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Reproduced with permission of 34 American Journal of Comparative Law, Supplement (1986) 67-79

Doctrine as a Source of the International Unification of Law

Edgar Bodenheimer [*]

  1. Scope of the Inquiry
  2. Participation of the United States in Efforts at International Unification of Law
  3. The Nature and Function of Doctrine
  4. Doctrine as a Source of Law
  5. The Use of Doctrine in Creating an American Common Law
  6. The Potential Role of Doctrine in Future International Unification Projects

I. SCOPE OF THE INQUIRY

As the national reporter for the United States, it would appear natural for me to concentrate on the positions that predominate in the United States with respect to the desirability of international unification of law and an appraisal of the role that legal theory and doctrine might play in such an effort. At this time, however, the political attitudes prevailing in the United States toward international legal unification must, on the whole, be viewed as lukewarm and skeptical. This is evidenced, for example, by the fact that few international conventions of a public or private character have in the second half of this century been adopted by the United States. Under these circumstances, an analysis of the key problems to be dealt with in this report from the point of view of American legal science would yield relatively few useful answers if it would limit itself entirely to the international scene.

I have therefore decided to devote much of my discussion to the experimentation within the United States concerning the unification or harmonization of laws. Although not international in character, these efforts may provide some insights and lessons for the inquiry pursued in this paper. The experiment involves a method by which 50 states, combined in a federal union and endowed with the power of framing their own systems of law, have succeeded -- in part with the help of doctrine -- in creating a jus commune and the concomitant emergence of a system of national research and teaching beneficial to the legal system of each state.

II. PARTICIPATION OF THE UNITED STATES IN EFFORTS AT INTERNATIONAL UNIFICATION OF LAW

As stated above, it cannot be said that, at this juncture of United States history, there is much enthusiasm in political circles for ambitious schemes concerning international unification of law. Although [page 67] President Carter submitted the International Covenant on Civil and Political Rights, as well as the International Covenant on Economic, Social and Cultural Rights, to the United States Senate with a plea for ratification, that body has thus far taken no action on his request. Most other conventions sponsored by the United Nations that deal with human rights have encountered a similar fate.[1]

In the area of private law, attempts have been made for more than 50 years to achieve greater unity in the field of international trade law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) was ultimately adopted by the United Nations on April 11, 1980. The convention had been prepared by the United Nations Commission on International Trade Law (UNCITRAL), a commission established in 1966 by the General Assembly. The convention has already been signed by more than 60 nations and ratified by a number of them.[2]

President Reagan signed CISG and submitted it to the Senate on September 21, 1983. Information from Congressional sources indicates that the battle for ratification is likely to be protracted. Some groups appear to be concerned about the fact that, in the vital domain of world trade, CISG would override the Uniform Commercial Code, a piece of legislation prepared by the Commissioners of Uniform State Laws and the American Law Institute, which is in effect in 49 states of the Union and considered a highly successful piece of legislation. There are also American scholars who have taken issue with a number of specific solutions adopted by CISG.[3] Notwithstanding such opposition, there may be a good chance that CISG will ultimately be ratified by the Senate.

The United States has, however, refused to accept a number of UN-sponsored conventions dealing with negotiable instruments and international arbitration.[4] While it became a member of the Hague Conference on Private International Law in 1963, this organization has had very limited success in harmonizing the widely divergent national rules and principles in the field of conflict of laws.

Of considerable significance for international economic activity has been the participation of the United States in the General Agreement on Tariffs and Trade, known as GATT. Although this agreement was never really accepted in a formal way by national [page 68] legislative bodies, GATT was joined by more than 100 nations and became a tool for intergovernmental collaboration to reduce barriers to international trade, such as tariffs and quotas. The Agreement is, however, of an extremely flexible character; it permits many exceptions and deviations from its basic principles on grounds of national interest and necessity.[5]

The United States also acceded to a number of maritime conventions dealing with such matters as salvage at sea and bills of lading. Furthermore, the United States still adheres to the Warsaw Convention of 1929, which unifies a set of rules regarding international air transport; but in 1966 the United States concluded agreements with a number of countries authorizing certain departures from these rules.[6]

In view of the limited nature of United States participation in international legal unification efforts, there is little information on the role that doctrine has played in the decision by United States authorities to join or not to join an international undertaking of this kind. As indicated earlier, the role of doctrine in unification schemes involving the United States is therefore best discussed in reference to developments that cannot technically be assigned to the international domain. A considerable part of the discussion as to the role of doctrine in transnational unification efforts will be concerned with historical events that took place in Continental Europe, beginning with the Middle Ages, which also influenced the Anglo-American evolution of law to some extent. Before this task can be approached, it becomes necessary to clarify the meaning attributed to the term "doctrine" for purposes of this report.

III. THE NATURE AND FUNCTION OF DOCTRINE

The recently published "Guide to American Law" defines doctrine as "A legal rule, tenet, theory, or principle."[7] In the context of the present report, a mere legal rule or principle will not be included within the meaning of doctrine. Elaborating on a suggestion made by Franz Wieacker,[8] I wish to divide legal dogmatics (i.e. the sum total of doctrinal investigation) into two basic categories. The first category deals with the structure of legal institutions, the content, boundaries, and interconnections of the rules within their field of application, their causal and teleological anchors, and the (often imprecise) lines of demarcation between related institutions or [page 69] conceptual frameworks. This area of legal dogmatics may be designated as the substantive part of legal doctrine, inasmuch as it provides an integrated picture of the concrete rules of a legal system, as distinguished from legal methods and judicial approaches to decisionmaking.

A doctrinal exegesis of the feudal contract would, for example, explain its essential characteristics (as distinguished, e.g., from those of a commercial contract), its formal requirements, its place in the total context of the feudal system, the specific services owed by the vassal to his overlord, and the obligations owed by the latter to the former. A doctrinal treatment of specific performance in Anglo-American law would point up the origin of this equitable remedy as a corrective of the rigidities of the common law, the instances in which the remedy will be granted as a matter of routine, as distinguished from the situations in which it will be allowed only under a showing of special hardship, and the type of relief available under the remedy. The doctrine of separation of powers would explain the historical roots and politico-ethical goals of the principle, define the three powers covered by the doctrine (allowance being made for twilight situations), and list authorized exceptions and customary deviations, if such exist.

The second major rubric of doctrine encompassed in this report is the analysis of technically refined directives or methodological guides designed to assist the judiciary in arriving at fair and pragmatically acceptable decisions. One example would be the exposition of a theory advising judges as to what statements in the decision of a higher court invoked as a precedent must be treated by them as authoritative holdings, to be accepted as binding under the particular circumstances of the case. Another would be a treatment of the question what kinds of extralegal considerations (as, for example, public policy, moral consensus, and dictates of justice) may be relied upon by the judge in cases unprovided for by the law. A third example would be Perelman's reflections on the types of argumentation to which judges will resort when the traditional methods of deduction, induction, and analogy fail to offer a solution in a case.[9] At this time interest in Perelman's ideas is still weak in the United States, but considering the growing number of books and articles dealing with legal reasoning, it is likely to increase in the future.[10] [page70]

Doctrine, as here understood, is developed largely by academic writers. They usually do not, of course, create it out of whole cloth, but address existing legislation and court decisions. Yet they are not bound to rest their conclusions exclusively on the sources of positive law. They may take a critical attitude toward these sources and suggest alternative approaches or solutions. Legal history amply attests to the fact that innovative proposals of legal scholars have influenced legislatures and courts.[11] Even when a scholar limits himself to a doctrinal analysis of the existing law, his integrative activity -- such as the coordination of separate sources in a systematizing effort, the thorough exegesis of the scope of a set of rules and principles, and the demonstration of possible discrepancies between legal terminology and social purpose -- bears the stamp of creativity.

IV. DOCTRINE AS A SOURCE OF LAW

This brings us to the question whether or not academic works may be regarded as "sources of law." The prevailing opinion, in common law countries and beyond, appears to answer this question in the affirmative.[12] But the further question arises whether doctrinal writings may be considered primary authorities of law on a par with legislation and (in some legal systems) court decisions, or whether they must be relegated to the status of secondary sources. An instance where the opinions of jurists attained the position of a primary source was the famous Law of Citations, promulgated by the Roman Emperors Theodosius II and Valentinian III in 426 A.D. This law required the courts of the Roman Empire to follow the opinions of five jurisconsults and determined which one of them was to be given priority in case they disagreed among themselves.[13] A strong argument may also be made in favor of the proposition that the pandectist jurisprudence of Continental Europe, which grew out of the pioneering work of the Italian glossators and postglossators, presents an example of the use of doctrinal expositions as primary sources of law. This important phase of legal history throws a great deal of light on the role that doctrine can play in the evolution of law.

After the downfall of the Western Roman Empire, the Roman law, except for some adaptations found in early Germanic codes, had largely lain dormant in Central and Western Europe during the early Middle Ages. A revival of Roman law studies took place in the [page 71] 12th century in some Italian universities, particularly at the University of Bologna. The famous school of the glossators undertook a thorough exegesis of Justinian's Corpus Juris Civilis, concentrating especially on that part of it known as the Digest. The glossators set about to restore the authentic text of the Digest, to interpret the meaning of its provisions (consisting chiefly of the opinions of the classical Roman jurists rendered centuries earlier) and to resolve ambiguities and inconsistencies.

The work of the glossators was continued by the postglossators, who wrote commentaries on the interpretative work done by the glossators and in many instances adapted the Roman texts to contemporary conditions. The body of law thus created became known as the law of the pandects. This law governed in Germany for many centuries as a subsidiary positive law, applicable wherever there was no local statute or custom superseding it. The pandectist literature also gained a great deal of influence in Italy and southern France, as well as in Hungary and Greece.[14] "Pandectology" thus became a supranational force for unification in many parts of the European continent.

Even though the aim of the Italian law schools had been the restoration and scientific exegesis of a comprehensive piece of legislation, i.e. Justinian's Corpus Juris, the pandects, which supplied the mode of reasoning and much of the positive law for Continental Europe over many centuries, were in fact a primary source of law produced by medieval and postmedieval jurists rather than by the Roman Imperial legislator. First of all, the pandectologists devoted most of their attention to the second part of the Corpus Juris, the Digest, which (as stated earlier) consisted chiefly of excerpts from the writings of the classical Roman jurists. These opinions (called responsa prudentium) had been a primary source of law -- of greater importance than legislation -- during the classical period of Roman legal history.[15]

Second, so much creative and original work went into the interpretation of the Corpus Juris by the pandects that they represented in many respects a new product rather than the restoration of an old one. The opinions of the Roman jurists dealt with by the glossators were for the most part terse and none too revealing about the reasons underlying their conclusions. Furthermore, the opinions dated from several centuries and included many different jurists; it was natural, therefore, that the Digest contained many discrepancies and inconsistencies within its own ambit and also in relation to other [page 72] parts of the Corpus Juris. The glossators and their successors tried to resolve contradictions and supply doctrinal reasons (for the most part of a rather conceptualist nature) in cases where they were not supplied by the Corpus Juris.

Thus the completed exegesis had a consistency and systematic orderliness lacking in the original. Accordingly, the Roman law in effect received in Europe was the communis opinio doctorum. It attained practical reality, of course, chiefly in the decisions of the courts; but since these felt bound by the pandects in all cases where they were applicable, this body of law enjoyed an authoritative strength comparable with that of legislation and formed the basis of all legal discourse.

The influence of the Roman law as revived in Bologna also reached England. Henry de Bracton, one of the Early text writers on English law, made a fairly extensive use of the Roman Law as expounded by the glossators. His treatise on The Laws and Customs of England, published around 1250, uses Roman terms, Roman maxims, and illustrations taken from Roman legal sources. In addition, Bracton adopted a great number of Roman law distinctions and classifications. That law also helped him to introduce some degree of systematization into the English law of property. But it was particularly in the law of contracts that the Roman law ingredient of Bracton's treatise is visible. The native English law, at the time he composed the treatise, provided little authority on this branch of the law because the feudal system in operation at that time had little use for the types of freely made agreements which the Roman law dealt with in a highly sophisticated manner. When a free exchange of commodities, which is the economic base for a law of contracts, became widely practiced from the 16th century on, Bracton's romanized treatment of contracts turned out to be of great value to English judges and lawyers. So it happened that Bracton's treatise was reprinted in 1569 and frequently used by lawyers and courts for the solution of problems which were of little concern when Bracton wrote his treatise.[16]

There is little doubt that Bracton's work benefited the development of a unified law for the realm of England, a law that already in the early Middle Ages succeeded, to an ever increasing extent, in displacing the customary law of the feudal estates. Although this unification was of a national rather than international character (though English law became supranational at a later time), Bracton's influence proves again that a doctrinal contribution [page 73] imported from a foreign country may be of considerable assistance in building a unified system of law.

V. THE USE OF DOCTRINE IN CREATING AN AMERICAN COMMON LAW

When the English common law was, adopted in the United States at the time of the American Revolution, it was not received in a wholesale fashion but only insofar as its application was suitable under the economic and social conditions of the New World. Such suitability differed for the 13 states originally forming the Union. Some of the states had rather elaborate schemes of statutes which they wished to retain, others had developed sets of rules based on equitable ideas.[17]

Thus, at the beginning of American history there was no truly uniform common law system in the American Republic. As new states were added to the Union, each developed its own version of the common law. It was widely assumed, however, that the variations encountered in the several states were not far-reaching enough to deny the existence of a "common law system" in the United States.

In 1842, the United States Supreme Court handed down its celebrated decision in the case of Swift v. Tyson.[18] The question in this case was whether the federal courts, in a case involving the transfer of a bill of exchange, were obligated to apply the law of the state of New York, where the transaction had taken place. As a general rule embodied in a statute, the federal courts sitting in a particular state were bound to apply the law of that state. The Court, in an opinion written by Mr. Justice Story, came to the conclusion that in questions involving the construction and effect of ordinary contracts and especially in questions of general commercial law, the federal courts were not bound by state law but were free to develop their own legal rules and principles. This meant that in the designated areas of the law a federal nationwide common law was applied; if the same set of facts was litigated in a state court, however, that court would apply the local version of the common law or perhaps a state statute.

The doctrine of Swift v. Tyson was followed by the federal courts for almost a century. It came under increasing fire, however, especially on the ground that under this doctrine two bodies of common law existed within the borders of each state; everything depended on whether a suit was litigated in a state or federal court. The Swift doctrine was abandoned by the Supreme Court in [page 74] Erie Railroad Co. v. Tompkins.[19] Henceforth, the federal courts were to apply the law of the states in the type of cases in which, under Swift, they had been authorized to apply a general federal common law. The majority of the judges in the Erie case found themselves in agreement with a statement made by Justice Oliver Wendell Holmes in an earlier case. The statement read as follows:

"The common law is not a brooding omnipresence in the sky, but the articulate voice of some sovereign or quasi sovereign that can be identified. It is always the law of some state ..."[20]

If this statement is taken at its face value, the law of the United States would appear to consist of 50 legal systems, adopted by "sovereign" or "quasi sovereign" states, while a general common law, such as envisaged by Justice Story, would be nothing but a mirage. The question must be raised how the view of Justice Holmes can be reconciled with the fact that a national system of legal education exists in the United States. Except for a few courses dealing with strictly localized subjects, the students in each state are required to study case books containing decisions which are by no means limited to the jurisdiction in which the law school is located. Why should law students who intend to practice in a particular state have to listen to the voice of some other "sovereign" or "quasi sovereign?" What gain can a law student in California derive from studying a Michigan decision, whose result the California Supreme Court might reject? Does not Justice Holmes' statement suggest that the situation in the United States is comparable with that prevailing in Continental Europe where -- apart from a common derivation from the Roman law -- independent national systems exist today, and where a student in one country is not expected to familiarize himself with the rules and court decisions of another country?

The answer is that with respect to the judge-made American common law, as distinguished from statutory law the voices of the 50 sovereigns, with some modulations, sound surprisingly alike. There is a large reservoir of key rules, basic principles, and adjudicator techniques which, taken together, form at least a basic national common law. The situation was well described in a recent decision by a federal court.[21]

"While those close to the American law scene tend to emphasize the diversity of substantive law among the states and between the states and the federal government, to outside observers much of the differences must appear as [page 75] significant as that among the Lilliputians to Swift's hero. Faced with a unique problem, American lawmakers and judges tend to react in much the same way, arriving at much the same result. ...

"[P]owerful centripetal tendencies often encourage the formulation of national consensus law. First is the essential homogeneity of our unified technological-social structure increasingly tied together by national transportation, communication and educational-cultural networks. Second is an Anglo-American legal system with common roots and a strongly integrated law school educational system relying upon national scholars, treatises and cases. National casebooks and fungibility of teaching materials, for example, create a strong unifying influence making it possible for lawyers to be trained in one section of the country and to transfer to other areas for practice."

One does not, under these circumstances, go too far afield in maintaining that the common law is a "brooding omnipresence," not in the sky, but in American law offices, court houses, and law schools. There is no doubt that doctrine has played a significant role in this development. In the early period of American law, when legal education consisted chiefly in serving an apprenticeship period in a lawyer's office, young lawyers were almost invariably instructed to read Sir William Blackstone's Commentaries on the Laws of England. This was a comprehensive and lucidly written standard work on English law which was published first in the second half of the 18th century and went through many editions.[22] Joseph Story's Commentaries on the Conflict of Laws, published in 1834, contributed much to bringing about considerable similarity in the choice-of-law rules of the several states. It is of interest to note that much of the content of the book had been borrowed, from Dutch, Italian, and French writers.

In later times, when law school education became common and mandatory in most states as a prerequisite for a legal career, the tools of instruction were not only case books reproducing judicial decisions from many jurisdictions, but also treatises written by eminent scholars. Works like Williston on Contracts, Prosser on Torts, Powell on Property, and Wigmore on Evidence shaped the thinking of lawyers, including prospective judges. At the present time such treatises are also frequently cited in judicial decisions; a well-reasoned argument made in a distinguished text in favor of a rule [page 76] followed only in a minority of states might induce courts in other states to abandon a position to which they had previously adhered.

A very important role in the legal harmonization process just described is played by the Restatements prepared by the American Law Institute, a prestigious institution composed of law professors, practitioners, and judges. The Restatements cover subjects such as contracts, property, torts, restitution, trusts, and conflict of laws. The main purpose of a Restatement is to articulate, in the form of precisely formulated rules resembling statutory prescriptions, the view on a point of law which represents the prevailing opinion. But the authors of the Restatements do not shy away from ignoring a majority view if they find it to be poorly reasoned and to substitute a solution which they consider more acceptable.

The Restatements today figure large in legal education and are with increasing frequency referred to in judicial decisions. They present a doctrinal effort of major scope because, in addition to recommending rules, they set forth reasons in favor of such rules, outline the proposed scope of the rules, and provide many illustrations.

VI. THE POTENTIAL ROLE OF DOCTRINE IN FUTURE INTERNATIONAL UNIFICATION PROJECTS

A classic example of the role that a doctrinal work can play in the preparation of important international legislation is the extensive use of Ernst Rabel's Das Recht des Warenkaufs in the 1964 draft of a convention on the international sale of goods by UNCITRAL.[23] Also of great help in the drafting of various international conventions has been the monumental International Encyclopedia of Comparative Law, whose publication began in 1971.

The area of international trade and commerce is one where future successes, such as the ratification of the 1980 Convention on the International Sale of Goods by most countries of the world, are within the range of expectation. Security of translation and improving effective performance have, in the nature of things, been universally desired objectives. It is much more difficult to obtain widespread consensus in fields of the law influenced by political ideologies or religious beliefs. In the present state of the world, it is not very likely that efforts at legal unification will go much beyond the domain of international trade. Even in the latter area, the serious disagreements that have arisen in the administration of the Common Market attest to the difficulties of obtaining international [page 77] consensus, although no strong polarization of ideology exists in Western Europe.

At some time in the future a world state may come into being, or large areas of the world may become ripe for a major unification effort. Assuming that by that time a wide consensus regarding the optimal forms of social and economic life will have been reached, the means of achieving legal unification will then become a main focus of interest. A crucial question will be whether unification should be accomplished through legislation or by other means.

It is likely that legislation would be used as the primary instrumentality of legal harmonization. But legislation on a major scale, as the history of the French, German, and Swiss civil codes demonstrates, requires preparatory work by legal scholars or at least some reliance on theory and doctrine.[24]

If legislation should for some reason prove unworkable as a means of coordinating legal systems, is it possible that the emergence of a new opinio communis doctorum could serve as a substitute for it? Could we expect a replay of the achievements of the glossators and postglossators discussed earlier in this report? I am somewhat skeptical with respect to this possibility. Although agreement on the first principles of contract, tort, and criminal law might be reached without too much difficulty, the obtaining of consensus on the details of legal ordering would probably be slow and uneven. The situation would not be quite comparable to the example of the pandects originating in the Italian universities of the Middle Ages. In spite of the creativity displayed by the medieval legal scholars, they had a common rallying point in the Corpus Juris Civilis of Justinian which lent at least a measure of unity to their juridical efforts. It would also not be persuasive to cite the example of the American common law as an encouraging precedent, since the heritage received in the United States from England was a unified law of the realm. Any major unification project of the future would be concerned with a plurality of different legal systems.

In one area, however, which thus far has not lent itself well to legislative treatment, it would be well-nigh imperative to obtain the consensus of a large number of writers whose work would be consulted by the courts. This is the area of legal methodology. Even if a common ground for a great deal of substantive law could be found, many of the potential gains would be frustrated by widespread divergences in the interpretation of statutes, utilization of precedents, and techniques of argumentation. Suppose some jurisdictions applying a unified system of law interpret statutes literally and refuse to extend legislative provisions in a proper case by analogous [page 78] application, while other jurisdictions are governed in their interpretative approach by the purpose and spirit of statutes rather than by their literal text. In that event, an identical statute used by these two jurisdictions might produce totally divergent and irreconcilable results in its application in a litigated case. Suppose, further, that the courts of one jurisdiction in a unified system of law would strictly enforce the doctrine of stare decisis (as the English courts did before 1966), while the courts of another jurisdiction would feel free to overturn precedents felt to be antiquated or inadequately reasoned; in that event an initial semblance of legal unity would tend to erode quickly. Suppose, lastly, that some jurisdictions operating under a unified law accept only argument based on a formalized source of law, while the courts of another jurisdiction permit arguments of policy, equity, and justice to enter into the decision in certain types of cases: this again would be a causative factor in an ultimate failure of the unification effort.

In the field of legal methodology the seminal role of scholarly endeavor is particularly evident. Would it ever be possible to achieve a near-universal agreement of legal scholars on methods of interpretation and argumentation? A comparative study of trends in this domain of the law would seem to indicate some widespread retreat from purely literal and conceptual approaches and a willingness to confer legitimacy, within certain limits dictated by the needs of legal certainty, upon arguments based on sound policy and acceptable social results. If, however, the hope for doctrinal consensus should turn out to be illusory, the enactment of legislation in this field -- hitherto largely reserved for doctrinal treatment and not too well fitted for a legislative approach -- would have to be considered as a weapon of last resort when the time becomes ripe for a worldwide or broad regional unification effort. [page 79]


FOOTNOTES

* Professor of Law Emeritus, University of California, Davis

1. See Henkin, Rights: American and Human, 79 COLUM. L. REV. 405, 420-424 (1979).

2. On CISG see Comment, Contracts for the International Sale of Goods, 69 IOWA L. REV. 209 (1983).

3. See, for example, Rosett, Critical Reflections on the United Nations Convention on Contracts for the International Sale of Goods, 45 OHIO ST. L.J. 209 (1983).

4. David, The International Unification of Private Law, in 2 INT'L ENC. COMP. L., Ch. 5, pp. 124-131 (1969).

5. See A. LOWENFELD, PUBLIC CONTROLS ON INTERNATIONAL TRADE 20-24 (1979),

6. David, supra note 4, at 160-162.

7. 4 GUIDE TO AMERICAN LAW 164 (1984).

8. Wieacker, Zur praktischen Leistung der Rechtsdogmatik, in 2 HERMENEUTIK UND DIALEKTIK 311, 333 (R. Bubner, K. Cramer & R. Wiehl eds. 1970).

9. CH. PERELMAN, JUSTICE, LAW, AND ARGUMENT (1980). See also Bodenheimer, Perelman's Contribution to Legal Methodology, 12 N. KY. L. REV. 391, 401-407 (1985).

10. Much of the literature is cited in Summers, Two Types of Substantive Reasons: The Core of a Theory of Common-Law Justification, 63 CORN. L. REV. 707 (1978).

11. An example is the influence which the article by Warren and Brandeis, The Right to Privacy, 4 HARV. L. REV. 193 (1890) had on legislation and judicial decisions in the field of privacy.

12. See David, Sources of Law, in 2 INT'L ENC. COMP. L., ch. 3, pp. 270-279 (1984); J. GRAY, THE NATURE AND SOURCES OF THE LAW 260-281 (2d ed. 1931).

13. M. KASER, ROMISCHE RECHTSGESCHICHTE 231 (2d ed. 1967).

14. A. WATSON, SOURCES OF LAW, LEGAL CHANGE, AND AMBIGUITY, Ch. III (1984); F. WIEACKER, PRIVATRECHTSGESCHICHTE DER NEUZEIT 443-444 (2d ed. 1967).

15. C. KASER, supra note 13, at 171-172.

16. On Bractan see 2 HOLDSWORTH, A HISTORY OF ENGLISH LAW 267-286 (3d ed. 1923).

17. W. WALSH, A HISTORY OF ANGLO-AMERICAN LAW 85-97, 362-368 (2d ed. 1932).

18. 16 Pet. 1, 10 L. Ed. 865 (1842).

19. 304 U.S. 64 (1938).

20. Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1916).

21. In Re "Agent Orange" Product Liability Litigation, 580 F. Supp. 690, 696 (1984).

22. On Blackstone, see W. HOLDSWORTH, SOME MAKERS OF ENGLISH LAW 238 (1938).

23. See Lando, The Contribution of Comparative Law to Law Reform by International Organizations, 25 AM. J. COMP. L. 641, 648 (1977); David, supra note 4, at 136-137.

24. See Wieacker, supra note 14, at 341-342, 473-474, 490-492.


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