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The Making of Legal AuthorityNon-legislative Codifications in Historical and Comparative Perspective$

Nils Jansen

Print publication date: 2010

Print ISBN-13: 9780199588763

Published to Oxford Scholarship Online: May 2010

DOI: 10.1093/acprof:oso/9780199588763.001.0001

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The Making of Legal Authority

The Making of Legal Authority

Chapter:
(p.95) Chapter 4 The Making of Legal Authority
Source:
The Making of Legal Authority
Author(s):

Nils Jansen

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199588763.003.0005

Abstract and Keywords

This chapter addresses the question of how legal authority is made. More specifically, it asks how non-legislative reference texts can achieve such a high degree of authority that the participants in legal discourse may rely on such texts as an ultimate source of the law. Even if a full answer to this question is not possible, because the legal authority of an individual reference text is always the result of an individual historical process of recognition that cannot be fully explained on the basis of abstract theory alone, and because such processes are often connected with social struggle for influence, wealth, and reputation, it may be possible, nevertheless, to identify and better understand some factors contributing to the authority of a legal reference text.

Keywords:   legal authority, legal texts, non-legislative reference texts

On the basis of previous observations and clarifications, the final chapter of this book shall address the question of how legal authority is made. More specifically, it shall be asked how non-legislative reference texts can achieve such a high degree of authority that the participants in legal discourse may rely on such texts as an ultimate source of the law. Even if a full answer to this question is not possible, because the legal authority of an individual reference text is always the result of an individual historical process of recognition that cannot be fully explained on the basis of abstract theory alone, and because such processes are often connected with social struggle for influence, wealth, and reputation, 1 it may be possible, nevertheless, to identify and better understand some factors contributing to the authority of a legal reference text.

I. Profession-Related Factors

Now, in specifically addressing the question as to the factors explaining the recognition of a legal reference-text’s authority, one theory that has often been used for explaining the authority of Roman law during the ius commune 2 must be rejected from the outset. Legal authority cannot be explained by a text’s being used in academia and academic teaching. Such a theory simply begs the question why the text was treated as authority in the law schools: for instance, the professors’ reasons for using such texts for teaching (p.96) purposes, and the motives of students to accept such a practice by attending this kind of lecture and the universities where professors taught on such a basis.

Clearly, the authority of a text never depends on its intrinsic qualities alone: both text-related and profession-related factors contribute to its force. Replacing, or only enriching, former legal authority with a new basic reference text is always ‘costly’ for the legal profession. Lawyers will have to make themselves acquainted with the new texts and with their intellectual structure. They will not be eager to do so if there is a shared feeling that their legal system works smoothly. Hence, a new reference text of legal authority will normally not be accepted if there is no need for such a change of the law. This explains the neglect of the PECL in the legal practice of many European legal systems. As long as the parochial state of private law in Europe is regarded more as an intellectual than as a practical problem, local lawyers will normally see no reason to rely on European Principles.

1. Defects in the law’s administration

It follows that the perception of some kind of legal crisis or defects in the administration of the law will normally be present when a legal profession accepts a new text as an authoritative source of law. This could not only be seen with the American Restatements, which were the legal profession’s answer to what was perceived of as a profound crisis of American common law, 3 but also with the Corpus iuris civilis and with the Saxon Mirror. The main reason for treating the Corpus iuris as a text of authority was probably that there was simply not enough law, and that there was no textual alternative that could be taken as a comprehensive basis of a rational legal science. 4 Similarly, the Saxon Mirror made it possible to transform the formerly oral Saxon law into a more reliable and rational written system. 5 Likewise, modern non-legislative codifications are written as bridges between diverging legal systems. 6 Thus, the PICC respond (p.97) to an alleged need for a written body of genuinely transnational legal rules. 7 Their success can partly be explained by the fact that influential actors in the transnational administration of law see practical advantages in bridging their national legal systems with a truly transnational system of rules. 8 Again, these Principles remedy the evident lack of a textual basis for the growing global law of commercial contracts.

2. The legal profession’s social identity

Another important profession-related factor contributing to the acceptance of a text as legal authority is apparently the social identity of the legal profession. The relevant text must be understood as representing the social entity with which the legal profession identifies. 9 Thus, Justinian’s Corpus iuris civilis could only become the main textual authority of the ius commune because medieval lawyers identified the text with their idea of a Roman Empire unifying the Christian people; 10 the legend of Charlemagne’s privilege 11 presented the Saxon Mirror as a specific belonging of the Saxon people; and the Code civil and the German BGB are famous examples of successful legislative codifications that were seen as ‘cathedrals of national splendour’. 12 Similarly, an important factor contributing to the success of the American Restatements was that American scholars had never paid much attention to local state law. 13 As a (p.98) result, the legal profession engaged in a national US-American legal discourse, which has been described as a ‘product of a cultural aspiration to be an American nation with an American culture and an American law’. 14

Similar ideas today inspire the European CFR process, which is based on the desire, especially among some legal scholars and politicians, to create a symbol of a European cultural identity and legal unification; 15 correspondingly, the recognition of the PECL and even of a legislative (‘political’) CFR as sources of law will depend on a sufficient degree of a ‘uniform European mentality’ among European lawyers. 16 Even in the transnational context of global law, the PICC appear to be supported by a comparable social-identity factor. Here, the profession does not identify locally with a nation, but rather with an international business community. Indeed, this may be one main reason for the frequent claim that the PICC represent a new ‘lex mercatoria’. 17

It would be clearly wrong, however, to assume that the feeling of a legal profession’s identity was always an essential factor determining the recognition and rejection of textual authorities. Thus, American lawyers continued to apply English common-law sources after the Independence, even though these sources were badly tarnished as the king’s law. Here, no other legal authorities were available (at least in the English language); hence, there was no feasible alternative to continuing the common-law tradition. 18 Nevertheless, the (p.99) importance of a legal profession’s identity can be seen, very clearly, as a weighty factor also explaining the failure of codifications. One example is the rather weak authority of the 19th-century German codifications. 19 Indeed, one of the factors contributing to the legal profession’s reluctance towards a full recognition of the Prussian ALR (Allgemeines Landrecht für die Preußischen Staaten) apparently consisted in the fact that the leading scholars of the Historical School identified more with a German nation than with the Prussian state. 20 This was no German peculiarity. For example, the cool attitude of the Louisiana legal profession towards the civil code of 1808 apparently resulted from their identification with their strong Spanish tradition. 21

II. Text-Related Factors

Whereas profession-related authority-factors depend on the state of a legal system, on the political circumstances, and on the cultural self-understanding of the legal profession, text-related factors concern the qualities of the text as such, for example its rationality and legitimacy. A remarkably conscious and thoughtful discussion of such factors can be found in the report of the Committee of 35 leading jurists on the establishment of an American Law Institute, 22 which therefore deserves some closer attention. These authors emphasized three main factors, namely authorship, procedure, and (p.100) form. It will be seen that all these factors are indeed important aspects of a reference text’s authority. They are decisive for the attitude of a legal profession with regard to the legitimacy, the reliability, and the usefulness of a reference text. Yet, it will be seen that none of these authority factors is indispensable. Such factors only contribute, in varying degree and combinations, to the legal profession accepting a text as authority; and a text may even become authoritative if one or the other of these factors is largely absent.

1. Representation, authorship, and procedure

The American Law Institute has never been a democratic institution; rather, it was constructed as a strongly elitist organization. 23 Nonetheless, the Institute was designed, from early on, to represent the American legal profession as a whole. 24 It was felt that the Restatements could only achieve the desirable degree of authority if they were ‘generally recognized as a work carried on by the legal profession in fulfillment [sic] of an obligation to the American people’. 25 Established institutions, such as the American Bar Association or the American Association of Law Schools were regarded as insufficiently representative of the legal profession as a whole for being entrusted with the restatements project. 26 Indeed, the Institute’s success must be attributed to a large degree on the founding members’ bringing together the different, and traditionally hostile, legal professions. 27 Thus, when the Institute was founded at a meeting on 23 February 1923, the New York Times could describe it as ‘probably the most distinguished gathering of the legal profession in the history of the country’: 28 the Institute’s incorporators were William H. Taft, the former President of the United States and at that time Chief Justice, and Charles E. Hughes, a former (p.101) member of the Supreme Court and a judge of high reputation (he later became Chief Justice). The leading members of the Institute were powerful politicians, 29 high-ranking administrative lawyers, 30 influential judges (among them Benjamin Cardozo, Learned Hand, and also the sceptical Oliver Wendell Holmes 31), well-known academics, such as Roscoe Pound, and John H. Wigmore, and the leading representatives of the American Bar. Even to the present day, membership of the American Law Institute is regarded as an exceptional honour, and the Institute has long been said to represent an elite of the American legal profession. 32

Related to the American Law Institute’s commitment to representation was an emphasis on procedure. 33 The Restatements should be drafted in a way that made them ‘represent the considered legal judgment, not merely of the Reporter, nor even of his Advisers, but of the profession throughout the country’. 34 Hence, the ‘legislative’ process should be transparent and allow for the participation of anyone from the wider legal world. Before a reporter’s proposal is presented to the Institute’s members at an annual meeting, it will be discussed by the Committee of Advisors, the Membership Consultative Group, and by the Council. 35 What is more, the ‘Discussion Drafts’ and ‘Tentative Drafts’ are made public to allow for a general critical discussion and thus for a discursive participation of those who are interested in the project. At the same time, the Institute has always been alive to the risks of professional lobbying. The Institute and most of its members regard political influence of (p.102) interest groups as inappropriate and take efforts to make sure that individual pressure groups cannot successfully influence the content of a restatement. 36 As a result, despite the Institute’s lack of democratic legitimization, it has succeeded in presenting its products as the considered views of the legal profession as a whole.

All this indicates that fair representation and procedural values have become important authority factors for non-legislative codifications as well. True, no such elements were present in earlier authoritative reference texts. Yet these texts are much older than the idea of replacing, or complementing, substantial standards of justice with democratic ideals and the idea of procedural legitimacy. 37 In more recent times, both these ideas have apparently been acknowledged more generally. They were present in the context of the UNIDROIT-Principles and also in the CFR process. Thus, the authority of the PICC is backed by the reputation and standing of the UNIDROIT-Institute, which presents itself—somewhat misleadingly and perhaps even illegitimately 38—as the Principles’ author. 39 What is more, emphasis has always been placed on the fact that the Working Group drafting the PICC was composed of scholars from different countries and, more importantly, from the different legal traditions of the world. 40 When the PICC were revised, representatives of international arbitration organizations were invited as ‘observers’ to attend and actively participate in the drafting process. 41 And in the current process of revision and (p.103) supplementation of the PICC, all the drafts and discussion papers are made available to the general public. 42

Similarly, the Lando Commission, 43 the Study Group ECC, 44 and the Acquis Group 45 sought to represent the different European nations in their membership, and the latter two groups relied on democratic procedures for making their decisions. 46 What is more, first drafts of the rules of these two groups have been discussed with political ‘stakeholders’ at conferences, which were organized by the European Commission. 47 Thus, the procedural ideals of adequate representation, transparency, and discursive participation were implicitly acknowledged as important authority factors. True, the actual processes may have suffered from shortcomings in this respect. For example, there could never be a genuinely public discussion before the DCFR’s publication, as the drafts were never made public. 48 But such shortcomings are irrelevant for the normative statement that fair representation and the procedural values of transparency and discursive participation are today generally regarded as important authority factors also for non-legislative codifications. These factors are increasingly treated as decisive for a text’s legitimacy, and legal authority can never be independent of legitimacy. Nonetheless, these factors are clearly not indispensable. The Lando Commission never made its discussions and drafts public and yet its authority among European scholars is not significantly weaker than that of the PICC.

(p.104) In the discussions preceding the American Law Institute, representation and procedure alone were never regarded as sufficient for establishing authoritative authorship. Furthermore, emphasis was put on professional excellence and reputation. The reporters preparing the Restatements were—and still are today—the leading doctrinal scholars in the relevant field of the law; 49 and they are advised by experienced members of the different legal professions. 50 Indeed, this emphasis on professional excellence is an old, well-established means of establishing legal authority. Justinian expressly relied on it in his Institutes, which he claimed as being based on the work of leading Roman lawyers, especially Gaius on the one hand, and on the compilatory craftsmanship of the leading contemporary jurists Tribonian, Theophilus, and Dorotheus on the other. 51 Likewise, each lex in the Digest is introduced with the classical author’s name and a reference to the specific book from which the text was taken. 52 For later generations, this was a reason to conclude that Justinian had prepared texts of outstanding legal quality and justice; 53 this factor substantially contributed to the Digest’s authority among medieval jurists. 54 Likewise, national codification projects have always relied on the prestigious advice of prominent members of the legal profession; the UNIDROIT-Institute has emphasized the reputation of the members of its Governing Council and of the jurists involved in the preparation of the PICC; 55 and the European Union even established a ‘Network of Excellence’ for preparing an academic draft for a political CFR. 56 Clearly, the excellence and reputation of the authors of such a text shall guarantee its professional reliability.

(p.105) Again, however, professional excellence is apparently neither necessary for a non-legislative reference text to achieve legal authority, nor is it regarded as the most important factor. As far as we know, neither Eike von Repgow, the author of the Saxon Mirror, nor Gratian, the author(s) of the Decretum Gratiani, had particular reputations as excellent jurists. And today no one is asking whether the unnumbered doctoral students working in the Study Group ECC really represent the legal elite of Europe. A legal text’s authority may be independent of the authority of its author(s). Yet, it is noteworthy that the decline of the American Restatements’ authority during the last decades corresponds to the declining reputation of doctrinal scholarship in American legal academia. Today, American scholars of the highest reputation are no longer engaged in the traditional doctrinal work which is the daily business of the American Law Institute; hence, the leading law schools are not contributing to its reputation as strongly as they used to.

2. Form I: coherence and order

Even more important than representation and procedure was, according to the American Law Institute’s Committee of 35, the ‘question of form’. Indeed this question was ‘of the first importance’. To achieve the desired intellectual unity of the law, a textbook-like treatment of the law was deemed unsatisfactory: the Restatements should avoid a ‘mixture of statement of present law, historical description and discussion of legal theory which is characteristic of the law treatise’. 57 Instead, it was decided that there should be a normative ‘statement of the principles of the law’. The rules should be drafted ‘with the care and precision of a well-drawn statute’, and with ‘the mental attitude … of those who desire to express the law in statutory form’. Even in cases of reasonable uncertainty, the Restatements should therefore lay down a single, decisive rule of the law; 58 this is what the Restatements actually do, (p.106) even in the present day. A similar approach has been taken by the UNIDROIT-Institute: the PICC present the amorphous and inconsistent law of international commercial contracts in the form of a continental codification. 59 Again, much emphasis was placed on drafting rules that are easily applicable for practical lawyers. 60

True, in an American Restatement, as in the PICC or in the PECL, the statements of the rules are accompanied by explanatory Comments and Illustrations; yet, these Comments have always been separated from the rule ‘by typographical or other device’. 61 In the Restatements, the rules were from early on printed in bold letters; and they are separated from the commenting text (see Figure 3 below; a similar picture is presented by the PICC: Appendix, Figure 7). 62 Clearly, these commenting explanations were designed to be of lesser importance. Indeed, what is ‘applied’ in practical legal discourse today, are the black-letter rules, rather than the accompanying Comments. What is more, the American Law Institute decided that there should be no reference to common law authorities in the Restatements’ first series (the reporter’s notes are a later development), because the Restatements should be more than a considered statement on the basis of legal pros and cons. 63 Hence, the American Restatements mostly have been and often are ‘authoritative without authorities’. 64 Remarkably, the same is true, again, for the PICC, where the official Comments ‘systematically refrain from referring to national laws’. 65

All this brings to our attention the important fact that the authority of a basic reference text does not necessarily depend on the persuasiveness of the arguments offered; this distinguishes such texts (p.107) from doctrinal articles and from judicial decisions. 66 Indeed, both compilations and restatements are largely void of legal argument. If such texts are authoritative imperio rationis, what is meant by ‘ratio’ cannot therefore be the ‘forceless force of the better argument’, 67 or only the ideas of a ‘best solution’ or ‘superior quality’ of rules. 68 Rather, it is the coherence and structure of the text and the accessibility of individual rules. To base the law on convincing argument may be an ideal of legal and especially doctrinal discourse, and it should, of course, be a guiding directive for those preparing a restatement of the law. But the quality of arguments cannot ultimately determine the authority of basic reference texts if the function of such texts consists in ending otherwise unlimited normative controversy. Reference texts of legal authority are necessary for the very reason that most normative propositions may reasonably be disputed. Thus, both legislative and non-legislative reference texts provide for a premise of normative argument that cannot normally be questioned. Their function consists in replacing (normative) argument with (legal) authority. 69

The relevance and effects of a legal text’s form have probably been underestimated in modern law; this has been the complaint of the few authors who have analysed such questions in more detail. 70 Many modern lawyers think that the content of a text is much more important than its form. 71 Even the working groups drafting the modern international restatements have placed significantly less (p.108) effort on the question of form than the American Law Institute for its Restatements. 72 However, the assumption that form is less important than substance is doubted not only by the findings of other disciplines, 73 but also by a view on the citation practice of courts. Of course, the authority which has been assigned to the PECL 74 and to the PICC, 75 may be explained—prima vista plausibly—with the current processes of Europeanizing or globalizing the national legal systems in Europe. 76 But other texts, such as the International Encyclopedia of Comparative Law, or the works of the Common-Core Group, 77 have never achieved a comparable status as European or global texts of reference. 78 This is so even though these works arguably rest on a far broader comparative basis and contain much more material and references to national authorities, and although a common view holds that the authority of transnational principles of contract law depends on and is therefore limited to their ‘restatement function’. 79 Likewise, although monographs are often much more thorough in their doctrinal argument, German courts usually rely on commentaries as doctrinal authorities; citing a monograph would be exceptional, especially in lower courts. 80 Thus, the form of a text is apparently an important factor contributing to its authority in legal discourse.

(p.109) The natural function of form is usually seen to present a specific legal content. For lawyers, form is a ‘purposive systematic arrangement of the unit as a whole’. Questions of formal presentation should therefore be discussed from a purely functional perspective, central aspects being the clarity, transparency, and accessibility of relevant normative information. 81 Thus, legal literature should be structured in a way that makes the individual statements and arguments easily accessible. Similarly, legislation should be drafted in a prescriptive language and in the form of general, precise, and definite provisions, which identify and clearly relate to individual norms. 82 Both legislative and non-legislative codifications should apply a coherent terminology; and they should be structured as a system of short articles, which allows for a convenient, easy reference. 83 Convenience and clarity are the main formal qualities of legal texts and they significantly contribute to their use and authority in legal practice. 84

Thus, the remarkable authority of the Decretum Gratiani resulted primarily from the fact that it presented an easily accessible reconstruction of Canon law, which was both comprehensive and consistent. 85 Similarly, the success of the American Restatements was largely due to the fact that they presented the common law in the form of a consistent and well-ordered system of rather short, easily applicable norms. The same is true for the PICC which present the (p.110) amorphous international commercial law in the form of a systematic codification. 86 Indeed, non-legislative codifications can only gain legal authority if they can be understood as a conveniently applicable expression of the law. Hence, formal order, consistency, and system are essential. Conversely, the authority of modern legislation may be decreasing, as it is perceived by the legal profession to be increasingly incoherent. 87

It should not be overlooked, though, that this factor, despite its great importance, allows for exceptions as well. For example, the Digest did not even come close to the formal standards of a modern codification. Neither were they drafted in a prescriptive language nor in the form of general, precise, and definite provisions. Rather, they compiled excerpts from scholarly literature: learned explanations of the edict and discussions of individual cases. Those texts represented the Roman scholarly debate in its full complexity and with many of its scholarly controversies; hence, tensions and even contradictions between different fragments could not be avoided. What is more, the Digest was originally not even well-structured. As there was no numbering of the different leges and fragments, medieval scholars had to cite these texts by their initial words. True, the Digest was not without important formal qualities, especially if seen from the perspective of a medieval lawyer. There was at least some order, which was ultimately based on the Roman edict: the different titles usually treat different actions. Moreover, the texts were based on a generally consistent, technical terminology and—by and large—on coherent legal principle. Thus, despite their formal shortcomings, it was possible to use the Digest as a textual reference for legal discourse. Nevertheless, the Digest’s authority cannot be explained with its formal quality. Clearly, other factors proved decisive. The Corpus iuris became authoritative, in the (p.111) absence of a textual alternative, because of the strong profession-related factors supporting its use. 88

3. Form II: staging authority

Besides this instrumental function of creating consistency and order, the form of a legal text may also assume a quasi-rhetorical dimension, which results from the fact that it adds a graphical or typographical structure to the text. And indeed, form does much more than simply present legal content: form symbolically stages and thus institutionalizes legal normativity. Legal authorities are social institutions 89 and therefore normally need to create symbols of themselves in order to become part of the social and legal reality. 90 Hence, the distinction between law and non-law, between valid legislation and mere politics, is usually constructed by formal criteria. 91 Thus, the legislative character of a text depends primarily on formal rules identifying the competent legislator, on formal procedural requirements in Parliament, and on formal requirements for the promulgation of the text. Similarly, a judgment will normally be identified by purely formal criteria that institutionally identify courts and distinguish judgments from other judicial communications.

Even more remarkably, however, form may, in itself, create legal obligation. Thus, in early Roman law, form was even a kind of ritual; it was the form in itself—the solemn formulation of the appropriate words—and not the will of parties or legislators, which brought about the legal effect (‘Wirkform’ 92): ‘form’, it has been said, ‘is the oldest norm’. 93 Of course, to look for anything comparable to such archaic features of former law in modern legal systems may at first appear inappropriate. Modern law is supposedly rational; it is based on the will (p.112) of parties and legislators, rather than on the irrational belief in solemn hocus pocus. It is remarkable, though, that the modern political institutions, on which the law’s validity was long assumed to rest, have never made do without symbolically staging their authority. 94 States and governments create symbols of themselves and of their power and legitimacy in parliaments 95 and parliamentarian architecture, 96 in military parades, and in constitutions. 97 A president’s oath of office is no less a ceremonial ritual than the medieval enthroning of a king: 98 it demonstrates and creates loyalty and authority. Thus, when the US President Obama was inaugurated, he used the Bible on which President Lincoln had sworn; thereby, Obama made himself symbolically bound to God and to the former President’s legacy. 99 Similarly, meetings of the heads of states are often put on stage with great effort: shaking hands, especially of hostile actors, will regularly be a performance in front of an international television audience; and it may be of high symbolic relevance if heads of states meet in private. 100 Thus, when the Soviet President Gorbachev invited the German Chancellor Kohl to his private land residence, to which no foreign head of state had been before, this was perceived by Kohl himself and by the general public as a symbolic creation of an intimate and trustful personal relationship. Indeed, this meeting marked the beginning of a totally new political relationship between the Soviet Union and the new Germany. 101 The informal knitwear worn by those statesmen at this occasion has therefore become a symbol in the collective historical memory; it is exhibited in the German historical Museum Haus der Geschichte.

Likewise, modern courts and court procedures apparently cannot do without symbols and ceremony staging the institution’s dignity and authority. In fact the dress codes, imposed by virtually all legal systems today on their lawyers and judges, are remarkably similar to (p.113) those of the Reichskammergericht and Oberhofrat. 102 What is more, these dress codes are disputed, which shows that important symbolic interests are at stake. 103 Similarly, as far as legal authority cannot derive from the state alone, it needs to be vindicated. Other participants in the legal discourse must be motivated to accept a text’s authority; yet in the absence of any absolute authority, there can be no cogent legal reason for such recognition. Analysing the form of such texts as a means of symbolically presenting them as an authoritative legal institution may therefore be helpful for better understanding the legal process.

(a) Typographical authority: the example of standard glosses

One group of texts to be analysed from such a perspective are the standard glosses (glossae ordinariae) to the main medieval books of authority and especially to the medieval law books. 104 Of these standard glosses the oldest one was Accursius’ Magna Glossa, or Glossa Ordinaria, to the Corpus iuris civilis (see Figure 1 below). This Gloss was presented, perhaps somewhat unjustifiedly, 105 as a collection and summary of the achievements of early medieval scholarship on Roman law, and it was one of the first works in European history that presented the law as an exegetic science. Indeed, the idea to find rational and legitimate solutions for normative conflicts on the basis of authoritative texts on the one hand and of exegetic method on the other was a central aspect of the legal and theological reform movement of the first half of the 12th century. 106 (p.114) This idea became a central aspect of a broader historical process of rationalizing, pacifying, and legalizing medieval society. 107

One notable result of this conception of normativity was that legal and theological language became descriptive. 108 This was a development whose importance cannot be overstated. Formerly, the law had been treated within the context of ethics and politics; hence, it was discussed in the always disputed moral categories of ‘right’ and ‘wrong’. Now, however, the ‘ought’ of a legal proposition was based on an external legislative, or else objective, textual, authority, on which the legal profession’s interpretative claims depended. It followed that normative propositions about the law could be presented, in objective language, as ‘true’ (or ‘false’); hence, they were open to rational argument. Until the 20th century, scholars, such as Kelsen, have been puzzled by the fact resulting thereof: that legal doctrine formulates its normative propositions in a ‘descriptive sense’. 109 The ‘declaratory’ theory of legal argument and judicial decision making, as it was many centuries later formulated by Blackstone, 110 Savigny, 111 Dworkin, 112 or Canaris, 113 is an expression of those assumptions. Indeed, it is no coincidence that the common lawyer Blackstone’s argument was based on a rather civilian conception of a ‘legal science’, defined by method and authoritative sources. 114

For this modern textual approach to the law, the medieval jurists and theologians had to establish authoritative texts on the one hand, (p.115) and they had to present their normative claims as being correct interpretations of those texts on the other. Yet establishing a textual authority was not possible on the basis of rational argument alone. It was not uncommon, therefore, to put textual authority spectacularly on stage, for example by physically presenting to a court the books of authority, on which an actor relied. Thus, in one of the most famous heresy processes of the 12th century, the accused Gilbert of Poitiers, one of the most famous academics of his time, made his people carry piles of books into the court. 115 He wanted to put on stage the fact that he relied on the authorities of the church fathers, and he wanted to make these authorities visible to the court. 116

Another—perhaps less spectacular but certainly no less efficient—means of staging authority was to publish the authoritative texts (the Holy Scripture, the Corpus iuris civilis, and the authoritative legal compilations of the Catholic Church) together with a standardized marginal gloss (see Figure 1). Here, the main text was typically written in larger letters, and it was often illustrated with beautiful, expensive miniatures emphasizing its special dignity and authority. More importantly, the central text was typographically enclosed by a gloss: a collection of little comments, which were related through references to specific words of the central text. These glosses, usually written in smaller letters that were specifically designed to remain readable even in small size, 117 explained the main text’s meaning or discussed specific problems that related to a specific part of the text. They thus collected and defined the generally acknowledged doctrinal knowledge of their time. (p.116)

(p.117)

                      The Making of Legal Authority

Figure 1. Corpus iuris civilis (Digesta) with Glossa ordinaria 118

The textual form of the glosses developed out of medieval academic teaching and scholarly discourse. 119 Indeed, the first glosses may have been little annotations written by students of law or theology, not very different from a modern student writing the meaning of a word at the margin or between the lines of a Latin text. 120 The form of the glosses was maintained, however, when the individual glosses developed into large, more systematic and standardized apparatus, as we see them in the standard glosses. However, at this stage, producing a gloss had become quite difficult, both in handwriting and in print. Indeed, the modern ‘critical’ editions of the Glossa ordinaria to the Bible have for this reason omitted the Glossa interlinearis which was written in between the text’s lines. 121 It would have been much easier, for instance, to put the glosses into footnotes below the text or to present the learned comments in the form of a continuous lemmatic commentary with brief phrases of the authoritative text (lemmata) inserted, or in the form of an edition of the authoritative text with comments interposed between the text’s different paragraphs. These latter forms were not unknown to the medieval scholars; they had been used by the commentators of late antiquity, 122 with whose writings the medieval scholars were familiar. 123 Clearly, the form of the gloss was consciously chosen and the typographical organization of the text must be seen as having meaning. Indeed, one of the main actors in the movement leading to the canonization of the Bible’s Standard Gloss was the very same Gilbert of Poitiers, whose good sense for staging textual authority has just been seen. 124

(p.118) Of course, such a ‘reading’ of written texts may surprise many modern readers, and especially jurists. Yet, there can be no doubt today that the visual presentation of a text may be specifically designed to transport additional meaning. Of particular importance is the typographical organization of the one-dimensional text in the two dimensions of the written or printed page. Here, it is general knowledge today that typography may visually create different values of, and relations between, different bodies of text; it may thus represent hierarchical structures of domination. 125 Remarkably, in the case of the medieval glosses, such reading gains further plausibility from the fact that the glosses to legal texts significantly differ in their presentation from the Standard Gloss to the Holy Scripture. From the 12th century onwards, this latter Gloss usually combined a set of marginal glosses with a Glossa interlinearis, written in between the Bible text’s lines (see Appendix, Figure 5); 126 at the same time, interlinear glosses, which had previously also been used by lawyers, disappeared in the legal context.

In medieval society, the authority of the Holy Scripture was beyond doubt. It did not need to be vindicated by the Gloss. Rather, this text depicted in its complex typographical structure the richness of the Lord’s words and the close intellectual connection between the true theological learning and the Holy Words. 127 In contrast, the presentation of the marginal glosses to the legal texts established a relation of hierarchy between the authoritative central text and the body of scholarly learning, which referred to and depended on the central text. This is the first impression of even a modern reader, and the medieval culture was both much more visual and more hierarchical than the modern world. What is more, (p.119) the form of the marginal gloss represented a dialectical relation of mutually stabilizing processes of recognition between the central text and its gloss. The gloss derived its explanatory authority and legitimacy from the main text to which it was related; yet, at the same time, the main text was presented as authoritative in its being the object of the gloss. It was thus staged as the centre of normative meaning, from which the legitimacy of other normative propositions derived.

What is more, in sharp contrast to the Bible’s Standard Gloss, this presentation established a clear separation between the central text and the marginal gloss. This separation represented an institutional distinction between the law and its scholarly description, which is taken for granted by most modern lawyers, which is of the utmost importance for Western legal thinking, but which is, nevertheless, anything but naturally given or evident. Law is a human artefact, and it is constantly developed by the participants to the legal discourse. Hence, the idea of a sharp, categorical distinction between the law and its description has always contained an element of legal fiction. On the one hand, the Corpus iuris derived its meaning, at least in large parts, from the gloss and from later commentaries. Medieval lawyers gave expression to this fact by the short formula: ‘quid non agnoscit glossa, non agnoscit curia’: courts would only acknowledge an interpretation of the Corpus iuris if it could be found in the Gloss. On the other hand, codifications, as has been seen above, were usually written as largely descriptive restatements of the law in force. 128 Nonetheless, this distinction proved decisive with regard to the social function of law. It transformed the legal process into a rational discourse; and it helped separate the legal discourse institutionally from politics and morality. Lawyers acknowledging this distinction will understand that they must not arbitrarily develop the law on the basis of politically contested policy. They will recognize the law’s intrinsic rationality on the one hand and normally accept the decisions of the political legislator on the other hand.

The Glossa ordinaria institutionalized this distinction as a social fact. Both typographically and in its descriptive language, the Gloss presented itself as a mere explanation of the main text’s meaning. (p.120) Conversely, the central legislative text appeared as a statement, rather than as a description of the law. Thus, the Glossa ordinaria presented this distinction as an evident matter of fact and thereby helped jurists forget about its fictional character: was it not evident that there was a sharp distinction between the law in the centre of the text and its peripheral explanatory description? No longer could the status of a legal proposition be doubted. If it was to be found in the centre, then it was the law; if it was at the margin it could only be a description, or explanation, of the law. Fictions must be plausible if they are going to work; and nothing could create greater plausibility than typographically symbolizing this distinction. It put onto the readers’ stage both the institutional separation of these texts and their mutual dependence with regard to authority and meaning, which was essential for both texts’ legitimacy and recognition. This is probably the reason why—despite the immense cost of producing such a book 129—medieval publishers rarely produced copies of the Corpus iuris civilis without the Glossa ordinaria; this practice was continued until the 17th century. Notably, the same happened with the Decretum Gratiani and its Gloss by Johannes Teutonicus and Bartholomaeus of Brescia 130 and with the Saxon Mirror. 131 Indeed, Buch’s Gloss to the Saxon Mirror immediately raised the formal status of this text from an instrument which could be only used for proving customary law, to a generally acknowledged textual source of the ius commune, which had to be applied by the courts without further proof. 132

In the medieval legal glosses, the function of formal presentation to symbolize and thus establish authority and meaning is manifest. Presenting the central text as authoritative added to its authority; and presenting scholarly literature as an explanatory gloss helped maintain the fiction of the declaratory approach to the law. Remarkably, this mechanism worked for both sides. The Corpus iuris became the main source of authority for the ius commune; and (p.121) the Gloss became its principal doctrinal authority. From the middle of the 13th century onwards, it was regarded as the starting point of every interpretation of the Corpus iuris and it was often even recognized as a formal source of the law. 133 Remarkably, the same was true for the other standard glosses. The Saxon Mirror and its Gloss were soon perceived as a unity; and Buch’s Gloss was recognized, in the same way as the standard glosses to the Corpus iuris and the Decretum, as a source of the law. 134 All this must be taken as a confirmation that the authority of these texts was created, at least in part, by their formal presentation as an eminent text’s gloss.

(b) A German commentary

Modern legislation no longer needs the same kind of formal presentation. During the 20th century, it has been beyond doubt that their authority deriving from the state’s domination is sufficient for making the legal profession apply the legislator’s statutory law. Law gazettes, accordingly, may be printed simply and cheaply. It is not necessary specifically to present the dignity or authority of a state’s legislation.

The non-legislative authority of modern academic writing, however, is more problematic. Doctrine enriches the law with structure, coherence, and meaning; hence, authority matters. The inner-legal, self-referential process of creating books of authority can therefore be observed even today. 135 This process significantly reduces the complexity of the law: instead of researching all relevant arguments and weighing their mutual force, a judge may simply rely on the opinion of one or two authoritative authors. Now, in German law, the most influential form of doctrinal writing is the commentary; 136 and among those commentaries to the civil code, the best established is the Palandt (Figure 2). In many courts it is the only commentary of which every judge has a copy on his or her desk; nearly every lawyer owns a volume of this book (about 50,000 copies are sold annually) and in most federal states (Länder), it is officially admitted as an aid in the Second Staatsexamen (state exam). (p.122)

(p.123)

                      The Making of Legal Authority

Figure 2. A German commentary (Palandt)

Many factors contribute to this extraordinary authority. Originally, it was backed by the national socialist government that introduced the Palandt as a means of adapting the law to its policies; later, the Palandt derived its authority self-referentially from the fact that it was treated as authority by the legal profession. 137 What is more, the Palandt has always met the expectations of practising lawyers: it is up to date (a new edition is released every year); it is well-structured; its opinions are closely related to the actual practice of the courts; and it succeeds in compressing a huge mass of easily accessible information into one single volume. Thus, the authority of the Palandt must primarily be attributed to its functional formal quality. Indeed, among its characteristics, the brevity is most remarkable: the Palandt even introduced an elaborate system of abbreviations for most technical and many everyday words (see Figure 2, §556 [1]). These abbreviations significantly reduce the printing space.

Notably, however, the Palandt includes—in bold letters, like most modern commentaries—the wording of the legislation to which the commentary relates (see Figure 2). This inclusion of the BGB’s text contributes to the text’s overall length by about 10 per cent. It deserves special attention, because there is probably no practical need for this space-consuming reprint. German civil lawyers usually have a separate version of the BGB at hand when they use the Palandt; many lawyers even prefer looking at this text, because it is only there that they can see a provision in its systematic context. Indeed, reprinting the reference text has not always been a common practice of legal commentaries, as it is today. The ius commune commentators to the Digest did not reprint their Roman legislative sources; 138 neither did the German and Swiss authors commenting on the legislative codifications during much of the 19th century, 139 nor the early commentators on the French Code (p.124) civil. 140 And when the modern practice began to prevail at the end of the 19th century, it was, for a long time, unusual to underline the codification’s text with bold print. 141 Indeed, such a typological format was not adopted by the German commentaries during the first decades of the 20th century, either. 142

What is more, the Palandt does not abbreviate the legislative text of the BGB. In contrast to the commentary’s explanatory remarks, the legislator’s words are thus presented as sacrosanct against mundane, practical needs. As a result, the Palandt’s doctrinal comments—i.e. the texts that are really read by the lawyer—are presented as less important than the legislation from which they claim to derive their authority, and they are written in the form of explanatory descriptions of the law. Typically, the comments are related to individual legal requirements and to the terms of the BGB’s provisions; hence, they present themselves as interpretations or clarifications of the BGB’s wording. Again, the commentary presents itself as an exegetical explanation of an eminent text; this reveals a striking similarity with the standard glosses.

Thereby, the commentary constructs again, by typological means, a sharp institutional separation between the law and its scholarly (p.125) description. Of course, most German lawyers are today aware of the fact that their private law is much more than comes only from a codification and interpretative method. During the 20th century, large parts of the law have been fundamentally changed as a result of legal developments initiated by the practical lawyers, courts, and legal scholars. Indeed, large parts of the law cannot be found at all in the BGB or other legislation; rather, there are thick layers of praetorian law specifying, fleshing out, and even correcting the codes’ provisions. 143 Of course, these judgments must be included within the academic commentaries; otherwise a commentary would be without much practical value. But typographically, the commentaries nevertheless maintain and thus institutionalize the traditional separation of legal scholarship and judicial decisions on the one hand and the law on the other hand. 144 Accordingly, judgments are presented not as sources of new law, but rather as authoritative interpretations of legislation. Again, formal means are used, successfully, for creating and maintaining legal authority. Indeed, the normative legal statements, which are collected in the comments, would be without practical value or legal authority if they could not be treated as interpretations of the law. Thus, their typographical presentation as interpretative explanations helps in establishing their legitimacy and authority. True, the formal presentation may no longer be the most decisive factor in the case of a well-established commentary, such as the Palandt, which recommends itself with its functional quality, and whose authority is simply taken for granted by most German lawyers. Nevertheless, the significance of this factor should not be underestimated: the formal presentation of this commentary cannot be explained with functional aspects alone.

Modern lawyers might perhaps be inclined to disqualify such use of form to create authority or legitimacy as being manipulative and illegitimate. Legal authority should be the result of democratic, open, and transparent procedures, on the one hand, and of convincing legal argument on the other. It should not be created by means which are beyond (p.126) democratic or judicial control. It is doubtful, though, whether such a critique fully appreciates and fairly assesses the function of such mechanisms in the law. 145 Indeed, all these mechanisms can also be understood as means of protecting the integrity of the legal process. Thus, even if the declaratory theory of legal argument and judicial decision making, as expressed in the standard glosses and likewise in modern commentaries, like the Palandt, may be denounced as a fiction, this fiction has an important institutional function. It works as a device for controlling the legal profession: it prevents lawyers from taking full control of the legal system and arbitrarily and illegitimately developing the law. Indeed, the form of the standard glosses and the Palandt clearly confines the interpretative ‘freedom’ of scholars by forcing them to present their propositions about the law in the form of interpretations of legislation, specifically related to the exact wording of the authoritative provisions. In such a presentation, gross deviations from the legislative text are normally implausible; they are difficult to justify and will usually remain exceptional. Thus, the institutional form of the standard glosses and the Palandt protects the integrity of the authoritative texts: while adding to the authority of scholarly writing, it limits its influence. In modern terms, the authority of the Palandt depends on the commentary’s remaining responsive to the political process.

(c) Restatements of the law

All these observations help to understand the authority of non-legislative codifications as well. Indeed, the Restatements have been interpreted as part of the codification movement because of their formal similarities with European codifications. 146 More precisely, a restatement (Figure 3) very much resembles a codification as it is reprinted together with a scholarly comment; and the same is true for the PICC (Appendix, Figure 7): those texts present boldly printed authoritative rules, which are accompanied by explanatory Comments and Illustrations. In their formal presentation, the restatements thus replicate the civilian distinction of the legal rule and its academic comment: the rules are presented as authoritative in being the object of doctrinal explanation. (p.127)

(p.128)

                      The Making of Legal Authority

Figure 3. American Restatements of the Law of Contracts (First series)

Yet, although the authors of the first Restatements consciously chose this legislative form, 147 they apparently did not borrow it directly from the European codifications or commentaries. Rather, the immediate models were certain English textbooks, 148 and especially Albert Venn Dicey’s work on the conflicts of law (Figure 4). 149 This was a book which must be seen as a genuinely scholarly contribution to the English codification debate. 150 Dicey wanted to show that the common law could be reconstructed as a systematic body of rules, and for this purpose he presented the law of conflicts in the ‘form of systematically arranged Rules and Exceptions, and each of these Rules and Exceptions is, when necessary, elucidated by comment and illustrations.’ 151 Dicey, who was probably inspired by some earlier textbooks also using rules to present the law in an orderly form, 152 had developed his own, rather specific format in his treatise on the Selection of Parties (1870); he had further refined it in his subsequent treatises on the Law of Domicil (1879) and on the Conflict of Laws (1896). Although Dicey found some followers, who again slightly modified his approach, though, 153 his form of presenting doctrinal knowledge remained exceptional. (p.129)

(p.130)

                      The Making of Legal Authority

Figure 4. Dicey, Conflict of Laws

Remarkably, the Restatements (First) were not drafted as a formal copy of Dicey’s work; they modified Dicey’s presentation in important respects. It is worth looking at these modifications more closely, because they help in better understanding the ideas underlying the restatements’ form. Dicey’s motive for representing the law in the form of commented rules was not to add authority to his work. Rather, he had chosen his method primarily for the practical consideration of making the law more easily accessible:

The practical advantage of the arrangement pursued in this treatise is, that it enables the reader to see at a glance what the rule of law is, whilst it frees him from the necessity of collecting the principle for which he is in search from the decisions or statutes in which it is embodied; and that it further puts it in his power to refer with great readiness to the subject on which he may desire to be informed. 154

Moreover, Dicey wanted to show that the seemingly complex and untidy common law could be reduced to a system of relatively few principles:

An advantage of a more speculative nature is that this arrangement … makes, it is hoped, apparent the fact that this somewhat complicated and intricate branch of the law, [sic] depends on and is the expression of a few simple principles. 155

This, Dicey assumed, was necessary for showing that a codification of the common law was feasible and useful:

The law … is … reduced into a series of definite rules, which being based on statutory enactments, decided cases, or inferences drawn from authoritative dicta or admitted principles, constitute, insofar as my work has been successfully performed, a code of what may be termed the English law … 156

Thus, Dicey’s primary intention was to present the overly complex common law as an orderly and easily accessible system; his choice of form was based on this intention.

(p.131) Now, in accordance with this rather scholarly purpose, most of his treatise consists of an analysis of common law authorities that Dicey showed to support the rules in question. There is a great deal of text in relation to the rules and the text is full of references to authorities. What is more, although the rules were separated from the comments, they were not set in bold letters: Dicey was exclusively concerned about clarity; his rules were not meant to bear particular legislation-like dignity. And, perhaps most significantly, Dicey even added question marks where he felt that the rule in question was not supported with sufficient authority. 157 Thus, although Dicey used the form of normative, prescriptive rules, his treatises were clearly meant to be genuinely descriptive in approach. In effect, his rules were prescriptive in a descriptive sense. There was no doubt that Dicey’s work was methodically based on the assumption of an institutional distinction between the law and its scholarly description. His rules were based on external authority and supported by legal argument.

Compared with this approach, the Restatements’ (First) formal presentation is much more ambiguous. On the one hand, the Restatements (First) were clearly meant to represent the law, as it stood and was applied by the courts. Therefore, their claim to authority was of non-political, derivative nature, as well. On the other hand, however, the formal meaning of these Restatements has never been purely descriptive, either. Indeed, whereas the original Report of the Committee of 35 had considered, in accordance with Dicey’s descriptive method, a ‘complete citation of authorities, decisions, treatises and articles’, 158 nothing like this can be found in the actual Restatements (First), because ‘(i)t seemed that the Restatement would be more likely to achieve an authority of its own … if exact rules were clearly stated without argument’. 159 Lex iubeat, non disputet.

Remarkably, similar observations can be made in the case of the PICC. Like the American Restatements, these principles do not (p.132) normally offer reasons for the position taken, but merely provide Comments that are meant to explain the provisions’ meaning. Indeed, the official Comments ‘systematically refrain from referring to national laws in order to explain the origin and rationale of the solution retained’. 160 Here the purpose is that the Rules shall not be presented as a—probably wrong—description of a common core of the world’s different legal systems. Rather, the PICC shall constructively contribute to the creation of a transnational body of private law; the Principles’ formal presentation was specifically designed with regard to this purpose. 161 Academic commentators have criticized this approach for its lack of information and scholarly qualities. 162 But the purpose of such restatements consists in establishing legal authority rather than in providing lawyers with comparative information or legal argument.

In accordance with the intention of making legal authority, the American Restatements contained (of course) no question marks where the law was disputed, and the Rules were printed in bold letters. What is more, the Restatements were not published like an ordinary book, but rather ‘promulgated’ by the American Law Institute 163 as if they were an act of legislation. Hence, the formal meaning of the Rule-Comment separation appears much more as a replication of the civilian separation of the legal rule and its academic explanation than had been the case in the work of Dicey. Similar observations hold again for the PICC, which are printed in (very) bold letters, as well. Clearly, these Rules are of greater weight, or dignity, than the Comments and Illustrations which are written (p.133) as explanations, rather than as justifications, of the black-letter Rules. 164 Even if the PICC were not ‘promulgated’ by UNIDROIT, the Institute officially ‘authorised their publication’, although it could not formally approve them. 165 Thereby, the meaning of the Restatements’ and PICC’s formal presentation was strongly influenced by the fact that they were published not as the work of a single author, but rather as the result of complex decision procedures within an authoritative organization that represented the legal profession as a whole or, in the case of UNIDROIT, the transnational legal community. Indeed, it makes a huge difference whether a scholar, like Dicey, presented a rule as his individual academic view of how the law should be reconstructed or whether a rule is presented as the collective conviction of the legal community or as an official statement of an international organization.

All in all, by using a normative, prescriptive language for their Rules and by presenting them in the form of legislation, the American Law Institute and UNIDROIT implicitly staged their Rules as authoritative statements of the law. Yet, these Institutes did not make an obviously illegitimate claim of making the law: the Rules were published under the well-chosen title of a ‘Restatement’ of the common or transnational law, rather than as the result of quasi-legislative decision making. In this way the formal and conceptual presentation of the Restatements (First) and the PICC blurred the difference between a descriptive representation (‘restatement’) of rules actually in force and a prescriptive statement of legislation. 166 Thus, they consciously ignored, or rather transgressed, (p.134) the traditional European institutional distinction between the law and its description. The Rules were presented neither as a description of the courts’ practice, nor as a legislative command, but rather as an authoritative expression of the legal profession’s considered view of the law. This resulting ambiguity in formal meaning made it possible for the legal profession to accept the Restatements and the PICC as authoritative statements of the law without, however, inappropriately treating them as legislation. If the authority of the Restatements’ second and especially third series is indeed in decline these days, this is probably not least due to the fact that—in order to justify more innovative rules—the Restatements have increasingly complemented the statement and explanation of the Rules with legal argument and references to legal authorities. 167 Thus, these more recent Restatements present themselves increasingly as a proposal of a new rule to be accepted by the legal profession, rather than as a statement of the law. Yet, such argument will always be contested.

Interestingly, these observations are confirmed by a view on the PECL. The Lando Commission has always understood and presented its Rules as an outcome of scholarly, comparative research and as a proposal for future legislation, rather than as a system of authoritative rules that would be applicable as such. 168 Hence, the Rules are not printed in bold letters, but, more modestly, in italics. And, most importantly, the Comments and Illustrations are always followed by Notes providing a comparative overview and justification of the Rule (see Appendix, Figure 6). Thus, the PECL clearly acknowledge the institutional difference between the description and the authoritative statement of the law (indeed, the Notes often (p.135) prove the PECL’s claim of adequately restating European private law to be unfounded or questionable). 169 The relatively weak authority of the PECL (as compared with the PICC and the American Restatements) may find further explanation in this observation, and the concern of some observers that the PICC might not be fully accepted because of their lack of argument and reference 170 has proved unjustified.

Of course, it may be doubted whether blurring the difference between the representation of rules actually in force and a prescriptive statement of legislation is an acceptable and legitimate means of establishing legal authority. However, the American Law Institute’s Restatements would never have been understood—nor even accepted—as authoritative statements of the law, had the Institute not been regarded by the legal profession as an institution which was legitimized to make authoritative statements on American law. In this sense, the Institute was apparently seen as legitimately representing the elite of the American legal profession. It was therefore accepted as an institution which was vested with some kind of (weak) legislative authority. 171 Thus, the formal blurring of the difference between the representation and description of legal rules must be seen as an expression of a claim to a specific type of authority which had to be justified on the basis of reputation, representation, and procedure. This was, of course, not even close to democratic legitimacy. But the creation of legitimacy and authority by the American Law Institute was not based on illegitimate manipulation, either.

The same is apparently true for the PICC. As an institution, the UNIDROIT-Institute was certainly legitimized to take steps to unify private law and to create a transnational legal system. Of course, it may be doubted whether it was legitimate to do so by (p.136) procedural and formal means, which had not been provided for in the Institute’s Statute. 172 But again, the formal presentation should be seen as an expression of the claim to formulate authoritative legal standards, which has to be justified on the basis of the Institute’s reputation 173 and the perceived legitimacy (rather than substantial quality) of its Rules. And it is remarkable that the institutional distinction between the law and its description has quickly been re-established by (mostly European) legal scholars, when they treated the PICC as a reference text for an academic commentary. 174

III. Some Results

Form proves to be much more than a pragmatic, functional device of making the law easily accessible. The formal presentation of a text has an important graphical aspect that may transport meaning. Thus, the formal presentation of a non-legislative reference text may symbolize some kind of institutional authority; it can thus be used as a means of creating or adding to its authority. This is not only true for scholarly work, such as the medieval standard glosses and a modern commentary to a civil code, but also for non-legislative codifications. The authority of the American Restatements of the Law (First) and also of the PICC was established not only by authorship and procedure, but to a significant degree also by an intelligent choice of form. The formal fiction of legitimate legislation and the transgression of the traditional separation of the law and its scholarly description helped in establishing legal authority.

At the same time, a comparative view makes apparent that there is not a standard set of formal means creating legal authority. The adequate form depends always on its authors and addressees and on the relevant legal, social, cultural, and political context. Thus, while the medieval standard glosses and the modern commentaries typographically constructed and maintained the institutional distinction between the law and its description, on which the authority of (p.137) scholarly commentaries depends, this very distinction had to be blurred by the Restatements (First) and by the PICC. The American Law Institute’s and UNIDROIT’s claim to re-state the law authoritatively was based on an ambiguity of describing and prescribing the law; and this ambiguity was again created by means of formal presentation. However, this strategy would not have worked if these Institutes had not been regarded as organizations which legitimately represented the American legal profession or, respectively, the international community of global contract lawyers. Furthermore, the Restatements would not have been accepted by a legal profession which did not in its majority highly esteem the formal values of clarity and precision, 175 and which did not believe in the existence of one common national common law. 176 Similarly, the PICC would have been less successful in arbitrational practice if there had not been an evident lack of systematic reference texts for a growing body of transnational commercial contract law.

It would therefore be a misunderstanding to assume that the different forms of non-legislative, professional authority, as described in Chapter 3-->, were functionally equivalent in that they could be used alternatively. The form of a legal instrument must always be designed for its purposes taking the existing legal and cultural background into account. Thus, whereas a legal commentary presupposes the existence of a rather comprehensive reference text, restatements provide a legal system with a new comprehensive textual authority. Such an instrument will be helpful only if the legal system indeed needs a new textual, statutory basis. Conversely, if a legal system is already based on well-established, though inconsistent, legislative authorities, as was the case in early Canon law and may be argued to be the case in Europe today, a compilation like the Decretum Gratiani might be a more appropriate form for re-ordering the law.

Notes:

(1) For the medieval ius commune, see Kantorowicz, ‘Kingship under the Impact of Scientific Jurisprudence’, 90 ff.; Görich, ‘Fragen zum Kontext der roncalischen Gesetze’, 318 ff.; for the modern ‘lex mercatoria’ Dezalay and Garth, Dealing in Virtue.

(2) Coing, ‘Europäische Privatrechtsgeschichte’, 7 ff.

(3) Above at 50 ff.

(4) Above at 28 ff.

(5) Above at 23 ff.

(6) Kessedjian, ‘La codification privée’, 142 f., comparing the PECL and the PICC with the American Restatements; cf. also, for the PECL, Hesselink, ‘Choices Made by the Lando Commission’, 126 f.

(7) Bonell, International Restatement, 11

(8) Cf. PICC-Commentary/Scherer, Preamble II [18]: ‘Arbitrators dislike working in a vacuum …’.

(9) Kroppenberg, ‘Mythos Kodifikation’

(10) Calasso, ‘diritto comune’, 49 f., 66 f. and passim; Koschaker, Europa und das römische Recht, 69 ff.; Kantorowicz, ‘Kingship under the Impact of Scientific Jurisprudence’, 100 ff. But see Fögen, ‘Römisches Recht und Rombilder’, 59 ff., 82: ‘… dieses Recht brauchte kein Rom (this law did not need Rome)’.

(11) Above at 26 f.

(12) Windscheid, ‘Das römische Recht in Deutschland’, 48: ‘Dom nationaler Herrlichkeit’. The historical literature on this point is extensive; see, among others, Wieacker, ‘Der Kampf um die Nationalgesetzbücher’, 84 ff.; Dölemeier, ‘Kodifikationsbewegung’, 1421, 1427, 1564, 1575, 1602; Jansen, Binnenmarkt, 19 f.

(13) Cf. Eisenberg, ‘Concept of National Law’, 1237 ff.; Rheinstein, ‘Leader Groups’, 691 ff.

(14) Eisenberg, ‘Concept of National Law’, 1242 (and f.). Cf. also Metzger, Extra legem, intra ius, 146 f., emphasizing in this context the strong influence of federal constitutional law on private law.

(15) See Fauvarque-Cosson, ‘Faut-il un Code civil européen?’, 471; Lurga, Vereinheitlichung des Vertragsrechts, 128 f.; Jansen, Binnenmarkt, 20 f., with further references.

(16) Smits, ‘PECL and the Harmonisation of Private Law in Europe’, 584and

(17) Cf. the PICC, Preamble (3); Berger, ‘UNIDROIT Principles and the new lex mercatoria; more references in PICC-Commentary/Michaels, Preamble I [64] f. Thus, in 1995, when the PICC had just appeared, the Institute of International Business Law and Practice organized a conference on the topic ‘UNIDROIT Principles for International Commercial Contracts: A New Lex Mercatoria?’: Institute of International Business Law and Practice (ed.), A New Lex Mercatoria?, 1995. But see now Bonell, International Restatement, 208 ff.; Michaels, loc. cit. [9].

(18) Friedman, History, 65 ff.

(19) Above at 46 f.

(20) See von Savigny, Vom Beruf unserer Zeit, 136, 161: ‘wir wollen … Gemeinschaft der Nation und Concentration ihrer wissenschaftlichen Bestrebungen auf dasselbe Object. Für diesen Zweck verlangen sie (die Freunde eines Gesetzbuchs, N.J.) ein Gesetzbuch, was aber die gewünschte Einheit nur für die Hälfte von Deutschland hervorbringen, die andere Hälfte dagegen schärfer als vorher absondern würde. Ich sehe das rechte Mittel in einer organisch fortschreitenden Rechtswissenschaft, die der ganzen Nation gemein seyn kann’; cf. also id., Landrechtsvorlesung 1824 I, 10 f.; Puchta, Cursus der Institutionen I, 23, 27: ‘So entspricht dem deutschen Volk ein deutsches Recht, wie eine deutsche Sprache, als Eigenthum aller Stämme und Zweige, in die es sich theilt. … wenn die nationale Einheit mächtig genug ist, wird es ihr … gelingen, die zufällige politische Trennung zu überwinden’. Cf. Haferkamp, ‘Science’, 254.

(21) Kilbourne, Jr., History of the Louisiana Civil Code, 108 ff.

(22) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’.

(23) Snyder, ‘Private Lawmaking’, 434.

(24) Frank, ‘Law Institute’, 615 ff.

(25) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 29.

(26) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 30 ff.

(27) Hull, ‘Restatement and Reform’.

(28) Hull, ‘Restatement and Reform’, 86.

(29) Besides Taft, e.g. John W. Davis, a Solicitor General of the United States, U.S. Ambassador to the UK and Democratic Party nominee for President in 1924.

(30) Thus, George W. Wickersham, the Institute’s first President, had been Attorney General under President Taft, and Elihu Root, the Honorary President of the Institute, had served as the Secretary of the State under President Roosevelt.

(31) Holmes, Letter to Harold Laski, 15 February 1923, in: Holmes-Laski Letters I, 481 f.

(32) Frank, ‘Law Institute’, 617 ff., 625 ffloc. cit.http://www.ali.org/index.cfm?fuseaction=about.membership

(33) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 48 ff.

(34) Frank, ‘Law Institute’, 620

(35) Zekoll, ‘Law Institute’, 109 ff.

(36) Frank, ‘Law Institute’, 628 ff.; Zekoll, ‘Law Institute’, 117 ff.

(37) See, among others, Rawls, Theory of Justice, 74 ff., 104, 173f.; Habermas, Faktizität und Geltung, 151 ff., 187 ff., 367 ff. and passim.

(38) Kessedjian, ‘Un exercice de rénovation des sources du droit’, 643, 646 f.imprimatur55

(39) In actual legal practice today, the PICC are usually seen as an official legal product of UNIDROIT; cf. Marella, ‘Choice of Law in Third-Millennium Arbitrations’, 1141; Brödermann, ‘The Growing Importance of the UNIDROIT Principles’, 757; Basedow, ‘Die UNIDROIT-Prinzipien’, 1: ‘Im Mai 1994 hat der Governing Council von UNIDROIT die UNIDROIT-Prinzipien … angenommen …’; similarly id., ‘Uniform Law Conventions and the UNIDROIT Principles’, 129.

(40) PICC-Commentary/Vogenauer, Introduction [18], [24].

(41) Bonell, International Restatement, 41PICC-Commentary

(43) Lando, ‘Preface’, xii f.

(44) Study Group ECC/von Bar, Benevolent Intervention, vii f.

(45) Dannemann, ‘Introduction’, xxvi.

(46) Study Group ECC/von Bar, Benevolent Intervention, vii f.; Dannemann, ‘Introduction’, xxv ff. The smaller Lando Commission has apparently worked on a more discursive, consensual basis.

(47) Commission (EC), ‘European Contract Law and the Revision of the Acquis: the way forward’, COM(2004) 651 final, 11 October 2004, at 3.1.2 and 3.2.3; Commission (EC), ‘First Annual Progress Report on European Contract Law and the Acquis Review’, COM(2005) 456 final, 23 September 2005, passim; Staudenmayer, ‘Weitere Schritte im Europäischen Vertragsrecht’, 104; cf. also Dannemann, ‘Introduction’, xxvii.

(48) For a critique, see von Bar and Schulte-Nölke, ‘Gemeinsamer Referenzrahmen’, 166 ff.; Schmidt-Kessel, ‘Auf dem Weg zum Gemeinsamen Referenzrahmen’, 6 f.; Jansen, ‘Traditionsbegründung’, 544 with further references.

(49) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 54 f.; Frank, ‘Law Institute’, 618 f.: ‘whenever possible … the foremost legal scholar in the country on the topic’; Zekoll, ‘Law Institute’, 109.

(50) Frank, ‘Law Institute’, 620; Zekoll, ‘Law Institute’, 110.

(51) See Inst. Const. Imperatoriam, 3, 6.

(52) See D. Const. Tanta, 13, 19, 21, 23 f.

(53) See above at 32, n. 114.

(54) Above at 31 ff.

(55) PICC-Commentary/Vogenauer, Introduction [14]; Bonell, International Restatement, 29 f., 33 ff., 36 f., 40 f., 43 f.; cf. also Kessedjian, ‘Un exercice de rénovation des sources du droit’, 644 f. Contrast the more reluctant presentation by Lando, ‘Preface’, xii f.

(57) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 20.

(58) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 15.

(59) Bonell, International Restatement, 61.

(60) Bonell, International Restatement, ix, 23, 62 ff.

(61) See for all ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 19 f.

(62) The Lando Commission, however, has not set its Rules in bold letters, but rather in italics.

(63) Williston, ‘The Restatement of Contracts’, 777

(64) Frank, ‘Law Institute’, 621

(65) Governing Council of UNIDROIT, ‘Introduction to the 1994 Edition’, xv

(66) Cf., with regard to judicial decisions, Postema, ‘Philosophy of the Common Law’, 592 ff., 601 ff. Other authors, however, have argued that the authority of judicial decisions does not, and should not, depend on the persuasiveness of arguments alone; cf. Alexander and Sherwin, ‘Judges as Rule Makers’. However, the force of arguments given will often determine the weight of precedents, even in systems that acknowledge a formal rule of precedent.

(67) Habermas, ‘Wahrheitstheorien’, especially 161

(68) But see PICC-Commentary/Vogenauer, Introduction [23]; PICC-Commentary/Michaels, Preamble I [6].

(69) Kroppenberg, ‘Der gescheiterte Codex’, 117

(70) Summers, Form and Function, 7, 24 ff

(71) Kötz, Europäisches Vertragsrecht I, 118 ff.

(72) Bonell, International Restatement, 61 ff.

(73) Oesterreicher, ‘Autorität der Form’et alAutorität der Form

(74) Above at 60 ff.

(75) Above at 71 ff.

(76) Zimmermann, ‘Comparative Law and the Europeanization of Private Law’, 542 f., 563 f.

(77) Zimmermann and Whittaker, Good Faith; Gordley, Enforceability of Promises; Bussani and Palmer, Pure Economic Loss; Werro and Palmer, Boundaries of Strict Liability; Kieninger et al., Security Rights in Movable Property; Sefton-Green, Mistake, Fraud and Duties to Inform; Graziadei et al., Commercial Trusts; Pozzo, Property and Environment; Möllers and Heinemann, The Enforcement of Competition Law.

(78) In this respect I rely on personal information by Mauro Bussani, one of the two co-directors of the Common-Core Group.

(79) PICC-Commentary/Michaels, Preamble I [3] f., [70], [101], [112].

(80) Thus, a representative sample of the Federal Supreme Court’s judgments (taken from vols. 5, 25, 45, 65, 85, 105, 125, 145, and 165) showed 1,574 references to commentaries, but only 318 to monographs (including PhD theses). Of these monographs, most are cited in areas of the law for which no commentaries existed, or in cases where the court discusses an old and strong line of criticism against its jurisprudence. In such a case, especially, where such criticism ultimately results in a deviation from former case law, the court apparently wishes to present the opinion of the academic profession as a whole; therefore it often refers to more than 20 monographs and articles for one single argument. Furthermore, references to articles in journals mostly concern actual questions (838 out of 1,404 citations altogether), which were not then settled in the commentaries. Details of this analysis are on file with the author.

(81) Summers, Form and Function, 6 ff., 40 ff., 47 ff., 77 ff.

(82) Summers, Form and Function, 15, 21, 138 ff., 143 ff., 155 ff., 161 ff., 190 ff.; Lötscher, ‘Gesetze als Texte’, 189 ff., 195 ff.

(83) Summers, Form and Function, 320 ff.

(84) Codex TheodosianusKroppenberg, ‘Der gescheiterte Codex’, 118 ff

(85) Helmholz, Classical Canon Law, 7 f.

(86) Above at 106.

(87) Cf. Flume, ‘Vom Beruf unserer Zeit für Gesetzgebung’, 1429: a provision which was incoherently placed into the codification, should be treated as non-existent (‘pro non scripto’); Ernst, ‘Gelehrtes Recht’, 32; Lübbe-Wolf, ‘Expropriation der Jurisprudenz?’, 288; Fleischer, ‘Gesellschafts- und Kapitalmarktrecht’, 62. Conversely, a convincing, widely accepted doctrinal foundation for legislation may add to its authority; cf. Behrends, ‘Bündnis zwischen Gesetz und Dogmatik’, 9, 24 and passim; Herberger, ‘Rangstufen der Rechtsdogmatik’, 77 ff.

(88) Above 29 ff., 41 f., 96 f.

(89) See MacCormick, Institutions of Law, 22 ff., 33 ff.; Tamanaha, General Jurisprudence, 137 ff.

(90) Rehberg, ‘Institutionen als symbolische Ordnungen’, 58 ff.

(91) Summers, Form and Function, 18 f.; cf. also Luhmann, ‘Geltung des Rechts’, 278 and ff., describing the law’s validity as a symbol of the legal system’s unity.

(92) Dulckeit, ‘Lehre vom Rechtsgeschäft’, 160 ff.

(93) For discussion, see Zimmermann, The Law of Obligations, 82 ff.; Oestmann, ‘Zwillingsschwester der Freiheit’, 24 ff., both with further references.

(94) Rehberg, ‘Institutionen als symbolische Ordnungen’, 62 ff.

(95) Patzelt, ‘Symbolizität und Stabilität’.

(96) Oberreuter, ‘Institution und Inszenierung’; Patzelt, ‘Symbolizität und Stabilität’, 624 ff.

(97) Gebhardt, ‘Verfassung und Symbolizität’.

(98) Althoff, Macht der Rituale, 85 ff., 173 ff.

(99) The Washington Post, 21 January 2009, p. A01Süddeutsche Zeitung

(100) Althoff, Macht der Rituale, 92.

(101) Kohl, Erinnerungen, 1990–1994, 172 ff.; Frankfurter Allgemeine Zeitung, 18 July 1990, p. 3: ‘Ein Gefühl, als könnte man Berge versetzen’; Süddeutsche Zeitung, 18 July 1990, p. 3: ‘Das gewaltige Gefühl der Erleichterung’.

(102) Stollberg-Rilinger, ‘Würde des Gerichts’, 192 ff., 201 ff.

(103) See BVerfGE 28, 21 ff. on the constitutionality of a duty to wear a gown; more recently, on the question of whether there is a duty to wear a white tie under the gown (only the duty of wearing a gown is mentioned in § 20 Rechtsanwalts-Berufsordnung) OLG Braunschweig, (1995) NJW 2113 f. (27 April 1995); VG Berlin, (2007) NJW 793 f. (19 July 2006): statutory duties to wear such a tie in Lower Saxony viz. Berlin; OLG München, (2006) NJW 3079 f. (14 July 2006): customary duty to wear such a tie in Bavaria; cf. also LG Mannheim, 4 Qs 52/08 (27 January 2009), all decisions with further references.

(104) See already above at 22 (Standard Gloss to the Decretum), 25 (Buch’s Gloss to the Saxon Mirror), 37 (Standard Gloss to the Corpus iuris civilis).

(105) Accursius did not present a complete picture of his predecessors’ and contemporaries’ discussions. In large parts his Gloss was an improved version of the earlier apparatus of Johannes Bassianus and Azo; thus, it was a summary of one specific legal school. Glosses, written elsewhere, were only exceptionally included; see Jakobs, Magna Glossa, 283 ff. and passim, with further references.

(106) Jansen, ‘Das gelehrte Recht’, 161 ff., with further references

(107) Cf. Wieacker, Privatrechtsgeschichte, 97-203; cf. especially 131 f., 151 f., 190 ff. See also Dilcher, ‘Verrechtlichung der Lebensbeziehungen’, 96 ff., with further references on this theory, which may be traced back to the writings of Max Weber.

(108) This peculiarity of doctrinal propositions can already be observed in Roman law, where the doctrinal language of the Digest and the Institutes was largely descriptive, as well. The reason here, however, was not that legal science was understood as exegetic in nature: in fact, exegetic arguments are rare in the Digest. The reason was rather that the Roman iurisconsulti understood their profession as describing the prerequisites of actions that had been laid down in authoritative texts, such as the edict. Thus, it was the reification of legal entities which allowed for a descriptive and thus rational approach to the law.

(109) See above at 90.

(110) Blackstone, Commentaries I, 69 f.

(111) von Savigny, System I, 13 ff., 45 ff., 83 ff.; see also Windscheid, Pandektenrecht I, 50 ff. (§ 20). For an analysis of the basic ideas of those authors, see Brockmöller, Entstehung der Rechtstheorie, 89 ff., 91, 93, 108 ff.

(112) Dworkin, Taking Rights Seriously, 81 ff.

(113) Canaris, Systemdenken und Systembegriff, 67 ff.

(114) Blackstone’s Commentaries (vol. I, 4 f. and passim)

(115) Gottfried von Auxerre, ‘De condemnatione errorum Gilberti Porretani’, 587, 589

(116) Ottonis Gesta Friderici I. imperatoris, libcap.Jansen, ‘Das gelehrte Recht’, 160 f., with further references

(117) Mazal, Geschichte der Buchkultur 3/1, 213 f. Letters of divergent size are no invention of later book-printers. Hence, it is misleading to explain the specific typographical presentation of the printed standard glosses as a means of replacing colour in structuring the complex legal texts (see for such a thesis Röhl, ‘Bilder in gedruckten Rechtsbüchern’, 332). Indeed, all main aspects of the typographical organization of printed books were practised already in medieval handwritten books; see Raible, ‘Semiotik der Textgestalt’, 8 ff.; Chartier, Lesewelten, 34 f.

(118) Digest (Infortiatum), Italian manuscript, ca. 1270-80, Free Library of Philadelphia (Shelfmark: Lewis E 244), fol. 50 v.

(119) On the intellectual background and the developments of this practice, see Baldwin, The Scholastic Culture, 61, 72 ff.; cf. also, on the pre-Accursian glosses, Dolezalek, ‘Libri magistrorum’, with further references.

(120) The word ‘gloss’ or glossa derives from the Greek γλω˜̃̃α and originally means ‘explanation of a word or phrase which is difficult to understand’.

(121) Cf. Smalley, ‘Glossa ordinaria’, 454; Graf Reventlow, Epochen der Bibelauslegung II, 149.

(122) See Schulz, Roman Legal Science, 183 f.; a more detailed discussion is found in id., Geschichte der römischen Rechtswissenschaft, 225 f., with a discussion also of non-legal commentaries.

(123) Glossa OrdinariaGibson, ‘The Glossed Bible’, ix.

(124) See Mazal, Geschichte der Buchkultur 3/1, 91 f.; Smalley, ‘Glossa ordinaria’, 453 f.

(125) See Wehle, Typographische Kultur, 119 ff., 168 ff.; Raible, ‘Semiotik der Textgestalt’. On antique lemmatic commentaries, which may be seen as predecessors of the medieval glosses, see Cancik, ‘Der Text als Bild’, 85 ff.

(126) Smalley, ‘Glossa ordinaria’, 452–456; Gibson, ‘The Glossed Bible’, viii; cf. also Mazal, Geschichte der Buchkultur 3/1, 91 f.; Graf Reventlow, Epochen der Bibelauslegung II, 147 ff., on the history of the Standard Gloss to the Bible. This presentation can no longer be found in modern editions; yet it can be seen in the marvellous first print of the Holy Scripture with its Gloss by the printer Adolph Rusch (Biblia Latina cum Glossa Ordinaria, Straßburg 1480 f.; see Appendix, Figure 5) and in many later editions until the 17th century; on all those editions, see Froehlich, ‘The Printed Gloss’.

(127) Smalley, ‘Glossa ordinaria’, 454

(128) See above at 17 f.

(129) Bellomo, L’Europa de diritto comune, 75 ff. / The Common Legal Past, 63 ff. Thus, for producing one volume of the Digestum vetus (ca. one third of the Digest), the skin of about 100 sheep was needed; and an experienced writer needed one year for copying the Roman text and another year for the accompanying Gloss; cf. Soetermeer, ‘Exemplar und Pecia’, 483.

(130) See above at 22.

(131) Kannowski, Buch’sche Glosse, 18 ff

(132) Kroeschell, ‘Rechtsaufzeichnung und Rechtswirklichkeit’, 379 f.

(133) Weimar, ‘Accursius’, 19.

(134) Kannowski, Buch’sche Glosse, 18 ff

(135) See above at 89 f.

(136) See above n. 80.

(137) Slapnicar, ‘Der Wilke, der später Palandt hieß’; cf. also Wrobel: ‘Otto Palandt zum Gedächtnis’, 8 ff., 14 f.; Barnert, ‘Von Station zu Station’, 59 f., 63 f., also on the person of Otto Palandt.

(138) This can already be seen in the early commentaries by Bartolus and Baldus; cf. later Brunnemann, Commentarius in Pandectas; Wesenbeck, Paratitla; Stryk, Usus Modernus; Voet, Commentarius ad Pandectas. However, some commentaries reprinted the text of the Institutes, yet they did not typologically emphasize the legislation’s authority; cf. Vinnius, Commentarius: Roman text reprinted in small, italic types.

(139) Cf. for Prussia Ludwig, Commentar zum allgemeinen Landrecht; Merckel, Commentar zum allgemeinen Landrecht; Bielitz, Praktischer Kommentar. For other parts of Germany Spangenberg, Commentar über den Code Napoleon; for Switzerland Schnell, Commentar über das Civilrecht des Kantons Bern.

(140) See Duranton, Cour de Droit Français; Toullier, Droit Civil Français; cf. also Troplong, Droit Civil. Troplong’s commentary reprinted the code’s text, yet the comments did not relate specifically to individual provisions but usually referred to a group of three to five provisions.

(141) In one of the first commentaries to a city’s local legislation, still in the times of the ius commune, David Mevius had reprinted the legislation in Germanic typeface, whereas the Latin translation was printed—in the same size as the commentary—in normal typeface: Commentarii in Jus Lubecense. During the 19th century, the codification’s text was usually printed in slightly larger or slightly spaced letters. Only the paragraph or article numbers were sometimes printed in large, bold letters, in order to structure the text visually; cf. for France, Marcade, Code Napoléon; Saint-Prix, Notes théoriques; for Germany, E. Siebenhaar, Commentar zu dem bürgerlichen Gesetzbuche für das Königreich Sachsen; Puchelt (ed.), Handelsgesetzbuch; Uebel, Civil-Prozeßordnung. For Switzerland, Ullmer, Gesetzbuche des Kantons Zürich. A bold printing underlining the legislative text’s status can be found rather early in Austria; cf. von Kirchstetter, Commentar zum Oesterreichischen Allgemeinen bürgerlichen Gesetzbuche; von Stubenrauch, Commentar zum österreichischen Allgemeinen bürgerlichen Gesetzbuche. Here, already Franz von Zeiller had reprinted the code’s wording in very large (though not bold) letters that added visual authority to the legislation; see von Zeiller, Commentar über das allgemeine bürgerliche Gesetzbuch.

(142) See Planck (ed.), Bürgerliches Gesetzbuch; J. v. Staudingers Kommentar; Oertmann, Schuldverhältnisse; Warneyer, Kommentar zum Bürgerlichen Gesetzbuch. All these commentaries maintained the typological format of the 19th century (above n. 141).

(143) HKK/ZimmermannZimmermann and Jansen, ‘Quieta Movere’, 287 ff., 296 ff.

(144) Zimmermann and Jansen, ‘Quieta Movere’, 302 ff.

(145) Cf. also, for the analysis of procedures, Stollberg-Rilinger, ‘Einleitung’.

(146) Crystal, ‘Restatement Movement’ 267 f

(147) Above at 105 f.

(148) Powell, Evidence; Hawkins, Wills (rules of construction of wills, rather than rules of the law: pp. iv f.); Underhill, Law of Torts. All those rather short books presented the law in the form of rules. None of them, however, used the terminology of Comments and Illustrations and structured the text as clearly as Dicey. Later authors using a similar format were Stephen, Evidence (Stephen used ‘Illustrations’, but no ‘Comments’ to explain his rules); id., Criminal Law (only few illustrations); Bower, Defamation; id., Misrepresentation.

(149) The model character of Dicey’s work has escaped the notice of most later observers; and it has only rarely been explicitly acknowledged by the fathers of the Restatements, too, most likely because the American Law Institute had been so critical of a textbook-like treatment of the law (above at 105). However, an exception is Cardozo, Growth of the Law, 7, who also pointed to the work of James Fitzjames Stephen on Evidence.

(150) A. Braun, ‘English codification debate’, at 3Digest of the Law of Evidenceloc. cit.

(151) Dicey, Conflict of Laws, vii

(152) See the works of Powell and Hawkins, above n. 148.

(153) See especially the treatises by Bower, Stephen and Underhill above n. 148.

(154) Dicey, Selection of parties, iv

(155) Dicey, Selection of parties, iv

(156) Dicey, Domicil, iv fEvidence150

(157) Dicey, Domicil, v

(158) ALI, ‘Report of the Committee Proposing the Establishment of an American Law Institute’, 22. Otherwise, it was feared, the legal profession would not have confidence in the result. Hence, there should be a ‘tangible proof of care’.

(159) Williston, ‘The Restatement of Contracts’, 777

(160) UNIDROIT, ‘Introduction to the 1994 Edition’, xv

(161) UNIDROIT, ‘Introduction to the 1994 Edition’, xvInternational Restatement

(162) PICC-CommentaryPICC-CommentaryMetzger, Extra legem, intra ius, 249 f

(163) See the title of the first Restatement: Restatements of the Law of Contracts as Adopted and Promulgated by the American Law Institute.

(164) A somewhat different impression is given by UNIDROIT. Here, authors often emphasize that ‘(t)he Comments are an integral part of the UNIDROIT Principles’ and that their function consists not only in explaining, but also in supplementing the rules: Bonell, International Restatement, 62; cf. also Furmston, ‘UNIDROIT Principles and International Commercial Arbitration’, 203. Yet, this does not really distinguish the PICC from the American Restatements. The black-letter rules remain the starting point of legal argument; they are clearly of greater importance than the Comments. Indeed, a ‘supplement’ is normally of lower significance than the primary rule; and the Working Group used to put disputed qualifications of the black-letter rule into the Comment (Furmston, loc. cit.). Thus, they were seen as of secondary significance, and they are apparently understood in this sense by the actual legal practice.

(165) See above at 69.

(166) Kelley, ‘Reform by Descriptive Theory’, especially 122 ff

(167) See on this development Hesselink, ‘Choices Made by the Lando Commission’, 77 ff.; Michaels, ‘Restatements’, at 2.

(168) This is so despite the strong wording of its first Art. 1:101(1) PECL: ‘These Principles are intended to be applied as general rules of contract law in the European Union’. Indeed, parties are merely ‘invited’ to incorporate the PECL into their contract, and the official comment emphasizes that those Principles ‘do not have the authority … of law’ (Art. 1:101 PECL, Comment A, C). In contrast, no such wording can be found in the Official Comment to the PICC’s Preamble. There is only a brief acknowledgment of this fact by the Governing Council of UNIDROIT in the ‘Introduction to the 1994 Edition’, xv, which is immediately qualified, though, by a claim for the Principles’ being of ‘persuasive authority’.

(169) Cf. only the Notes to Art. 1:201 PECL (on Good Faith and Fair Dealing); Notes 3 and 4 to Art. 2:101 PECL (Conditions for the Conclusion of a Contract), on the basic question of consideration and cause; the Notes to Art. 6:110 PECL (Stipulation in Favour of a Third Party) (these rules were, however, already outdated, with respect to English law, when the PECL were published in 2000); or the Notes to Art. 9:503 (Foreseeability [of loss]).

(170) Basedow, ‘Uniform Law Conventions and the UNIDROIT Principles’, 130 f

(171) See above at 54 f. and 132 f.

(172) See above 69 f. Further references on this discussion at 93, n. 55.

(173) On this claim, cf. Kronke, ‘A Bridge out of the Fortress’.

(174) Vogenauer and Kleinheisterkamp (eds), PICC-Commentary.

(175) Gilmore, Ages of American Law, 73 f

(176) Above at 97 f.