WHY ARE ‘NUTSHELLS’ SO IMPORTANT? – Geoffrey Samuel

Alan Watson published an enormous number of books and articles during his long career, but one that proves of particular interest to comparative lawyers looks at first sight a relatively modest piece: The Importance of ‘Nutshells’ (1994) 42 American Journal of Comparative Law 1. Arguably it is more than modest in that it raises two (if not more) important questions that this contribution will examine (although these questions have been raised in his other publications as well).

• 1 Introduction

The two questions are these. First, of course, why are ‘Nutshells’ so important? The second is more controversial: did Watson have a law and society thesis that comparatists should take seriously? That Watson has not been taken seriously, at least by some, is evident in Lawrence Friedman’s comment that “attacking Watson is like shooting fish in a barrel” (Nelken & Feest (eds), Adapting Legal Cultures, Hart, 2001, at 93), this comment in turn being partly based on Roger Cotterrell’s critique of Watson (Chap 3 in Nelken & Feest). The first Watson thesis is that is that all modern legal systems founded on the civil and common law are inconceivable without the input of Nutshells (brief introductions to law). The second, more controversial, thesis to be examined is that Nutshells “show that in large measure law does not emerge in any real sense from a society in which it operates” (1994, at 2). In short, Watson is asserting a thesis that seems squarely opposed to the views of those who think that there is a very strong connection between law and society and (or) between law and culture.

• 2 Introductory textbooks

Watson starts his article in noting that the first and only Roman work that attempts a systematic overview of Roman law is Gaius’ Institutes (160AD?) which used the structure that was to become famous thanks to Justinian’s Institutes (533AD), namely persons (ius personarum), things (ius rerum) and actions (ius actionum) (G.1.8; J.1.2.12; D.1.5.1). It was the Institutes of Justinian that, for Watson, was the key book for the reception of Roman law into Europe after the invention of printing in the 15^th century. Watson makes the point that the Institutes was one of the most printed law books at this time and was important not just for the learning of Roman law but also local law. It provided a conceptual terminology and a structure through which local law could be understood (1994, at 10). One thinks of Lancelotti, Institutiones Juris Canonici (1563) and Loysel, Institutes Coutumières (1607) which use the institutional structure to present their non-Roman principles. Pothier equally used the structure when reorganising the Roman regulae iuris and it is employed by Cambacérès in his Projet de code civil (1796) (persons, things and obligations). Moving towards the Code civil (1804) — described by Watson as a statutory Nutshell (1994, at 17) — Watson argues that two Nutshells were of influence on the structure of the code: Argou’s Institution au droit français (1692) and Julien’s Elemens de jurisprudence selon les loix romaines et celles du Royaume (1785). Justinian’s (and Gaius’) institutional scheme was also influential on some English law writers; one thinks of Cowell’s Institutiones Iuris Anglicani (1605) and of course Blackstone’s Commentaries on the Law of England (1765-1769). In more recent times. Peter Birks asserted that the institutional scheme provided a map of the law, as relevant for the common lawyer as the civilian one. He famously described Gaius as the Darwin of law (discussed in Samuel (2000) 49 ICLQ 297; (2004) 24 OJLS 335).

• 3 Epistemological reorientation

Watson’s thesis on the importance of Nutshells is a bold one and deserves consideration. Indeed such consideration is now beginning to take place, at least in France (see eg Chambost (ed), Histoire des manuels de droit, LGDJ, 2014; Cabrillac (ed), Qu’est-ce qu’une introduction au droit ?, Dalloz, 2017). Yet perhaps Watson puts too much emphasis on the institutional structure — important it must be said — to the detriment of another important epistemological development aided not just by ‘Nutshells’ but by more substantial works like Domat’s Les loix civiles (1771) and Heineccius’ Elementa iuris civili secundum ordinem pandectorum (1746). What is important about these two works (and other works by other jurists) is that knowledge of law had become a matter of abstract rules (regulae iuris) or axioms (axiomata). In Roman law itself these regulae, so we are told, are not the source of law, just brief summaries (D.50.17.1), but by the time of the humanists they had become normatively active in themselves; they had become the basis of scientia iuris. This is a process that started with Baldus and reaches its apogee with Domat (see generally Stein, Regulae Iuris, Edinburgh, 1966). It is this reorientation away from the Corpus Iuris Civilis itself to a Roman law now consisting only of axioms which is what makes these books so important. As Maine said of the 16^th and 17^th centuries, reform of the law meant reform of the law books.

• 4 Systems theory and legal evolution

Another way of approaching Watson’s Nutshell thesis is from systems theory. What the author is asserting, it might be said, is a transplantation not of rules but of an institutional system. Indeed in one of his monographs Watson asserts that “Roman law, as it appears in the sources, divides naturally into self-contained and self-referential blocks” and transmission “has often been of individual blocks, not Roman law itself”(The Making of the Civil Law, Harvard, 1981, at 15). These self-referential blocks, or one might say sub-systems, are for example sale, remedies for fraud, possession and the different kinds of contracts. What Watson seems to be saying, then, is that the Institutes constitute a general system of private law while the Digest is made up almost entirely of sub-systems; and it these systems that have got transplanted throughout the world (thanks largely to Nutshells). This is an interesting thesis and would seem to be one to be welcomed by systems theorists. This thesis asserts “the autonomy of the legal system, which is equipped with its own evolutionary mechanisms” and such “autopoetic closure of the legal system means that law cannot be seen simply as a product of social evolution as a whole” (Teubner, Law as an Autopoietic System, Blackwell, 1993, at 57).

• 5 Law and society

Teubner’s analysis takes us to Watson’s second and more controversial thesis. “But that law texts”, argues Watson, “written in a very different place and very different time can be recycled so readily suggests problems for the views that ‘Law reflects the intellectual, social, economic, and political climate of its time'” (1994, at 21; see also 1981, at 19). And he goes on to ask: “In what sense does Gaius’ Institutes reflect the society of pagan Rome and with some modifications, Christian Byzantium?” As one can image, this assertion has attracted major criticism. Roger Cotterrell’s attack is not so much a head-on one but a rather more subtle critique that chides Watson both for his simplistic view of what legal sociologists think about the relation between law and society (‘mirror theory’) and for his lack of empirical support for his assertions. Indeed, says Cotterrell, “he is actually unconcerned with the rigorous construction of theory at all” (in Nelken & Feest, at 76). Watson’s approach “misunderstands legal sociology while making its own fundamental sociological assumptions.” Yet “he provides a partial perspective on legal development which represents informed reflections on some important aspects of legal experience” (at 77).

• 6 Law and culture

Pierre Legrand’s attack is rather different and is based upon his general comparative law thesis that law is a manifestation of culture. “At best,” he says, “what can be displaced from one jurisdiction to another is, literally, a meaningless form of words” (in Nelken & Feest, at 63). A rule receives its meaning from without and given that a “meaning invested into the rule is culture-specific, it is difficult to conceive… how this transfer could ever happen” (at 60). Thus “a crucial element of the ruleness of the rule — its meaning — does not survive the journey from one law to another” (ibid). One difficulty with this critique, in the context of the Nutshells article, is that Professor Legrand is actually focussing on the notion of a rule rather than system. This is perfectly legitimate in that in other publications Watson has indeed talked about “the moving of a rule” (see Legrand, op.cit, at 55-57). Moreover Legrand has asserted that law can only exist in language and that since a language always constitutes a meaning that is singular and contingent, it is impossible to create or bring about some universal legal notion (Le droit comparé, PUF, 5^th ed, 2015, at 99). The idea, therefore, that there is a system or structure to be found in Nutshells of Roman law that can rise about particular national cultures and language is, for him, an impossibility.

• Conclusion: did Watson have a thesis?

Can Watson’s argument as set out in the Nutshells paper and in chapter 2 of his 1981 book survive the attacks? It has to be admitted that Professor Cotterrell makes a very strong point about the lack of theoretical rigour in his transplant and law and society writings. Watson was good at throwing out ideas, but less good in anchoring them in an empirical and (or) a theoretical foundation. Nevertheless the idea that conceptual models can undergo their own internal developments is one accepted by many epistemologists of science. There is an internal rationality and conceptual movement to be found in the history of the sciences even if there is not complete isolation from the social, political and economic conditions of the time (Granger, La science et les sciences, PUF, 2^nd ed., 1995). Perhaps this is also true of the history of Roman law in Europe which, if so, might well mean that Watson’s thesis, while rightly attracting criticism for its shortcomings, deserves not to be dismissed.

Posted by Professor Geoffrey Samuel (University of Kent)