Abstract

Most of the time rulers and governments in the Western world as a whole were little interested in making private law. Instead, the task devolved upon some group of the legal elite who became in effect subordinate law makers without having been given power to make law. Thus, Roman jurists as such were private individuals with no ties to government: they made law when their opinions came to win approval from other jurists. English judges in the Middle-Ages and later were appointed to decide cases: the tradition long was that they found the law but did not make it. Continental law professors were appointed to teach law, not make it. But they did make law when their writings were accepted as having authority by courts or their fellows, perhaps centuries after they wrote. A good jurist was a jurist who was thought to be good by other jurists and persons of similar standing: likewise with judges and professors. The result of their theoretical exclusion from law-making powers was that these law makers developed their own legal culture which was to that extent distant from social reality. This culture determined the parameters of their legal reasoning, the systems of law that they would borrow from, and even the extent to which they would borrow. Above all it would determine the standing of each individual within the culture. The nature of this culture varies from one society to another but unless one has an awareness of the importance of this rootedness in a particular legal culture one can never understand the parameters of legal debate. In this paper I want to discuss three general examples of this importance of legal culture while leaving out any of the common assumptions about a close connection between law and society.

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