Digital Commons @ Georgia Law

Scholarly Works Faculty Scholarship

7-1-1981
Society's Choice and Legal Change
Alan Watson
University of Georgia School of Law, [email protected]
Tis Article is brought to you for free and open access by the Faculty Scholarship at Digital Commons @ Georgia Law. It has been accepted for
inclusion in Scholarly Works by an authorized administrator of Digital Commons @ Georgia Law. For more information, please contact
[email protected].
Repository Citation
Watson, Alan, "Society's Choice and Legal Change" (1981). Scholarly Works. Paper 790.
htp://digitalcommons.law.uga.edu/fac_artchop/790
SOCIETY'S CHOICE AND LEGAL CHANGE
Alan Watson*
This Article is one of a continuing series of writings by the au-
thor on both the connection between a society and the legal rules
and institutions that operate within it and on the forces that control
legal change.
1
My aim is to express more clearly than I have previ-
ously the role of lawyers and the legal tradition in changing the
law, and the implications of this role for social choice theory in the
realm of law.
SOCIETY AND ITS LEGAL RULES AND INSTITUTIONS
It would, I believe, be universally agreed that some connec-
tion exists between a society and the legal rules and institutions
that operate within it. The question of the nature of that connec-
tion, its closeness, and the factors within society that determine le-
gal change is not so easily settled. What is needed is a theory that
can be shown to be in harmony (or at least not out of harmony)
with the observed phenomenon of legal growth in a range of socie-
ties. However attractive a theory of legal change and of law and so-
ciety might be on a priori terms, it requires to be checked and
rechecked against systematically collated historical experience.
The minimum connection between a society and the law that
operates in it may be briefly stated. Law is necessarily only a
means and cannot be an end in itself. Consequently, the institutions
-for instance, marriage or slavery-that we lawyers in our insular-
ity normally think of in terms of law, as legal institutions, are in
fact social institutions regulated by law.
2
In light of this, an existing
or desired social institution that involves any law-and this will be
* Professor of Law, University of Pennsylvania.
1. LEGAL TRANSPLANTS (1974); SOCIETY AND LEGAL CHANGE (1977); THE
MAKING OF THE CIVIL LAw (1981); THE NATURE OF LAW (1977); Comparative Law
and Legal Change, 37 CAMBRIDGE L.J. 313 (1978); Two-Tier Law-A New Approach
to Law Making, 27 INT'L & CoziP. L.Q. 552 (1978).
2. Here I am using "regulated by" as including, but not necessarily restricted
to, "supported by" and "being proselytized by." By "being proselytized by" law, I
mean that the ruling elite wishes to bring about a social change, and is using law as
at least one of the means to effect the change.
HeinOnline -- 9 Hofstra L. Rev. 1473 1980-1981
HOFSTRA LAW REVIEW
the case except where the principle "Law keeps out" applies
3
-will
involve law that, at least in the broadest sense, reflects the known
needs or desires of the society or of a powerful group in the soci-
ety. For instance, an established and stable democratic society will
have democratic institutions involving legal rules that indicate the
democratic nature of the society; a tyranny will have organs of des-
potism involving legal rules showing that a tyranny exists. As for
private law, a society that believes in and supports polygamy as a
social institution will have legal rules relating to polygamy; a soci-
ety that has slavery based on the subjugation of a race will have le-
gal rules on the social institution of slavery indicating racism,
whereas a society whose slavery is not based on the notion of the
inherent inferiority of a race will have legal rules not indicating
racism.
The existence of some such correlation between law and soci-
ety is inevitable and certainly not surprising. But it had to be made
express since it is possible that on a theoretical level it sets out the
only necessary correlation between a society and its legal rules:
Namely, that existing or desired social institutions will be sur-
rounded by legal rules relating to the institution. It is possible that,
as a necessarily true proposition, the claim that "Law reflects soci-
ety" can be reduced to the notion that any social institution will
have legal rules attached, and that any new or different social insti-
tution will in turn be surrounded by legal rules. If so, the proposi-
tion would have little significance. Likewise, it may be the case
that the often expressed and very obscure Marxist idea that, "in
the last analysis," law supports the class structure means no more
than
that.
4
I think it is fair to assert that no one, however, would claim
that there is no further correlation in practice between a society
and its law. But it is difficult to establish the nature and extent of
such a correlation.
A question which is often put (in various guises) is whether
the institutions, needs, and desires of society or its ruling elite are
supported to the greatest possible extent by the related legal rules.
Is there a divergence between a society and its law?-where the
term "divergence" is used to indicate that the "legal rule, principle
3. For a description of this principle, see A. WATSON, THE NATURE OF LAW
96-98 (1977).
4. See M. CAIN & A. HUNT, MARX AND ENGELS ON LAW 50 (1979). The idea
goes back to Engels.
[Vol. 9:1473
HeinOnline -- 9 Hofstra L. Rev. 1474 1980-1981
SOCIETY'S CHOICE AND LEGAL CHANGE
or institution is inefficient for its purpose in satisfying the needs of
the people or the will of its leaders and when a better rule could
be devised, and where both the inefficiency and the possibility of
marked improvement are known to the persons concerned."
5
The
answer that I reached in an earlier study,
a
and which I would
maintain today, is that there is frequently a considerable diver-
gence in developed Western law-to such an extent as to render
unacceptable existing theories of the development of law and the
relationship between law and society. A related, but subordinate
question, is whether society or the ruling elite can easily tolerate
such a divergence. The answer is again in the affirmative. How-
ever, it should be emphasized that the divergence cannot simply
be explained by the notion of a time lag between the change in so-
ciety and the corresponding change in the law.
7
If the correlation between law and society is not always very
close, and if society and its ruling elite can easily tolerate many
and great divergences, then we must ask what determines the par-
ticular rules that do emerge when others might seem at least as
suitable. Such divergences and their toleration mean that legal
growth cannot be sufficiently explained in terms of present societal
conditions or the social history of law.
Yet legal growth cannot be entirely haphazard (nor, I believe,
would anyone claim that it is). If legal institutions are social institu-
tions that are regulated by law, and if the social institutions are de-
5. A. WATSON, SOCIETY AND LEGAL CHANGE 5 (1977).
6. Id. at 130-39. To make the case manageable, but systematic, and to avoid
entering into debate on the meaning of some sociological concepts, I expressly at-
tempted to deal with what seemed to be major instances of divergence where the
impact of the legal rules could either not be avoided or else avoided only at consid-
erable cost and where one could not identify any group or class (including the ruling
elite) that benefited from the rules that existed. This approach has not been ap-
proved by all critics. J. N. Adams finds the approach atheoretical, considers it inap-
propriate or weak to avoid dealing with concepts like class, elite, and status groups,
and objects that I did not distinguish between major and minor instances of diver-
gence. Adams, Book Review (A. WATSON, SOCIETY AND LEGAL CHANGE), 42 MOD. L.
REv. 121 (1979). I stand by my approach. Given that the examples of divergence in-
cluded much of the Roman system of contracts, which is the most highly praised and
most influential part of Roman law, the Roman power of the father, which was re-
garded by the Romans as the most characteristic feature of their law (but which they
attempted assiduously to circumvent), and the system of land tenure and registration
in England until 1925, I unashamedly assert that they are major, and that a theoreti-
cal discussion of the distinction between major and minor examples of divergence
would serve no constructive purpose. A. WATSON, SOCIETY AND LEGAL CHANGE 12-
60 (1977).
7. A. WATSON, SOCIETY AND LEGAL CHANGE 12-22, 47-60 (1977).
HeinOnline -- 9 Hofstra L. Rev. 1475 1980-1981
HOFSTRA LAW REVIEW
sired by the society or its ruling elite, then the law must be
supportive, at least to some degree. In addition to this a priori ar-
gument, which by itself gives no indication of the closeness or the
nature of the tie between law and society, there exists a second, a
posteriori, argument: Namely, it is not difficult to spot a pattern of
development in Western legal systems, and to divide these systems
into families--especially into civil law and common law families.
8
The existence of a pattern of development postulates common ele-
ments important to this development.
Nevertheless, the particular family groupings that are observ-
able for the West alert us to a further feature of legal change. The
division into civil law systems and common law systems is not
paralleled by divisions in social, political, or economic conditions
in the countries that have adopted one route or the other. While
some civil law countries and some common law countries may have
experienced the same extreme economic changes such as were
caused by the Industrial Revolution, others were spared that expe-
rience. And civil law countries may have governments ranging
from democratic through aristocratic and monarchical to tyrannical
without losing the legal characteristics of being civil law systems.
To make the division of systems into legal families more interesting
still, the same legal historical elements-such as Roman law, Ger-
manic customs, canon law, feudal law-have gone into the devel-
opment of both. The explanation of the division is to be found, I
suggest, in one element of the otherwise shared legal tradition:
Civil law systems accepted Justinian's Corpus Juris Civilis in whole
or in part as the law of the land or as directly persuasive. The re-
sulting study of the Corpus Juris over the centuries produced ap-
proaches to law differing markedly from those found in common
law systems.
9
If this argument is soundly based on the evidence, then we
must face its implication: To a very large extent, the structure of
the law and the legal rules derive from the legal tradition itself. It
may seem obvious that the legal tradition will affect the growth of
the law, but it is an element that is easily overlooked. Even when
it has not been overlooked, the general tendency, in my opinion,
has been not to give it the importance it clearly merits.
8. See, e.g., R. DAVID & J. BRIERLY, MAJOR LEGAL SYSTEMS IN THE WORLD
TODAY 21-29 (2d ed. 1978).
9. See generally A. WATSON, THE MAKING OF THE CIVIL LAW (1981).
[Vol. 9:1473
HeinOnline -- 9 Hofstra L. Rev. 1476 1980-1981
SOCIETY'S CHOICE AND LEGAL CHANGE
FACTORS OF LEGAL CHANGE AND THE LEGAL TRADITION
Previously, I set out abstract models for legal change and the
relationship between legal rules and society. I suggested:
The precise relationship between legal rules (both particular and
in general) and the society in which they operate can be ex-
pressed as the balance between two opposing sets of factors, the
first which inhibits change, the second which determines the
change that is proposed. Namely, on the one hand: Inertia plus
Opposition Force. On the other hand: Felt Needs, weakened by
the Discretion Factor, activating the Pressure Force as affected
by the Generality Factor, to work on the Source of Law, all as
modified by Transplant Bias (and Law-shaping Lawyers).
10
I will now return to these factors, examining each from the angle of
their involvement with the legal tradition.
Source of Law
The Source of Law-and each Source such as precedent or
legislation has different effects on the course of legal develop-
ment-is involved to different degrees with the legal tradition. For
instance, juristic opinion above all and precedent only to a slightly
lesser extent come directly out of what lawyers feel the law should
be, and the constraints here arise from the legal tradition itself
Thus, while judges may regret reaching particular decisions, they
may express that they are bound by what they feel the law already
is. Legislation is less inevitably tied to the legal tradition. One may
envisage a legislature entirely composed of nonlawyers, which de-
termines the contents of a statute without knowing the pertinent,
general legal background. Typically, however, lawyers in the legis-
lature are prominent in framing the issues and limiting discussion.
Again, typically, the legislation will be drafted at some stage by
lawyers who will be working within their own legal experience.
Custom derives from what the society or a group within society ap-
proves. This does not directly involve the legal tradition, except
that for a custom to become legal custom it must be judicially rec-
ognized.
None of the above should be taken as suggesting that even ju-
ristic opinion or precedent will be free from social, political, or
10. Watson, Comparative Law and Legal Change, 37 CAMBRIDGE L.J. 313, 333
(1978).
1981]
HeinOnline -- 9 Hofstra L. Rev. 1477 1980-1981
HOFSTRA LAW REVIEW
economic conditions. Rather, the Source of Law will frame law in
terms of the options known and thought acceptable by the Source.
Pressure Force
Pressure Force is the organized person(s) or recognizable
group(s) who believes that a benefit could result from a practicable
change in the law. The power of a Pressure Force to effect change
depends on both the social and economic position of its members
and its capacity to act on a particular Source of Law; some Sources
are more responsive to Pressure Forces than are others. There is
no necessity for a Pressure Force to be involved with the legal tra-
dition. The members may not have legal training, but only a strong
notion of what they want the law to be on the particular issue. I
have previously argued that legislation was particularly subject to a
Pressure Force, precedent much less so, and that juristic doctrine
was largely immune.
11
If that is correct, then each of these three
Sources of Law are affected by a Pressure Force in an inverse ratio
to their involvement with the legal tradition. This is even more the
case when the Source of Law is custom, which is least involved
with the legal tradition; the Pressure Force frames the custom that
gains legal acceptance.
Opposition Force
The converse of Pressure Force is Opposition Force, which is
the organized person(s) or recognizable group(s) who believes that
harm will result from a proposed change in the law. Likewise, the
Opposition Force need not have a connection with the legal tradi-
tion.
Transplant Bias
Transplant Bias is a system's receptivity to a particular outside
system of law-a receptivity distinguishable from an acceptance
based on a thorough examination of possible alternatives. Law, I
believe, develops mainly by borrowing rules and structures from
elsewhere.'
2
Since the rules and structures must be known in or-
der to be borrowed, and since it is lawyers who predominately
know foreign law, the Transplant Bias is very much involved with
the legal tradition.
11. Id. at 325.
12. A. WATSON, LEGAL TRANSPLANTS (1974).
[Vol. 9:1473
HeinOnline -- 9 Hofstra L. Rev. 1478 1980-1981
SOCIETY'S CHOICE AND LEGAL CHANGE
A slight qualification is required: A Transplant Bias might be
determined by political ideology rather than by legal tradition. This
is particularly noticeable with legislation, especially with a large-
scale reception. Thus, many countries accepted a code of private
law that was either in its entirety or with slight modifications the
French code civil-at least partly because of France's prestige fol-
lowing Napoleon's conquests. But we must be careful not to exag-
gerate: The countries that voluntarily did so already had a civil law
system; no common law country was so influenced by Napoleon's
fame that it adopted even a modified code civil. To bring Turkey
into the modem world, Attaturk adopted the Swiss codification in
1926. The Turkish legal tradition had been very different, but it
should be noted that Attaturk's Minister of Justice had studied law
in Switzerland.
13
Mercantile custom is also susceptible to a considerable Trans-
plant Bias-without the borrowers' necessarily having much knowl-
edge of law. But what is borrowed is international mercantile law
based on what merchants do. To a very large degree, this law is re-
ceived because the merchants' business would otherwise be di-
rectly disadvantaged. This means that what is borrowed is not just
any reasonably suitable law, but the only suitable law.
Law-Shaping Lawyers
This factor need not detain us. Law-shaping Lawyers are the
embodiment of the legal tradition. In the model set out above, this
factor is placed within parentheses to indicate that it is not a sepa-
rate factor of legal change.
Discretion Factor
The Discretion Factor is the degree of discretion that is inher-
ent in the operation of the law. The discretion may be given to the
parties, to the judge, to the executive, or even built into the legal
rules. The Discretion Factor is very much part of the law as it al-
ready exists-it is, in effect, part of the legal tradition. In general,
the greater the Discretion Factor, the less impetus there is for fur-
ther change.
Generality Factor
The Generality Factor refers to the range of recognizable
groups of persons or to the range of different types of transactions
13. A. WATSON, THE MAKING OF THE CIVIL LAW 120-27 (1981).
HeinOnline -- 9 Hofstra L. Rev. 1479 1980-1981
HOFSTRA LAW REVIEW
or situations affected by a legal rule. Since the Generality Factor is
determined by the existing legal rule, it too is part of the legal tra-
dition. Again, to speak generally, the greater the Generality Fac-
tor, the more difficult it is to effect a legal change. For the analysis
in this Article, both the Discretion Factor and the Generality Fac-
tor are treated as largely unimportant.
Inertia
I have previously defined Inertia as the "general absence of a
sustained interest on the part of society and its ruling elite to
struggle for the most 'satisfactory' rule."
14
Inertia has been grossly
underestimated as an element relevant to legal growth: Inertia,
above all, is the factor that determines that legal rules will be
greatly out of step with the needs and desires of society and the
ruling elite.15
But my previous analysis of Inertia requires sharpening. As a
factor relevant to legal change, Inertia should not be attached to
society or its ruling elite at large, but to particular legislatures,
judges, or juristic writers. This is not to say that society or the rul-
ing elite always push hard for reform, but only that their contribu-
tion or lack of it is adequately covered in terms of the factors of
change by Pressure Force, Opposition Force, and the combination
of the two. This is most clearly seen when we consider a successful
legal change. It may not have occurred to anyone besides the legis-
lature or a jurist that a change was desirable or possible, and there
may have been profound public indifference. That is, there may
have been no outside Pressure Force. Yet, if the legislature or ju-
rist overcomes its or his own Inertia, the legal change will be
made.
Inertia, however, should not be merged with Source of Law as
a factor of legal change. Inertia is not relatively constant within one
Source of Law, such as legislation, nor can one detect a general
difference between the extent of Inertia concerning one Source,
such as precedent, and another, such as juristic doctrine. Rather,
Inertia is a factor attached to a particular legislature, for instance,
and it varies both from time to time and between that legislature
and other legislatures. The same is true with jurists, and so on:
One jurist may have a different Inertia rate than another, and that
14. Watson, supra note 10, at 331.
15. See A. WATSON, SOCIETY AND LEGAL CHANGE 115-29 (1977).
[Vol. 9:1473
HeinOnline -- 9 Hofstra L. Rev. 1480 1980-1981
SOCIETY'S CHOICE AND LEGAL CHANGE
Inertia may vary from time to time. Public indifference will have
an effect on the energy of legislatures, judges, and jurists. But that
does not move Inertia back as a factor attached to society or the
ruling elite.
Felt Needs
Felt Needs are the social purposes of law that are known to
and thought appropriate by the Pressure Force that operates on a
Source of Law. They are, therefore, connected with the legal tradi-
tion only insofar as is the Pressure Force itself.
MAKING LAw ACCOUNTABLE TO SOCIAL CHOICE THEORY
The main purpose of the preceding section was to show the
immense extent to which the factors of legal change are involved
with the legal tradition itself. We may also see that the involve-
ment of the legal tradition with legal change varies to some extent
according to the Source of Law.
If my arguments and conclusions up to this point are correct,
then we are faced with a problem of great magnitude for social
choice and law reform. Whatever our resolutions for measuring so-
cial consensus or for deciding the principles of general approval
that should determine when law should be changed-which
will be discussed by other contributors to this symposium-the
existence of all the indicators for change in any particular instance
will not mean that reform will occur or is even ipso facto likely to
occur. And if a reform does occur, it is very likely to be shaped in
terms of the legal tradition. Put bluntly, general law reform should
primarily be approached not from the angle of what people in soci-
ety want in particular situations, but from the angle of improving
the quality of the Source of Law.
To inject a personal observation: It is a matter of astonishment
that in an age when so many resources are devoted to seeking out
and proposing the most satisfactory rules of substantive law, so lit-
tle attention is paid to the fitness of the available Sources of Law
for responding to what is wanted. One minor illustration may point
the problem. Conveyancing reform had long been sought in
Scotland. There was an absence of opposition to it, and eventually
the Land Registration (Scotland) Bill 1979 was laid before the U.K.
Parliament-a bill described in the House of Lords by Lord
Mackay of Benshie as "probably about 100 years overdue." Indeed,
it appears that among the inequities of political life is that an
unopposed issue frequently attains low priority-since no political
1981]
HeinOnline -- 9 Hofstra L. Rev. 1481 1980-1981
HOFSTRA LAW REVIEW
party profits from it. In keeping with this assessment, much of the
discussion of the Bill in both Houses was facetious, fatuous, and
anecdotal. Expressed narrowly, the lesson might be that in a coun-
try in which private ownership of land is not itself in issue, a politi-
cally appointed legislature is not a satisfactory Source of Law for
questions relating to the technical method of land transfer. But, as
other examples show, the lesson is also broader:
16
Lawmaking by a
legislature which is primarily politically based can be very neglect-
ful of human values that politically are neutral or offensive even to
a small minority. Yet legislation is the predominant mode of law-
making in the modem Western world.
What, then, is needed to make law more satisfactory in a soci-
ety wishing to take account of social choice theory as fully as possi-
ble? The answer is twofold: First, the available Sources of Law
must be directly responsive to the serious needs and desires of so-
ciety. For this, they must be able to introduce legal change when
society changes; they must make law as comprehensible as possi-
ble, since only if people know what the law is can they express dis-
approval of it and emphasize the desire for change; and they must
make the law as comprehensive as possible. Exactly how all this
can be achieved may vary from country to country, but the best so-
lution will have, I believe, two main characteristics. To begin with,
the dominant Source of Law must be legislation, since no other
Source can so easily make law responsive to social change, as well
as comprehensible and comprehensive. And this legislation must
somehow be directly in the hands of law makers who are at least
one step removed from the political legislature. I have previously
proposed and would still maintain a system of two-tier law.
17
The
first-tier law would be similar in structure and content to a code
such as is found in civil law countries. It would provide answers to
the vast majority of legal questions, and would be written and
structured so as to be understood by the majority of'the popula-
tion. The second-tier law would be much more detailed, rather
akin to some of the commentaries on the code existing in many
civil law countries. But this second-tier would itself be law with
the function of providing an authoritative interpretation of first-tier
law, setting out the principles and determining the law in detail
16. Id.
17. Watson, Two-Tier Law-A New Approach to Law Making, 27 INT'L &
Comp. L.Q. 552 (1978). The model in that article was not for a federal system, but it
could be adapted without too great difficulty.
(Vol. 9:1473
HeinOnline -- 9 Hofstra L. Rev. 1482 1980-1981
SOCIETY'S CHOICE AND LEGAL CHANGE
and in borderline disputes. The second tier would make the law
comprehensive. Attached to the legislature would be an interpreta-
tive committee, which would prepare second-tier law and lay a
draft before the legislature, and once a year lay proposed changes
in first-tier law before the legislature. The legislature could debate
the changes, and its decision would naturally override the interpre-
tative committee, but rules not debated or challenged would be-
come law automatically on the expiry of a fixed period. When the
legislature passed a statute, the interpretative committee would
have the function of reformulating it to fit it within the first- or
second-tier law. The interpretative committee would make the law
responsive to changes in society while the legislature would remain
supreme in lawmaking, but it would be spared-when it wished
-the necessity of preparing and debating law reform having little
immediate political impact or where the impact on any political
party proposing reform would be deleterious, although all parties
favored reform.
If some such structure of tiered law were adopted, it would be
possible to have a system of law in which the impact of social
choice could be much greater. And this brings us to the second
part of the answer on how to make law more satisfactory in a soci-
ety wishing to take account of social choice theory. The legal tradi-
tion itself-the importance of which for legal change has been em-
phasized throughout this Article--can be manipulated to serve the
community better.
The main vehicle for legal change would be the interpretative
committee, and its members would be selected for their technical
legal ability, the clarity and precision of their drafting style, their
balance, their legal inventiveness, and their social awareness.
18
In-
evitably, most committee members would be legally trained.
Hence, the committee would be more bound to the legal tradition
than legislators generally are.
One advantage of the legal tradition's having an impact on le-
gal growth is that it is precisely this that enables different parts of
the law to have some degree of coherence. By concentrating legal
growth in the hands of a small group of specialists who are experts
in the legal tradition, one major effect will be to make the law
more coherent. Coherence makes the law more aesthetically pleas-
ing to lawyers, but more importantly, it makes the law more com-
18. For a more detailed discussion on the composition of the interpretative
committee, see id. at 558-60.
1981]
HeinOnline -- 9 Hofstra L. Rev. 1483 1980-1981
HOFSTRA LAW REVIEW
prehensible and more in accord with the particular view of justice
that predominates in the society.
Thus, the legal tradition is a bonus for society, provided it
works for society. The legal solution closest to the wants of society
is needed. This can be achieved only when the lawmakers are
aware of the whole range of legal possibilities. In other words, the
members of the interpretative committee should have as much
comparative expertise as possible, and they and their fellow law-
yers should be open to the influence of foreign legal ideas.
CONCLUSION
The conclusions of this Article can be briefly stated. While the
legal tradition plays a fundamental role in legal change, legal rules,
structures, and institutions are often greatly out of step with West-
ern society. Thus, to bring about the most satisfactory law reform,
it is not enough to identify what society wants, but it is essential to
provide the best Source of Law and make the legal tradition serve
society's needs.
[Vol. 9:1473
HeinOnline -- 9 Hofstra L. Rev. 1484 1980-1981