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Citation: 24 Rutgers L. Rev. 11 1969-1970

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ON LEGAL DEVELOPMENT
LAWRENCE M. FRIEDMAN*

In recent years, intellectuals in the United States have grown more


and more aware of the problems of the developing nations. Scholars in
many fields and disciplines have turned outward to the world, often
quite literally. They have packed their bags and gone abroad partly
for their own edification, partly for the advancement of knowledge, and
partly for reasons of national policy; but also with the announced goal
of helping the third world, meet questions and demands that flow from
this source. Economists, agronomists, and public health specialists have
been among the most ardent travelers. American experts have carried
their know-how abroad: techniques to wipe out illiteracy or malaria,
new strains of hybrid rice, secrets of central banking, steel mills and
bridge construction, and occasionally ideas about better or different
ways to govern.
It is only natural that lawyers should want to take part in so catholic
a movement. In law schools, a sense of one worldliness has increased the
emphasis on comparative and international law. Law study was once
almost exclusively Anglo-American; though this remains basically true,
courses in Russian, African, Latin-American, and Chinese law, not to
mention French and German law have found a place in a number of
American law schools. More recently, legal missionaries have gone out
into the field. American lawyers are currently in Africa, Asia, and Latin
America, teaching law in the law schools, drafting codes and constitutions, and occasionally, even looking at the foreign country's law in
operation. There is a genuine interest in foreign law, stimulated to be
sure by foundation and federal gold.'
One curious fact about this movement deserves some mention. When
an American lawyer goes to Ethiopia or Ghana to teach law, he usually
* Professor of Law, Stanford University.
This article is based on the 1969 David Stouffer Memorial Lectures which Professor
Friedman delivered at the Rutgers University Law School on April 16 and April 17, 1969.
I. Crabb, Viewing Africa from Teaching Anglo-American Law at a Congolese University, 18 J. LEGAL Eo. 437 (1966). The Ford Foundation, for example, has sponsored a
program called SAILER (Staffing of African Institutions of Legal Education and Research). SAILER sent American professors to Africa to fill what was sensed as a void
in the teaching staffs of African law schools. Most SAILER people went to Anglophonic countries, but one contingent went to Ethiopia, and at least one professor
wandered into the French-speaking Congo. SAILER is now administered by the International Legal Center. American money and personnel have also gone to improve legal
education in some countries of Latin America. In some cases, professors from abroad are
brought to the United States for training or insights. See Rosenn, The Reform of Legal
Education in Brazil, 21 J. LEGAL ED. 251 (1969).

RUTGERS LAW REVIEW

[Vol. 24

has no background in the law of the particular country. In some cases,


he teaches American law, plain and simple, rather than local law. More
often he will teach some mixture of English law, local cases heavily influenced by English 'law,
and American law thrown in to show an
"alternative solution. ' 2 Perhaps some of the teachers feel somewhat
unqualified. They may justify themselves with the theory that common
law or American law is an emanation from some high, universal spirit
of law. Or they may feel that modernizing societies need modern law,
a commodity that must be imported, at least for the time being. A number of such export models are on the market-several brands of AngloAmerican law, continental law of many types, and a few species of
Socialist law.3 For the countries that were formerly colonies of England,
Anglo-American law is the most natural representative of modernity.
Judges, professors, and court clerks in these countries, particularly in
the upper branches of the judiciary, are likely to speak English and to
be familiar with English or American law. Hence, the missionaries are
familiar figures; their cults, amulets, and charms are familiar too.
Generally speaking, the ambassadors of American law have been welcome abroad. There have been some protests and some incidents: An
occasional American lawyer has been caught in a political whirlpool,
or denounced as a neoimperialist or as a spy for the CIA. Although
the good faith of these American ambassadors may sometimes be questioned the theory behind this legal imperialism-its sense, its propriety,
its rationale-is never criticized.
Is modern law really a commodity that ought to be imported by new
nations? What type and to what purpose? The question, it seems, is
deep, dark, and terribly serious. Do we really know enough to give
meaningful advice to any country, including our own, about the
modernization of law? Can we even define modernization? Lawyers can,
of course, give specific advice on specific legal problems; that is their
business; law professors can teach law and teach teachers of law. But
can they, or lawyers generally, advise about whole legal systems? Do
they, can they, evaluate the theory behind the exporation of laws?
It is distressing, but true, that when the lawyer goes abroad, he sails
into a vacuum. He takes with him nothing that can reasonably be called
a careful, thought out, explicit theory of law and society or of law and
development-nor does he find one at his destination. Yet the economists, the political scientists, and the engineers all agree that, at least
for them, some general theory is vital. Economists abroad consider it
desirable, of course, to know something about the culture and history
of their hosts. But they do not consider lifetime study of particularities
2. Johnstone, American Participation in East African Legal Education, 16 J. LEGAL
ED. 312, 314 (1964).
3. See Hazard, Mali's Socialism and the Soviet Legal Model, 77 YALE L.J. 28 (1967).

1969]

LEGAL DEVELOPMENT

indispensable; they tend to believe in one general economic theory,


which, once mastered, can be applied more or less everywhere and in
any culture. They pack these theories into their suitcase, so to speak.
Agricultural specialists, engineers, and scientists are an even clearer
case: There are differences in climates, building materials, and in diseases in the world, which have to be taken into account, but principles
of bridgebuilding, hybrid corn, and medicine are fairly universal. A
doctor needs some special training in tropical diseases, perhaps, but his
basic skills carry him far, anywhere on earth.
What a political scientist brings with him is much more controversial.
No one is quite sure whether political science deserves to be called a
science; nor is it certain that there is a valid concept or theory of political development 4 not unduly riddled with bias and misinformation.
But there is literature on the subject, growing like a weed, and political
scientists who go abroad to advise or to study presumably have mastered
this literature. They can at least observe their enviroment guided by
what this literature has to say and what it tells them to observe. The
legal scholar is in a different situation. His activities presuppose a general theory. His very presence in a foreign country must mean he has
something to impart which is not hopelessly culturebound. But nothing
has been made explicit for him. There is no requirement that he be
trained in comparative culture, jurisprudence, sociology of law, economics, legal history, or any other discipline or body of knowledge that
might bear on law and development. He may have thoughtfully pondered the problems of law and society or law and development, but the
chances are he has nothing that can honestly be called a general theory
of law and development, only a collection of half-formed notions. He
exists, then, in a curious kind of twilight world. His very activities presuppose a theory. If he believed completely in the cultural relativity of
law, he would know he had no business abroad. He would no more go
to teach and advise about law outside his country than he would presume to teach Chinese and advise on the Chinese language. But what
is the theory and where does it lead?
Ignorance about the relationship between law and development is
not solely a problem of law in third world countries. There is monumental ignorance, or misunderstanding, about law and development
in our own and other modern countries. This reflects the ignorance,
equally deep, about the relationship in general between the legal system
and the social system. The legal missionaries abroad are merely exotic
versions of legal missionaries inside our own country, reforming, arranging, codifying, and revamping the law in a vacuum of theory.
The word "development," which so often occurs here, is curiously
two headed. It refers to any process of growth or change; and at the same
4. See, e.g., Pye, The Concept of Political Development, in
83 (Finkle & Gable eds. 1966).

AND SOCIAL CHANGE

POLITICAL

DEVELOPMENT

RUTGERS LAW REVIEW

[Vol. 24

time it means a special kind of favorable growth, on the model of the


so called developed countries. Some countries are undeveloped or
underdeveloped, in the second sense, but all countries have developed
in the first sense. It is possible then to speak of the development of an
underdeveloped country. This essay will make some general observations
about the development of law, not merely new nation development.
Presumably the same broad principles apply to New Jersey as well as
to Nepal. At any rate, we will explore some basic concepts and problems underlying legal development.
Legal development abroad and law reform in this country rest on
one simple, basic assumption: Some legal systems are better than others
with respect to a particular dimension that can be called modernity or
advancement, or progressiveness. The same kind of assumption can be
made about subsystems of law: about the Uniform Commercial Code,
for example, compared to the prior law of banking, negotiable instruments, sales, and secured transactions. Legal missionaries must have,
in the back of their minds, the notion that modern legal systems are
better suited to economic, social, and political development than nonmodern ones. Conversely, some legal systems are not suited to development, or stand in the way of progress, or are archaic, or outdated, or
simply unadaptable. These ideas permeate the literature and are implicit in many of the things that governments and private citizens do.
When a country throws aside its own legal tradition, and swallows a
Western code whole, unless this is a wholly nugatory act or unless the
act has some independent political significance, 5 the leaders must assume
that the borrowed legal system is more suitable to effect modernization
and development than the one it replaces.
It may seem almost foolish to question this assumption. Yet the idea
of a modern legal system bristles with hidden difficulties. For example,
what do we mean by a legal system? This question can be deferred,
for the time being, in favor of a question almost as difficult: What do
we mean by modern? "Modern," essentially, connotes belonging to
contemporary times. But contemporary is more than simply existence
in the present; even the Australian aborigines are modern in that
sense. Modern usually carries with it an implication of complexity,
of high advancement. Can one speak of legal systems as modern in
this sense at all? Clothing, language, and art are "modern" only in
the sense of currently in vogue. Many people no doubt feel that Western
art is more complex and sophisticated than African art. But the esthetic
point is unprovable, or wrong, or ultimately meaningless. Though many
people think otherwise, it is also hard to argue that English is better
or more modern than Swahili or the languages of the American Indians. English has a larger vocabulary than Hottentot and is better
suited to a discussion of physics or modern theology. But what makes
5. This possibility is explored in text accompanying notes 116-19 infra.

1969]

LEGAL DEVELOPMENT

English great is its immense pool of speakers; they have used English
for many years as a vehicle for the expression of whatever ideas they
want to express. Under similar circumstances, Hottentot could be
adapted to the same level of communication as English. 6
Possibly, we are making the same sort of point when we speak of one
legal system as modem, and another as nonmodern. The legal system
of Nepal may be nonmodern, or less modern than the legal system of
the United States, in the same sense and to exactly the same degree that
Nepali society is nonmodern, or less modern than American society.
This would mean that every legal system 7 has an element of plasticity
and thus contains within itself the ability to adapt or grow up into
modernity. Not every legal institution, however, is adaptive.
The plasticity of a legal system depends on the definition of a legal
system. A legal system is made up of many parts. Under some definitions, it is coextensive with all public processes that go on within that
society; under others, it is much less expansive. At some point, one can
define "legal system" broadly enough so that its plasticity becomes
obviously true. Any society which has railroads, jet planes, steel mills,
central banking, and telephones, and in which (as is inevitable) these
toys of civilization involve public authority in some way, will have
railroad law, jet plane law, steel mill law, central banking law, and
telephone law. It does not matter what legal base the country starts
with. The country may not develop good law, or appropriate law, or
the best conceivable law, but it will get law that copes with or responds
to the problems of the society, at least minimally.
It follows that modernity has no direct, inherent connection with
membership in a particular "family" of legal systems. It is not some6. One proof of this, if proof is needed, is that most English words used in clevated
discourse and technology are not native words at all; they have been borrowed from other
languages or made up out of bits of Latin, French, and Greek. It is easy to turn back the
pages to a time when few people spoke the ancestor of English, and when English expressed only the few ideas which those few people were in the habit of expressing.
7. For the sake of simplicity, we will avoid the issue whether a society is possible
that does not have a "legal system" at all. The question becomes difficult in the case
of very simple societies of hunters and gatherers, who travel in small bands, have no real
houses, and almost nothing that can be called a government or authority structure. Even
so, and even if there are no specialized institutions that make up rules or settle disputes,
it is possible to stretch some definitions of "law" and "legal system" to cover these
societies. See HOEBEL, THE LAW OF PRIMITIVE MAN, A STUDY IN COMPARATIvE LEGAL DYNAMICS ch. 1 (1954). On the practical significance of the various jurisprudential definitions of law see Gibbs, Definitions of Law and Empirical Questions, 2 LAW & Soc'v REV.
429 (1968).
It is not only in simple societies that the definitional question comes up. It can come
up in small subsocieties that form part of bigger societies, e.g., universities, church
groups, clubs, stores, or a crowd milling about in a public square. But for our purposes,
we consider the domain of the legal as roughly equivalent to the domain of public
authority. If a street corner gang settles disputes among its members, this may tell the
observer a great deal about social control and conflict, and one might call the process law,
but when the policeman enters the picture, we have law in a more concrete sense. It is
essentially this kind of "law," which forms the subject of this essay.

RUTGERS LAW REVIEW

[Vol. 24

thing peculiar to the common law, or the descendants of Roman law. 8


Modernity is not something that can be achieved only by a precious few
who are lucky enough to possess that legal system which turns out,
historically, to be the correct prerequisite to development. Nor is it
something immanent in the bones of common or civil law, so that, if
these systems are borrowed, modernity comes along as a matter of course.
If the common law system is "modern," it is not because of those traits
which make it "common law" and set it apart from other systems.
But the idea of the plasticity of legal systems, at least in the historical
sense, merely negates one possible view of modernity: that modem law
evolved inevitably from one or more great classic systems of law. Does
"modern" refer to any concrete attributes of legal systems? Are there
characteristics that distinguish legal systems of more modem or advanced societies from the less fortunate ones? If so, what are they? Many
people have looked for such attributes, under one name or another.
For example, a literature on the evolution of law, some of it quite
distinguished, stretches back over the last century or so. Evolution
means a progression from a lower or less complex state to a higher or
more complex one. Often, the term refers to a process which does not
depend on conscious choice. This is the biological meaning; the progression from microbe to man was not consciously willed by either
party nor by any of the links in between. Nor is the progression itself
inevitable; the amoeba survives alongside, and sometimes inside, man.
Applied to law evolutionary theory means, first, that one can identify
higher and lower stages in the growth of law, and, second, that one
can assert about these stages a natural sequence or order. Not that all
legal systems must reach the highest stage, but those that do must pass
through certain intervening phases.9
Evolutionary theories of law go back a considerable distance in time,
indeed, even earlier than Darwin. One notable evolutionist of the 19th
century was Sir Henry Maine, whose major work, Ancient Law, 10 first
appeared in 1861. Maine, a legal scholar, with an interest in comparative jurisprudence.' In Ancient Law, Maine argued that legal systems
did indeed change in a definite pattern or sequence. He could see this
pattern unfolding in the long history of law, from the first Roman code,
the Twelve Tables, down to English law in the 19th century. Maine
8. On this point, i.e., the irrelevance of the conventional classification of legal systems
into "families," see Friedman, Legal Culture and Social Development, 4 LAW & Soc'Y
REV. 29 (1969). A concise defense of the classification is to be found in BRIERLEY & DAVID,
MAJOR LEGAL SYSTEMS IN THE WORLD
STUDY OF LAW 9-13 (1968).

TODAY,

AN

INTRODUCTION

TO THE

COMPARATIVE

Schwartz & Miller, Legal Evolution and Societal Complexity, 70 AM. J.


159 (1964).
10. MAINE, ANCIENT LAW (1861).
11. On Maine (1822-1888) see BURROW, EVOLUTION AND SOCIETY 137-178 (1966). Some
of Maine's later work dealt with the legal institutions of the Indian subcontinent, where
he lived from 1862 to 1869.
9. See

SOCIOLOGY

1969]

LEGAL DEVELOPMENT

did not see one single growth line, proceeding at a uniform pace and
in a single direction. The line was very wiggly at best, but its basic
outlines were fairly clear. Early law, Maine felt, was patriarchal; the2
1
family, not the individual, was the basic unit of rights and obligations.
The father was monarch and head of the family, in fact and law.
This was true both for early Roman law and the society described in
the Old Testament. The state grew out of the family; 13 the authority
of the king or chief was modeled on that of a patriarch. In early law,
status determined a person's place in society; one's position in the
world was fixed at birth. A person's duties and rights depended on his
family status. The centrality of the family, however, gradually crumbled
away in the course of time. "The movement of the progressive societies,"
Maine said, in a famous passage, "has been uniform in one respect.
Through all its course it has been distinguished by the gradual dissolution of family dependency, and the growth of individual obligation
in its place. The Individual is steadily substituted for the Family, as
the unit of which civil laws take account."' 14 But what replaced status as
the basis of social organization? The new ruling principle was contract.
"[W]e seem to have steadily moved towards a phase of social order in
which all these [legal] relations arise from the free agreement of Individuals."'15 Modern society is based on individual achievement, rather
than on ascription, to use terms popular in sociology. 16 The stress on
achievement, on contract, on the individual, is the result, and indeed
the point, of all those centuries of evolution. '[T]he movement of the
progressive societies," in Maine's grand dictum, "has hitherto been a
7
movement from Status to Contract."'1
Maine was only the first of a line of social thinkers who sensed a
roughly comparable trend. Emile Durkheim's famous book, The Division of Labor in Society,' also discussed the nature of primitive law,
and implied a theory of legal development. In primitive society, according to Durkheim, there was little or no division of labor. Social
solidarity was "mechanical"; rules and social norms were held in common. These acted as a kind of adhesive force, gluing society together.,
These norms were "universal," that is, shared by everyone in the society, or so Durkheim thought.' 9 Crime was a violation of these norms
12. See, e.g., MAINE, supra note 10, at 244-303.
13. See id.
14. Id. at 168.
15. Id. at 169.
16. "A role is said to be 'ascribed' if its occupants acquire it automatically as a result
of certain objective characteristics or relations to others which are beyond their control . . . birth into a particular family, birth order, sex, and age. . . . [A]ny role is
said to be 'achieved' if it is not 'ascribed.'" JOHNSON, SOCIoLOcy: A SYSTEMATIC INTRODUCTION 140 (1960).
17. MAINE, supra note 10, at 170.
18. DURKHEIM, THE DIVISION OF LABOR IN SOCIETY (1933).
19. Id. at 49-69.

RUTGERS LAW REVIEW

[Vol. 24

which threatened the very basis of social solidarity. Early law consisted
mostly of penal laws. It was simple, and its institutions were unspecialized. The whole community, or institutions which directly represented
20
the whole community, enforced the laws.
Modern society, on the other hand, is rooted in "organic solidarity";
it is complex and characterized by extensive division of labor.21 The
essence of modern law and society is the interdependence of the various
parts of the social order. Hence, contract is the primary concern of
modern law; it is the vehicle for the creation of the complex relationships of modern society. Legal penalties, then, are civil and "restitutive."
They do not aim to punish, but only to achieve a "simple return in
state.' ' 22 To correct economic or contractual imbalances, specialized
tribunals and agencies develop, each appropriate to a particular kind
of transaction.

28

The German sociologist, Max Weber, 24 also dealt at some length


with the development of law. Weber was an evolutionary theorist, if at
all, only in the most subtle sense. But he was intrigued by what he saw
as a cleavage between the modern and the nonmodern world. He set
himself the life task of unraveling the mystery of the distinctive social
organizations of Western society and particularly its economic order.
What were the basic characteristics of modern capitalism and where
did they come from? One major difference between modern, Western,
capitalist society, and all other societies, lay in the presence in modern
capitalism of an attribute he called rationality. It pervaded all of
Western life-religion, government, economic life. 25 The concept of
20. Id. at 70-110.
21. Id. at 111-32.
22. Id. at 111.
23. See Schwartz & Miller, supra note 9, at 159-169 (1964), especially p. 166, discussing
the empirical validity of Durkheim's hypothesis. Despite such doubts, Durkheim's concepts continue to be a source of insights and hypothesis to students of legal process,
especially criminal justice. See ERICKSON, WAYWARD PURITANS (1966).
The sociologist, Ferdinand Toennies, drew a distinction between two kinds of association, Gemeinschaft and Gesellschaft, somewhat similar to Durkheim's two types of
solidarity. Roughly speaking, Gemeinschaft was a status community-the domain of
"intimate, private, and exclusive living together. . . . In Gemeinschaft with one's family, one lives from birth on, bound to it in weal and woe." Gesellschaft was "public life,"
an "imaginary and mechanical structure"; its relationships were those in the realm of
"business, travel or sciences." Gerneinschaft was "old," while Gesellschaft was "new as a
name as well as a phenomenon." TOENNIES, COMMUNITY AND SOCIETY (GEMEINSCHAFT UND
GESELLSCHAFr), 33-34. (Loomis ed. & transl. 1957) The relationship of Toennies' concepts
to those of Maine is also obvious. Toennies quotes Maine's passage on the "movement
from Status to Contract," Id. at 182-83. For a short summary of Toennies' work see
MITCHELL, A HUNDRED YEARS OF SOCIOLOGY 102-06 (1968).
24. There is a large literature on Weber's thought and work. See generally, BENDrX,
MAX WEBER: AN INTELLECTUAL PORTRAIT (1960); FREUND, THE SOCIOLOGY OF MAX WEBER
(1968); MITCHELL, supra note 23, at 84-101; Weber's sociology of law is to be found in MAX
WEBER ON LAW IN ECONOMY AND SOCIETY (Rheinstein ed. 1954).
25. On the concept of rationality in Weber's work see Parsons, Introduction to Weber,
THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 80 (1964).

LEGAL DEVELOPMENT

1969]

rationality was also the key for understanding how modern Western
law was different from all other systems of law.
Weber was trained as a lawyer and had a special interest in legal
history and in the sociology of law. He devoted an important part of his
work to the subject. For Weber, lawmaking and lawfinding could be
either substantively or formally rational, and substantively or formally
irrational. Legal process was "formally irrational" when it used means
which could not be "controlled by the intellect." Resort to an oracle
is an example: One approaches the oracle, the oracle speaks, nothing is
enunciated which remotely resembles formal reasoning. Indeed, there
is no overt reasoning at all. The process of enacting the Ten Commandments was formally irrational. As recounted in the Bible, the
word of God came down and said: "This is the law." Trial by battle was
an irrational mode of resolving a dispute; so too was the ordeal. The
results of trial by battle or the ordeal cannot be generalized or used as
the basis of prediction. Even the jury decisions of English law, Weber
notes, are in this sense somewhat irrational. He compares them to the
oracle and ordeal.

26

"Rational" lawmaking and lawfinding, on the contrary, pay homage


to general principles and rules. Decisions are not merely based on concrete factors of the particular case, and certainly not on magic and
mumbo-jumbo. Formal rationality-a "peculiarly professional, legalistic, and abstract approach to law" 27-is

the dominant characteristic

of the modern legal world. Modern law is both formal and rational;
that is, it takes into account "only unambiguous general characteristics
of the facts of the case, ' 28 and it is explicitly based on general principle.
In formally rational law, "the legally relevant characteristics of the
facts are disclosed through the logical analysis of meaning." 29 Accordingly, "definitely fixed legal concepts in the form of highly abstract
rules are formulated and applied. 30 The rational legal system is universalistic; the irrational is particularistic. It is contract oriented, not
status oriented.3 1 Weber does not state baldly that the rational is su26. MAX WEBER ON LAW IN ECONOMY AND SOCIETY 63, 79 (Rheinstein ed. 1954), (hereinafter cited as MAX WEBER ON LAW). Lawmaking and lawfinding are "substantively
irrational" when decision is "influenced by concrete factors of the particular case as
evaluated upon an ethical, emotional or political basis rather than by general norms."
Weber makes a parallel distinction between formal and substantive rationality in economic process. See WEBER, THE THEORY OF SOCIAL AND ECONOMIC ORGANIZATION 184-85 (1964).
27. MAX WEBER ON LAW at 64.
28. Id. at 63.
29. Id.
30. Id. The reader will note that Weber's description fits continental law rather better
than it does the Anglo-American common law, which, indeed, is a bit deficient in
rationality. See, e.g., id. at 352. "Substantive rationality" accords predominance to "ethical imperatives, utilitarian and other expediential rules, and political maxims," which
it uses as its source of norms. Id. at 63-64.
31. See Parsons, Evolutionary Universals in Society, 29 AM. SOCIOLOGICAL REV. 339
(1964). Harry Johnson succinctly defines the difference between universalism and particularism in this way:

RUTGERS LAW REVIEW

[Vol. 24

perior to the irrational, or that the irrational is a lower form of justice.


The irrational, however, cannot be reduced to general principles since
it is deficient in the quality of predictability. There is room for a strong
inference that the irrational is less suitable to the needs of the modern
world, a businesslike, bureaucratic, capitalistic world. Modern law,
then, is rational; ancient, premodern, and primitive law predominantly
irrational. Basic differences between modern and premodern law are
differences in the scale and scope of rationality.
Weber's concepts and typologies have had considerable influence.
Other social scientists, especially sociologists of law, have adopted or
adapted his scheme.32 Most scholars probably would agree that modern
law is more rational (in Weber's sense) than premodern law. Talcott
Parsons has carried Weber's thesis one step further, and argued that the
development of a universalistic legal system is so "important to further
evolution" that it can be called an "evolutionary universal." 33 This
means that "rather than emerging only once," this development is
likely to be " 'hit upon' by various systems operating under different
conditions" as they proceed from one stage to another A4 In another
part of the same paper, Parsons defined a universal as a "complex of
structures and associated processes the development of which so increases the long-run adaptive capacity of living systems in a given
class that only systems that develop the complex can attain certain
higher levels of general adaptive capacity."8 5 Development of a "general legal system" was this kind of universal; it was crucial for societal
evolution. 36 A general legal system, for Parsons, is an "integrated
system of universalistic norms, applicable to the society as a whole
rather than to a few functional or segmental sectors, highly generalized
in terms of principles and standards, and relatively independent of
both the religious agencies that legitimize the normative order of the
society and vested interested groups in the operative sector, particularly
in government. ' '3 7 Most of the characteristics implicit in this general
Some obligations derive from the fact that the other person has a certain social
position, and other obligations arise from the application of general criteria having
nothing to do intrinsically with social position. For example, the obligations of a
son toward his father depend upon the social position the father occupies in relation to the son; they do not depend to any great extent upon the kind of man the
father is. Such obligations are 'particularistic.' . . . The role of judge in court,
on the other hand, is strongly 'universalistic.' A judge is supposed to make decisions,
not on the basis of the social position of the persons before the bench, but on the
basis of strictly impersonal criteria of justice.
JOHNSON, supra note 16, at 138. The relationship of these concepts to status and contract
is obvious.
32. See GURVITCH, SOCIOLOGY OF LAW 203-226 (1947).
33. Parsons, supra note 31, at 339.
34. Id.
35. Id. at 40-41.
36. Id. at 351.
37. Id.

LEGAL DEVELOPMENT

1969]

description are formal characteristics of legal systems, and for the most
part, they can be considered variations on Weber's concept of formal
rationality.
Echoes of Weber and Parsons can be detected in a provocative essay
on the modernization of law by Professor Marc Galanter.3a Professor
Galanter lists 11 traits, which together form the "cluster of features
that characterize, to a greater or lesser extent, the legal systems of the
industrial societies of the last century." 39 Admittedly, certain of these
traits may exist in nonmodern legal systems and some "are absent to
some degree in one or another advanced industrial society." The 11
traits, then, are "not a description, but a model," useful if one wishes to
isolate the "common salient features" of the legal systems of advanced
40
industrial societies.

The model of the modern that emerges from Galanter's essay has
many points in common with the models that emerge from other
evolutionists, from Maine through Weber and Parsons. Modern legal
norms are "uniform and unvarying in their application"; the same
rules apply to everyone within a given territory. They cut across status
lines. Modern law is "transactional": Rights and duties flow out of
"transactions"; they are not "aggregated in unchanging clusters" that
attach to a person's status. Norms are "universalistic"; hence, law is
"reproducible and predictable." The legal system is hierarchic and
bureaucratic. There is a regular chain of command, legally speaking.
The system is "rational," meaning that it can be learned, and its rules
are valued because of their "instrumental utility in producing consciously chosen ends." The system is run by professionals; lawyers
replace "mere general agents" as the system becomes more complex.
The system is "amendable," since it does not have "sacred fixity." It is
also "political," i.e., connected to and monopolized by the state. Lastly,
legislative, judicial, and executive functions are "separate and distinct
'
in modern law.

41

Galanter's essay does not make clear whether the traits as a whole, or
some of them, are to be taken as causes of modernization in any sense.
If a legal system has or adopts these traits, or some combination of
them, does it necessarily mean that important consequences will follow
in the society outside the legal system? Will the standard of living or
the gross national product be affected? Will industry develop, will the
army modernize, will the polity become more democratic? Will there
be any other political, economic or social outcome? Or are the 11 only
a catalogue of what happens inside a legal system, when modernization
occurs outside? Are they, in other words, the dependent or the in38.
39.
40.
41.

Galanter, The Modernization of Law, in MODERNIZATION 153 (Weiner ed. 1966).


Id. at 154.
Id.
Id. at 154-56.

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dependent variables? Still a third possibility is that the 11 features may


be only concomitants of modernization-accidental fellow-travelers of
social change. The correlation between other attributes of the modern
world and those traits might be wholly spurious. Countries with high
per capita incomes also rank high in the number of neckties worn, low
in loin clothes and robes. Yet no one could modernize a country by
changing its clothes. The 11 traits, conceivably, might be only beads
42
and trim in the modern world.

In fact, the issue of cause and effect is usually evaded by most of the
evolutionary theorists. Relatively few scholars have cared to commit
themselves on the question. Talcott Parsons is an exception. Parsons is
sure that features of the common law were directly responsible for that
outbreak of parliamentary democracy and textile mills, which transformed English life and led to the modern world. The development of
the English common law, in Parsons' opinion, was "probably decisive
for the modern world." It was "no accident that the Industrial Revolution occurred first in England"; the English legal system was a "fundamental prerequisite" for this monumental process. 43 But Parsons
brings no evidence forward; he is satisfied to simply make the assertion.
Evasion of the problem of cause and effect is a general, nagging
problem in all the evolutionary theories. They do not shed any light
on how legal change and social change fit together. They describe some
sort of relationship over time, but they do not show whether law or
society moves first or whether a particular sort of interaction exists.
For many purposes, no such theory is necessary. It would be no small
matter to uncover patterns of development in legal history, no matter
how they came about. But one would soon demand some causal statement. And for a theory of development, in the sense that third world
countries use the word, it would be vital to go beyond the patterns,
and search for the causative factors.
There are other problems with evolutionary theory. Maine and
42. The way people dress sometimes, to be sure, has ramifications outside of mere
fashion. Ataturk, bent on turning Turkish society upside down, abolished the fez in
1925, and made it a crime to wear one. When a country with a Moslem tradition tries
to prevent women from wearing the veil, it is attacking traditional styles as symbols of
the traditional way of life, or, as in Ataturk's case, administering "shock treatment
to tear people away from traditional ways." DAVISON, TURKEY 131 (1968). Few people think
that a change in dress will in itself change other elements of a culture, but change in
dress may be part of a general revolutionary attack on an enemy culture. The battle
against the veil, for example, was an aspect of the Soviet struggle against Moslem traditionalism, described in Massell, Law as an Instrument of Revolutionary Change in a
Traditional Milieu, 2 LAW & Soc'v REV. 179 (1968).
43. Parsons, supra note 31, at 353. It is interesting to note how differently Max Weber
looked at the relationship between English law and the modern world. In one passage, Weber argues: "Modern capitalism prospers equally and manifests essentially identical economic traits under legal systems containing rules and institutions which considerably differ from each other at least from a juridical point of view." See MAX WEBER ON
LAw 315. English law was less systematic, bureaucratic, and logical than Continental law;
capitalism flourished in England almost in spite of English law. Id. at 353.

1969]

LEGAL DEVELOPMENT

Durkheim's ideas rested on assumptions of fact that are no longer


accepted. Modern anthropologists have discarded Maine's patriarchal
theory. Too many ancient and primitive peoples do not fit the patriarchal model. 44 Nor can early law be described as exclusively penal, if
the societies studied by anthropologists are any guide. Moreover, evolutionary theories have fixed their attention on too small a range of
phenomena. At the outset, in Ancient Law, Maine asserts that Roman
law-"the most celebrated system of jurisprudence known to the world"
-began with a Code. 45 Durkheim, as we saw, insisted that early law
was exclusively penal. Both Maine and Durkheim seem to be speaking
primarily about formal codified law. But Roman law does not really
begin with the Twelve Tables, 40 nor English law with the Dooms of
King Ine, nor Jewish law with the Biblical codes. All of these codes
were fragmentary; they did not cover all of law or life; they could not
have been the only rules in operation. Other rules, not codified, also
governed behavior. The early Anglo-Saxon codes are little more than
lists of culpable acts with a catalogue of the compensation to be paid
for them. Obviously, this is not the beginning of law, but a stage somewhere in the middle. The Twelve Tables and the earliest Near Eastern
codes are equally fragmentary. One could call the other rules-the uncodified rules-custom rather than law. But then nonliterate societies,
which have no codes, would necessarily have no law. A definition this
narrow would confuse codified law with law in general4 7 and might end
up defining out of law the common law itself.
The confusion of the formal and the informal, written and less
rigorously written law, plagues all the evolutionary theorists-not only
Durkheim and Maine, but also all theories of legal development that
compare the formal parts of law. Weber's categories, too, are primarily
categories of legal thought; they refer to that part of the legal system
which comes within the purview of legal scholarship, traditionally
conceived. Jurisprudential thought and formal legal scholarship are
44. See Redfield, Maine's Ancient Law in the Light of Primitive Societies, 3 W. POL. Q.
574 (1950).
45. MAINE, supra note 10, at 1.
46. Maine, of course, recognized this fact. "Many jural phenomena," he said, lay behind the Codes of the ancient world and "preceded them in point of time." Id. at 2.
47. For a definition of this kind see Vansina, A Traditional Legal System: the Kuba,
in AFRICAN LAW: ADAPTATION AND DEVELOPMENT 97-113 (Kuper & Kuper eds. 1965).
When a new regime takes over, perhaps after a class struggle, or battle between factions or peoples, or when a new religion becomes dominant, codification signals the rise
of new rules, or embodies the compromise between the warring factions, acting as a
sort of treaty. The codes mentioned in the text may have been of this sort. Maine's discussion of the reasons for codification, supra note 10, at 1-19, is still worth reading for
its insights. On the significance of the Roman Twelve Tables see JOLOWicz, HISTORICAL
INTRODUCTION TO THE STUDY OF ROMAN LAW 12 (1954). Compare the discussion of the
codifications in the colony of Massachusetts Bay in HASINS, LAW AND AUTHORITY IN
EARLY MASSACHUSETS 123 (1960).

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valid subjects of sociological and historical analysis. But they are not
to be confused with the law itself. New York City's traffic laws are
undoubtedly part of the American legal system. But are they "rational"
in Weber's sense? Was Weber thinking of this kind of regulation at
all?
Professor Galanter's 11 traits also pertain most clearly to formal law
and lawyers' law. Modern law, for example, is said to be "universalistic" and "rational"; its norms allow prediction and accurate calculation of legal consequences. But this description of legal norms is far
too general; it applies to too many legal systems. It is meant to separate
out the irrational from the rational, in Weber's terms, and among
other things, to exclude what Weber, in a striking phrase, called khadi
justice48-intuitive justice, broadly discretionary, Solomon-like, the
justice of the wise elder sitting under a tree and judging his people.
But there is an enormous amount of khadi justice in legal systems that
are undeniably modern, if any legal system is modern. The judge in
American family courts and juvenile courts (at least before the decision

in In re Gault4 9) had the power and used many of the techniques of

the khadi. 50 This is not an isolated instance. The closely reasoned appellate decision is the main example in American law of logically
formal reasoning. A few other agencies of adjudication, which imitate
the higher courts of law, could be added, but all the rest is distinctly
less universalistic and, strictly speaking, less rational in Weber's terms. 51
An obvious case is the arbitrator. Whether arbitrators should deliver
written opinions, whether their work should have any precedential value,
is a matter of some dispute in the United States. 52 Who is right does
not concern us here. What is important is that arbitration does not
measure up to the ideal of rationality-but would it make sense to
dismiss it as nonmodern? Every other kind of lawmaking except the
work of appellate courts, the writing of restatements and authoritative
treatises, and the enactment of systematic codes, would be half rational
at best. Most every sort of enforcement and application of norms
48. The khadi is "the Moslem judge who sits in the market place and, at least seemingly, renders his decisions without any reference to rules or norms but in what appears
to be a completely free evaluation of the particular merits of every single case. The
type would also be approximated by that kind of wise man who . . . would seem to
represent the ideal of the German school of free law or of the American realists." MAX
WEBER ON, LAW at xlviii.
49. In re Gault, 387 U.S. 1 (1967) (extending certain procedural safeguards to juvenile
court proceedings was an attempt to reduce the element of "khadi justice" in these
proceedings).
50. There is a very interesting discussion of this point in MATZA, DELINQUENCY AND
DRIFT 111-24 (1964).
51. Decisionmaking which is not bound by formal rules has been relatively neglected
in legal scholarship. DAvis, DISCRETIONARY JUSTICE, A PRELIMINARY INQUIRY (1969), is an
important step forward.
52. See, e.g., Mentschikoff, The Significance of Arbitration-a Preliminary Inquiry, 17
LAW & CONTEMP. PROB. 698, 701-02, 709-10 (1952).

1969]

LEGAL DEVELOPMENT

would be similarly deficient. A highly structured modern legal system


has plenty of room for norms that do not fit the definitions of rationality and universalism. If law and the legal system includes decisions
made by all government officials, e.g., decisions to authorize television
networks, to make war, to intercede between two drunks fighting on
the street, and the bulk of the decisions made by lower courts at pretrial conferences, in chambers, jury verdicts, arbitrations and mediations, one would be hard pressed to say whether the basic tenet of the
American legal system is universalism, rationality, or something quite
different. But if one tries to downgrade the formal aspects of universalism and rationality, what is left of these terms? The judges among the
Barotse decide their cases, no doubt, by reference to general norms;
kinship and status relations determine many outcomes, but by no
means all. 53 Anthropologists can construct neat, logical, and internally
consistent "restatements" of the laws of many preliterate societies.54
These are no more false or true to reality than the formal restatements
of American law.
Furthermore, the concepts of universalism and rationality fail to
distinguish sufficiently between legal systems. Classical Roman law was
highly formal and developed a system of jurisprudence, as did the classical laws of the Moslems, Jews, and Hindus.55 It makes no sense to
speak of these legal systems as modern. In fact, it is not easy to use a
scale of rationality to measure differences between older legal systems
and those of modern industrial countries. Bureaucracy is not new;
neither is a trained legal profession. Medieval England and ancient
Rome had both of these characteristics. Many alleged traits of modernity appear in all highly developed legal systems. Possibly American law
or French law is more bureaucratic than Roman law or the law of
Tudor England. But the point is not obvious.
A special problem afflicts those who, like Maine and Durkheim,
pivot their theories about the transition from an age of status to an age
of contract, or the equivalent. Maine's hypothesis fits the values of
Victorian England suspiciously well. The more progressive the legal
system, the more free play it gives to contract and individual will.
Social organization seems to proceed along a path that leads inexorably
from barbarism to a high point located, by coincidence, in Maine's
England or Durkheim's France. It is not quite so easy to fit later
53. Max Gluckman has stressed this point: Judicial process among the Lozi on the
whole "corresponds with, more than it differs from, the judicial process in Western
society." Rules, customs, precedents, legal concepts, and assessment of evidence are part
of the judges' standard equipment. GLUCKMAN, THm JUDICAL PRocEsS AMONG THE BAROTSE

OF NORTHERN RHODESIA 357 (1955).


54. See ALLOTr, THE FUTURE OF LAW IN AFRICA 15-17 (1960).
55. Both Weber and Parsons distinguish between these systems and modern law, but
the distinctions seem at times rather weak. What, for example, is the difference between
the "extremely formalistic casuistry" which sometimes develops in sacred law systems,
WEBER, supra note 26, at 230, and logical formalism of the modern Western type?

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developments into the picture, or the experiences of other societies.


Does "contract" or "restitution" usefully describe the way law, business
and life are organized in the Soviet Union, or Cuba, or Maoist China?
Does the totalitarianism of the right-of Hitler and Mussolini-show
that the process is reversible? Is socialist England less progressive or
less modern than free-contract England? The infamous rules of
apartheid, in the Union of South Africa, presuppose and build upon
classification of people by race. This fixation on an inborn trait" makes
the Union of South Africa legally less "modern" than other countries
which do not draw a color line. Although, ethically speaking, apartheid
must be harshly condemned, nonetheless, South Africa is rich and possesses all the trappings of a modern industrial state. Maine's hypothesis
is acceptable as long as individualism and freedom of contract are accepted as values, not facts. "Progressive" is simply a label, then, for
"good" countries as opposed to "bad." But "modern" is not always
used in this ethical sense; it often refers to crass economic success. Hitler's Germany ran a powerful industrial machine. The Soviet Union
has a huge national output. Some of the newer nations look up to it as
a sound legal model. 57 The rich industrial countries include some socialist countries, some Western democracies, some dictatorships, and at
least one frankly racist state. It is difficult to determine whether the
formal aspects of the laws of these countries really have enough in
common to differentiate them all, as a group, from the medieval legal
systems or the systems of ancient civilizations.
Legal evolution, however, cannot be quite so easily dismissed. Certainly, modern law is substantively different from ancient law and the
law of static societies. Some of these differences are easy to list. Plainly,
Rome had no railroad law; it did not regulate television networks; it
had no rules on wiretapping. New tools and techniques call to life
new bodies of law. One major difference between modern and premodern law is its content, rather than its form; structure limps along
after substance.
Some might want to argue that classes of legal systems can be distinguished best in terms of substance. This statement would imply a
theory of the relationship of law and society. It would imply that social
forces, technology high among them, dominate the legal systems and,
in a real sense, they create the law. The differences between two legal
systems would be nothing more or less than the reflection of differences between two technologies, or two economies, or whatever other
features of the two societies theory selects as dominant. Such a state56. Race, of course, as used in the Union of South Africa, is only partially a biological
trait; the same is true in other color conscious societies, including the United States.
Nevertheless, the point made in the text appears generally to be valid.
57. See Hazard, supra note 3, at 28.

1969]

LEGAL DEVELOPMENT

ment would reject an old but powerful point of view-that the legal
system is largely independent of society, with a life of its own, growing
according to its own internal rules. Both as a matter of theory and
observed fact, however, there do seem to be differences between legal
systems which cannot be explained as differences in their strictly legal
inheritance, cannot be traced to substantive and structural dissimilarities, and cannot be entirely imputed to differences in technology or
economy, yet are not purely formal differences either. These differences reside in what we might call the cultural domain. I would like to
suggest that what separates modern from premodern and nonmodern
58
law is a critical cultural distinction.
A legal system in operation is, in the overused phrase, a seamless
web. For analytical purposes, however, one can think of it as containing three general kinds of components: First, many features of a
working legal system can be called structural-themoving parts, so to
speak, of the machine. Courts are a simple and obvious example; their
structures can be described: a panel of such and such a size, sitting at
such and such a time, with this or that limitation on jurisdiction. The
shape, size, and powers of a legislature is another element of structure.
A written constitution is still another important feature in the structural landscape of law. It is, or attempts to be, the expression or blueprint of basic features of the country's legal process, the organization
and framework of government.
The second type of component can be called substantive. These are
the actual products of the legal system-what the judges, for example,
actually say and do. Substance includes, naturally enough, those propositions referred to as legal rules; realistically, it also includes rules
which are not written down, i.e., those regularities of behavior that
could be reduced to a general statement.5 9 Every decision, too, is a substantive product of the legal system, as is every doctrine announced in
court, or enacted by a legislature, or adopted by an agency of government.
Structure and substance are what people ordinarily refer to as the
legal system. But most people would readily concede, after a little
thought, that there are more than these two elements to law. A court
announces a policy of decision and sits waiting for litigants. Structure
and substance are given; still, on the basis of these two elements alone,
one could not predict what use would be actually made of the court
58. On the concept of the legal culture see Friedman, supra note 8; Lev, Structures
and Values in Indonesian Law, 1969 (unpublished essay). For the distinction between sub-

stance, structure, and culture see

ALFORD, BUREAUCRACY AND PARTICIPATION: POLITICAL


CULTURES IN FOUR WISCONSIN CITIES 1-9 (1969). Compare the rather different concept in
ALMOND & VERBA, THE CIVIC CULTURE (1963).

59. Since the analysis deals with the "living law," substance excludes those rules
which have a paper existence only.

RUTGERS LAW REVIEW

[Vol. 24

and its doctrines. 0 The third element, public attitudes or values, determines whether and when a court will be employed. In some cultures,
litigation is a last resort, while in others, it is a common and popular
pastime. A Korean scholar writes that in his country "it is not decent or
'nice' to insist on one's legal right. When a person hauls another
person into court, he is, in fact, declaring war on him." 61 A Korean
who went to law to protect his property rights would be considered
quite callous by his neighbors. Another scholar, on the other hand,
studying the culture of Burma, thought he detected a positive delight
in litigation among the Burmese. Before World War II, he says, "interest in the working of the law took on a sporting quality. ' ' 62 In

Rangoon, "Asian business houses customarily set aside each year


surplus funds that were invested in energetic searches for profitable
lawsuits. 0 8s These differences in attitudes, if accurately reported, cannot be explained as differences between the mercantile and peasant
sectors of an economy. Studies of American businessmen show a horror
4
of litigation, superficially more in tune with Korea than with Burma.
It is perfectly possible, then, for identical structures to perform very
different functions. Two courts in neighboring villages, ostensibly
alike, are not at all similar in the role they play in their communities.
The legal culture provides fuel for the motor of justice; social values
and attitudes fill in the missing elements needed to explain uses,
nonuses, misuses, and abuses of legal process and the legal system. Legal
culture can be defined as those attitudes and values that relate to law
and the legal system, together with those attitudes and values affecting
behavior related to law and its institutions, either positively or negatively. Love of litigation, or a hatred of it, is part of the legal culture,
as would be attitudes toward child rearing insofar as these attitudes
affect behavior which is at least nominally governed by law.
60. See Nader & Metzger, Conflict Resolutions in Two Mexican Communities, 65 AM.
584 (1963).
61. HAHM, THE KOREAN POLITICAL TRADITION AND LAW 190 (1967). Compare VON
JHERING, THE STRUGGLE FOR LAW 69, 73 (2d ed. 1915): "The struggle for law is a duty of the
person having rights, to himself . . . [and] the assertion of one's legal rights is a duty
which he owes to society." If people do not assert their rights, then these rights lose
their reality, and the "struggle of legal rights against injustice" is impaired; this is so
harmful to society that it can be considered as "treason to the common cause."
62. PYE, ASPECTS OF POLITICAL DEVELOPMENT 118 (1966).
63. Id. See also PYE, PoLrrICs, PERSONALITY, AND NATION BUILDING 106-08 (1958). Pye,
however, ascribes the fever for litigation to the impact of Western forms of law. On
India see Cohn, Some Notes on Law and Changes in North India, 8 ECON. DEVEL. &
CULTURAL CHANGE 1 (1959); Derrett, The Administration of Hindu Law by the British, 4
COMP. STUDIES IN Soc'Y & HISTORY 10, 18-24 (1961).
64. Macaulay, Non-Contractual Relations in Business: A Preliminary Study, 28 AM.
SOCIOLOGICAL REV. 55, 61 (1963). The reasons for the avoidance of litigation by businessmen, of course, are quite different from the reasons expressed by Hahm. One reason
is simply that litigation in this country is expensive. In the societies studied by anthropologists, some of them without a money economy, there are fewer costs, in the literal
sense, in going to court.
ANTHROPOLOGIST

LEGAL DEVELOPMENT

1969]

The legal culture, then, is a general expression for the way the legal
system fits into the culture of the general society. It is not what is
crudely called public opinion; it is much more than a cross-section of
attitudes toward law, along the lines of a Gallup Poll. Public attitudes
toward law are occasionally measured in this way,6 5 but surveys of what
the population thinks in the abstract about legal questions do not tap
legal culture or explain its manifestations. For that, one has to take
into account specialized bodies of opinion. What a truck driver thinks
of the antitrust laws, if he thinks anything at all, has much less to do
with the ways of the Justice Department than the opinions of the relevant businessmen, bureaucrats, and lawyers-those who deal in the
antitrust laws. An accurate picture of the cultural element that affects
the law would also take into account intensities of feeling and relative
power in the society. One vehement, rich, or well-placed man is worth
10 or 100 who disagree in a half-hearted way and who do not have
power or position. As anthropologists used the term, culture meant
more than a dictionary of isolated bits of behavior or thought. The
term is here used as a kind of residuary category, to include all the
relevant social values and attitudes that influence law but cannot be
deduced from its structure and substance. These include respect for
law or the lack of it, whether people readily use their courts, their
officials, or prefer informal ways of solving problems, and attitudes and
demands upon law posed by different ethnic groups, races, religions,
occupations and social classes.
Many of the evolutionists have been rummaging about in substance
and structure, or in jurisprudential thought, for key distinctions between modern and nonmodern law. They have perhaps missed a prime
cultural difference. In the last 2 centuries or so, a radical alteration
seems to have taken place in the fundamental idea of law. The basis of
its legitimacy has altered. Weber argued that modern law differed from
early law in that it was much more rational; but he may have been
looking at the phenomenon through the wrong end of the telescope.
The important point is not that modern law is rational (in the sense
of consciously choosing appropriate means to achieve given ends) but
that people think it is, or, more importantly, that it ought to be, and
they expect it to behave accordingly. It is not clear that modern law,
as a whole, is more rational in this sense than ancient law. That would
depend on the goals of a legal system. Perhaps ancient law provided
more social cohesion and stability, in its time, than the law of modern
Mexico or France. What can be said, however, using Weber's own
terminology, is that the basis of legitimacy-a cultural fact-has
changed. People of the modern world look upon law as a too], an
instrument, not as an object of tradition or sentiment, as sacred, as an
65. See
(1958).

COHEN, ROBSON

&

BATES, PARENTAL AUTHORITY: THE COMMUNITY AND THE LAW

RUTGERS LAW REVIEW

[Vol. 24

end in itself, or as a direct emanation from the Divine. They have a


utilitarian view of law. Each particular aspect of law is judged on the
part it plays in some larger scheme of values, in some larger network
of ends and means.
Sir Henry Maine spoke of "progressive" societies. Nowadays, the
word progress is much less used than a century ago; it has the unfortunate flavor of Spencer and the Social Darwinists,60 of the era of unabashed capitalist enterprise, and of colonial empires. After a series of
catastrophic wars, and in the age of the bomb, the population explosion,
and rioting in the streets, the age when man's accumulated garbage
threatens his very existence, it is not easy to be glib about progress. But
the idea is out of favor only in the sense of an inevitable movement
upward and onward. Nobody believes any more that progress is a law;
but improvement is still a hope, the object of veneration and struggle.
Informed opinion believes, strongly, firmly, irreversibly, that a better
society is possible; more, that it is desirable, even essential for the survival of man.
The difference between static and dynamic societies may be primarily a difference in values and attitudes, particularly with regard to
social change. It would not be accurate to say that a dynamic society is
one that' is rapidly changing, while a static society is one that is not.
Every society undergoes change. Some traditional or static societies may
actually be changing faster or more fundamentally than some so-called
dynamic societies. In a dynamic society, however, change is accepted as
the way of the world; there is a "new cultural outlook," which includes
an "emphasis on progress and improvement." 67 People may grumble
about change and they may regret it, but they know that it cannot be
avoided. The role of organized society, of government and law, is to
insure that change is channeled in the right direction. In the modern
world, governments do more than maintain order; presumably, they also
solve problems. In the modern state, roles are not fixed, but are changeable and changing. Law itself is not sacred and timeless, but moves with
the times. It is openly and obviously in flux, i.e., has a past, a present and
a clear sense of future. It is plainly manipulated by living people and by
organized groups to secure their rights and advance their interests.
People believe that law has a purpose. Even more strongly, they believe
that particular laws and institutions have particular purposes and are
to be judged accordingly. The end of law and of government, and all
their parts, is to advance in a rational way toward some knowable goal.
These ideas, in a more systematic form, are commonly associated
with the thought of the English Utilitarians of the early 19th cen66. HOFSTADTER, SOCIAL DARWINISM IN AMERICAN THOUGHT (1944); Corwin, The Impact of the Idea of Evolution on the American Political and Constitutional Tradition, in
EVOLUTIONARY THOUGHT IN AMERICA 182 (Persons ed. 1956).

67.

EISENSTADT,

MODERNI1ATION:

PROTEST AND

CHANGE

5 (1966).

1969]

LEGAL DEVELOPMENT

tury. 8 But a date cannot really be assigned to the emergence of this


kind of social fact. Programs, precise formulations, systems of thought,
can often be traced to particular dates, books, authors or schools of
thinkers. Modern culture does not depend on events so specific. Books
and programs of philosophy were only symptoms of a change which had
deeper and wider causes. 9 Philosophers and social thinkers gathered
up general attitudes, vague, inconsistent, and muddled, and wove them
into a coherent, consistent program. For present purposes, however,
the vague,
the program and the system are much less important than
70
inconsistent, muddled attitudes out of which they grew.
Rationality, progress, perfectability, and change were simple ideas
and, no doubt, as held by the ordinary person, 7 ' not well thought out.
But the modem concept was profoundly different from what people in
nonmodern societies think of law, as far as one can tell. In sacred legal
systems, for example, law was believed to be fixed and timeless. God,
His emissaries, or His vicars laid down the rules once and for all, new
68. See generally, HALEVY, THE GROWTH OF PHILOSOPHIC RADICALISM (1928); PLAMENETZ,
THE ENGLISH UTILITARIANS (1949). The Utilitarians rejected the notion that obligations to
the state, and from the state to the citizen, had anything to do "with the way the government first acquired power or now maintains it." Id. at 2. They did not base their ideas
of law on any principle of legitimacy other than utility. Indeed, Bentham was opposed
to the idea of a "Bill of Rights, or Declaration of Rights, supposed to be obligatory
from the day when it was promulgated." He did not want "any declaration of principles
held to be immutable and above all criticism." HALEVY, supra at 407.
69. Nor are we concerned here with what cultural phenomena, if any, triggered the
set of changes which are associated with the rise of capitalism, the coming of the Industrial Revolution, and the other economic, social, and political sources of modernity.
The literature is immense and provocative, and includes MCCLELLAND, THE ACHIEVING
SOCIETY (1961);
'TAWNEY, RELIGION AND THE RISE OF CAPITALISM (1929); WEBER, THE
PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (Parsons, trans. 1968); Hagen, How
Economic Growth Begins: A Theory of Social Change, 19 J. SOCIAL IssuEs 20 (1963).
70. This is, of course, not self-evident. Many thinkers and historians take a different
view. Thus, for example, it has been argued that some of the ruling ideas which transformed English society came from individual men of genius:
The doctrine of free trade, for instance . . . [was not] discovered by the intuitive
good sense of the people. . . . The principle of free trade may, as far as Englishmen
are concerned, be treated as the doctrine of Adam Smith. . . . The theory of free
trade won by degrees the approval of statesmen of special insight, and adherents to
the new economic religion were one by one gained among persons of intelligence..
[A]fter free trade became an established principle of English policy, the majority of
the English people accepted it mainly on authority.
DICEY, LECTURES ON THE RELATION BETWEEN LAW AND PUBLIC OPINION IN ENGLAND DURING

23-25 (1905).
The same argument could be made about the ideas of Jeremy Bentham. Indeed Dicey
called Bentham a "genius ... of the rarest quality," and felt that he played a critical role
in the 19th century reformation of English law. Id. at 130.
There is no question but that some of the outer forms of law were recast in the light
of the theories of Smith and Bentham or that these men were "influential," whatever
that may mean. But it does not follow, as some have thought, that the movements under
discussion were "caused" by a book or books or the ideas of seminal thinkers.
71. By "ordinary" is meant not the ordinary person in general (during much of the
period of industrialization, many Englishmen were illiterate, and great numbers of them
did not vote or exert any economic or political pressure) but only the ordinary person
who mattered. This might mean the ordinary businessman or middle class professional,
or merchant, or even the ordinary nobleman in a particular period.
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law was possible only through charismatic authority or fresh revelation.


Ordinary lawmakers and judges merely searched out the meaning of
the unchanging rules, and applied them as correctly as they could to
concrete situations. In Moslem legal thought, for example, law was
"the pre-ordained system of God's commands"; the task of jurisprudence was to ascertain and understand God's law. 72 The Jewish rabbis
scoured the Bible for hints and precedents. Theoretically, everything
73
was locked up in the sacred books and authoritative commentaries.
Mystics tabulated the number values of Hebrew words in the Bible, so
intensely was the text milked for meaning.
The classical common law shared with sacred law systems an element
of the worship of tradition. The legitimacy of the common law was
not based on natural law or on religion (despite occasional language to
that effect). It was based on the idea of a body of principles, embodying
the custom of the land. There was no mundane pragmatic test of the
validity of those basic principles. Nor were they subject to change by
the judges. The basis of the common law was custom or principle or
the way of the world. The judges were neither servants of the state
nor makers of law. They declared the law or uncovered it; it was
already there; it evolved, but slowly and subtly, working out the
limitless implications of its fundamental principles. The common law,
unlike some of the sacred law systems, was not tied inexorably to a
closed system of propositions. And it was always supposed to be, as
Lord Coke said, "the perfection of reason. ' ' 74 But Lord Coke's reason
was not reason in the practical sense of the 19th century. It was a
72. COULSON, A HISTORY OF ISLAMIC LAW 75 (1964).
73. On Jewish law see Cohn, Secularization of Divine Law, in STUDIES IN ISRAEL LEGISLATIVE PROBLEMS 55 (Tedeschi & Yadin eds., 1966).
74. For reason is the life of the law, the common law itself is nothing but reason;
which is to be understood of an artificial perfection of reason, gotten by long study,
observation, and experience, and not of every man's natural reason .... [B]y many
successions of ages it hath been fined and refined by an infinite number of grave and
learned men, and by long experience grown to such a perfection, for the government
of this realm, as the old rule may be justly verified of it: no man out of his own
private reason ought to be wiser than the law, which is the perfection of reason.
COKE ON LITTLETON 97b (1628).
Roscoe Pound has pointed out that prior to the 19th century, English legal thinkers
sought to justify the law on the basis of its "historical authority":
Nineteenth-century legal history-writing had a radically different purpose. It did
not think of a law which had always been the same but of a law which had grown.
It sought stability through establishment of principles of growth, finding the lines
along which growth had proceeded and would continue to proceed, and it sought to
unify stability and change by a combination of historical authority and philosophical
history. Utilizing the idea of authority, it sought to put a historical foundation under
the seventeenth- and eighteenth-century theory of law as only declaratory of something having a higher authority than the pronouncement of legislator or judge as
such. Law was not declaratory of morals or of the nature of man as a moral entity
or reasoning creature. It was declaratory of principles of progress discovered by
human experience of administering justice and of human experience of intercourse
in civilized society; and these principles were not principles of natural law revealed
by reason, they were realizings of an idea, unfolding in human experience and in
the development of institutions-an idea to be demonstrated metaphysically and
verified by history.

1969]

LEGAL DEVELOPMENT

wisdom deeply rooted in the natural order of things. The idea of law
as a utilitarian tool was foreign to Lord Coke's thought.
Modern law is unmistakably otherwise; law is no longer worshipped
as the way of the world. The test of a rule, a code, an institution is its
work: Does it advance the enterprise? Does it serve my interest or
yours? Few rules of law still rest on traditional or religious grounds.
Even those who, for religious reasons, want to keep the laws against
abortion and contraception, add worldly, practical reasons in defense
of these laws. The main line of legal development is pragmatic and
secular; the main justification of the laws is their practical effect.7 5
The world view of nonmodern law-the sacred law systems, the
ancient world, preliterate societies, and medieval man-all harbored a
principle of fixity lacking in modern societies. To be sure, no society
is free of fixed points in its law. Absolutes are everywhere: in Socialist
countries, the doctrines of Lenin and Marx, and the thoughts of
Chairman Mao; in the United States, the Constitution, the basic civil
rights, the rule of law. Nothing is more characteristic of legal systems
and bureaucracy in general, than the fixity of the word, at least in the
short run. There are countless areas of life in which conduct is governed by the book, by the manual, by some table of rules and regulations, meant to be binding on the officials who carry them out, and
on the client or subject population. The basic difference between old
law and new law is not that modern law is flexible in operation, while
the old law was hidebound and rigid. The question is, what sits
enthroned at the apex of the legal system, a principle of timelessness,
or a principle of open, purposive change. This principle of change, to
be sure, does not mean that rule by wisdom and individuation replaces
rule by the rules; that policy replaces strict law. Actually, in many
ways, the use of formality and the tightness of legal rules have increased,
not decreased, in modern legal systems.7 6 For every rule of the "reasonable man" type there are ten rules that lay down a flat, mathematical formula: such and such a percentage of butterfat in milk; a
LECAL HISTORY 9 (1923). See also ERICKSON, WAYWARD PURITANS
187 (1966).
75. Of course, laws are also legitimized by their procedures, e.g., a majority voted for
them, or proper authorities promulgated them. This is part of Weber's principle of "rationality" as a legitimizing factor: A power of command is valid when it is expressed "in a
system of consciously made rational rules . . . which meet with obedience as generally
binding norms whenever such obedience is claimed by him whom the rule designates."
Obedience, then, is to the "norms rather than to the person." WEBER, supra note 26, at
336. Insofar as these are procedural norms (elections, fair trials), the modern public
generally accepts them, at least in our country. But the principle does not and cannot
explain what demands are made on law and the legal system nor why the demands are
made. It merely explains why some. deriands, made by the legal system, and which go
contrary to the short run interests of individuals or groups, are accepted by the :public.
76. See Friedman, Legal Rules and the Process of Social Change, 19 STAN. L. REV. 786
(1967); Friedman, Law, Rules, and the Interpretation of Written Documents, 59 Nw. U.L.
REv. 751 (1967).
POUND, INTERPRETATIONS OF

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speed limit of so many miles per hour on the highway. The modern
state tries to regulate vast areas of life in a society whose technology
and social structure are incredibly complex. Firm, explicit rules, and a
bureaucratic order, are absolutely necessary. But the rules are not
sacred in themselves, they merely represent current policy. They are
always correctable, and are always liable to be corrected.
Modern government cannot go on without bureaucracy; this includes the government of courts, department stores, factories and
schools as well as whole countries. Weber argued that bureaucracy was
"technically superior" to other forms of organization. "The fully developed bureaucratic mechanism compares with other organizations
exactly as does the machine with the nonmechanical modes of production." 77 Yet, bureaucracy is constantly under attack: for niggling
devotion to rules, for "goal displacement," inversion of ends and
means, formalistic impersonality, and other sins which tend to mummify organizations and keep them from carrying out their true purpose
in a free and flexible way.78 In part, anger at the bureaucrats comes
naturally whenever bureaucratic action hurts somebody's interests.
But a strong undercurrent of protest suggests something more: that
the bureaucrat sins by insisting on the sacredness and fixity of the word.
Reasonable requests are turned down or drowned in redtape. The
bureaucrat bases his decisions on the sterile rules of his manual. But
to the modern man, the rule is not enough; it must be justified or die.
The bureaucrat is therefore caught in a bind, not of his own making
and not in his power to cure. For the sake of efficiency, bureaucracy
exalts the rule and the word over more flexible standards or goals.
Otherwise, the number of people in the society with the power to
exercise discretion would increase catastrophically. Minor questions
would be endlessly debatable and policy laid down at the top would
be constantly reexamined and frustrated down below. Efficiency demands, therefore, that rules be relatively objective and nondiscretionary. Yet, if the underlings are chained to the manual, it is easy for
an outsider to suppose that the bureaucracy is stubbornly clinging to
its pointless rules, displacing the true goals of the enterprise. The fact
is that two rationalities stand-in conflict: the internal rationality of the
organization and the rationality of outsiders. Indeed, in modern law
generally, there is a conflict between an inner and an outer rationality,
between the requirements of the legal system and the requirements of
its social surroundings.
In summary, the principles of legal legitimacy have drastically
changed since the Industrial Revolution. Traditional and super77. GERTH & MiLs, FROM MAX WEBER: ESSAYS IN SOCIOLOGY 214 (1958).
78. For an overview and critique of the literature see THOMPSON, MODERN
A GENERAL THEORY

12-23 (1961).

ORGANIZATION,

1969]

LEGAL DEVELOPMENT

natural legitimacy have declined; democratic and pragmatic legitimacy


have risen. This change has had a profound effect upon the law. It
has, for one thing, changed the nature of government and the legal
system. They are now engines for the solution of social problems. They
are instruments, used by individuals and groups, to advance their own
self interest. Consequently, the scale of demands on government has
shot up sharply; this trend is plain to anyone who reads the newspapers.
For a while, theories of the malevolence and impotence of central authority, in some countries, acted to hold back some of these demands.
But the ideological inhibitions of laissez faire broke down under the
constant hammering of interest groups. Few cultural barriers were left
to defend the state against the instrumental theory of law. In some ways,
lawyers' law has been quite resistant to this general trend. But the new
culture has stimulated a reexamination of law and led to a movement
for law reform, both real and spurious. In the last century, procedure
has been streamlined and simplified in Anglo-American law, judicial
systems have been revamped, whole fields of law have been codified, and
legal fictions have been flushed out and abolished.
The death of legal fictions is a good example of the culture of modernity at work. The main vice of legal fictions was that they looked
irrational. Fictions are assertions that a proposition is true which
everyone knows to be false, including the legal agency which uses
them. In modern law, there has been a drive to abolish them. Jeremy
Bentham inveighed against the "pestilential breath of fiction,"7 9 and
no one has had a good word to say about them since. But a legal fiction
is, almost necessarily, functional in intent. It is a way around some
embarrassing rule of law. The writ of ejectment, for example, one of
the most fiction-ridden of pleadings, was invented as a way to avoid
use of the so called "real actions," in lawsuits to test title to real
property. Procedure in landlord-tenant cases was much more efficient.8 0
In ejectment, the plaintiff alleged two imaginary leases; the courts
closed their eyes to reality and accepted this rigamarole as if it were
fact. Through legal fictions of this type, law changed without openly
admitting the change. 81 Courts did not, and dared not, flatly state that
79. Quoted in OGDEN, BENTHAM'S THEORY OF FICTIONS xvii (1951). Bentham defines a
"fiction of law" as a "willful falsehood, having for its object the stealing of legislative
power." Id. at xviii. See also FULLER, LEGAL FICTIONS (1967).
80. In the action of ejectment, the pleadings told a story of two leases, one from the
plaintiff, one from the defendant. The name of one lessee was William Styles, the other
John Doe. Styles, it was alleged, had "ejected" Doe. As a matter of fact, Styles, Doe, the
two leases, and the ejectment were all figments of the imagination. The same leases and
the same imaginary people appeared in the pleadings in every ejectment case. The defendant was not allowed to traverse (deny) these fictitious allegations. PLUCINMEr, A CONcisE HISTORY OF THE COMMON LAW 373-74 (5th ed., 1956).
81. Another feature was that one legal institution-in this case the court-assumed
power at the expense of another, since the right to invent new forms of action was not
conceded to the judiciary; it was a legislative or executive right. See Friedman, Legal
Rules, supra note 76, at 786, 838-40.

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they were extending leasehold procedures to actions to try title; this is


what they did, but not what they said. Why should a court be afraid
of frank, open, and desirable change? There are many reasons, of
course; change is a problem in a system that does not believe in change,
whose institutions are supposed to be more or less immutable, or whose
institutions are honor bound or role bound to uphold sacred rules or
traditional forms. Legal fictions, then, abounded in periods, cultures,
and systems which were opposed to change, or which had at best an ambivalent attitude toward change, or were tied to particular texts that
could not be openly altered. 82 This last criterion applies to institutions
whose jurisdiction is fixed by statute or rule, which they have no authority to change; a court is a good example.
In a sense, American constitutional law is woven out of an elaborate
set of fictions. Constitutional law has grown fantastically during certain periods of American history, including the most recent one, yet
every bit of it has to be derived from a text which changes too sluggishly to mean much to those whose demands are immediate and
pressing. The drive to manufacture more constitutional law comes
from those people and groups whose aspirations cannot be fulfilled
through other agencies, and who find the Supreme Court sympathetic
to their cause. 83 The Court can manipulate its output of constitutional
doctrine, however, only by stretching a few fragments of text that are
linguistically apt. The inflation of the meaning of "due process" or
"equal protection" is not legal fiction in the same blatant sense as the
pleadings in ejectment. But the analogy is not wholly untenable. In
both cases, the healthiest path for the law to follow may be the path
of fictional development. Constitutional fictions, however, are less offensively phrased and more circumspect in tone than the classic fictions
of the common law. The culture does not permit the metaphorical
style it once did.
In modern society the old style of fiction seems ridiculous; so, too,
in subsystems that are not tightly bound to a rulebook. The guiding
principle of modern law is that law is a means to an end; what seems
irrational seems at the same time to be wrong. The subtleties of legal
history are lost on the layman (and on most lawyers as well). There
does not appear to be any reason to tolerate legal fictions, or any other
survivals from the past. There is a tendency in modern law to level
out of the system everything which even appears to be irrational. This
applies not only to rules; institutions, roles, and occupational groups
82. Fictions presuppose a complex legal system and lawmaking or law-applying institutions which are under the necessity of expressing reasons for their actions. They are not
a characteristic, then, of the simple legal systems of preliterate societies. Fictions are also
liable to appear in bureaucratic sub-systems which are bound by a rulebook, but where
an ambitious person or department is reaching out for power, or necessity or emergency
presses on the letter of the rule.
83. For a case study of this process see VosE, CAUCASIANS ONLY, THE SUPREME COURT,
THE NAACP, AND THE RESTRICTIVE COVENANT CASES (1959).

1969]

LEGAL DEVELOPMENT

come under the microscope as well. They must defend themselves


pragmatically or die. The legal profession too must show that it is not
antisocial, that it works for the public good, and that its methods are
rational and appropriate. The movement for reform of the law, a
peculiarly modern phenomenon, arises out of this urge.
Slowly and haltingly, the doctrine of precedent also falls victim to
the culture of modern law. In a sense, the doctrine is more a child than
a victim of this period. Stare decisis was not really a medieval doctrine.
A strong doctrine of precedent is unthinkable without the reporting
of cases, which did not begin to develop systematically until about the
16th century.8 4 Stare decisis burst forth as an absolute only in the 19th
century. But the doctrine merely crystallized an attitude that had long
been strong in the common law: that judges were bound by the voice
of the past; that their function was to express and expound national
custom; and that past cases were to be regarded as powerful evidence
of the way of the land.8 5 The doctrine became rigid only when the
cult of rationality forced that part of the legal system which the lawyers
dominated to turn inward and defend itself from attack. Jurisprudence took the common law and wove it into a tight, technical, closed
network of rules, justifying them as rational and scientific, and as the
proper and exclusive domain of experts in law. But the same culture
was, in the long run, harmful to the doctrine. Precedent could not be
defended only on the basis of traditional values. Rules were to survive
only when they so deserved. Justice Holmes remarked, in a famous
passage, that it was "revolting to have no better reason for a rule of
law than that so it was laid down in the time of Henry IV."' 6 Of
course, at one time no better justification could be given for a rule.
But by the time of Holmes, it was an insufficient thing to say about a
rule, and ultimately even a devastating thing.
Consequently, in modern law, the worship of precedent has gone
into decline. Courts still cite cases, of course, and still claim they are
bound by authority, but often they seem uneasy about resting on legal
tradition alone. Judges now tend to appeal more to something vaguely
called policy, which for our purposes means considerations of general
welfare, or anything other than the (self-defined) legal tradition. Old
law survives in great quantity, but judges who retain it, after citing
authority, will often add pragmatic argument for its survival. Arguments about the proper roles of courts, about restraint and activism,
also boil down to arguments of policy-pragmatic, scientific, utilitarian, or rational justifications for what the court does, has been
doing, or should do. Old cases are overruled freely if they no Ion84. WALLACE, THE REPORTERS (3d ed., 1855).
85. On the history of stare decisis see CROSS, PRECEDENT IN ENGLISH LAW 17-30 (1961).
86. HOLM S, The Path of the Law, in COLLECTED LEGAL PAPERS 167, 187 (1920). "It is
still more revolting if the grounds upon which it was laid down have vanished long
since, and the rule simply persists from blind imitation of the past." Id.

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ger seem apt. Even the House of Lords, a hold-out from this trend
for generations, recently conceded to itself the right to overrule past
cases. This made it possible to discard the style of "distinguishing" the
indistinguishable, a technique which, at its extremes, verged on the
fictional. Dissenting opinions have grown more common.8

So, too,

have concurrences and this may be even more of a break with the past.
Some opinions take a sharply personal tone. Occasionally, judges will
cite "authorities" that are not "legal" in any traditional sense. Appeals
to science, rationality, common sense, and the common good indicate a
marked change from the decision making style of yesterday. These
changes in behavior, to be sure, are only a matter of more or less.
Courts still enunciate the slogans that carried them through the 19th
century. Perhaps nothing has happened to the actual output of courts.
They may be doing only what they have always done, except more
openly. Still, a fairly palpable change has taken place in the language
of legitimacy and in the rhetoric of self-justification; and this is an important phenomenon in its own right.
Indeed, the ideology of change affects every branch of government.
It unites liberals and conservatives alike. All accept the idea that government must have a program, even if the program is only to dismantle
other programs. The President goes before Congress each year and
announces his plan of legislation. He assesses the state of the union,
asserts what, in his view, are the major problems of the day, and suggests how to solve them. Even Latin-American generals announce a
program of reform when they carry out a coup. The cultural attitude
that looks on government as a solver of problems is very pervasive. A
cultural attribute that applies to the China of Chairman Mao, to 19th
century England, to new African nations and rightist autocracies, is
pitched at a highly abstract level. Yet the leaders and the articulate
classes of all modern and modernizing societies, whatever their other
tenets, hold to rationality, in the sense used here. They believe in a
programmatic government, in change, and in movement toward a goal.
The program in 19th century America stressed economic growth,
through the liberation of creative private energy; 88 in Mao's China the
official program stresses building the Chinese brand of socialism. These
are fundamental differences in culture and society, but one critical
similarity binds these nations together.
Modern law, as we have seen, is deeply committed to objective rationality. But the commitment itself is subjective. It is an attitude, a
part of the culture. The commitment by itself does not guarantee ra87. See ZOBELL, Division of Opinion in the Supreme Court: A History of Judicial
Disintegration,44 CORNELL L. Q. 186 (1959). Dissenting and concurring opinions are most
frequent in the United States in the work of the Supreme Court. Although much less
common in the lower federal courts and the state courts, their incidence has increased
dramatically over the last century.

88. See generally,


CENTURY UNITEr

HURST, LAW AND THE CONDITIONS OF FREEDOM IN THE NINETEENTH


STATES (1956).

1969]

LEGAL DEVELOPMENT

tional results, measured objectively. Furthermore, instrumental use of


law makes conflict over law and legal process almost certain. Values determine goals, and there are competing goals and competing values.
One man's victory at law is another man's defeat. One man's use of state
power diminishes another's. The culture of rationality makes it difficult to avoid blatant conflicts of interest. Tradition no longer soothes
the savage beast of ambition. In other ways, too, the culture of rationality has had serious side effects, both in the West and among the
developing nations.
Robert Merton has used the phrase latent functions to describe a
common phenomenon: Social behavior turns out to have "unintended
and unrecognized" consequences, which are beneficial to the group,
but which were not foreseen as part of the primary or manifest function of the behavior.89 The manifest function of a rain dance is to
make rain. The ceremony may be a failure in this regard, and still
create a sense of community which helps the group cope with social
and environmental problems. These consequences are latent, that is,
unintended. The group did not conceive of its rituals as steps toward
a cohesive community life; but that, nonetheless, is the effect.
The search for latent functions is one of the distinctive tasks of
sociology. Social scientists use the concept to interpret "many social
practices which persist even though their manifest purpose is clearly
not achieved. The time worn procedure in such instances has been for
diverse, particularly lay, observers to refer to these practices as 'superstitions,' 'irrationalities,' 'mere inertia of tradition,' etc."9 0 These
"time worn procedures" are still powerful. Most of the population,
most of the time, still thinks of exotic social customs as barbaric and
ridiculous. The rain dances of our own culture also tend to be judged
by their manifest functions. Social institutions are not usually analyzed
in all their subtle ramifications; manifest and latent benefits are not
usually balanced against manifest and latent cost. It is too much to
expect so high a degree of sophistication. The slaughter of legal fictions
is an example of the common refusal to look for latent functions. The
appearance of irrationality is taken at face value. There is probably no
great loss to mankind in this case. Most of the fictions are no longer
needed. But in other instances, worship of rationality may inflict deep
wounds on the law.
Some of these instances come from a misplaced faith in science.
Modern society is a society that values science; what is scientific is both
rational and valid. Law, therefore, is rational and valid if it follows the
principles and methods of science. But questions of legal policy are
easily mistaken for questions of science. What, for example, are the
functions of the insanity plea in criminal law? A defendant in a
89. MERTON, SOCIAL THEORY AND SOCIAL STRUCTURE

90. Id. at 64.

63 (rev. ed. 1957).

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[Vol. 24

murder case is excused if he pleads and proves insanity, even though he


actually committed the act of killing. Most persons who plead insanity
are probably insane under any definition, but the defense sometimes
helps to acquit defendants not so obviously deranged, e.g., persons
who commit crimes of passion and plead "temporary insanity." The
wording of the insanity plea makes criminal responsibility look like
a question of fact. The question falls naturally to the psychiatrists, who
are recognized as medical experts on mental illness. Where insanity is
at issue, it would be both logical and just to grant psychiatrists
a major role. In general, this may be all to the good. It might, however,
have a devastating effect on the peripheral uses of the insanity plea.
"Temporary insanity" is scientific nonsense and scientists might want
to expunge it from the law. 91 The psychiatrist would not ordinarily
look for the latent functions, if any, of the concept of "temporary insanity." Why should he? It is not his role. Perhaps there are no latent
functions, or not enough to outweigh the costs of the doctrine, which
is erratic, unpredictable, and frequently unjust. The legal system includes a system of folk psychiatry, which badly needs revisions as
genuine knowledge grows. But law also includes rules and concepts
that are merely camouflaged as folk psychiatry, and which have quite
different purposes and aims. Many of these, too, are foolish or destructive, but it would be a mistake to condemn them solely on the
basis of the pseudofactual form that they take. Of course, courts should
make use of whatever concepts and techniques are accepted as valid in
their time. Trouble comes when a question is phrased as a question of
fact at a period when science is not master of these facts, and the
question is not rephrased when science overtakes the subject matter.
This may have happened to some aspects of the insanity plea. When
one man's guess was as good as another's, the courtroom was an appropriate place to decide criminal responsibility; and "insanity" was
a convenient cover for importing general opinion into law.
As this example shows, changes in legitimacy bring with them changes
in power relations within the legal system. Where rationality is enthroned, the professionals are kings. Worship of science means power
for the scientists. If insanity is a question of (scientific) fact, it had
better be determined by experts. A judge does not presume to
masquerade as a brain surgeon or a ballistics expert. The judge is also
less likely to presume psychiatry as well, wherever questions of law
look like psychiatric questions, rather than ethical or social questions
in disguise. When legal questions are converted into scientific questions, therefore, the authority of lawyers and judges is undermined.
Administrative agencies rose to power with exactly this clarion call to
reason: Let the specialists decidel Many judges resisted, for predictable
91. See GUTTMACHER & WEIHOFEN, PSYCHIATRY AND THE LAW 398 (1952). Dr. Guttmacher
later partially retracted his views on the absurdity of the concept of temporary insanity,
but strictly on medical grounds. See GUTrMACHER, THE ROLE OF PSYCHIATRY IN LAW 56-65
(1968).

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reasons-their own position as decisionmakers was threatened. 92 The


rise of the administrative state converted the judge into just another
specialist, a specialist in something called law, never clearly defined or
differentiated. The judge retains full control of trials, at least formally;
psychiatrists and other experts come to bear witness, not to decide.
But some of the judge's power, in fact, has drained away. It has remained strong only in such areas as constitutional law, where the
fountain of doctrine is a legal text interpreted dogmatically and
ethically by the judges as the voice of national wisdom.
The culture of rationality, in manifold aspects, has been vigorously
at work in modern movements for reform of the law. But the special
phrase "law reform" is not applied to all of these movements. It means,
in general, programs of planned legal change put forward by the
organized bar, or by opinion leaders among the legal profession. One
rarely, if ever, applies the expression to other kinds of agitation for
change in the law. Workmen's compensation and social security are
not called law reform. The phrase is applied to the codification movement, to movements for uniformity, consistency, and clarity in the law,
to the restatements of the common law, and to procedural reform and
improvements in the organization of courts. Law reform includes the
process of rooting out fictions, archaic survivals, and inconsistencies
from the law; whatever displeases the mind and the eye of the re93
former.
The legal profession, for the last century or so, has been diligently
scouring the legal system in the interests of reform. There has been a
parallel movement in England. 94 The movement preceded the rise of
bar associations, but the organized bar, as it emerged, took up and has
held a leadership position. Other groups, dedicated to rationality and
order in the law, bubbled up from the law schools, or were spun off
from bar committees. Uniformity of American law has been a special
concern of the American Law Institute. Commissions and committees
in many states have worked hard to rationalize the law and to improve
the administration of justice, as they saw it. The New York Law Revision Commission is an example of a state body set up to reform the
law. 5 Law professors spend much of their time on law reform. They
write critical essays, help restate the law, and draft model statutes,
92. On the rise of administrative process in American law

see HURST,

THE GROWTH

OF AMERICAN LAW 379-80, 421-13 (1950); LANDIS, THE ADMINISTRATIVE PROCESS (1938).

See
generally FRIEDMAN, LAW IN A CHANGING SCCIETY 353-413 (1959).
93. On the law reform movement see Friedman, Law Reform in Historical Perspective,
13 ST. Louis U.L.J. 351 (1969).
94. See HARDING, A SOCIAL HISTORY OF ENGLISH LAW 330-388 (1966); ABEL-SMITH &
STEVENS, LAWYERS AND THE COURTS, A SOCIOLOGICAL STUDY OF THE ENGLISH LEGAL SYSTEM
1750-1965 (1967). For a critique see ZANDER, LAWYERS AND THE PUBLIC INTEREST (1968).
95. On law reform and law revision see SUNDERLAND, HISTORY OF THE AMERICAN BAR
ASSOCIATION AND ITS WORK (1953); Dunham, A History of the National Conference of
Commissioners on Uniform State Laws, 30 LAW & CONTEMP. PROB. 233 (1965); MacDonald, The New York Law Revision Commission: The Past and the Future, 13 ST. LOUIS
U.L.J. 258 (1968).

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codes and uniform laws. The Uniform Commercial Code, which took
a generation of drafting and lobbying, is one of the major triumphs of
American law reform.
The law reform movement is a typical product of the professionalization of an occupational group. A profession is a trade with pretensions.
As a professional sees it, his work requires great skill; he must prepare
for his career through special schooling or an arduous period of
tutelage. The legal profession is among the most rigorous in its demands. Lawyers are licensed by the state; in exchange, the state grants
them the sole right to practice law. This extraordinary privilege is not
immune from the demands of the dominant culture. The lawyer's
monopoly, like that of any profession, must be shown somehow to
serve the public interest.
Justification is one of the major functions of law reform. Whatever
value it has for society, law reform is useful to the legal profession. It
is part of the demonstration that what the bar is and does is good for
society. On the whole, the public image of the profession is not as
strong as the profession would like. Lawyers have been denounced as
lackeys, parasites, tools of big business, shysters, and worse. Many
lawyers have to scramble and scratch to make a living; their careers
require them to act on a plane much less dignified and honorable than
the leaders of the profession would like. 96 Law reform makes it possible
for the top of the profession to strike poses of nobility and rectitude,
to go before the public in an attitude of high public spirit.
The job itself is comfortable and appropriate for lawyers. Lawyers
are indispensable to law reform. What layman dares to tamper with
the more mysterious corners of law? The law is so knotted and entangled, that only lawyers can unravel it. Procedural reform, moreover,
belongs to the lawyers by right; it pertains to that part of the practice
which is most exclusively theirs. To the ordinary layman (and lawyer)
technical law reform seems obviously good. The system must work
badly when it contains legal fictions, doctrines left over from the
Middle Ages, and muddled, inconsistent rules. The ordinary layman
and lawyer has no nose for latent functions. He is not particularly attuned to the law as a living process, nor has he not stopped to measure
how many pounds of law, out of the tons and tons of substance, is actually inconsistent or archaic. The general public, if it has any opinion at
all, would want its law to be simple, orderly, and just. Law reform,
then, insofar as the public is aware of it, can well serve as a response to
the vague general demand that law should be modern and fair.
But is it really true that law functions best when it has clarity and
order? Like the conviction that legal fictions are deeply harmful, this
is hypothesis, not fact. Nobody can demonstrate that law which appears
to be rational really is rational, in any objective sense. What are the
96. For a description of the way of law and life among solo practitioners in Chicago
see CARLIN, LAWYERS ON THEIR OWN (1962).

1969]

LEGAL DEVELOPMENT

important values served by uniformity of the laws of the states or by


superior craftsmanship in the drafting and arranging of codes? What
does it mean for society that the legal system does or does not hang
together as a logical whole? The consequences are, to say the least, not
proven. There are good reasons for doubting that order and system (in
the law reform sense) really have the immense importance claimed for
them. First of all, what is rational depends on the goal of an action: If
one is interested in a particular outcome, elegance of form matters less
than the product. A scrupulously fair trial is not likely to placate an
innocent man who is sentenced to death. For him, outcome is all important, because his very life is at stake. Second, law reform centers on
those parts of the legal system which are most "legal," and hence are
most obviously within the exclusive domain of the lawyers. Why is the
subject of the Uniform Simultaneous Death Act more fit for law reform
than the traffic laws? Both are equally part of the "law"; both no doubt
are in need of improvement. But one is more exclusively lawyers' work
than the other. Besides, one can be more easily made uniform than the
other, more easily reduced to an abstract, general formula. And this is
true partly because the problem of simultaneous death is relatively unimportant. Law reform almost necessarily deal with trivia, with items
of marginal importance. Where law reform does not (what could be
more important, apparently, than a Uniform Commercial Code?), it is
because law drafted by the reformers is not likely to have much behavioral importance. Law reform programs, at least today, must meet
two general requirements: First, they must be legal, in the sense that
they can be dealt with by lawyers and only by lawyers; and second,
they must be consensus programs, programs with a high level of agreement among those who count in the organized bar. But a Uniform
Poverty Law or a Uniform Building Code would meet neither of these
requirements. The social and economic impact of such laws or codes
is far too obvious. The interest groups, and government, would not
concede these matters to the lawyers. Nor would it be possible to gain
enough consensus within the profession so that proposals could be
presented as the program of the bar, as noncontroversial and technically correct. Modern law reform, then, tends to be socially innocuous. 9 7 Through it, the profession advertises to the world at large how
97. Consider the following example, relating to the restatements of the law:
[T]here can be little doubt that the law is not always well adapted to promote
what the preponderating thought of the community regards as the needs of life.
The limitation on the character of any reformation of the law by an organization
formed to carry out the public obligation of the legal profession to improve the
law is reasonably definite. Changes in the law which are, or which would, if proposed, become a matter of general public concern and discussion should not be
considered, much less set forth, in any restatement of the law such as we have in
mind. . ..
The limitation just stated would exclude suggestion of changes in governmental
organization, except possible changes in the details of court organization. It would
also bar the suggestion of any change in the law pertaining to taxation and other
fiscal matters and matters connected with governmental administrative policy, as
well as advocacy of novel social legislation, such as old age or sickness pensions, or

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earnestly it cleans its house, how diligently it strives for rationality. At


the same time, nobody is much affected, one way or the other, including the legal profession itself. This fact is obscured by the very real
battles within the profession over law reform. After all, some lawyers
make a living out of technicality; when their private technicality faces
extinction, they resist. Other lawyers simply suffer from mental inertia.
But if these lawyers are not leaders of the bar, they can be easily
sacrificed. It is important to show that the profession is worthy of its
hire. It is more than a matter of image, it is a matter of defending the
lawyers' role. Farmers argue for their subsidies on the grounds that
they are the backbone of America; lawyers defend their monopoly on
the grounds that they are servants of justice and order; and if they can
make their claim plausible, so much the better.
This somewhat jaundiced view of law reform is not meant to accuse
the leaders of the bar of cunning design, if not outright hypocrisy. The
basic push for law reform is probably sincere; the self interest is muted
or unconscious. For a number of reasons, law reformers and legal
scholars do not generally regard their work as marginal, even when, in
fact, it is. Legal education is one factor; it puts its stamp on the whole
profession. Law professors, who have the leisure to indulge in reform,
have provided the movement with both Indians and chiefs. Academics
study case law and teach from it. They derive their sense of what is
important from what they read at work: casebooks, advance sheets, and
secondary sources written by those who read the same. A "problem" is
therefore a case law problem; it is something that often crops up in
the cases (though ten a year may be "often") and whose results are nonuniform, or badly reasoned, or internally inconsistent. Few professors
take their ideas of what is legally important from what actually goes
on in the outside world. 98
This myopia rests on a rich historic tradition. Langdell began the
case method revolution in Harvard, in 1870. It was a method based on
a definite theory of law. Langdell insisted that law was a science. As a
a method of improving the relations between capital and labor, or of protecting
the public from industrial controversies by the establishment of arbitration tribunals.
Proceedings, The American Law Institute 15-16 (1923). See also HURST, supra note 92, at
370; Wechsler, Restatements and Legal Change: Problems of Policy in the Restatement
Work of the American Law Institute, 13 ST. Louis U.L.J. 185 (1968).
98. For example, until quite recently, consumer protection law-and the whole question of law and poverty-was almost totally neglected by professors of law and legal
scholars. Some would argue that this occurred because the law schools were conservative
and looked for direction to big business, Wall Street, and the major law firms; they assumed that their function was to produce lawyers for Wall Street. But this can hardly be
the full explanation. There have always been flaming liberals in law schools, but they too
took their issues from the advance sheets. Their work clustered in such areas as civil rights
and civil liberties, partly for this reason. Commercial cases that get to an appellate court
are big cases, in money terms. Hence, the little man's woes rarely reached the "threshold of
scholarly consciousness." Friedman & Macaulay, Contract Law and Contract Teaching:
Past, Present, and Future, 1967 Wis. L. Rv. 805, 809.

1969]

LEGAL DEVELOPMENT

science, it rested on a body of fundamental principles. A "mastery" of


these principles, he felt, "should be the business of every earnest
student of law," and therefore of the law schools that trained those
students. 99 The principles were common law principles; and they were
to be found in reported cases. Langdell argued that "all the available
materials of legal science were contained in printed books."' 10 0 These
were the same type of principles which, presumably, formed the basis
of the great Continental codes. They were the same type of principles
that were later "restated" in the United States, thus helping to avoid
the invasion of America by codes. Common to all these efforts was the
attitude that law is or could be made uniform, rational, and systematic.
Langdell's ideas ultimately prevailed in legal education. Their success was hardly accidental. The old bases of legitimacy (mainly tradition) had fallen and law badly needed a replacement. Langdell's worship of "science" was perhaps a half conscious response to the need to
rest law on a new and stronger principle of legitimacy. They were, in
any event, of definite value to the legal profession. If law were rational
and scientific, it had best be left to the lawyers, who were trained in the
science of law. What was rational and scientific about law, however,
was determined strictly by principles internal to the legal system.
Indeed, as Langdell said, the whole science could be induced from
"printed books." In Langdell's concept, then, law was scientific in a
sense quite different from the natural sciences. There was nothing
experimental about it, and it was "empirical" only in a bookish way.
Behind Langdell's plan may have lurked some vague theory of a fit
between internal and external rationality. But no one undertook to
demonstrate the case, and, in fact, there is hardly a shred of evidence
to back up the theory. Additionally, since law reformers define a legal
problem through reading case reports, and not by some more empirical
methods, it would be a wild coincidence if the two rationalities were
actually the same.
The movement for modernization of law is the third world analogy to the law reform movement in the United States. In the last few
centuries, there has been an incredible amount of borrowing and
diffusion of laws and legal systems. The primary push came from
colonialism: The English, the French, the Dutch, the Spanish, and
others, took their law to Latin America, Africa and Asia. Today, there
is a new and somewhat different kind of diffusion: the borrowing of
law by way of law reform, or "modernization" in its cross-cultural
phase. The same kind of legal theory underlies this movement and the
same skepticism about its results can be voiced. The leaders of new
99. LANCDELL, CASES ON CONTRACTS vi (1871). On the Langdell revolution see REDLICH,
THE COMMON LAW AND THE CASE METHOD IN AMERICAN UNIVERSITY LAW SCHOOLS 9-25
(1914); SUTHERLAND, THE LAW AT HARVARD, A HISTORY OF IDEAS AND MEN, 1817-1967, at
162-205 (1967).
100. Quoted in

SUTHERLAND,

supra note 99, at 175.

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countries, like all leaders, must rely heavily on experts. The experts
tell them, and it seems perfectly reasonable, that their legal systems
are hopelessly archaic and must be brought up to date. 101 The leaders
believe in modernization, why should law be an exception? And
modern law must be the law of modern countries. Some parts of the
law of the United States, England, Russia, or France might be specific
to these countries only, but there must be some common core that is
the legal essence of modernity. There is no one to tell them that many
of the codes, statutes, and doctrines imported from the West are
ignored in their mother countries. Most of the new nations were once
colonies. During colonialism, the mother country shipped over huge
quanities of law to govern its subjects, or to provide familiar rules for
the expatriates and administrators in the capital. The very concept of
law suggests the former mother country to the leaders of new nations.
It also seems clear to many of these leaders that modern law must come
from the advanced countries and that it is a kind of capital good or a
technology that cannot be locally supplied. It would be as absurd to
preserve native law as a basis for the evolution of modern law as to
evolve a specifically African steel mill or an Asian missile, out of the
native tradition.
The jurists, of course, agree. Rene David, a distinguished French
scholar, drafted a civil code for Ethiopia, which, he felt, badly needed
such a code, because it "cannot wait 300 or 500 years to construct in an
empirical fashion a system of law which is unique to itself .... The
development and modernization of Ethiopia necessitate the adoption
of a 'ready made' system; they force the reception of a foreign system
of law in such a manner as to assure as quickly as possible a minimal
security in legal relations ..... 102 The case for borrowing Western law
did not rest, for David, on efficiency alone. The Western codes were
superior, better suited to modern life. A code was no mere tool. It reflected the most advanced ideals and values. The code did not bend to
fit the needs of an imperfect society; rather, society grows toward the
code. These borrowed systems and parts of systems were not tailored to
the cultures on which they are imposed: "A code is . . . in our . . .
conception ... a model of social organization. It aims at the perfection
of society, and not only to a static statement of behavior observed by
the sociologist." 103
But in many cases, what is borrowed may be simply irrelevant. It is
101. An unusually explicit and thorough explication of this point of view appears in
Seidman, Law and Economic Development in Independent, English-Speaking, Sub-Saharan
Africa, 1966 Wis. L. REV. 999. See generally, Allott, Legal Development and Economic
Growth in Africa, in CHANGING LAWS IN DEVELOPING COUNTRIES 194 (Anderson ed. 1963);

Sedler, Law Reform in the Emerging Nations of SubSaharan Africa; Social Change and
the Development of the Modern Legal System, 13 ST. Louis U.L.J. 195 (1968).
102. David, A Civil Code for Ethiopia: Considerations on the Codification of the Civil
Law in African Countries, 37 TUL. L. REv. 187 (1963).
103. Id. at 194. A sociologist, one hardly needs to add, would never agree that he
measures only "static . . . behavior."

LEGAL DEVELOPMENT

1969]

not determined by any real sense of what the country needs. The basic
principle is to borrow what is comfortable for the local legal scholars
and jurists. French-speaking African countries do not borrow English
law. Former colonies build on the basis of colonial law. During the
colonial period expatriate culture and expatriate commerce required
some borrowed law. Some law was also imposed on indigenous people,
strictly for moral reasons. The English naturally assumed that English
law was the flower of the world and other native institutions were
barbaric. It was their duty to civilize the natives, partly by civilizing
10
their law.

Although the colonial reasons are dead, the borrowing lives on. This
movement is not unimportant even if the codes are not terribly
appropriate. Even the blandest, most "scientific" code embodies values
and assumptions. It is never ethically, socially or politically neutral.
Even apart from what the rules say in substance, a body of law looks toward some kind of allocation of power among public officials and private
interests. The law itself is an instrument of power, and the person who
knows it, or controls it, or both, has a weapon of many megatons of
force. Any radical change in the structure or content of law, expropriates former holders of power. It would be like changing the keyboard of a typewriter, or an official language. Suddenly, professional
typists no longer can type; suddenly, a population is reduced to worse
than illiteracy. Changing legal systems can have a similar effect on the
face of authority. A new code, from France or Switzerland, with new
and different propositions of law, may demand skills totally different
from those of local chiefs or elders, whose authority depended on their
knowledge of the ways of the people. If successfully imposed on the
countryside, the new code can drive the elders or chiefs out of power,
unless they learn to adapt or circumvent. If they cannot, a new group
of officials rises to power, riding on the crest of their knowledge and
their foreign education. 10 5
Importation of law, then, is sometimes part of a political revolution. When Ataturk borrowed the Swiss civil code, he meant to destroy
Moslem family law and undercut the power of local Moslem elites. 1 6
104. In Nigeria, for example, the English directed their courts to follow customary
law in certain fields, but not if the rule of customary law was "repugnant to natural
justice, equity, and good conscience." See PARK, THE SOURCES OF NIGERIAN LAW 68-75
(1963); Caplan, The Making of "Natural Justice" in British Africa: An Exercise in
Comparative Law, 13 J. PUB. L. 120 (1964).
105. The same result can occur when it is only the officials, and not the legal system, which changes. During the colonial period, judges brought in from or trained in the
colonial country decided cases of native or customary law, as well as cases of expatriate
law. In the process they subtly, perhaps unconsciously, changed the law. See Derrett,
Justice, Equity and Good Conscience, in CHANGING LAW IN DEVELOPING COUNTRIES 114
(Anderson ed. 1963); Galanter, The Displacement of Traditional Law in Modern India,
24 J. SOCIAL ISSUES 65 (1968).
106. On Ataturk's reforms and their consequences see DAVISON, TURKEY 131-32 (1968);
Stirling, Land, Marriage, and the Law in Turkish Villages, 9 INT'L SOCIAL SCI. BULL. 21
(1957), part of a symposium on Reception of Foreign Law in Turkey, other parts of
which also bear on this question. See also Massell, supra note 42.

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Similarly, in Africa and elsewhere, Western law is used as a weapon to


break the hold of traditional leaders, dissolve tribal allegiances, and
transfer power from local authorities to officials whose primary loyalty
is to the central government. The colonials used this technique to
some extent; the postcolonials have increased their efforts to funnel
power from the countryside to the center. Legal systems, then, are
clearly used as weapons in struggles for political power. But when
borrowed law is so used, what is in it is almost irrelevant. The important thing is who wins control and who loses: that one set of leaders
is smashed and another comes to power. It would be revolutionary to
bring Chinese law to Ethiopia, but American law or French law would
be just as revolutionary, or for that matter, the law of the Trobriand
Islanders. Content would be beside the point, for the most part.
Legal scholars, who devote life and energy to law reform, are not
likely to accept this view. They are not likely to agree that what they
do is unimportant except in ways that have nothing to do with the
actual content of their work. But their case for law reform rests on the
hypothesis (or wish) that legal clarity, order, and system, in themselves,
lead to important social changes. What these changes are is rarely
spelled out. And those parts of law most commonly codified or reformed are among those that have the least impact on behavior. The
Uniform Commercial Code is not an exception. It absorbed the wit
and wisdom of the leading commercial law scholars, for a generation or
more. Is the improvement it brings commensurate with the effort?
Could anyone seriously argue that the Code affects the gross national
product by one percent, one half of one percent, or even one one hundredth of one percent? How much did the law before the Code cost
the country in misspent wealth or lost opportunities? Granted that the
Code made some specific improvements in commercial law, how important was it to codify and recodify the whole law of sales, secured
transactions, bank collections, bulk sales, negotiable instruments, the
good along with the bad? How important was it to be systematic? How
much additional improvement was given up for the sake of drafting
a single logical, coherent code of law?107 Similarly, if "modernization"
of law is supposed to lead to important changes in economy and polity,
we should at least be told what the causal mechanism is. Common
107. It may be unfair to ask law reform to answer these unanswerable questions. The
moral case for abolishing the death penalty, for example, does not fully depend upon its
measurable impact on the handful of people who suffer it. There may be deep, hidden
consequences, not susceptible to the crude yardsticks of social research. But it is not
improper to ask :or the proofs, one way or the other.
Compare the very common, but rather unexamined assumption that underlies a passage from Gunnar Myrdal's classic study of American race relations: "[I1t cannot be conducive to the highest respect for the legal system that the federal government is forced
to carry out important social legislation under the fiction that it is regulating 'interstate commerce' or that federal prosecuting agencies punish dangerous gangsters for
income tax evasion rather than for the felonies they have committed." MYRDAL, AN
AMERICAN DILEMMA 18 (1962). No evidence is presented, and it is not obvious that either
case diminished the "respect for law" in the United States.

1969]

LEGAL DEVELOPMENT

49

sense dictates that technical law reform and modernization are not very
likely to make major changes in a society. Law reform is like fighting
a modern war with guns that shoot nothing but manifestoes.
The rationality of law reform, then, is in a way spurious, abstract,
conceptual, and unreal. It is not instrumental in achieving the proclaimed objectives of modernization; and it does not accomplish important results in the Western countries. The major interest it serves
is that of the legal profession itself. In a rather odd way, and precisely
because of its deficiencies, it can be very valuable to the state. Again,
this is not because law reform really brings reform. It is because law
reform is rich in promises. Sometimes promises are much preferable to
performance-and usually they are far cheaper, too.
But this use of law reform certainly does not fit, in a great range of
cases, the primary interest of the state, or of the groups that try to
influence government policy. Governments and interest groups have
concrete economic goals, e.g., an increase in the amount or a rise in
the price of cocoa or tobacco, the construction of steel mills, higher
wages or less labor unrest. Undoubtedly, the central government will
want to increase its strength and weaken competing centers of power.
Technical law reform contributes little toward concrete economic and
political goals, with the possible exception of centralization.108 Even
here the rub is implementation; it is a far cry from unitary law to a
unitary state. Formal unity of law can coexist with a weak central government and a decentralized law (as in the United States) does not
necessarily stop the march of central power.
What role does an independent body of lawyers' law play in a modern
society? The answer is not always clear. It may do very little toward the
social, economic, or political goals of the state and the interest groups.
In modern society, then, the independence of the legal system has to be
justified on some special grounds. In Western democracies, the tradition of independence is strong, and is based more or less on fear of
executive power. Still another justification, advanced most forcefully
108. The modern legal system may be viewed as an important unifying element ...
Today, while India has no single nationwide system of caste, kinship, religion or
land-tenure, there is an all-India legal system which handles local disputes in
accordance with uniform national standards. This legal system provides not only
a common textual tradition but also a machinery for insuring that this tradition
is applied in all localities in accordance with nationally prescribed rules and procedures rather than dissolved into local interpretations.
Galanter, supra note 105, at 76-77. What Professor Galanter says may be admitted, and
yet the question may still be raised regarding the further consequcnces, if any, that flow
from this unity; a sense of nationhood? an easier path to economic development?
Moreover, Galanter goes on to discuss "what we might call an all-India legal culture.
Its carriers are . . . primarily the numerous lawyers." Id. at 77. It is likely that the real
(as opposed to the formal) unity of Indian law is an effect of this culture rather than
a cause of it, and therefore an effect of the existence of a single, cohesive caste of
lawyers and judges, with similar training and outlook, at least in legal matters, and
even a common language (English) that transcends local languages.
There is a large literature on the phenomenon of legal pluralism, its benefits and
burdens, in the former colonial countries. See, e.g., Rheinstein, Problems of Law in the
New Nations of Africa, in OLD SociET Es IN NEW STATES 220 (Geertz ed. 1963).

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by the profession, stresses the need for experts to handle what are technical, complex problems. Government tends to accept this justification,
but not without some tension and impatience. The state wants as much
freedom of action as possible. Totalitarian governments refuse to recognize the independence of law. Revolutionary governments, too, do
not tolerate limitations on their power; they tend to reject the theory
of checks and balances, because they are committed to fundamental
change. Revolutionary law, then, often begins by sweeping away the
old legal system and replacing existing legal rules with bold, simple,
substantive propositions, embodying the concrete goals of the revolution. Laymen become governors and judges, while lawyers and judges
of the old regime are abolished, along with their rules, their theories,
their techniques. On the surface, revolution may seem to have embarked on the impossible course of governing without lawyers and
without formal law. New nations as different as the Soviet Union and
the American colonies have taken this drastic step. 109 Typically, lawyers
return to their own, and formal legality crawls out of the woodwork.
It is easy to see in this process nothing but a Utopian dream gone to
seed. But revolutionary governments do not want to govern without
lawyers so much as they want to govern without the particular lawyers
of the old regime. The new generation of lawmen that grows up is
loyal to the revolutionary state. The new lawyers have studied new
law, have mastered the new propositions. They practice their techniques on doctrines that have been reworked in the image of and in
the interests of the state. 110
Revolutionary justice, while it lasts, is not formally rational in
Weber's sense."' At best, it is substantively rational. Tribunals that
exterminate landlords and shoot class enemies act "rationally" in the
substantive sense. The judges apply general principles, however distasteful they may be to outsiders, and the results are not wholly arbitrary. But the norms are not "obtained through logical generalization
of abstract interpretations of meaning," they are "utilitarian" or "ex109. On the Soviet Union see BERMAN, JusticE IN RUSSIA 23-24 (1950). On Massachusetts Bay see HASKINS, LAW AND AUTHORITY IN EARLY MASSACHUSETTS 186 (1960). On early
Pennsylvania see 1 CHROUST, THE RISE OF THE LEGAL PROFESSION IN AMERICA 211-13 (1955).
110. Similarly, if the old system is abolished, but its lawyers and judges stay on, the
rules of the regime have a way of creeping back in, if only because the judges and
lawyers cannot conceive of anything else. See Lev, The Lady and the Banyan Tree: CivilLaw Change in Indonesia, 14 AM. J. COMp. LAW 282 (1965). Something similar no doubt
took place in many parts of Africa. John H. Crabb reported that "a few independent
countries, such as Rwanda and the Ivory Coast, have . . . purported to formally abolish
their customary law, [but] . . . it appears that, for want of judicial apparatus to apply
the written law generally, the customary law still operates in practice." Crabb, The
Environment and Nature of the Legal System of Congo-Kinshasa, 1966 WIs. L. REv.
1125, 1132. The same general point could be made about attempts to abolish the law
of the colonials. And conversely, if the judges change, but not the law, the law changes
too.
111. See text accompanying notes 27-31 supra.

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LEGAL DEVELOPMENT

pediential rules" or "political maxims." 112 Guidelines for action do not


come from classical lawbooks and do not conform to the standards of
craftsmanship of the legal profession. The rulers of the state make the
rules. These are above all practical rules, with practical purposes in
mind.113
The struggle between substantive and formal rationality is not confined to revolutionary states. It is epidemic in all Western law, not
least in the United States. Why should an American businessman, for
example, want to be governed by norms "obtained through logical
generalization of abstract interpretations of meaning?" He has his own
opinions of what is right and fair and what a legal system should do for
him and for his class: He wants law to protect his property rights; he
would like simplicity and predictability in commercial law; he would
like law to be sensitive to his customs and values. Every interest group
could construct its own catalog of demands on the law, both general
and specific. Formal rationality is on no one's shopping list but the
lawyers. It does not even guarantee the status quo or serve the ruling
class, in the Marxist sense, as efficiently as it might if it set out explicitly to do so. In short, it is in some ways simply a nuisance. What
jurists define as a scientific or rational legal system, does not fit the
needs of warring interest groups except accidentally. Of course, the
"rationality" of the jurists is shot through with assumptions and
values. In a capitalist society, these are capitalist assumptions and
values; in a mature socialist society, they are socialist. But the fit is
never perfect, because lawyers develop the inner rationality of the
legal system to suit their own purposes and pretensions. "The expectations of the parties," remarked Max Weber, "are oriented toward the
economic and utilitarian meaning of a legal proposition. However,
from the point of view of legal logic, this meaning is an 'irrational'
one." An "insoluble conflict" results, "between the formal and the
14
substantive principles of justice."
Weber was thinking mostly of private parties and private interest
groups. For these groups and individuals, the "insoluble conflict" has
been visible for at least a century, if not longer. At the beginning of the
Industrial Revolution, businessmen and leaders of the legal profession
arguably shared an interest in law reform, which promised to simplify
law and make it a rational instrument of modern commerce. Today,
the businessman's chief legal wishes are substantive-a certain type of
economic policy, or a subsidy, or favorable warranty law, or less or
different government regulation. Businessmen settle most of their
112. MAX WEBER ON LAW at 63-64.

113. A striking case is Chairman Mao's China, just after it completed the conquest
of the mainland. See LENC, JUSTICE IN COMMUNIST CHINA (1967); Cohen, The Chinese
Communist Party and "Judicial Independence": 1949-1959, 82 HARV. L. REV. 967, 976-78
(1969).
114. MAX WEBER ON LAW at 307, 319.

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disputes among themselves, either informally or through arbitration.


Lawyer's law more and more has been relegated to the economic
margins and backwaters. 115 The law of contracts is more exquisite,
precise, and subtle than in 1800, but it has less to do with major economic interests, or the size and scope of the gross national product. Life
and business go on, indifferent to the ongoing scholarly process that is
hard at work stating and restating the law of contracts. The best one
can say for contract law is that it is fundamental. It is fundamental, in
fact, to the point of irrelevance. Day-to-day operation of the social
machine does presuppose some law of contract, but at a level far different from that of the "nice problems" of contract case books. Tort
law, property law and the penal code are, to be sure, fundamental to
the social order; but what is important about them, in the living law
sense, is not necessarily what is most interesting to draftsmen and
teachers of law.
It is precisely the unearthly, symbolic, ghostly aspect of law reform
that makes it perversely important to the state. Governments want to
keep power; they want to avoid dissatisfaction, complaint, criticism,
and, above all, insurrection and attack. Government, at least, must be
responsive enough to powerful interest groups, to keep itself in office.
An instinct for self-preservation applies to individual bureaucrats as
well as to chiefs of state and heads of departments. On the positive side,
many governments and bureaus have an imperial urge to expand. In
some countries, this takes the literal form of territorial aggression. In
other countries, the government has a milder and less dangerous passion, a passion to centralize, to unify the country. The idea of "nationbuilding" runs like a scarlet thread through the literature of political
modernization. Undeniably, many of the new nations feel they must
solve their crisis of political identity. 116 Many of them have artificial
borders, reflecting nothing more than the accidents of colonial expansion. Many of them are hopelessly divided along linguistic, cultural,
and religious lines. They see national unity as the only way to glue
together their fragmented countries.
Modernization of law (which includes the borrowing of great
amounts of Western law) has been useful to third world governments
in a number of ways. Modernization, in the technical sense, helps the
governments to satisfy at low cost the general demand for modernization which comes from the more advanced sectors of their countries. A
Code is far cheaper than a steel mill, a national airline, or any program that calls for taxes, foreign loans, or redistribution of power or
wealth. Some kinds of reform or modernization of the laws may be
115. On the marginality of formal contract law see FRIEDMAN, CONTRACT LAW IN AMEA SOCIAL AND ECONOMIC CASE STUDY (1965); Macaulay, supra note 64.
116. On the concept and importance of nation building see Verba, Comparative Political Culture, in POLITICAL CULTURE AND POLITICAL DEVELOPMENT 512, 529-37 (1965);
PYE, POLITICS, PERSONALITY, AND NATION BUILDING (1962). See also Binder, National Integration and Political Development, 58 Am. POL. Sci. REV. 622 (1964).
RICA,

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LEGAL DEVELOPMENT

strongly reallocative; pure law reform is innocent, at least in the short


run. Long term consequences, side-effects, externalities, mischievous
latencies are immeasurable and are therefore ignored; 11 7 the benefits,
if any, are equally elusive. 1 8 Moreover, borrowed and modernized law
not only seems rational; it also seems general, universal, and free of
local, tribal influences. Modernized law appears to central governments
to be an excellent instrument for creating a single, unified nation out
of a jumble of classes or tribes. To build a nation, it seems important
to extend the might of the center at the expense of social and geographical provincials. A unified legal system, efficiently managed from the
center, would, in fact, revolutionize national life. But the revolution
would come, not from the content of the law, or even from its form,
but from its effect on those who held power and the way in which
power was held, on the fact that the new law would be different from
the old, and that it would carry with it whatever authority and force
the capital could command.
In addition, new nations look upon unity and rationality as Rene
David looked upon them: as valuable, not for political reasons, but as
ends in themselves. The more modern the law, i.e., the more it conforms to European models, the better it must be for social and economic development: Hence, the paradox that fervent nation builders
reject their own traditions, and choose to build their national system
of law out of imported luxury goods. But most governments share with
legal scholars a ruling theory of legal development. The theory is never
closely examined, and is only half explicit. If it were formulated and
made explicit, it would consist of the following propositions: First, the
more a legal system is uniform, orderly, and systematic, the more highly
developed it is; the more highly developed the law, the more formal
law coincides with the working reality of the law in action. Second, the
more highly developed the legal system, the more it furthers economic
and social development. Another proposition could sometimes be
added: The more highly developed the legal system, the more conducive it is to political development. What this last phrase means is
controversial; roughly, a polity is developed to the extent that it approximates Western democracy.119
These propositions are not, however, intellectually independent.
Their truth or falsity depends on the relationship between law and
society. The theory of law and development is only a special case, or
corollary, of the theory of law and society. We turn, then, to consider
briefly this enormously difficult topic. There are many general theories
of the connection between law and society. One can distinguish at the
outset between theories which attempt to describe the origins of law,
117. Reference here is not to the case in which a legal system is changed in order
to eliminate a class of powerholders. On this see text accompanying note 105 supra.
118. See HIRScHMAN, DEVELOPMENT PROJECTS OBSERVED 9-21 (1967).
119. Socialist theorists, of course, would either dissent or devise their own variant to

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i.e., to explain where it came from and how it became what it is, and
theories which attempt to describe the effect of law, although there is
tremendous overlap between the two. On the origins of law, there are
two polar types of theory: One is that law does nothing more than
reflect and express social forces and values generated elsewhere in the
social system, that it has no life of its own. At the other pole is the
point of view that law is independent of outside forces, that it follows
its own laws of development, that it is relatively insulated, relatively
impervious to pressures flowing in from the rest of the social system.
Those who hold this point of view tend to explain law in terms of
its own principles and logic, in terms of the legal tradition and the
way lawyers and judges think. The other point of view looks for social,
economic, psychological or political causes of law.
How are these theories related to theories of the effect of law?
Logically, those who relegate law to an effect of other causes would be
expected to dismiss it as an independent causal force in society. But
legal scholars are not necessarily so logical or dogmatic. Marxist theorists, for example, are among those that feel that law is a distinctly
secondary aspect of society. Law is part of society's "superstructure,"
dependent on the economic "base" or "foundation." It merely expresses the will of the ruling class, the class that owns the means of
production. The economic system determines what the ruling class
wants and needs and hence it determines the law. But even the Marxists concede some interaction between law and society. Once the
"superstructure" has arisen, "it acquires an independent existence, and
exerts reflex influence upon the foundation.'

u 20

The historical school of jurisprudence, which emerged in the 19th


century and was associated with the German jurist, von Savigny, also
looked on formal law as a secondary phenomenon. All law was originally customary law; it emanated from the Volksgeist, or spirit of the
people. 1 21 Law represented, therefore, the national customs in the deepest possible sense. Anything else which called itself law was an intrusion, and (more likely than not) mere words on paper, without lasting
effect. This point of view was embraced by the Social Darwinists, who
used it to justify their opposition to social welfare laws and reform
legislation. The view has been ascribed, perhaps wrongly, to William
Graham Sumner. For a long time it had a fascination for American
this third proposition. And the relationship between economic development, political
stability, and democracy has been questioned. See Huntington, Political Development
and Political Decay, 17 WORLD POLITICS 300 (1965).
120. Golunskii & Strogovich, Theory of the State and Law, in SOVIET LEGAL PHILOSOPHY
(1951). "Emanating from, and defined by, specific social relationships (production relationships in the last analysis), law is nevertheless no mere passive or mechanical reflection thereof: it actively influences social relationships-regulating them, confirming
and safeguarding some, reorganizing others, etc." Id. at 374.
121. On Savigny's thought see STONE, SOCIAL DIMENSION s OF LAW AND JUSTICE 94-118
(1966).

1969]

LEGAL DEVELOPMENT

sociologists, who dismissed legal process as a secondary phenomenon, a


mere superstructure.122 The historical school was also eagerly adopted
by American jurists who glorified the common law and were opposed
to codification. 123 The evolutionists, too, tend to stress long term
processes, working slowly, almost unconsciously, and creating a legal
system in much the same way as wind and water make a landscape.
The implication, by and large, is that law is more an effect than a
cause.
Logically, those who stress the legal tradition, legal logic, legal
thought, as important causative factors within the legal system, might
also be expected to hold that the circle is complete, that the legal system is perfectly insulated, both on the input and the output side;
that neither as cause nor as effect does it send out or receive crucial
impulses from the outside world. And in fact many social scientists
(and laymen) see a wide "gap" between law and other social systems.
They see law as basically unresponsive to public opinion. Law for
them is torpid and traditional; it is chronically "behind the times,"
adapting to innovations in technology much more slowly than other
elements of culture. The implication is that the important causal influence on law is the lawyers' own "taught tradition," rather than the
surrounding society. And the further implication is that law itself is
hardly the cutting edge of social change. 124
Yet, there are many others who feel that law, despite its insulation
and independence, is a strong force for change in society. Stubborn
and self contained as it may be in its origins, its effects are widespread
and powerful. The lawyers themselves are attracted to this view; they
take themselves, their jobs, and their system seriously. They believe
(along with many laymen) that the technical details of law, the tricks
122. William Graham Sumner's thought was supposed to be typified by his dictum
that "legislation, to be strong, must be consistent with the mores," that is, with powerful customs that embodied a community's values. SUMNER, FOLKWAYS 55 (1907). Sumner's
views have been reappraised, however, in Ball, Simpson, & Ikeda, Law and Social Change:
Sumner Reconsidered, 67 AM. J. SOCIOLOGY 532 (1962). On the general attitude of sociologists toward the legal system see SCHUR, LAW AND SOCIETY 127-40 (1968).
123. See, e.g., CARTER, LAW: ITS ORIGIN, GROWTH AND FUNCTION (1907).
124. The sociologist, William Fielding Ogburn, introduced "cultural lag" into the
vocabulary in his book, SOCIAL CHANGE WITH RESPECT TO CULTURE AND ORIGINAL NATURE
(1922). He used as an example that about half a century elapsed from the time when industrial accidents became numerous to the time when a workmen's compensation system
was first enacted in the United States. During this interim period, "the old adaptive
culture, the common law of employers' liability, hung over after the material conditions
had changed." Id. at 236. See also Hart, The Hypothesis of Cultural Lag: A Present
Day View, in TECHNOLOGY AND SOCIAL CHANGE 417-34 (1957). For a criticism of the cultural lag theory as applied to law see Friedman & Ladinsky, Social Change and the Law
of Industrial Accidents, 67 COLUm. L. REV. 50, 72-77 (1967).
The "taught tradition" is a phrase of Roscoe Pound's: "What stands out in the history of Anglo-American law is the resistance of the taught tradition in the hands of
judges drawn from any class you like . . . against all manner of economically or politically powerful interests." Pound, The Economic Interpretation and the Law of Torts, 53
HARv. L. REV. 365, 366 (1940).

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[Vol. 24

and-devices of lawyers, can have dramatic impact on the whole social


order. How a statute is phrased, the words a judge uses in expressing
a doctrine, the arguments a lawyer puts forward in his brief or his
arguments, all this can produce far-reaching consequences.
On the basis of present evidence, it is hard to say that any of these
theories and variants of theories are right or wrong-to say, for
example, what difference legal structure or legal craftsmanship make.
Everyone agrees that a lawyer's skill or ineptitude determines particular outcomes, but beyond that, very little is known. Historians have
debated the background of the 14th amendment: Was there a deliberate attempt to smuggle words into this amendment that would protect corporations from control by an angry public? 125 The argument

implies that the exact words of the amendment might have been
crucial, that the later history of these words in court was somehow
imminent in their earlier history. But can anyone be sure? Is the
theory even plausible when put in this way?
Whatever else it is, the legal system is a system: It has a structure; it
receives demands and pressures from outside; it reacts, responds, and
processes what it receives; and it produces an output in the form of
actions by official bodies, including decided cases, statutes, administrative rulings, doctrines-actions ranging from great codes to the
issuance of dog licenses and the spraying of teargas on rioters. 126 The
question is what is the independent effect of the system as a system.
How does the structure that intervenes, between demand and response,
between input and output, between raw material and product, affect
the nature of the product and the nature of future demands?
The vagueness of the question is part of the problem. What is the
legal system? What are its boundaries? Where does it begin and where
does it end? Most of the definitions come from the lawyers themselves;
but these may be deceptive. The lawyer's definitions are bounded by his
own experience: what lawyers do, what they talk about at lunch, what
they care about, what they learn at school. The rule against perpetuities is therefore "legal," but what policemen do is ignored or
defined away, unless police behavior becomes relevant to a case in
court.

27

Logically, however, the phrase "legal system" could just as

well apply to all of government, to all of social control, to every institution that makes rules or applies them, to any way in which private
125. See Graham, The "Conspiracy Theory" of the Fourteenth Amendment (pts. 1-2),
47 YALE L.J. 371, 48 YALE L.J. 171 (1938).
126. For an analysis of the systems approach to political institutions see ALMOND &
POWELL, COMPARATIVE POLITICS: A DEVELOPMENTAL APPROACH (1966); EASTON, THE PoLrriCAL SYSTEM (1953); FAGEN, POLITICS AND COMMUNICATION (1966). For an application to
courts see MURPHY, ELEMENTS OF JUDICIAL STRATEGY 31-36 (1964).
127. Quite recently, of course, police behavior has become a major social issue, and
both law schools and social scientists have shown much more interest in the subject.
LA FAVE, ARREST (1965); SKOLNICK, JUSTICE WITHOUT TRIAL: LAW ENFORCEMENT IN DEMOCRATIC SOCIETY (1966); THE POLICE: SIX SOCIOLOGICAL ESSAYS (Bordua ed. 1967); Goldstein,
Police Discretion Not to Invoke the Criminal Process: Low Visibility Decisions in the
Administration of Justice, 69 YALE L.J. 543 (1960).

1969)

LEGAL DEVELOPMENT

persons address themselves to higher authority, to every official response to private behavior, and to all actions of persons and groups
that consciously or unconsciously relate to the law, including deviation
and evasion. When we ask how the legal system is connected to some
institution or to some social process-for example, economic growthwhich of the many possible "legal systems" are we thinking of? Do we
mean the words of a civil code, the Restatement of Contracts, the
actions of the Federal Reserve Board, whether people think it is moral
or praiseworthy to make a big profit, how many administrators take
bribes, whether the legislature is a rubber stamp or not, how big the
army is, whether the judges are drawn from peasant stock, or all of
these, or some combination?
It seems quite impossible, then, to talk sensibly about the general
relationship of law to economic growth. And the same would be true
of any relationship between law and society. First the terms must be
defined. Theories of law and society are in conflict because they use
different definitions or models of the legal system. A narrow definition
of law, based on the lawyers' perceptions, supports the general conclusion that law is relatively independent of general social forces. Ownership of the means of production, or the Volksgeist, seems to have little
to do with the wording of the Federal Rules of Civil Procedure. On
the other hand, when one expands one's view of law to take in the
whole of social control, or at least everything governmental, law seems
plainly the resultant of many social forces. 128 Is it itself a cause of social
change? If by law we mean the structures themselves, the skeletal
aspects of a government system, it is difficult to say. But if we mean the
whole system, the whole process, then clearly law is cause as well as
effect.
Who then could deny that law, in its most expansive sense, is intimately connected with economic growth, and has a most pregnant,
most formative role to play in making the economy wither or flower?
Economic growth is unthinkable without changes in law. Only the
narrow definition of law makes the relationship between law and economic growth problematic. But, by the same token, it is the narrow
definition that builds a model of the legal system in which the lawyers
are relevant. The conclusion is sad but hard to avoid: The legal and
economic systems are intertwined, but the more relevant a particular
branch or aspect of law is to the economy, the less likely that lawyers as
such will have much to contribute. Traditional lawyers, with traditional training, can reform and modernize what we have called
"lawyers' law"; but their efforts play a much smaller role in economic
change, or modernization of society as a whole.
128. It also makes a difference whether one speaks of the long or the short run. In
the short run, it is more plausible to think of the legal system as the major determinant
of its own development. The longer the time span, however, the more clearly gross
changes in law seem related to gross changes in the social and economic matrix.

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This does not mean that lawyers are not and cannot be in the vanguard of reform. Lawyers have been active in social movements in the
United States, and in other countries too. Of the leaders of the Indian
national independence movement a disproportionate number were
lawyers.129 The smugness of the profession is not wholly groundless: In

many countries, lawyers as a group are well trained, able, and astute.
Social engineering skills are always in scarce supply, and the legal
profession may control a disproportionate share. American lawyers take
pride in their alleged abilities: to analyze documents, to draft appropriate language, to resolve clashes in viewpoints, to manufacture compromise, to get to the heart of problems, to draw up blue prints for
social institutions. These talents, if they exist at all, do not flow from
anything specifically legal in their training. People who have never
looked at a law book can have these talents. Nor have these talents
much to do with the substantive content of law. If lawyers outshine the
general population, or even the elite population, it may be because
certain types of persons gravitate toward law schools and legal training.
Legal education is rigorous; it weeds out the weak, in the manner of
boot camp training; it rewards certain skills and personalities, at the
same time that it discourages others.
At any rate, if lawyers are good for development, it is only because
of very general values and skills-a sense of realism, an ability to think
ahead, a sensitivity to perils that lurk in the written word. That law
schools teach lawyers how to govern whole societies, or how best to shift
a country from subsistence farming to cash farming, or how to attract
foreign investment, is far from obvious, to say the least. Whether
lawyers can be useful for development depends on who the lawyers are
and on their strengths and their weaknesses. Nothing in legal training,
at present, can be brought to bear specifically on many basic problems
of government-problems of output, of economic and political growth.
Some aspects of legal education may even be positively harmful. Legal
education may dull creativity, drive away talent, stifle any sense of
intellectual adventure. Growth, modernization, development: these
are problems of social engineering, of the impact of particular programs on actual behavior, or, to put it another way, of the effectiveness
of law. They concern the second of the grand hypotheses which, we
suggested, underlie the received wisdom of law and development. They
bear on the idea that a more highly developed legal system leads to a
more highly developed economy or polity.
But this hypothesis is unproven, and to shed any light on the question at all, it must be split into smaller hypotheses. New theory must
129. Schmitthener, A Sketch of the Development of the Legal Profession in India, 3
LAw & Soc'y REv. 337 (1968-69). Schmitthener suggests a number of reasons: The lawyers

had a mastery of the English language; they knew "the individual rights to which an
Indian was entitled"; they were skilled and had incomes independent of government
pressure. Id. at 376.

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LEGAL DEVELOPMENT

be generated, and new propositions tested. The hypothesis is patently


untrue, if "more highly developed legal system" is taken in the narrow
lawyers' sense. Is the United States more or less developed than the
countries of Western Europe? Its legal system is, on the surface, more
chaotic. Even after a century of law reform, the common law is much
messier than its continental rivals. It is particularly jumbled in the
United States, which has at least 50 separate systems and a federal
law imposed on top of them. Government, moreover, does not stride
boldly and quickly into the modern world; it lurches and stumbles. A
modern state and a modern economy develop over time, in a clangorous, discordant market place of interests, ideas, and pressures. The
apparatus of the modern state is a trackless wilderness of special rules,
laws and regulations; they drag with them unnumbered "irrationalities" (in the Weberian sense). The complexity is politically necessary
and perhaps economically necessary too. At any rate, success cannot be
measured on the scale of clarity of legal form, or the consistency with
which the whole system hangs together.
Clarity and order may, of course, be essential. There must be some
sort of security of transactions, and not only in capitalist countries.
Chaos is not good for economy. Banks must function; there must be a
money supply; courts of some kind may be vital; there must be some
legitimate way to form business associations. But what is necessary is
real order, not an order on paper. A paper code can conceal a state of
anarchy, in which investment is stifled, the poor are oppressed, the
economy tyrannized by feudal overlords. So, too, the converse: Complex, multifaceted laws, that offend the nostrils of jurisprudence, may
actually cohere, may actually work. In either case, reality, not form,
is what matters.
Modernization of a country will mean, at some point, the enactment
of many new economic and social laws, though not necessarily new codes.
In any event, enactment is never enough; the question is, what happens
next? Does the population actually respond to these laws? In other
words, is law effective? Effectiveness can be defined as a measure of the
number of persons, groups, and institutions that alter behavior as a
consequence of enactment of law, and a measure of the quantum and
type of behavior that is altered. Usually, "effective" implies an alteration in a direction intended by lawmakers. But latent effectiveness is
also an important social phenomenon, as is negative effectivenesswhen behavior changes in the wrong direction, or when the reactions
of the public take the form of avoidance or evasion.
One job of the sociology of law is to investigate this general phenomenon, the effectiveness of law. What rules and institutions are
living, which are dead; and why? No law is self-executing. A proposition on the statute books, a doctrine given out by an agency or by a
court, affects no behavior unless some official or private citizen carries

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it out, or bends his behavior toward or away from the law, or in response to it.

Earlier, culture was used as a shorthand word to describe whatever


influences legal effectiveness, apart from substance and structure. The
word "culture," of course, has many nuances. As used by anthropologists, it refers to a web of habits and customs, which differ sharply from
country to country, from community to community. 8 0 People think of
culture, then, as rather specific. That overtone has some value; it makes
sense to speak of the legal culture of a community, almost anthropologically, as a mix of attitudes and values that is unique to that community. But legal behavior, like behavior in general, follows definite
patterns, some so regular that they can almost be described as laws. In
all societies, people avoid activities that impose on them punishments
or costs and they perform acts that bring them rewards. What differs
from society to society is the perception of benefit or cost. 18' Different

markets have different market values. There are cultures where locusts
and fried ants are delicacies; in other places, the very thought makes
the public nauseous. But, in either place, a cheaper price will sell more
of a product than a higher price. In all societies, punishment deters,
and subsidy encourages: the higher the punishment, the more the deterrence. The literature to the contrary goes only to show that the
threshold at which these effects take place differs from society to society, and from subject matter to subject matter. Capital punishment,
compared to a long prison term, may not have a significant deterrent
effect; but, in general, if a government tightens the screws, some people
will change their minds about dangerous or costly activities. Similarly,
subsidies attract new customers, though one culture defines a benefit
differently from the other.
When we say that a law is unenforceable, we really do not mean
that it cannot, physically, be enforced. Any law can be enforced. What
we mean is that the cost of enforcement, relative to results, is so high
that enforcement is not really worthwhile. When this is so, government
will probably give up the attempt, or enforce badly or sporadically.
The classic example is that "noble experiment," prohibition, which
went against the cultural grain and led to incredible inequities in enforcement, though it did not succeed in stopping the flow of hard liquor. 132 It is dangerous, however, to look at culture as some sort of obstacle to law enforcement. One might just as well argue that it is culture
that breathes life into law. All rules are paper rules until they evoke
130. See Singer, The Concept of Culture, in 3 INTERNATIONAL ENCYCLOPEDIA OF THE
527 (1968).
131. This perception also differs from person to person. There are people who will
pay to be whipped, although whipping is for the overwhelming majority of the population clearly a "punishment."
132. See SINCLAIR, PROHIBITION, THE ACE OF Excrss (1964).

SOCIAL SCIENCEs

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LEGAL DEVELOPMENT

some sort of response. 8 3 But response is not determined by structures.


Structures are skeletons; attitudes and values give these skeletons flesh
and blood. Force and threats of force are important in any legal system,
but they are always scarce commodities. An army can be moved by one
man, if the soldiers have learned the habit of obedience. If the soldiers
are disaffected, however, they can only be moved by another army.
Attitudes toward law, within a community, can be an obstacle to social
change, or a source of strength. When a population is generally law
abiding, the government possesses (from its viewpoint) a priceless asset,
whose worth is above rubies or hydroelectric plants. Habits of obedience to law, and respect for law, are sources of effectiveness which can
be tapped at low cost or no cost to the government. A society is in
some senses a competitive system; that is, it has "many actors with like
rather than common ends, and the ends are themselves scarce." In such
a system, a culture of respect for law is essential. Wilbert Moore points
out: "For a competitive system to endure, its participants, or at least the
effect makers and enforcers of its rules, must regard the survival of the
system as more important than the outcome of particular contests. Fail134
ing this criterion, a competitive system is doomed."'
Even in a society with general respect for law, the effectiveness of
laws can be very variable. How law is obeyed or carried out may
depend not only on general attitudes but also on the attitudes, understanding, or habits of some particular group-businessmen, plumbers,
the rich, urban blacks, taxicab drivers, employees of the Social Security
Administration. Lawyers often act as intermediaries between government and a target population. Their skills and habits make it possible
for detailed, technical regulation to be carried into effect. It is easier
to impose rules on industries made up of a small number of large units
than on industries made up of a large number of small units. Big companies are used to regulation; they hire whole offices of employees to
cope with the rules that government imposes. Regulation is part of
their culture, and they have learned to live with it.
In modern law, perfect conformity between paper rules and living
law can never be attained. The reasons go beyond human frailty. Laws
are ambiguous and uncertain. Some of them are communicated to
their intended audience, others are not, and are thus ignored. Then,
too, governments have become legal spendthrifts; they appropriate far
more rights and duties than they can possibly enforce or allow to be
enforced. No legal culture dictates perfect obedience to every law.
Even if it did, the network of social control is (on paper) so dense that
no one could obey all laws at all times, and no one could enforce all
his rights against his fellow man. Since only some laws and some rights
are enforced, this means that both the public and public officials exer133. See Friedman, supra note 8.
134. MooRE, SOCIAL CHANGE 26-27 (1963).

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[Vol. 24

cise enormous amounts of choice or discretion. The police, for example, cannot arrest everyone who violates any section of the penal
code. They spend time, men, and money to catch murderers; they
ignore, as a rule, laws against fornication and adultery; they enforce
some traffic laws but not others; they investigate some thefts but not
others; they arrest some prostitutes but not others, some loiterers but
not others, some disturbers of the peace but not others.135 Because men
and money are not unlimited, the police inevitably make choices. But
the choices they make are not predetermined. Their behavior is
bent in one direction or another by their own values, and by what they
feel are the values and attitudes of the general public, important
people, and city hall.
These observations merely suggest how much there is to learn about
the effectiveness of law and what kinds of questions need to be investigated. The social study of law is still at a primitive level. Many studies
and parts of studies bear on the legal culture and the effectiveness of
law, but they have not yet been welded into a single body of theory.
Yet, ideally, the person who presumes to give advice on legal development, or presumes to act as advisor to a development project, ought to
know what theory and research have to say about his subject. He ought
not be content with the myths of law reform, and with Western legal
chauvinism. The legal profession, sad to say, has had little to offer so
far toward the solution of problems of law and society, and law and
development. And law, in the broad sense, is far too important to be
left to traditional lawyers.
Law, in the broad sense, is not only important; it is quite indispensable. No society can keep the peace and get on with its work without some minimum level of law. Law and authority, however, seem to
be undergoing some sort of general crisis. Possibly the blare and the
trumpets are misleading. Perhaps most people are still passive and
bound by tradition. But the power and the will of authority can be
ground away by an intense, dedicated minority. A revolution of rising
expectations comes as no surprise in the modern world; traditional
legitimacies have lost their might and the major test of authority is
how well it works for myself and my group and my ideals. The rate
and scope of demands upon government, and hence on the legal system,
seems to be rising; some have spoken of an "explosion" of law. 13 6 Perhaps these demands rise faster than the capacity of government to
grant or respond to them. More often, the problem is that the demands
135. See generally LA FAVE, ARREST (1965). On discretionary justice see DAVIS, supra
note 51.
136. "Our courts are now confronted by the mid-century law explosion. . . . [We]
have a society that is far more complex and vastly more demanding on law and legal
institutions. New rights ... have been brought into being ....
New social interests
are pressing for recognition." JONES, THE COURTS, THE PUBLIC, AND THE LAW EXPLOSION
2 (1965).

1969]

LEGAL DEVELOPMENT

of one group come into conflict with the demands of other groups,
equally insistent on their rights. This is social conflict, by definition,
and sometimes it takes a violent form. The left complains that institutions are not responsive. In fact, they are responsive, but in a zero sum
game, the umpires cannot respond to everybody at once. When two or
more groups demand the same or inconsistent things, someone must
win and someone must lose. If the losers do not accept the process of
13 7
losing, the system, as Moore pointed out, is "doomed."'
Sometimes, government may itself encourage conflict. It may not be
fully aware that it is doing so. In an era of instrumentalism, government is bound to assume a leading role in social change. Professional
reformers find positions in government. They draft programs, they discover problems, they lobby, they cajole. The War on Poverty, it has
been said, was virtually invented by Washington, largely for political
reasons. The program, at any rate, did not rise out of a conventional
struggle of interest groups. "The machinery," as Daniel Moynihan has
put it, "began to think for itself." "18 Perhaps. But in the modern world,
government must have a program to justify its existence and its permanence in power. The machinery is paid precisely to think for itself.
Government must also respond to pressures, but if it only does that,
it begins to look passive, conservative, and out of touch. Such governments fall from power-or are pushed.
Clashes of interests, however, still produce the lion's share of public
activity. Hence, the state is always tempted to respond in a deliberately
ineffective, but soothing, way. This is the rational short run solution
when two or more groups make inconsistent claims or demands. The
government will try to please everybody, by compromise and by stretching limited resources as far as they can go. A cheap and evasive response, providing the evasion is not too transparent, is a good form of
compromise, and a good way to stretch out resources. Sometimes, then,
it is better to forbid then to tax and spend. So a country outlaws rent
gouging instead of building new houses; a city enacts, as a compromise,
a fair housing ordinance that cannot be enforced. In the long run,
expensive programs may turn out to be money well spent. But government, as a social householder, has to live from day to day. The criminal
statute against rent gouging buys time; it might satisfy the people who
are clamoring for action, showing them that government is listening
and doing its best. There is always some hope that the law will actually
solve the problem or hold it in abeyance until the demands fade away.
Law reform and modernization are classical responses of this nature.
They are cheap and often have no behavioral impact. But the state can
point to them with pride; they are (it seems) perfectly apposite re137. MOORE, supra note 134.
138. MOYNIHAN, MAXIMUM FEASIBLE
WAR ON PovERTY 22 (1969).

MISUNDERSTANDING:

COMMUNITY

ACTION

IN

THE

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sponses, both to a general demand for change, and to special substantive demands.
In thq' fullness of time, these strategies may not be as costless as they
seem. Some rude problems refuse to go away. Time and talent, then,
have been wasted in the meantime; and the challenges of the day have
not been truly met. In that sense, modernization-legal development
in the lawyers' sense-can become both delusion and snare.

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