Comparative Jurisprudence (II): The Logic of Legal Transplants

WILLIAM EWALD is Assistant Professor of Law and Philosophy, University of Pennsylvania. This is the second of a series of articles attempting to re-examine the foundations of comparative law. The first in the series is, "Comparative Jurisprudence (I): What was it Like to Try a Rat?," 143 Penn. L. Rev. 1189 (1995). I should like to thank Stephen Burbank for his comments on an earlier version of this article, and for first having pointed out to me the importance of Watson's work for legal theory. 1. Watson's writings to date fill some twenty books and one hundred articles. They touch on much of Western legal history, but are centered on Roman Law and its subsequent influence in continental Europe. His chief works include: Contract of Mandate in Roman Law (1961); The Law of Obligations in the Later Roman Republic (1965); The Law of Persons in the Later Roman Republic (1967); The Law of Property in the Later Roman Republic (1968); The Law of the Ancient Romans (1970); The Law of Succession I The Later Roman Republic (1971); Roman Private Law Around 200 B.C. (1971); Law Making in the Later Roman Republic (1974); Legal Transplants: An Approach to Comparative Law (1974; 2d ed. 1993) [hereinafter Transplants]; Rome of the XII Tables; Persons and Property (1975); The Nature of Law (1977); Society and Legal Change (1977) [hereinafter Society]; The Making of the Civil Law (1981) [hereinafter Making]; The Sources of Law, Legal Change, and Ambiguity (1984); The Evolution of Law (1985) [hereinafter Evolution]; Roman Slave Law (1987); Failures of the Legal Imagination (1988); Slave Law in the Americas (1989); Studies in Roman Private Law (1991); Legal Origins and Legal Change (1991); Roman Law and Comparative Law (1991) [hereinafter Roman and Comparative]; The State, Law, and Religion: Pagan Rome (1992); Joseph Story and the Comity of Errors (1992); International Law in Archaic Rome: War and Religion (1993). Watson's articles that are most relevant to the present topic are: "The Definition of Furtum and the Trichotomy," 28 Revue d'Histoire de droit 197 (1960); "The Development of Marital Justifications for Malitiosa Desertio in Roman-Dutch Law," 79 Law Q. Rev. 87 (1963); "Some Cases of Distortion by the Past in Classical Roman Law," 31 Revue d'Histoire de droit 69 (1963); "Roman Private Law and the Leges Regiae," 82 Journal of Roman Studies 100 (1972); "Personal injuries in the XII Tables," 43 Tijdschrift voor rechtsgeschiednis 213 (1975); "Legal Transplants and Law Reform," 92 L.Q. Rev. 79 (1976); "Comparativc Law and Legal Change," 37 Cambridge L.J. (1978); "Two-Tier Law A New Approach to Law Making," 27 Intl. & Comp. L.Q. 552 (1978); "Society's Choice and Legal Change," 9 Hofstra L. Rev. 1473 (1981); "The Notion of Equivalence of Contractual Obligation and Classical Roman Partnership," 97 Law Q. Rev. 275 (1981); "Legal Change: Sources of Law And Legal Culture," 131 U. Pa. L. Rev. 1121 (1983); "An Approach to Customary Law," 1984 U. Ill. L. Rev. 561 (1984); "The Evolution of Law: The Roman System of Contracts," 2 Law & Hist. Rev. 1 (1984); "The Future of the Common Law Tradition," 9 Dalhousie L.J. 67 (1984); "Law