Watson and the absolute autonomy argument

Another profitable contribution to the absolute autonomy argument, also made within the positivist framework, is that of Alan (William Alexander Jardine) Watson. A legal

scholar, Watson expresses an unwavering belief in the transplantability of law - a belief predicated (positivistically) on a deeper conviction that law has no organic link with the society in which it operates. He does this in a manner that puts him "in flat opposition to most sociologists of law, and indeed to most current theorists of law" [of social product persuasion] (Friedman, 1979). Indeed Watson (1977b: 130) holds the view (and declares this rather belligerently) that "none of the theories of the development of law or the relationship between law and society are (sic) acceptable", except his own.

The relevant starting point for Watson (1974: 3) is a concern for Comparative Law: Should this branch of law be regarded as an academic activity worthy of pursuit in its own right and with its own proper boundaries? In examining this question, he adopts a theoretical path which invariably leads him to an argument for the "autonomy" of law.

He takes the view that Comparative Law is a worthy academic activity and that its proper province is the "study of the relationship of one legal system and its rules with another". He further contends that the nature of this relationship, including the reasons for similarities and differences, "is discoverable only by a study of the history of the systems or of the rules ...".

Following on this conception of Comparative Law, Watson embarks on an extensive investigation of the legal systems of continental and western Europe. Apparently, he derives his "problematic" from a puzzle identified by Vingradoff (1961:11). This puzzle was expressed as follows:

Within the whole range of history there is no more momentous and puzzling problem than that connected with the fate of Roman Law after the downfall of the Roman State. How is it that a system set to meet certain conditions not only survived those conditions, but has retained its vitality even to the present day, when political and social surroundings are entirely altered? ... How did it come about that the Germans, instead of working out their legal system in accordance with their national precedents, and with the requirements of their own country, broke away from their historical jurisprudence to submit to the yoke of bygone doctrine of a foreign empire? (quoted in Watson, 1985: 66f).

It would seem that Watson sees in this statement an agenda of two items consisting of a full scale study of (1) legal survival/development, and (2) the reasons for the development of similar laws in different social, economic and political contexts. In support of the latter, he finds a strong statement in Milsom's (1969: ix) work:

Societies largely invent their constitutions, their political and administrative systems, even in these days their economies; but their private law is nearly always taken from others. ... The common law, governing daily relationships in various modem societies, has developed without a break from its beginnings in a society utterly different from any of them (emphasis, mine) (quoted in Watson, 1974: 8).

Watson attempts to produce, in line with this statement, "conclusions [that] will be useful tools for everyone interested in law and society, whether as legal historians, sociologists of law, anthropologists or law reformers". This attempt is then channelled towards his overall goal "to further understanding of the relationship between law and society in which it operates, and of the vital role played by legal transplants in legal growth" (Watson, 1985: ix; x).

One major conclusion which he derives from his investigation is formulated as follows: "usually legal rules are not peculiarly devised for the particular society in which they now operate" (Watson, 1974: 96). This conclusion is based largely upon his observation that "in the Western world borrowing (with adaptation) has been the usual way of legal development" (Watson, 1974:7). He regards it as "perhaps the strangest" of all paradoxes of law, that:

on the one hand, a people's law can be regarded as being special to it, indeed a sign of that people's identity, and it is in fact remarkable how different in important detail even two closely related systems might be; on the other hand, legal transplants - the moving of a rule or a system of law from one country to another, or from one people to another - have been common since the earliest recorded history (Watson, 1974: 21).

In the light of this conclusion, Watson considers as inadequate, and in fact false, any "fundamental assumption of rationality in legal development or of a response determined by [social] circumstances" (Watson, 1977: 4). He is here referring to those writers whom he regards as being "fascinated by the relationship between law and

society" and having "in common the firm belief that legal development is very much a rational response to existing [societal] c i r c u m s t a n c e s , O n the contrary, he asserts,

there need not be anything like an exact correlation between the political, social and economic needs and desires of the members of a society as a whole or of its ruling elite on the one hand and the legal rules actually existing in the society on the other (Watson, 1977b: 84).

He later reiterates this position in the following words: "to a large extent law possesses a life and vitality of its own; that is, no close, natural or inevitable relationship exists between law, legal structures, institutions and rules on the one hand and the needs and desires and political economy of the ruling elite or of the members of the particular society on the other hand" (Watson, 1978: 314-315).

It should be mentioned that Watson draws on the development and spread of Roman and English law in societies with different social, political, economic and cultural systems in arriving at the conclusion that "the direct link between a society and its law is tenuous" and that "law is largely autonomous and not shaped by societal needs; law evolves from the legal tradition" (Watson, 1985: 117; 119). Thus he argues that in the development of the law of delict in the French Code Civil, for instance, "no particular political intention determined the drafter's choice, only the impact of earlier legal writing" (Watson, 1988: 35).

It should also be observed that throughout the relevant works of Watson, significant explanatory value is placed on legal history, the subject-matter of which is legal tradition (or legal system). In his Legal Transplants, 1974, for instance, Watson sets out to explain the changes that occurred in the Roman law in Egypt. These changes were mainly in the law of persons and contract where marriages occurred between brothers and sisters; slaves seem to have been treated as capable of owning property; direct representation and agency in contract performances operated, etc - contrary to what was allowed under the Roman law in Italy (see pp. 31-35). For Watson, these changes

occurred "as a result of contact with other legal systems" and because "in Egypt Roman traditions of law were not so strong". There is no extra-legal explanation.

He equally maintains in The Making of the Civil Law that "the basic differences between civil law and common law systems are explained in terms of the legal traditions themselves" (i.e. legal history), not social economic or political history (Watson, 1981: viii). In reviewing this work, Stein (1982: 360) observes, approvingly, that Watson "has provided, with panache and erudition, a necessary corrective to the prevalent tendency to explain legal differences by reference to non-legal factors". Even where societal factors appear decisive in the emergence of certain legal phenomena, Watson remains inclined to this view on the fundamentality of legal traditions. For instance, with respect to the types of contract in the early Roman law, he says: "though economic or social reasons demanded the introduction of each type, it was the legal tradition that determined the nature, structure, and chronology of every contract" (Watson, 1985: 5).

Thus it is no surprise that Watson has "a strong disparagement of social, economic or political forces or anything outside 'purely legal history"’ (Lawson, 1975). This follows from his stance against sociology. In particular, "sociology of law" for him, provides the least help in understanding legal change and the relationship between legal rules and the society in which they operate. Further, he declares that the focus of "all scholarly research on law in society" (as undertaken by traditional sociologists of law and legal anthropologists) "is inappropriate, inexact, or inefficient" (Watson, 1983).

In his determination to provide a purely legal understanding on the relationship between law and society, Watson deliberately eschews the insights of the social sciences. Hence, in his Roman Private Law around 200 B.C. (1971), he chooses to write a purely "analytical work"*\ Similarly, his discussion in the Legal Transplants

^ See a review of this book by Birks (1972) for a statement on the unsatisfactory result of Watson's "straight analytical approach".

(1974) is pitched at the level of technical details of law and excludes society in order to avoid dabbling into sociology (see Seidman, 1975; Diamond, 1980).

Further, his definition of the process of legislation appears fundamentally apolitical. For Watson, the reason why the body charged with the responsibility of keeping law up to date usually fails in this role is because it is bogged down with "other functions especially of a political nature" or the "pressure of business" (see Watson, 1974: 115- 117). This implies, then, that legislative Taw reform’ is not a function "of a political nature".

On the whole, Watson's position comes squarely within a legal positivist orientation: "the distinguishing and sole necessary feature" which he attributes to law betrays this stance. For him, law is distinguished by "the availability of an institutionalised process [to resolve] actual or potential disputes ... with the specific object of inhibiting further unregulated conflict" (Watson, 1977b: i). Like Weber's conception of law, this is a semi-Austinian view. Indeed, in this same work Watson acknowledges his intellectual debt to positivists (see Watson, 1977b: 46).

Not surprisingly, the essence of law, in Watson's view, is order - rather than freedom, justice or morality - which does "not inevitably reflect the political, social and economic needs and desires of the society as a whole or its ruling elite" (Oberdiek, 1981). Legal rules, in the sense that he refers to the Roman law as being organised into "self-contained", "self-referential" blocks, "are isolated from any historical context and can be discussed without regard to their original purpose or even their practical applicability" (Stein, 1982). They can be moved anywhere.

Despite this absolute autonomy stance, Watson slips into social product model time and again. For, although he has disparaged societal factors totally from the outset, he explains certain aspects of his subjects in terms of these same factors. Thus he describes the reception of the Roman law in Scotland in terms of the political relation

of Scotland with England before and after the War of Independence of the early 14th century^. This, for him, is an example of "how much legal relationships and transplants may owe to the non-legal historic-political factors"; but he then quickly dismisses it as "sheer chance".

He lays the cause of the legislature's inertia (in their law reform role) at the doorsteps of the "pressure from business". He even proposes that "law like technology is very much the fruit of human experience" - it can be invented by a few people or nations. And, in explaining the phenomenon of legal change, he writes that "society has its input, which may be vigorously expressed or be tacit but demonstrated by obvious needs..." (Watson, 1985: 117).

Many of these assertions are similar to those which a scholar with a social scientific perspective would make. However, and in this lies the interesting point about Watson, at almost every point where he encounters these societal factors, he seems to handle or dismiss them without careful analysis. Ultimately, it comes down to the view that Watson only "flirted with sociology of law"; he never proceeded with it (see Abel, 1982: 787). Or, as Adams (1979: 122) puts it, he "attempts to make a sociological thesis without using a sociologist's methodology". Where a sociologist's object is to develop and/or apply theoretical apparatuses for the understanding of society (and not events qua events), Watson's technique "is to analyze particular legal events and facts" (Watson, 1985: 1) and, this, in total disregard for social factors. As will be shown later, nonetheless, his analysis of the mechanics of legal transplant provides some of the crucial factors for an autonomy explanatory answer to the research question of this study. These factors are: (a) there must be raised a question of major law reform (a matter internal to law) in the country borrowing the law; (b) there must be, in the borrowing country, an instinct to first look at solutions in other jurisdictions before considering the internal resources - the presumption in respect of this factor is that a

6 This point has been raised, subtly but cogently, by Kahn-Freund in his review of Watson's Legal Transplant.

body set up to suggest law reforms begins normally not by trying to think its way through to its own solution based on local conditions and character but by examining external solutions; (c) the law which is being borrowed must be regarded with enough respect (whether or not it in fact meets the needs of the borrowing country is immaterial); and (d) the law must be accessible in language and materials to the borrowing country (Watson, 1974: 91-93).

Thus, in all the contributions reviewed in the foregoing sub-sections - whether it be Spencer's perceived unchangeableness of sacred laws, the philosophical conception of natural law as universal and as the quintessence of all legal orders, W'eber's formalistic appreciation of law (e.g. the French Civil Code) as free from all socio-historical prejudices, Gurvitch's point on the search for the cosmopolitan element in national laws or Watson's legal transplantability - there is a strong suggestion that law (natural or positive) possesses some measure of absolute independence from society.