¹ Weber developed the links between legal evolution and social and economic development in several works. See, e.g., Weber, The Protestant Ethic and the Spirit of Capitalism; Weber, , Economy and Society (Roth, G. and Wittich, R. eds., 1968).Google Scholar Treatments of Weber's theories of law appear in Rheinstein, , Introduction to Max Weber on Law in Economy and Society, Rheinstein, M., ed., (Cambridge, Harvard U.P., 1954)Google Scholar and Bendix, R., Max Weber, An Intellectual Portrait (1962) 385–457.Google Scholar For a short account of Weber's thought on the relationship between law and economic development, see Trubeck, J. M., “Max Weber on Law and the Rise of Capitalism,” (1972) Wise. L. R. 720Google Scholar (hereinafter cited as Trubeck).

² This point is briefly developed in Trubeck, supra n. 1.

³ Scholars such as Harold Lasswell and Myres McDougal spawned a generation of policy scientists. See, e.g., Lasswell, & McDougal, , “Jurisprudence in a Policy Oriented Perspective,” (1967) 19 U. Fla. L. R. 486Google Scholar; McDougal, , “The Law School of the Future: From Legal Realism to Policy Science in the World Community,” (1947) 56 Yale L.J. 1345.CrossRefGoogle Scholar For an extensive bibliography of McDougal's works, some co-authored with Lasswell, which employ a policy-based approach, see (1975) 84 Yale L.J. 965–68.

⁴ Sometimes the preference is so strong that one senses that the author came to the legal materials with the intellectual scaffolding of a discipline other than law already in place and then mounted the legal evidence where it fit. Thus, for example, Robert Clark makes assumptions about legal evolution akin to those made by biologists about biological evolution and natural selection. (Clark, R., “The Interdisciplinary Study of Legal Evolution,” (1981) 90 Yale L.J. 1238CrossRefGoogle Scholar); Christopher Stone assumes that law may be examined from a linguistic perspective. (Stone, “From a Language Perspective,” (1981) 90 Yale L.J. 1149), and Anthony Kronman demonstrates the efficiency of specific performance doctrine in light of contemporary market practice without explaining how the doctrine acquired its contours centuries before a market practice was a meaningful idea. (Kronman, , “Specific Performance,” (1978) 45 U. Chi. L. R. 351CrossRefGoogle Scholar). Often the preference is slight. In any case, I do not think Watson means to denigrate scholarship heavily dependent upon another discipline: a constant diet of case law and doctrine alone can be oppressive, but it is indispensable. Watson himself has ventured into the precincts of social theory. See e.g., Watson, , Society and Legal Change (Edinburgh, Scottish Academic Press, 1977).Google Scholar The blending of legal evolution and insights from other disciplines represents an American trend, and appears to be gaining ground in England as well. Much of the scholarship is provocative in the extreme, probably more provocative than traditional doctrinal analysis; and there are reasons to believe that the incidence of what A. Leff calls “Law and” scholarship will accelerate. See Leff, , “Law and,” (1978) 87 Yale L.J. 989.CrossRefGoogle Scholar Given the declining enrollment in American university graduate departments and the country's shrinking commitment to them, students who might otherwise have been historians and social scientists flock to law schools to learn a trade, hoping that they will eventually have an opportunity to do law and the discipline of their choice. A casual glance at the Index to Legal Periodicals reveals an avalanche of studies concerning the interrelationship between legal change and the socio-economic context. In the leading edge of the movement must be counted Horwitz, M., The Transformation of American Law (Cambridge, Harvard U.P., 1977)Google Scholar; Friedman, L., A History of American Law (1973).Google Scholar A superb English study of the evolution of contractual liability in its intellectual and social context is Atiyah, P. S., The Rise and Fall of Freedom of Contract (Oxford, Clarendon Press, 1979)Google Scholar; and entire journals are dedicated to the “scientific” analysis of law in terms of various social sciences, such as economics. See, e.g., The Journal of Legal Studies, edited by Richard A. Posner, who declares in the manifesto of the journal he founded: “The aim of the Journal is to encourage the application of scientific methods in the study of the legal system. As biology is to a living system, astronomy to the stars, or economics to the price system, so should legal studies be to the legal system: an endeavor to make precise, objective and systematic observations of how the legal system operates in fact and to discover and explain the recurrent patterns in the observations—the ‘laws’ of the system.” (1972) 1 J. Legal Stud. 437. Of course, The Journal of Legal Studies may be consulted for an economic analysis of virtually any legal topic.

⁵ Posner, , “The Present Situation in Legal Scholarship,” (1981) 90 Yale L.J. 1113, 1129.CrossRefGoogle Scholar

⁶ For extensive, but critical discussion of this school, really a first cousin to the Pandektenschule, see the Jurisprudence of Interests (ed. & trans, by Schock, M., 1948).Google Scholar The School of Begriffsjurisprudenz is also discussed briefly in Herman, , “Command versus Purpose: The Scylla and Charybdis of the Code Drafter,” (1972) 52 Tul. L. R. 115.Google Scholar

⁷ The Nazi courts' “flight into the general causes” is discussed in Dawson, , The Oracles of the Law (1968) 475–476Google Scholar (hereinafter cited as Dawson).

⁸ Arnaud, A. J., Les Origines Doctrinales du code civil français (1969)Google Scholar (hereinafter cited as Arnaud).

⁹ A General Survey of Continental Legal History (Boston, Little Brown, 1912) 411. (Cited hereafter as Survey.)

¹⁰ Lawson, F. H., A Common Lawyer Looks at the Civil Law (Ann Arbor, U. of Michigan Law School, 1953) 49.Google Scholar

¹¹ Zweigert, & Dietrich, , Problems of Codification (Stoljar, S. J. ed., 1977).Google Scholar

¹² Dawson, supra n. 7 at 263.

¹³ For discussion of the tortured path of the doctrine of lesion in French Civil Code, see Herman, , “Uses and Abuses of Roman Law Texts,” (1981) 29 Am. J. Comp. L. 671, 683CrossRefGoogle Scholar (hereinafter cited as Uses).

¹⁴ Nicholas, , An Introduction to Roman Law (Oxford, Clarendon Press, 1962) 158–59Google Scholar cited in Uses, supra n. 13 at 680.

¹⁵ While virtually everyone acknowledges Pothier's paternity, some scholars lament it. See, e.g. Dawson, supra n. 7 at 259. But the number of Pothier's admirers seems to be growing. See, e.g. Atiyah, The Rise and Fall of Freedom of Contract, op. cit. supra n. 4 at 399–400 and Simpson, , “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal Literature,” (1981) 48 U. Chi. L. R. 632, 667.CrossRefGoogle Scholar

¹⁶ Pothier, , Traité des Obligations (ed. Dupin, , 1835) 4Google Scholar cited in Uses, supra n. 13 at 681. (Author's translation).

¹⁷ The French drafters' adoption of this principle of transfer by bare consent is discussed in Uses, supra n. 13 at 682.

¹⁸ More information on the influence of Gaius' maxim upon the tripartite structure of the French Civil Code appears in Herman, & Hoskins, , “Perspective on Code Structure: Historical Experience, Modern Formats, and Policy Considerations,” (1980) 54 Tul. L. R. 987Google Scholar (hereinafter cited as Herman & Hoskins).

¹⁹ Fenet, I. P., Recueil Complet des Travaux Préparatoires du Code Civil (Paris, 1827) lxix, lxiiiGoogle Scholar (discussed in Herman & Hoskins, supra n. 18 at 992–993 (hereinafter cited as Fenet).

²⁰ Discussed in Herman & Hoskins, supra n. 18 at 1007.

²¹ Ray, J., Essai sur la structure logique du code civil français (1926) 208Google Scholar (author's trans.), cited in Herman & Hoskins, supra n. 18 at 993.

²² For these projets, see Fenet, supra n. 19. On the evolution of the French Civil Code from the first projet of Cambacérès (1793) through the second and third projets of Cambacérès (1794, 1796), the Projet Jacqueminot (1799) and the Projet of the Year VIII (1800), Watson's scholarship follows conventional wisdom. But this evolution is only part of the story: Rodolfo Batiza has recently discovered at least three other significant projets drafted before 1793 and he argues convincingly that “the failure to trace the influence of those projets has resulted in erroneous identification of both the sources and the structure or organization of the French Civil Code.” Batiza, , “Origins of Modern Codification of the Civil Law: The French Exprience and Its Implications for Louisiana Law,” (1982) 56 Tul. L. R. 477, at 481.Google Scholar

²³ 1 Maleville, J., Analyse Raisonée de la discussion du Code Civil au Conseil d'Etat, (Paris, 3rd ed., 1822) 2Google Scholar (hereinafter cited as Maleville). (Cited in Herman & Hoskins, supra n. 18 at 993).

²⁴ Id. at 2–3 (author's translation).

²⁵ Survey, supra n. 8 at 269.

²⁶ Arnaud, supra n. 7 at 147 (author's translaiton).

²⁷ Israel should be characterized as a “mixed jurisdiction” in which there is an inter-penetration of influences from civil law, common law, Jewish law, and other sources. This interpénétration is documented in Shalev and Herman, “A Source Study of Israel's Contract Codification,” (1975) 35 La. L. R. 1091. According to Tedeschi and Zemach “the contemporary Israeli example marks a movement toward the emigration of common law and its replacement in private law subject areas by autonomous comprehensive legislation formally similar to certain continental codes and substantively influenced by them.” Tedeschi, G. and Zemach, Y. S., “Codification and Case Law in Israel” (hereinafter cited as Tedeschi and Zemach) in The Role of Judicial Decisions and Doctrine in Civil Law and in Mixed Jurisdiction, Dainow, J. ed., (Baton Rouge, Louisiana State U.P., 1974) 273Google Scholar (hereinafter cited as Dainow). On the civilian nature of Israel's codification effort, see Tedeschi, , “The Law of Laws: Prolegomena to the Civil Code,” (1979) 14 Is. L. R. 145Google Scholar (hereinafter Tedeschi) and Barak, , “The Codification of the Civil Law in Israel,” (1973) 3 Iyunei Mishpat 5, 19–20.Google Scholar

²⁸ During the period of the Mandate, Art. 46 of the Palestine Order-in-Council (1922) required judical reference to “the substance of the common law and the doctrine of equity in force in England.” The Israeli legislature incorporated this provision as sec. 11 of the Law and Administration Ordinance (5708–1948) upon the establishment of the State of Israel. See generally, Tedeschi and Zemach, supra n. 27 at 273. This point is also discussed in Tedeschi, supra n. 27 at 152. Art. 46 was recently repealed and the law of the Foundations of Law, 1980, (S.H. 163) replaced it. See Yadin, U., “Is Codification an Outmoded Form of Legislation?” in Israeli Reports to the XI International Congress of Comparative Law (Jerusalem, 1982) 1 at 6Google Scholar and Yadin, U., “The Use of Comparative Law by the Legislator,” in Israeli Reports to the XI International Congress of Comparative Law (Jerusalem 1982) 10 at 16.Google Scholar Despite new efforts at codification, generally applauded by Prof. Yadin, the British influence, according to another of his studies, will endure. See U. Yadin, “Judicial Lawmaking in Israel,” in Dainow, supra n. 27 at 297.

²⁹ Llewellyn, K. N., Präjudizienrecht und Rechtssprechung in Amerika, translated in Dawson, , Comparative Law (1951) 194.Google Scholar

³⁰ Herman, , “Llewellyn the Civilian: Speculations on the Contribution of Continental Experience to the Uniform Commercial Code,” (1982) 56 Tul. L. R. 1125.Google Scholar

³¹ Rawidowicz, S., “On Interpretation,” in Studies in Jewish Thought (ed. Glatzer, N., 1974) 45, 46–47.Google Scholar