. Watson's focus has been almost exclusively on the rules of
private law in western Europe, and he is not entitled, on this slender
evidential basis, to draw conclusions about law in general.
The second reason, however, is more subtle and more fundamen-
tal. And it is precisely here that the distinction between the weak
and the strong versions of Watson's argument becomes crucial. Both
suffice to undermine the mirror theories. But the Strong Insulation
Thesis leads to the conclusion that there is no interesting relation-
ship to be discovered between law and society; the result is a view of
law and society that is as categorical and as one-dimensional as the
mirror theories he contests.
The weak version, in contrast, opens the door to a view of law
that is subtler and more nuanced than any of the theories that have
hitherto prevailed. Watson has shown that law does not reduce to
economics (or politics or philosophy or society); but, as we saw, he
need not claim that law is entirely unrelated to these subjects, and
this means that he need not abandon altogether the insights of the
great legal thinkers of the past. Something can be salvaged from the
work of Marx and Savigny, of Montesquieu and Jhering. But the
point is that their ideas must now be coupled with a cautious aware-
ness of the complexity of the relationship between law and society,
and must be grounded in a deep investigation of the history of law.
In particular, Watson's work shows two things about any future
social theory of law. First, the content of such a theory will have to be
far more complex than the old theories. It will have to account inter
alia for legal dysfunctions, for inertia, for failures of rationality
and not just incidental failures, but failures on a massive scale. It
will have to uncover, case by case, the various causes of legal change,
and explain their relationship to the forces of inertia. Whatever
these relationships turn out to be, they are unlikely to be straightfor-
ward; indeed, it is reasonable to expect that the causal relations be-
tween law and society will prove to be reciprocal, interactive, and
multi-layered. If that is so, then one must be prepared for the possi-
bility that (as has happened in certain parts of physics and logic) no
satisfactory theory can be given: the phenomena may be too complex
for a tidy description, even in principle.
Second, Watson's work sets new methodological standards for so-
ciological speculation about the nature of law. It should be clear from
510 THE AMERICAN JOURNAL OF COMPARATIVE LAW [Vol. 43

the foregoing discussion that a theory of law must grow out of a care-
ful study of the data, rather than being imposed upon them a priori.
And Watson's investigations make clear what kind of a study is re-
quired. The study can not confine itself to an investigation of a sin-
gle, present-day legal system, but must also contain a substantial
historical and comparative component. For in attempting to limit the
link between law and society, one must consider how laws originate,
how they evolve, and how they differ from society to society; and this
can only be done by detailed comparative studies. Moreover, such
studies must take into account the reciprocal influences of different
legal systems, one upon the other, and the spread of legal ideas from
culture to culture. As a practical matter, this means that speculative
legal sociologists will either have to chase the comparative and his-
torical quarry themselves - with all that entails in the mastery of
languages, of archival sources, of the history of ideas - or depend
upon others to do the job for them. But somebody must do it, or the
ensuing speculations will be (as so often in the past) little more than
a fable.