Private Law Theory

ABSTRACT
This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the feudal contract, a confluence of aspects of communitarian Germanic law, which enshrined a contractual notion of political authority, and rationalistic Roman law, which supported large-scale political organization. We trace the tradition of strong but limited government to the conflict between factions with an interest in these legal traditions – nobles and the crown, respectively – and draw limited conclusions for legal development in non-Western contexts.

Harwick, Cameron and Root, Hilton L, The Feudal Origins of the Western Legal Tradition (October 8, 2019). Forthcoming, Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft (Ordo).

First posted 2020-01-04 08:14:23