Sources of Law, Legal Change, and Ambiguity

Sources of Law, Legal Change, and Ambiguity

Sources of Law, Legal Change, and Ambiguity

Sources of Law, Legal Change, and Ambiguity

Synopsis

Why is the law notoriously unclear, arcane, slow to change in the face of changing circumstances? In this sweeping comparative analysis of the lawmaking process from ancient Rome to the present day, Alan Watson argues that the answer has largely to do with the mixed ancestry of modern law, the confusion of sources--custom, legislation, scholarly writing, and judicial precedent--from which it derives.

Excerpt

Humans are social animals, and various mechanisms, such as religion, accepted standards of ethical behavior, and good manners, have developed to enable them to live (relatively) peacefully in society. Law is one such mechanism, and its distinguishing feature, I believe, is the availability of a process which has the necessary function of inhibiting further unregulated conflict by means of a decision. Within the context of the process law has two necessary roles: a claim of legal right or power is needed to call the process into being, and law is used to validate the decision. To fulfill these functions, law, whether it is regarded as already existing and simply to be discovered, or made by preceding conscious human determination, or to be made during the instant case, has to achieve some express linguistic formulation. And the formulation to have effect must contain within it, at least implicitly, the seeds of legitimacy.

The formulation is authoritative when it is treated by the courts as resting on a basis which the courts habitually regard as determinative for their decisions. Such bases differ from time to time and from place to place, and in developed Western societies they have been at times custom, legislation, juristic opinion, and preceding judicial decision. These bases are all included within the notion of “sources of law,” and for convenience “sources of law” is the term that will be used for them. The term “sources of law” is notoriously ambiguous, and it will be used . . .

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