The Making of Legal Authority Non-legislative Codifications in Historical and Comparative Perspective

by Jansen, Nils

• ISBN13: 9780199588763
• ISBN10: 0199588767
• Format: Hardcover
• Copyright: 2010-05-26
• Publisher: Oxford University Press

Summary

Accounts of the nature of legal authority typically focus on the authority of officially sanctioned rules issued by legally recognised bodies - legislatures, courts and regulators - that fit comfortably within traditional state-centred concepts of law. Such accounts neglect the more complex processes involved in acquiring legal authority. Throughout the history of modern legal systems texts have come to acquire authority for legal officials without being issued by a legislature or a court. From Justinian's Institutes and Blackstone's Commentaries to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts academic codifications have come to be seen as legally authoritative, and their norms applied as such in courts and other contexts. How have such texts acquired legal authority? Does their authority undermine the orthodox accounts of the nature of legal systems? Drawing on examples from Roman law to the present day, this book offers the first comparative analysis of non-legislative codifications. It offers a provocative contribution to the debates surrounding the harmonisation of European private law, and the growth of international law.

Author Biography

Professor Dr Nils Jansen currently serves of the Law Faculty at the University of Munster, Germany. He holds the Chair for Roman Law, Legal History, German and European Private Law, and is a Principal Investigator in the Cluster of Excellence Religion and Politics in the Cultures of Pre-Modernity and Modernity. He is the author of several books in German, and co-edited Beyond the State. Rethinking Private Law with Ralf Michaels.

Table of Contents

List of Abbreviations	p. xi
List of Figures	p. xv
Introduction	p. 1
Problems	p. 4
Plan of the book	p. 5
Textual Authorities in Legal Discourse
Historical Observations	p. 13
Codifications and the State	p. 14
The Textual Foundations of the Ius Commune	p. 20
The Decretum Gratiani	p. 21
The Saxon Mirror	p. 23
The Corpus iuris civilis	p. 28
Law per excellentiam	p. 28
The Lothar legend	p. 34
A pattern of wisdom and legality	p. 38
The idea of textual authorities	p. 41
Legislative Codifications and the Legal Profession	p. 45
Non-Legislative Codifications in Modern Law	p. 50
The American Restatements of the Law	p. 50
Making legal authority	p. 53
Tradition and innovation	p. 56
Non-Legislative Codifications in Europe	p. 59
The Principles of European Contract Law	p. 60
An echo of universalism	p. 61
Some results	p. 64
The UNIDROIT Principles of International Commercial Contracts	p. 66
A UNIDROIT Restatement of global law?	p. 68
Making a global contract law	p. 71
Some Results	p. 76
Analysis
Textual Authorities: a Classification	p. 81
Political Domination	p. 85
Legislation	p. 85
Codifications	p. 86
Judicial decisions	p. 87
Non-Legislative, Professional Authorities	p. 88
Doctrine	p. 89
Compilations	p. 90
Restatements	p. 92
Conclusion	p. 94
The Making of Legal Authority	p. 95
Profession-Related Factors	p. 95
Defects in the law's administration	p. 96
The legal profession's social identity	p. 97
Text-Related Factors	p. 99
Representation, authorship, and procedure	p. 100
Form I: coherence and order	p. 105
Form II: staging authority	p. 111
Typographical authority: the example of standard glosses	p. 113
A German commentary	p. 121
Restatements of the law	p. 126
Some Results	p. 136
Conclusion	p. 138
Appendix	p. 142
Bibliography	p. 145
Index	p. 171
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