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Spring 1993

Research Magazine > ARCHIVE > Spring 93 > Article

Borrowed Justice
by Judy Purdy

Ignorance of the law is no excuse. But Alan Watson will forgive you if you don't know exactly where that law came from.

The fact is, the law of the land likely started as the law in some other land. Americans, like everybody else, merely adapted laws from other countries.

"Law is usually borrowed, frequently without any great deal of thought for the quality," said Watson, who is completing his 30th book on legal history this year.

As an authority on the lineage of laws, Watson, the UGA Ernest P. Rogers Professor of Law, believes second-hand legislation often has led lawmakers to foist inferior laws upon society.

"Making laws is often circumstantial," he said. "There's surprisingly little reflection on the making of most laws."

Watson's research demonstrates that the scales of justice tip according to the source of the law: custom or legislation, judicial decision or a jury's opinion. And the source and interpretation of law can affect more than legal application; they may chart the course of national events.

Take the Dred Scott case, for example. A misinterpretation of borrowed Dutch principles "resulted in a turning point in American history," Watson said.

The issue revolved around a 19th-century Missouri slave, Dred Scott, whose owner took him to Illinois. Under Illinois law, Scott was a free man. But was he still free when he was taken back to Missouri?

The resolution of that case hinged on one American legal scholar's interpretation of law when more than one state was involved.

In 1834, scholar Joseph Story published a widely circulated book based on the writings of 17th century Dutch jurist Ulrich Huber, whose works formed the basis of English and American laws on such conflicts. Because of Story's misinterpretation of Huber, the Dred Scott case bounced all the way to the Supreme Court, which eventually sent Scott back to slavery.

The conflict also led to the debates between Stephen Douglas and Abraham Lincoln, debates which played an important role both in Lincoln's nomination for the presidency and in the South's subsequent secession from the Union.

"If one places importance on the Dred Scott case, then you can see how legal borrowing can have a tremendous impact," Watson said.

And yet Watson said he "found no sign that Mansfield (the Scottish judge who imported Huber's ideas to England) or the Americans looked at scholars other than Huber when they were borrowing conflict laws."

Watson has applied his interest in the effects of laws on society to a wide range of legal history, such as the comparing of ancient Roman laws with those of contemporary Western countries. His research seeks to answer "why a particular change occurred and from what countries those codes were borrowed."

"The impact of law on society is great," he said. "Laws may change as result of changes in society or because of the lawmakers themselves."

Time and again, he has come to the same conclusion: "Society had little impact on the rules that were made and legislators had little interest in communicating laws," he said. "Frequently citizens were ignorant of the law, because it was commonplace to write laws in a foreign language."

Getting to the root of a law may involve digging through centuries of scholarly opinions written in modern, Medieval and ancient languages. Unlike many other scholars, Watson, who reads more than 15 languages -- from ancient Greek and Latin to modern Italian, Rumanian and Afrikaans -- is able to go straight to the primary sources to compare and interpret laws.

"You can only truly understand legal history if you read the books the lawmakers were reading," Watson said.

His conclusions, often bold and controversial, are also well respected. Watson's doctoral dissertation on Roman law laid the foundation for an entire legal conference in Japan in 1991. He directed the team that translated the Roman emperor Justinian's legal Digest, a four-volume collection published in 1985. Watson has published close to a hundred articles -- from how Roman jurists treated drunkenness to historic discrimination based on religion and gender -- and has held teaching appointments at a dozen universities in six countries.

In the course of that career, Watson has uncovered myriad defects, overlaps and contradictions in Western legal tradition; however, rather than participate directly in the cumbersome task of legal reform, he remains content to look at where we've been and let others forge the future.

"Law is culture bound -- you live your own culture and it is hard to see," he said. "It is easier to step back and see how the culture of another distant time influenced the laws."

Nonetheless, Watson's perspective of history can help illuminate the future. For instance, his book on Roman and comparative law -- the first American-published book of its kind to be translated into Chinese -- is among those being used by the Chinese to write a new civil code.

To Watson, legal lineage boils down to a simple principle: The law of the land may be second-hand, but with careful borrowing it can be first-rate.

Research Communications, Office of the VP for Research, UGA
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