Article Volume 32:2

Persuasive Authority

Table of Contents

McGILL LAW JOURNAL

REVUE DE DROIT DE McGILL

Montreal

1987

Volume 32

No 2

Persuasive Authority

H. Patrick Glenn*

The concept of binding, national law is a re-
cent one, which has provoked fierce oppo-
sition in those countries (notably the United
Kingdom, the United States, France and Ger-
many) having most closely adhered to it.
Elsewhere in the world, as in Canada, the
concept of persuasive authority continues to
play an important role and is used to justify
extensive use of foreign, non-binding sources.
The author examines the historical origins of
the concept of persuasive authority and ar-
gues for its continuing relevance as a neces-
sary means of relief from the instrumentalism
of contemporary national law-making, whether
judicial or legislative in form. The process of
reception of law in Europe and North Amer-
ica is examined, as well as the continuing
receptivity of European and North American
jurisdictions to the citation of foreign au-
thority. Recent trends of Canadian judicial
decision-making are examined and remarks
are offered as to the role of national doctrinal
writing.

Uidre d’un droit positif national est d’origine
r6cente et a provoqu6 des reactions s6vres
dans les pays (notamment la France, l’Alle-
magne, le Royaume-Uni et les Etats-Unis)
l’ayant adopt6e dans sa forme la plus radi-
cale. Ailleurs dans le monde, et au Canada,
]a notion d’autorite persuasive continue Ajouer
un r6le important et mane A un emploi trrs
rrpandu de sources non-nationales et non-
obligatoires. Uauteur examine les origines
historiques de la notion d’autorit6 persuasive
et plaide en faveur de sa pertinence actuelle
A titre de remade essentiel contre l’instru-
mentalisme des sources nationales de droit,
qu’elles soient l6gislatives ou judiciaires. La
reception du droit en Europe et en Amrique
du nord est 6tudire, aussi bien que la rfcep-
tivit6 contemporaine des juridictions euro-
p~ennes et amrricaines A ’emploi des sources
6trang~res. Certaines tendances r6centes de la
jurisprudence canadienne sont mises en lu-
mitre et le r6le de Ia doctrine nationale est
discut6.

*Of the Faculty of Law, McGill University. This article was presented as the Canadian Report
on the subject “Doctrine as a Source of the International Unification of Law” to the XIIth
International Congress of Comparative Law, Sydney/Melbourne, Australia, August 1986. The
author is grateful for the financial assistance of the Social Sciences and Humanities Research
Council of Canada and for the use of the research facilities of the Swiss Institute of Comparative
Law, Lausanne.

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Synopsis

Introduction

I.

The Reception of Law
A. Reception as Alliance

1.
2.

In Europe
In North America

B. Reception as Construction

1.
2.

In Europe
In North America

II. The Continuation of Law

A. Law as National Response

B. Law as Enquiry

Conclusion

Introduction

The nineteenth and twentieth centuries have been dominated in West-
ern legal thought by the concept of binding law, in the sense of formally
articulated rules of an obligatory character in force within a defined territory.
The sanction of State-controlled force has been closely associated with this
concept of law. Theoretical legal discussion has been directed principally to
the justification and articulation of binding law (positivism, codification,
precedent), or to its inadequacies (“mechanical” jurisprudence, libre re-
cherche scientifique, Freirecht, “realism”, “critical” legal studies). The po-
larized character of theoretical discussion explains why weaknesses in the
concept of binding law are frequently translated into allegations of arbi-
trariness in the exercise of legal authority. If the individual is not bound,
in the contemporary sense, he is arbitrarily free, whether judge, lawyer or

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PERSUASIVE AUTHORITY

citizen. Contemporary versions of natural law have failed to establish a
middle ground in this debate. They are seen, probably correctly, as droit
positifmanqu , competing sets of rules or principles capable of formal en-
actment, if not already lurking in the detail of contemporary regulation. It
is evident, however, that most theoretical discussion of law originates from
jurisdictions in which the concept of binding law has been adopted in its
most radical form. In the United Kingdom, France, Germany and the United
States (the principal exporters of law and legal theory), law is a binding and
exclusively national phenomenon and even the formal sources within these
nations are given hierarchical rankings. In some cases, indeed, there is said
to be only one formal source of binding law and the completeness of this
source is implicit, if not explicit, in national debate. The notion of persuasive
authority –
authority which attracts adherence as opposed to obliging it
is largely absent from everyday judicial and legal practice in these coun-

tries, though in some cases, most notably in the United States and West
Germany, a measure of formal recognition may be given to national doc-
trinal writing.

In the rest of the civil and common law world there is less adherence
to such a radically formal concept of law. Whatever official teaching may
proclaim (itself borrowed from a metropolitan jurisdiction), the notion of
persuasive authority is here often of greater importance than that of binding
law and is used to justify extensive use of non-binding and non-national
sources of law. The patterns of judicial and legal practice have been fun-
damental in this regard and a radically formal concept of binding law has
been shown to be of little consequence in the face of professional resistance.
As Rabel observed, with tongue-in-cheek, a ‘happier, naive uncertainty” has
prevailed, uninfluenced by methodological extremes and largely unexplored
in theoretical writing. It is perhaps even more curious that contemporary
debate as to the nature of law has ignored the pre-nineteenth century ex-
perience of France, the pre-twentieth century experience of England and
Germany, and the pre-1850 experience of the United States. As historical
work increasingly indicates, these jurisdictions all borrowed heavily from
foreign models and the notion of English, French, German or American law
is today in large measure a summation of that which has been gathered
from many sources, in those countries, by way of persuasive authority. In
short, the notion of persuasive authority is deserving of far greater attention
than it has recently received. It has been, and remains, a dominant legal
concept in the world.

Use of persuasive authority is not necessarily incompatible with the
concept of binding law. Persuasive authority may play a very minor and

‘E. Rabel, “Aufgabe und Notwendigkeit der Rechtsvergleichung” in H.G. Leser, ed., Ernst

Rabel: Gesammelte Aufsdtze, vol. 3 (Tfibingen: Mohr, 1967) 1 at 15.

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suppletive role, one which may even be recognized and authorized by pos-
ited, national texts. In the measure, however, that the use of persuasive
authority fluctuates according to the needs of practice, or becomes a prin-
cipal source of law even in the face of binding law, its use is indicative of
a certain freedom of appreciation on the part of those charged with the
application of law, a freedom in the choice of sources of law. It does not
follow, however, that adherence to non-binding, persuasive authority must
be taxed as arbitrary, since choice of an external authority which effectively
persuades is perhaps the only true alternative to arbitrary conduct, in many
cases more effective than adherence to binding, but unpersuasive, law. In-
deed, once it is perceived that each decision by a legal official involves
personal choice and can never be purely mechanical in character, adherence
to binding law may itself be perceived as highly arbitrary, in the absence of
any elements of persuasion. This is the principal message of decontructionist
schools of legal thought, which have been most active in those jurisdictions
having most closely embraced the concept of binding law. Adherence to
persuasive authority is therefore a highly sophisticated alternative to notions
of binding law and mechanical jurisprudence on the one hand and arbitrary
personal licence on the other. It should be understood, however, that the
notion of persuasive authority presently lacks formal definition, in spite of
its practical importance. In particular, it is not possible to state the measure
of correlation between the persuasiveness of an authority and the particular
result which it would mandate in a given case. It may be that there is no
correlation whatsoever and that the persuasiveness of authority is dictated
by considerations which are themselves largely neutral in terms of the con-
tent of norms. Authority could thereby be persuasive regardless of what it
said, and persuasion would be entirely distinct from the satisfaction of par-
ticular wants and needs.

It is because persuasive authority is such a well-known but imprecise
concept that it is appropriate to study its development and use before ad-
vancing any larger conclusions as to its nature. This study must begin with
the process of reception of law, since reception is the obvious instance of
adherence, on a large scale, to persuasive authority. One of the main themes
of this paper is that reception of law has occurred, to a greater or lesser
degree, in the development of all national legal systems of the Western
tradition, that it has been an indispensable element in what we know today
as law, and that it has occurred invariably in the primary stages of the
development of a legal tradition or field of law.2 If this is correct, the study

2Arminjon, Nolde & Wolff make the broader assertion that with the possible exception of
Islamic jurisdictions (and this today remains questionable) there are no pure legal systems in
the world: see P. Arminjon, B. Nolde & M. Wolff, Traittdedroit compar, vol. I (Paris: L.G.D.J.,
1950) at 49. The mixed character of all jurisdictions is camouflaged today, however, by State

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PERSUASIVE AUTHORITY

of reception must be followed by the study of that which follows reception,
notably the subsequent treatment of persuasive authority, and it is appro-
priate to refer to this entire ensuing process, in all legal systems, as the
continuation of law. This paper will therefore be divided into two parts: the
reception of law and the continuation of law.

I. The Reception of Law

In Canada the concept of reception has been closely associated with
the colonial period and it is an indication of the significance of binding law
in this period that reception itself has been made the object of binding rules.
Reception may also occur, however, in the absence of legislative or judicial
rules which purport to dictate its measure and in such a case it appears
more clearly as local adherence to a model of law external in some manner
to the adhering group. A reception in a colonial structure also represents,
however, local adherence to an external model of law, since in the absence
of adherence or acquiescence there can be no reception, only ongoing strug-
gle. The Canadian experience of 1763-1774 is some evidence of this, as will
be seen.3 It -is therefore inappropriate to consider reception as either im-
posed, following conquest, or voluntary, since all reception which occurs is
necessarily voluntary. It is still possible to distinguish amongst receptions,
however, since some are effected in a spirit of deliberate alliance with an
external source of law, while others are effected with no particular sense of
alliance but in order to draw constructive domestic advantage from the
useful characteristics of the external model. The Canadian receptions of law
have been clearly of the first type –
reception as alliance. Other receptions,
with which useful comparisons can be made, are of the second type –
reception as construction.

A. Reception as Alliance

1.

In Europe

The earliest reception we know as such was that of Europe 4 and the
law received was that of Rome, removed both in time and space from the
receiving groups of people. Roman law was received, and became in some

institutions, by taxonomic comparative law methodology which establishes distinct “families”
of law and by nationalist historiography which emphasizes that which may be distinctive in
national legal systems. To say that all jurisdictions are mixed is not to accede, however, to
environmentalist or diffusionist theories of cultural variety or to engage in any way in causal
explanations of the phenomenon.

3See below, text accompanying notes 23-25.
4For the persistence of Hellenistic laws throughout the Roman Empire, however, see E. Rabel,
“On Comparative Research in Legal History and Modem Law” in Ernst Rabel Gesamrnmelte

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measure a common law of Europe, both because it was perceived as written
reason 5 and because of political loyalties to earlier Rome, as in the south
of France, or to a newer and Holy Roman Empire, as in Germany. Reception
was thus an act of alliance to an external, rational source of law and to a
political ideal, past or present. Where political loyalty diminished, as in
Northern France and England, the extent of reception was reduced, but it
occurred nevertheless, most completely in the form of canonical law, where
there was loyalty to a universal Church, 6 and in other matters to provide
organizing concepts for local law. Roman law was an active influence in
England in the two centuries following the Conquest, before being largely
relegated to Oxford and Cambridge by the growing influence of the Inns of
Court. Bracton was a Romanist, and novel disseisin was derived from a
Roman form of action.7 In northern France the influence of Roman law
was so great as to be considered seditious and its teaching was banned in
Paris in the thirteenth century.8 In neither case, however, did the ancient
learning disappear and it was to reappear in both English and French legal
history. In the phrase of Goethe, it was a “diving duck”, which always
resurfaced, alive.

We think of reception today as a process of adoption of that which is
foreign, but for the European participants in the process of reception this
was probably not the case. Roman law was not adopted; it was simply there.
It was not foreign law; it was living law, and there were no national bound-
aries to impede adherence to it. In the language of Hart, the “internal point
of view” directed immediate allegiance to Roman law, in the absence of
any formally enacted rules requiring allegiance and in the absence of any

Aufsdtze, supra, note 1, 247 at 250-51; and for a more complete statement of the Greek influence
on Roman jurists, R.A. Bauman, “Comparative Law in Ancient Times” in A.E.-S. Tay, ed.,
Law and Australian Legal Thinking in the 1980s (Sydney: Organising Comm. of the 12th int.
Congress of Comparative Law, 1986) 99. For the concept of reception within ancient Greece
itself, see K. Assimakopoulous, “Comparative Law in History” (Greek report to the XIIth
International Congress of Comparative Law, Sydney/Melbourne, Australia, 18-27 August 1986)
at 2 [forthcoming in Revue hell6nique de droit international].

(Frankfurt: Vittoria Klosterman, 1981).

5For the history of the expression see A. Guzman, Ratio Scripta, lus Commune, vol. 14
6For England, see F Pollock & EW. Maitland, The History ofEnglish Law, vol. 1 (Cambridge:
Cambridge University Press, 1968) at 112-25 and 131-35, notably at 115 (“there was a ius
commune, a common law, of the universal church”).

7See T.FT. Plucknett, A Concise History of the Common Law, 5th ed. (London: Butterworth
& Co., 1956) at 261, 296 and 298. The glosses of Vacarius were “reverently received” through
his teaching in England in the 12th century and the arguments of the youthful Lanfranc of
Pavia, the Conqueror’s “right-hand man”, derived their force “from the supposition that the
dooms of King Liutprand and the institutes of Justinian are or ought to be harmonious”:
Pollock & Maitland, supra, note 6 at 118 and 77, respectively. Already in the 7th century the
“Roman example” had served in the preparation of the laws of Aethelbert, or so we are told:
see J.H. Baker, An Introduction to English Legal History, 2d ed. (London: Butterworths, 1979)
at 2. For historiographical resistance to the concept in England, however, see infra, note 63.
8The Faculty of Law of Paris remained, however, a centre for the teaching of canon law.

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close territorial connection to it.9 As we have seen, this was partly due to
political loyalty,10 but the process involved more than that. It involved as
well a commitment to a particular, rational view of law, a view of law which
placed it beyond definitive enactment or stipulation and rather in an on-
going, imperfect process of enquiry. This view of law prevailed both on the
Continent and in England and is well reflected in the literature of the elev-
enth to fifteenth centuries. This literature frequently consisted of questions,
with attempts at reasoned responses, as a result of which there slowly ac-
cumulated a record of reasoned responses to such questions in necessarily
tentative form. This was the “common erudition” of the common law, the
communis opinio doctorum of the civil law. It would have been wrong to
deduce anything from such erudition, since deduction implies a firmer point
of departure than the questions and their answers would provide. Tentative,
common reflection would, howeve; permit the resolution of individual cases
and the common erudition of the profession could therefore adequately
serve the needs of practice, while constantly developing. There were of
course great differences in the expression of this literature on the Continent
and in England. On the Continent the literature was vast, the work of the
dottores impressive and the teaching centered in the Universities.I’ In Eng-
land, there was Bracton and, centuries later, Littleton, both supplemented
by the oral, questioning tradition of the Inns of Court.12 On both sides of
the Channel, however, authority was not posited but sought, and literature
was the record of search and not resolution. Cases were not reported on the
Continent; in England their reporting was sketchy and imperfect (“… and
so to judgment”), in spite of the growing prestige of the English judiciary.
There were few problems with the “mass” of the law.

This view of law is necessarily open to persuasive authority. Aid is
sought where it may be found, and there are no formal limits to the search.

9H.L.A. Hart, The Concept of Law (London: Oxford University Press, 1961) at 55-57, 86-
88 and 99-101. Hart states, however, that it would “be wrong to say that statements of validity
‘mean’ that the system is generally efficacious”, giving as examples the teaching of Roman law
“as if’ the system were still efficacious and the clinging by a White Russian to the criteria of
legal validity of Tsarist Russia. This statement underestimates the importance of the internal
point of view in creating the efficacy of a legal system.

10See above, text accompanying note 6.
“For a recent statement of the development of the literature of the ius commune see C.
Mouly, “Le droit peut-il favoriser l’int~gration europ~enne?” (1985) 37 R.I.D.C. 895 (with
references).

‘2For the early English literature see, most recently, J.H. Baker, “English Law and the Ren-
aissance” (1985) 44 C.L.J. 46 at 51-53 and 56-58 (also pointing out the phenomenon ofJudicial
indecisions in England, a refusal to decide in the absence of persuasive authority); A.W.B.
Simpson, “The Rise and Fall of the Legal Treatise: Legal Principles and the Forms of Legal
Literature” (1981) 48 U. Chi. L. Rev. 632, 634, 635 and 641-51 (also noting the importance
of collections of maxims of the law).

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A common language such as Latin may provide further foundations for
intellectual alliance. Reception in such a case is simply the record of suc-
cessful search for persuasive authority, adherence to that which was sought
and in some measure found. There are other consequences, however, of
such an open-ended and tolerant view of the sources of law. In the first
place, such a view recognizes that there may be no allegedly rational source
of law which is persuasive, or, to put it another way, that there is no reason
for departing from that which already exists. This view of law is therefore
tolerant of local custom as well as of ancient, and perhaps foreign, literature.
The existence of a ius commune rooted in theoretical literature is thus en-
tirely compatible with the existence of local custom, expressive of local
particularity in a clear, unambiguous fashion. The law of Continental Europe
prior to the codifications was composed of countless local sets of custom,
supplemented to greater or lesser degree by the universal learning.’ 3 The
common law of England, itself tolerant of local particularity, could set aside
the universal learning in sufficient measure to constitute itself as a separate
tradition, though Equity, the lex mercatoria and the law of admiralty re-
mained suppletive sources of academic and Continental origin. Reception
as alliance is therefore not an extreme phenomenon. There is no enforced
uniformity and there may indeed be no uniformity. There is, however, an
ongoing commitment to better ideas, wherever they may be found.

A further consequence of this view of law is that its most concrete
expression is found in the act ofjudgment. There is no single, binding source
of law and the law in a given case is that which is decided to be the law,
for that case. The law of that case is, however, nothing more than that, and
it has already been noted that both in England and on the Continent there
was great laxity (from a contemporary perspective) in the deciding and
reporting of cases.’ 4 The act of judgment was a necessary evil, perhaps
incapable of definitive justification, and to be avoided if at all possible. The
right of action emerged with great difficulty (in England only in the nine-
teenth century), legal representation was discouraged, the maintenance of
litigation was sanctioned, and notions of lack of standing and mootness.
were implicit barriers to judgment. Given the lack of a single, binding source
of law the role of the judge was inevitably important, but the judges did
not purport to make law, any more than anyone else would purport to make

‘3Hence the most famous of Continental choice of law maxims, Stadtrecht bricht Landrecht,
Landrecht bricht Gemneinrecht (city laws have priority over regional laws, regional laws have
priority over the common law). For the tolerance of the reception in Scotland toward local
custom see J.G.A. Pocock, The Ancient Constitution and the Feudal Law (Cambridge: Cam-
bridge University Press, 1957) at 88-89.

14Sce above, text accompanying note 12.

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PERSUASIVE AUTHORITY

law, and it was radically contrary to this view of law to seek any expansion
of the judicial role.15 Ideally, rationality would become evident to all, and
law as enforcement would wither away.16

2.

In North America

Reception of Roman law occurred in the absence of national or state
barriers and was an informal process. Reception of the common law and
of other European laws occurred later, at a time of emergent state structures,
and the process of reception was more complex and more formal. Later
receptions share, however, the essential characteristics of the reception of
Roman law. They represent expressions of loyalty to a political ideal and
to an external source of law perceived as rational.

Reception of French law in New France was in itself a complex phe-
nomenon. In the early period of “diversity”, settlers adhered to the law they
knew, frequently the customary law of their region of origin in France. We
know, for example, that Champlain’s will was drawn in 1635 in a form
recognized by the Custom of Saintonge, his region of origin in the south of
France. A system of personality of laws proved no more satisfactory in the
New World, however, than in the Old, and from the mid-seventeenth century
there were major efforts being made towards unification. Three separate
phenomena are evident in this process of creating a ius commune of New
France, the territory of which covered much of North America. The first is
the choice of a single French customary law to regulate proprietary relations
in the colony. Now, customary law is not usually chosen, in an explicit sense;
it is rather said to develop, in a fashion indigenous to the group to which
it will apply. There were, however, many groups in New France and explicit
choice was necessary amongst competing customs. The choice eventually
fell upon the Custom of Paris, itself applicable in a very large part of the
territory of France, and noteworthy for having been cast in written form on
two occasions, in 1510 and 1580, in an attempt to improve its formulation.
As early as 1640 the Custom of Paris was being used for concessions of land
on the island of Montreal; by 1664, when its introduction was formalized
by Royal Edict “pour 6viter la diversit”, there appears to have been little
resistance in principle. What was chosen, and acceded to, was the most

‘5The general acceptance of this view of law rendered any separation of powers superfluous,
since even the Crown would seek external, rational solutions in the administration of justice.
The independence of the judiciary emerges with the notion of a law-making power, to which
a law-applying power, the executive, is subservient. The disinterested search for justice then
becomes the exclusive domain of the Bench.
16For the repugnant character of litigation in the Roman, Chinese and early common law
traditions, see R. David, Le droit compar Droits d’hier, droits de demain (Paris: Economica,
1982) at 90-91.

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developed set of rules in property matters known to the French population.
There is a rationality of customs as well as of doctrine 17 and adherence to
the Custom of Paris was not only an act of alliance with France, it was an
act of recognition of the persuasive authority of those particular customary
rules.

The second phenomenon is the use of other sources of French and
Roman law to supplement the received custom. Customary law was incom-
plete. In ecclesiastical, commercial and procedural matters other sources
were required and here, as in France, the ancient, written learning came to
prevail in whatever form it could be made available in the New World.
There appears to be little doubt that the Royal Ordonnances of the sev-
enteenth and early eighteenth centuries in matters of procedure, commerce,
maritime law, gifts and wills were applied in the New World, even absent
proof in all cases of formal adoption by local authorities.’8 Alliance with
France was once again demonstrated, as well as approval and admiration
of French legal thought, whatever its formal manner of expression.

The third phenomenon in the reception of French law in New France
also has its parallel in the process of reception in Europe. In neither case
was reception complete, in the sense of received law obliterating local par-
ticularity. In New France, as in Old France, law was received only if there
was reason for doing so, and law considered for reception in the colony was
scrutinized and adapted where it was considered necessary. Approximately
one-tenth of the articles of the Custom of Paris were expressly altered in
the period 1664-1760,19 the Code Louis of civil procedure was received only
after modifications were made to accommodate local circumstance, 20 the
law of marriage was altered to facilitate celebration 2’ and other “traits
originaux” 22 emerged over time. The ius commune of New France was thus
a deliberate adherence to as much as possible of the ius commune of Old
France, but the process of adaptation was a constant and necessary one,
whatever the degree of uniformity sought to be achieved. External, persiu-
asive authority does not always persuade. The decision to adhere to it is as
capable of detailed and explicit justification as the decision not to adhere
to it. The extent of the reception is a function of the extent of loyalty to

17See C. Levi-Strauss, La penste sauvage (Paris: Plon, 1962).
18See J.-G. Castel, The Civil Law System of the Province of Quebec (Toronto: Butterworths,

1962) at 18.
9See A. Morel, Histoire du droit (Montreal: Librairie de l’Universit6 de Montreal, 1974) at
1
46.20See Castel, supra, note 18 at 15.
22See J. Boucher, “l’acculturationjuridique dans l’histoire du droit de la famille au Qu6bec”
(1967) 21 Rev. jur. et polit., indrp. et coop. 174 at 178-81.
22R. Besnier, Book Review of Justice et justiciables: Laprocddure civiled lapr&v6t de Quebec,
1667-1759 by J.A. Dickinson (1983) 61 Rev. hist. dr. fr. et 6tr. 429 at 429.

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PERSUASIVE AUTHORITY

the political ideal (here a continuing attachment to the metropolitain juris-
diction of France) and the extent to which the external authority effectively
persuades. The colonial period is not simple because it is colonial, and
neither the passage of time, nor the relative paucity of the record, nor con-
temporary nationalism should be allowed to blunt our appreciation of it.

With the arrival of the English the potential sources of Quebec law
became even more diverse. The second half of the eighteenth century is a
remarkable period in North American legal history, since for decades there
was sustained and informed (though at times bitter) public debate as to the
sources of law. Political loyalties in the colony of Quebec were divided and
there was intense, comparative discussion as to the intrinsic merits of par-
ticular fields of English or French law.23 What was known as “English” or
“French” law was of course itself a mix of varying sources, yet the national
traditions had emerged with sufficient clarity to attract loyalty, in a time of
emerging nationalisms. There were many anomalies, not the least of which
was the struggle of English-speaking merchants to introduce “English” com-
mercial law, perhaps the least “English” of all fields of the common law.24
As in England and France, the result of the process in Quebec was a mix
of sources. Imposition of English law in its entirety was manifestly unac-
ceptable to the population; a more discriminating “fusion of horizons” was
required. Quebec is today known as a “mixed” jurisdiction, in the sense
that the civil and common law are in constant contact with one another.
Yet this concept of a “mixed” or impure jurisdiction is a very recent con-
cept,25 for reasons which will be seen, and the mixture of sources which
occurred in Quebec in the eighteenth century was in the tradition of both
civil and common law alliances to persuasive external authority.

Reception of English law into the common law colonies of British North
America was also a complex process, since there were differences from col-

23See, e.g., the comparisons of English, classical Roman, vulgar Roman and French customary
law relating to freedom of willing noted in A. Morel, “Un exemple de contact entre deux
systmes juridiques: le droit successoral du Quebec” (1963-64) Ann. U. de Poitiers, Nouv. ser.
1; and for the debate on the respective merits of French and English criminal law, see A. Morel,
“La rception du droit criminel anglais au Qu6bec (1760-1892)” (1978) 13 R.J.T. 449; J.L.J.
Edwards, “The Advent of English (Not French) Criminal Law and Procedure into Canada –
A Close Call in 1774” (1984) 26 Crim. L.Q. 464.

24For the derivation of the Statute of Frauds from the Ordinance of Moulins of 1566 see E.
Rabel, “The Statute of Frauds and Comparative Legal History” (1947) 63 L.Q.R. 174, and for
further use of the lex mercatoria in the seventeenth and eighteenth centuries, continuing thereby
a tradition dating from prior to the Conquest, see below, text accompanying note 42.

25See in particular M. Tancelin, “Contributions du Qu6bec A la recherche des causes du d6clin

ou de l’Eclipse du jus commune” (1983) 207 Il Foro Italiano 3.

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ony to colony, and since statutory rules of reception were frequently en-
acted.26 We see once again, however, the main features of reception as alliance.
Most evident is the political loyalty of the small groups of settlers to an
external, political ideal – here the British Crown and Empire. This loyalty,
it should be recalled, was not simply a vague sense of warmth to distant
tradition. In many cases it was an act of great political courage, accomplished
through agonizing debate, violence, and physical uprooting. North America
of the eighteenth century was no place for the timorous, and hard choices
had to be made. There is little to indicate that loyalty was the way of
facility.27 In addition to political loyalty, however, it is also evident that
English law was revered as an ideal law. Murdoch in Nova Scotia wrote his
Epitome of the Laws of Nova Scotia “in humble imitation of the Commen-
taries of Blackstone” 28 and in the pattern of reception in principle of all
English law, whether statute or common law, there is a global appreciation
of the worth of English legal thought.

The fervour of Loyalist commitment did not eliminate, however, other
characteristics of reception as alliance. Reception of the English common
law yielded to local statute, as the clearest evidence of local particularity.
Local statutes also generally prevailed over English statutes, since English
statute law was received only as it existed on a given date of reception and
only Imperial legislation made expressly applicable to a colony prevailed
over local enactment. 29 Both English statute law and English common law,
moreover, were received where it was “suitable” to do so, and the “suita-
bility” requirement is the most evident sign of the ongoing phenomenon
of evaluation of individual external laws in the reception process. 30 Recep-
tion in common law Canada, as in Europe and New France, was not ac-
complished through binding, uniform law. It was accomplished through
tolerant persuasion, and the authority which persuaded left much room for
local particularity. Once the non-binding character of reception is perceived,

26For the process in each jurisdiction see J.E. Cote, “The Reception of English Law” (1977)
15 Alta L. Rev. 29.

27For the ongoing choice of law debate in nineteenth-century Upper Canada see D.H. Flaherty,
“Writing Canadian Legal History: An Introduction” in D.H. Flaherty, ed., Essays in the History
of Canadian Law, vol. 1 (Toronto: University of Toronto Press, 1981) 3 at 24.

28B. Murdoch, Epitome of the Laws of Nova Scotia, vol. 1 (Halifax: Joseph Howe, 1832) at

v.

29See generally W.R. Jackett, “Foundations of Canadian Law in History and Theory” in O.E.
Lang, ed., Contemporary Problems of Public Law in Canada (Toronto: University of Toronto
Press, 1968) 3 at 10-11; T.G. Barnes, “‘As Near as May be Agreeable to the Laws of this
Kingdom’: Legal Birthright and Legal Baggage at Chebucto, 1749” (1984) 8 Dal. L.J. I at 6-
14 (emphasizing also the particularity of each colonial experience).

3qThe “suitability” of English statutes is the object of litigation even in Ontario, which omitted

the common law requirement of “suitability” from its reception legislation.

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PERSUASIVE AUTHORITY

it is possible as well to perceive the highly original character of all legal
decisions in the reception process. Choice is necessary between an idealized
form of law and its rules on the one hand (and most would today recognize
some latitude in this field of choice) and on the other hand the constraints
and even norms of local, familiar existence. It is a further indication of the
contemporary influence of binding law, and nationalism, that many writers
have considered the work of colonial legal authorities in pejorative terms.
Words such as “derivative” and “slavish” have been employed, usually by
those seeking a different form of alliance, though more recent and informed
statements appear to begin to restore the balance.31

A final remark may be made by way of comparison between early
Continental receptions by way of alliance and those of the seventeenth
through nineteenth centuries in North America. On the Continent the com-
mitment to a universal, rational source of law necessarily implied a measure
of reticence in the legal process. Since the law was there, it was not to be
made, and since human expressions of law were at best tentative, there was
no justification for expansion of the judicial process. As will be seen, this
attitude prevailed as well in much of North America and continues to pre-
vail, but there was the further circumstance, of context, that life in the early
North American colonies required very little by way of formal, articulated
law. In the early years the major challenge was of survival and conditions
of social life thereafter were often far from complex. In New France con-
ciliation and equity were dominant in dispute resolution until the eighteenth
century;32 in the colony of Nova Scotia in 1749 the first court beyond the
governor and council was composed of lay judges. 33 In such circumstances
one does not spend valuable time inventing new law; any law will do, and
frequently none at all.

B. Reception as Construction

Receptions in the early periods of European and North American so-
ciety have thus frequently been by way of alliance, through commitment
both to external sources of law and to overarching political institutions. It

31See, e.g., D.G. Bell, Book Review of Law in a Colonial Society: The Nova Scotia Experience
by RB. Waite, S. Oxner & T. Barnes, eds (1985) 34 U.N.B. Li. 179 (the “infinitely complex
issue” of reception of English law in Nova Scotia); W.G. Morrow, “An Historical Examination
of Alberta’s Legal System – The First Seventy-Five Years” (1981) 19 Alta L. Rev. 148 at 151-
52 (on the ingenuity of introducing divorce into twentieth-century Alberta through reliance on
a mid-nineteenth-century English statute); D. Howes, “Property God and Nature in the Thought
of Sir John Beverley Robinson” (1985) 30 McGill L.J. 365 at 370-71 (on the creativity of
denying oneself “creative power” in the actual disposition of cases).

32See E.E Surveyer, “La procedure civile au Canada jusquA 1679” in Canadian Historical

Association Annual Report, 1932 (Ottawa: EA. Acland, 1932) 29 at 35.

33See Barnes, supra, note 29 at 22.

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is perfectly conceivable, however, that foreign law be received in the absence
of any spirit of alliance simply because it is perceived by the receiving group
as useful or desirable. Here the process of reception is more discriminating
and particularized and it is perhaps more accurate to speak of “borrowing”
of particular foreign laws than of reception in general. This process will
appear familiar to contemporary readers, accustomed to praise of the virtues
of comparative law in the law reform process and to exhortations to remain
critically receptive towards foreign experience. This type of reception is more
likely to occur in the absence of overarching political institutions, since the
political dimension of reception as alliance will then be absent, and it is the
case that this form of reception has occurred principally since the emergence
of the Nation State and the decline of larger forms of political structure.
Reception as construction also implies, however, a significant shift in the
underlying view of law, since there is here no commitment to idealized
forms of law and their original sources, but rather a present will to choose
amongst foreign models of law for constructive purposes. The reasons for
this shift will be examined later, since they have consequences much greater
for the process of continuation of law than for that of its reception. It is
first necessary to examine, however, how persuasive authority has been used
in the process of reception as construction.

1.

In Europe

The most visible examples of reception as construction are the Euro-
pean codifications of the nineteenth century, notably those of France and
Germany, as a result of which, in the language of Professor Carbonnier,
Roman law in particular fields was “decanted” into national receptacles and
lost its identity as Roman law.34 The codification movement, which even-
tually triumphed completely on the Continent, was opposed most vigorously
by Savigny, in the name of what is known today as historical jurisprudence,
that is, the need for law to evolve naturally as an expression of popular will,
free of artificial legislative intervention. 35 Savigny’s preferred source of law,
however, was not indigenous custom, but the Roman law which had been
received in Germany as a ius commune and which he sought to present as

34J. Carbonnier, “Usus hodiernus pandectarum” in R. Graveson et al., eds, Festschriftfur
Itnre Zajtay (Tfibingen: J.C.B. Mohr, 1982) 107 at 110. For the mix ofsources of the Napoleonic
Code see G. Marty, “Les apports du droit compar6 au droit civil” in Livre d centenaire de
la Soci6t6 de Igislation compare (Paris: L.G.D.J., 1969) 91 at 92.

35F.K. von Savigny, Vom Beruf unserer Zeitfiur Gesetzgebung und Rechtswissenschaft [ 1814],
reprint (Hildesheim: Georg Olms Verlagsbuchhandlung, 1967). Savigny viciously criticized the
French codification and it is quite probable that his opposition in turn provoked the initiatives
of Bentham in favour of the codification movement. On the nineteenth-century debate see
D.R. Kelley, Historians and the Law in Post-Revolutionary France (Princeton, N.J.: Princeton
University Press, 1984) c. 6 (“The German Impulse”).

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PERSUASIVE AUTHORITY

a living expression of German law, hence the title of his major work, The
System of Contemporary Roman Law.36 Savigny’s universalism failed to
carry the day, however, in the nineteenth century, and the constructive bor-
rowing which typified the codification process became widely used in other
fields of law as national legislators, drawing support from the new science
of comparative legislation, ransacked foreign statute books in their efforts
to provide definitive solutions. 37 Legislation was not the only instrument
of constructive reception, however, and both judges, as in eighteenth-century
Italy,38 and treatise writers, as in seventeenth-century France, 39 incorporated
foreign models into their construction of domestic case law and national
doctrine.

In England, in spite of the efforts of Bentham, constructive reception
through legislation was of less importance. England resisted not only the
codification movement but in considerable measure the entire pressure for
legislative reform of the law, and the nineteenth century saw precedent
emerge as a scientifically acceptable competitor to legislation, as a formal
source of law.40 The acceptance ofjudicial decisions as a source of national,
positive law opened the possibility of definitive incorporation of foreign
models of law into English law, through judicial fiat, in particular fields.
Blackstone partially prepared the way for this, in writing his constructive
commentaries on the national law of England through the means of Roman
legal classifications,41 which thereby became recognized in English law. The
most significant constructive reception occurred in the field of private law,
as English judges and writers regularly incorporated Roman and French
learning into the English law of contract, restitution and property. This
process began at least with Holt in the eighteenth century, if not earlier, and

36EK. von Savigny, System des heutigen Rdmischen Rechts, 8 vols [1840-56], reprint (Aalen,

Germany: Scientia Verlag und Antiquariat Kurt Schilling, 1975).

37For borrowing by France of English, German and Swedish institutions see.M. Ancel, Utilite
et methodes du droit compare (Neuchatel: Ides et Calendes, 1971) at 61; R. Rodi~re, “Le
renouvellement du droit commercial franeais par le droit compar” in Livre du centenaire de
la Societe de legislation compar~e, supra, note 34, 109 at 111-17; Marty, supra, note 34 at 100-
3.
38See generally G. Gorla, Diritto comparato e diritto commune europeo (Milan: Giuffr6, 1981)

at 543-617.

39For the influence of the Roman model even on the institutions of the French state, notably
in administrative law and through the influence of doctrinal writers, see J.-L. Mestre, Intro-
duction historique au droit administratiffranCais (Paris: Presses Universitaires de France, 1985)
at 160-61.
40For the emergence of the notion of precedent in English law, see J.R Dawson, The Oracles

of the Law (Ann Arbor. University of Michigan Law School, 1968) at 80-99.

4’See J.W. Cairns, “Blackstone, an English Institutist: Legal Literature and the Rise of the

Nntinn State” (1984) 4 Oxford J. Legal Stud. 318, notably at 350-51.

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[Vol. 32

reached its culmination with the treatise writers of the nineteenth century.42
The result was law of unquestionably mixed origins, but which presented
itself to the world as English law. The law received no longer existed as
persuasive authority in English law; it was English law. Neither political nor
intellectual alliance to the outside world remained.

2.

In North America

The phenomenon of reception as construction is most evident in North
America in the law of the United States and occurred both with respect to
the common law of England and the civil law. We know the common law
was received in the United States, though the extent of reception prior to
the Revolution is largely a matter of speculation. The manner of reception
was different, however, from that which occurred later in the northern British
colonies, since it was widely recognized that the colonies later to form the
United States were inhabited by European settlers at the time of British
acquisition, with the result that English law was not automatically received,
but had to be explicitly introduced. 43 The reverse was held to be the case
in what is now common law Canada, whatever the historical accuracy of
such a position, with the result that reception in the latter case occurred as
a matter of principle and absent legislative decree. Reception statutes in
British North America thus stated the common law; reception statutes in
the United States themselves effected reception, and it is symptomatic of
the difference in perspective that there was much repeal and re-enactment
of English legislation in the United States, 44 while to the north English
legislation once introduced continued to exist as received English law. The
notion of suitability thus was a test for exclusion of English law in Canada,
a test for adoption of it in the United States.4 5 Nor was English case law

4 2See, for examples of judicial borrowing in England in the eighteenth and nineteenth cen-
turies, notably from Pothier, EA. Anglin, “Some Differences Between the Law of Quebec and
the Law as Administered in the Other Provinces of Canada” (1923) 1 Can. Bar Rev. 33 at 33-
36; and for the influence of nineteenth-century treatise writers, A.W.B. Simpson, “Innovation
in Nineteenth Century Contract Law” (1975) 91 L.Q.R. 247. For restitution, see P Birks,
“English and Roman Learning in Moses v. Macferlan” (1984) 37 Curr. Leg. Problems 1; P
Birks & G. McLeod, “The Implied Contract Theory of Quasi-Contract: Civilian Opinion Cur-
rent in the Century before Blackstone” (1986) 6 Oxford J. Legal Stud. 46; in matters of property
see B. Rudden, “Comparative Law in England” in W.E. Butler & V.N. Kudriavtsev, eds,
Comparative Law and Legal Systems: Historical and Socio-Legal Perspectives (New York:
Oceana, 1985) 79 at 81-83. Plucknett informs us, however, of a “Reception” of Italian mer-
cantile law as early as the fifteenth century and that Coke sought to “capture” (the process is
one of constructive reception) mercantile law for the common lawyers: see Plucknett, supra,
note 7 at 663.
43See E.G. Brown, British Statutes in American Law 1776-1836 (Ann Arbor University of

Michigan Law School, 1964) at 12-22.

44Ibid. at 24-41.
451n particular, for the efforts of Jefferson to use those parts of English law suitable to local

circumstances in revising the laws of Virginia, see ibid. at 36-37.

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PERSUASIVE AUTHORITY

received in the United States on a different footing from English legislation;
where its use was not prohibited, as in the colonies of New Jersey, Kentucky
and Pennsylvania for brief periods in the early nineteenth century, it was
received in
,finction of its utility and rapidly declined in importance with
the multiplication of local reports. 46

Since English law was received in the United States in function of its
utility, it was entirely appropriate for United States lawyers to canvass other
foreign laws as potential models in the process of constructive reception.
French and Roman law were ideal candidates in this process because of
their prestige and breadth, and they provided useful counterweights to an
English law, perhaps too familiar. The influence of the civil law in nineteenth
century America is today not widely known, but it is richly documented
and manifested itself both in everyday practice before the courts and in the
writing of major treatises such as those of Story and Kent.47 The influence
of the civil law appears to have peaked in the period 1820-1830; thereafter
the use of civilian persuasive authority declined. The process of constructive
reception, in the United States as in Europe, thus allowed new bindings to
be installed on old works.

Reception, of whatever kind, was therefore common to the jurisdictions
of the western legal traditions. There has been no tabula rasa in the creation
of national legal traditions. We have since lost sight in some measure, how-
ever, both of the commonality of the reception process and of the common
elements of law in the process. How this has occurred is the story of the
continuation of law.

II. The Continuation of Law

To the extent that persuasive authority continues to attract allegiance
following reception it is possible to conclude that the reception has been by
way of alliance and that law continues to be understood as an ongoing
enquiry with no possible source of law being formally excluded. To the
extent, however, that reception marks the end of the use of persuasive au-
thority and its replacement by binding law, it is possible to conclude that
the reception has been a constructive one and that law is thereafter under-

46Ibid. at 41.
4 7For bibliographies, see Arminjon, Nolde & Wolff, supra, note 2 at 59; D.R. Coquillette,
“Legal Ideology and Incorporation I: The English Civilian Writers, 1523-1607” (1981) 61 B.U.L.
Rev. I at 5; adde P Stein, “The Attraction of the Civil Law in Post-Revolutionary America”
(1966) 52 Va. L. Rev. 403; W.H. Bryson, “The Use of Roman Law in Virginia Courts” (1984)
28 Am.J. Leg. Hist. 135; M.H. Hoeflich, “Roman and Civil Law in American Legal Education
and Research Prior to 1930: A Preliminary Survey” (1984) U. Ill. L. Rev. 719; M. Hoeflich,
“John Austin and Joseph Story: Two Nineteenth Century Perspectives on the Utility of the
Civil Law for the Common Lawyer” (1985) 29 Am.J. Leg. Hist. 36; and for civilian influence
on U.S. codification, R. Batiza, “Sources of the Field of Civil Code: The Civil Law Influences
on a Common Law Code” (1986) 60 Tul. L. Rev. 799.

McGILL LAW JOURNAL

[Vol. 32

stood as a purely domestic or national response to problems of social order.
It is therefore necessary to consider the continuation of law either in terms
of law as national response or law as enquiry.

A. Law as National Response

Reception as construction occurred through three centuries, the sev-
enteenth through the nineteenth, as a result both of a decline in overarching
political institutions and of a shift in the underlying view of law, a shift
away from universal and idealized statements of law and towards present
construction of law, through reception or otherwise. Reception as construc-
tion is thus but a part of a much larger phenomenon, and it is normal that
the process which led to reception as construction should also play a role
in the continuation of law, following reception. It is impossible to describe
adequately all of the forces at work in this process,,but major ones can be
identified, both within and without the legal order.

Lawyers, first of all, had become accustomed to working with written
texts and the “rage for order” manifested itself over the centuries in efforts
to improve the texts, a phenomenon which occurred, as has been seen, even
with respect to customary law.48 Texts constantly improved, over centuries,
become points of departure for human reflection. They are taken as given,
and into the ancient process of questioning is thus introduced a new stability,
a reason for greater confidence in the search for justice. It appears possible
to deduce from a given; formal, present reasoning will guarantee the result,
within the given cadre. The tendency of the profession to thus accept its
own learning as a point of departure was reinforced by wider intellectual
currents. Philosophical idealism and philosophical nominalism gained cur-
rency and the old ideal of a harmonious, objective universe which human
society could emulate, through constant reflection, was seriously challenged.
Old texts can be taken as given, since there is no proof of anything beyond
the texts. They represent the present summum of human rationality and
may be taken as a base in the further elaboration of human norms. In
sixteenth-century France, Cujas taught the particularity of Roman law; its
relation to the society from which it grew, while seeking to establish new
and rationalist foundations of law, in part derived from Roman teaching.
It became accepted that law was made in the past, in particular times and
places by particular people, and better law can therefore be made in the
future, building on past and foreign experience. The new, human rationality
is therefore linked to the idea of particularity; the rationally inspired law
of the future will be the best law for the time and the place, and the jetti-

48See above, text accompanying note 17.

1987]

PERSUASIVE AUTHORITY

279 –

soning of the external, universal order thus confers respectability on the
idea of deliberately making law which is local in character.

These large currents of opinion coincide with more specific legal de-
velopments. On the Continent the courts have been open to litigants for
centuries, with no necessity for a royal writ of authorization, and lawyers
have ceased to think procedurally, of how to proceed fairly towards a de-
cision which itself may be ultimately unjustifiable, in favour of thinking in
terms of substantive law, of how to justify a decision which litigants are
considered to have a right to obtain. Substantive law is implemented through
the notion of subjective rights, and people have to be told, with precision
and authority; and in their own language, what it is they have as subjects
of rights. In an age of science, lawyers have already begun to value precision
over doubt and the way is open, as will be seen, for truly scientific statements
of substantive law. English law, overturning the writ system in the nineteenth
century, thus turned inevitably to existing statements of substantive law as
a means of effecting its transition from procedural to substantive norms.

The Nation State is the natural forum for making local, substantive,
precise law and is the ideal instrument for seeking to ensure compliance
with it. The Nation State is thus essential to the contemporary concept of
binding law. It is less evident, though equally true, that binding law is es-
sential to the Nation State, since it is through the creation of uniform,
national law that contemporary States in large measure define their exist-
ence. England owed its existence largely to the Channel and its common
law initially was a very tolerant and suppletive one. Elsewhere more affirm-
ative statements of national law were required, in the surge of nineteenth-
century Risorgimento nationalism. Paradoxically, it is with national unifi-
cations of law that the unity of Western law is lost, but the process involved
more than simply trading a larger unity for several smaller ones. The dis-
placed ius commune was a suppletive one; it prevailed everywhere, in the
measure permitted by local circumstance. The new, unified national laws
were not suppletive; they were binding, and purported to obliterate local
particularity. A larger unity tolerant of local diversity was thus replaced by
competing unities, each intolerant of particularity. A common cause in the
search for a higher reason was replaced by diverse and largely uncompro-
mising statements of ultimate reason. Today there are pleas on the one hand
for greater recognition of local particularity49 and objections to efforts to

49See, e.g., J.H. Merryman, “On the Convergence (and Divergence) of the Civil Law and
Common Law” in M. Cappelletti, ed., New Perspectivesfor a Common Law ofEurope (Florence:
European University Institute, 1978) 195 at 214 and 231; and more generally K.D. McRae,
“The Plural Society and the Western Political Tradition” (1979) 12 Can. J. Pol. Sc. 675 (arguing
against unity enforced in the name of humanist rationality).

1280

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[Vol. 32

effect a further unification of law.50 These statements are opposed, however,
to only one form of uniformity of law, that which is uncompromising in
the name of reason. A uniformity of law which compromises with local
circumstance, which supplements rather than binds, does not call forth the
same objections.

State law is necessarily binding law, however, because it serves the
purpose of the State itself. A State may be seen to destroy itself in destroying
its instruments of national control. Binding law is necessarily purposive law,
in the sense that it serves a purpose, of binding, beyond that of simple
dispute resolution and with the notion of binding law the notion of law
itself has changed. There is no longer reticent use of law in the difficult task
of justifying individual decisions; there is also a need for as much law as
i’s necessary to ensure national unity and law is made by the State in order
to effect this larger political purpose of demarcation. The mass of the law
increases. Moreover, since law now serves the purpose of the State it comes
to be controlled and authorized by the State and a formal and binding theory
of the sources of law develops, excluding all but the State itself, and its
officers, as sources of law. The exclusion of doctrine as a source of law dates
from the nineteenth century; the antipathy to foreign sources of law follows
automatically and in some cases was the object of formal, binding enact-
ment.5′ The idea gains currency that the extent of borrowing of foreign
authority is a simple function of the adequacy of local sources,5 2 and that
local sources can be adequate if enough law is produced suitable to local
conditions. The process of making law is glorified, both by lawyers and by
nationalists. Law becomes a matter of national pride, an intellectual or-
nament, a means of cultural influence.

The process of forging distinctive national laws is thus a shared process,
with both common and distinctive elements. The common element is doc-
trinal writing, which confers great intellectual distinction on the law-making

50See, e.g., J.W. Cairns, “Comparative Law, Unification and Scholarly Creation of a New
lus Commune” (1981) 32 Northern Ireland L.Q. 272 at 282. For present difficulties in the
legislative unification of legal rules see R. David, supra, note 16 at 307, 321 and 322; P Behrens,
“Voraussetzungen und Grenzen der Rechtsfortbildung durch Rechtsvereinheitlichung” (1986)
50 RabelsZ 19; and for the particular problem of national delegations seeking to ensure the
constructive reception of national rules in international uniform law, see C.W.A. Timmermans,
“Die europAische Rechtsangleichung im Gesellschaftsrecht” (1984) 48 RabelsZ 1.

51See, e.g., the prohibition of citation of foreign laws or authorities in the nineteenth-century
Swiss Civil Codes of the Cantons of Vaud, Neuchfitel and Aargau, discussed in E. Huber,
System und Geschichte des Schweizerischen Privatrechtes, vol. 1 (Basel: Detloff’s, 1886) at 65.
52For an explicit statement in this sense see H.-W. Daig, “Zu Rechtsvergleichung und Meth-
odenlebre im Europaischen Gemeinschaftsrecht”, in Festschrif/ftrKonradZweigert (Tfibingen:
Mohr, 1981) 395 at 399 (also warning of the danger to local structures posed by resort to
“exogenous” concepts).

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PERSUASIVE AUTHORITY

process and provides the structure and breadth essential to the concept of
the completeness of national norms. Pothier and Domat are the major fig-
ures in eighteenth-century France, Puchta and Windscheid their counter-
parts in nineteenth-century Germany. In the common law world Story and
Kent in the United States provide inspiration to others, while writers such
as Pollock and Anson re-invigorate in some measure an English tradition
long overshadowed by the work of the Bench. These writers are cosmo-
politain, learned and confident. They take as given that which has gone
before them; 53 they incorporate foreign models freely into their theoretical
constructions; they write in terms of substantive, national law;54 and the
treatise of national law becomes a dominant form of literary, legal expres-
sion.5 5 As procedure is to become the “handmaiden” of substantive law,
however, so must the work of the writers be necessarily subservient to more
formal, authorized sources of law, since the writers, lacking position in the
hierarchy of the State, have no power to impose the law they create. They
cannot bind and therefore must be excluded from the law-making process.56

The different nations then produce different sources of binding law. On
the Continent the judiciary is weak, fragmented and, in the case of France,
in disgrace. Judicial evolution is in any event too slow for nineteenth-century
nation-building and the codifications multiply, to clarify the ius commune,
but in national form. The ancien droit is abrogated; decisional law is de-
nigrated; the French Court of Cassation refuses to hear of cassation for
violation of Roman texts.57 The exegetical school in France regards the Code
as a monument, un ach~vement of the rationalist process, worthy of its
exclusive attention, and the commentaries and national treatises build once
again on this new point of departure. 58 The notion becomes current that
the richness of French texts and doctrine precludes resort to foreign law59

53Already Coke in the seventeenth century wrote on Littleton, and for the similar shift in
method, away from questioning to deduction, on the Continent from the fifteenth century: see
Mouly, supra, note 11, at 927-30. Professor Baker situates the crucial period in English legal
history as that between 1490 and 1540: Baker, supra, note 12 at 46.

54Plucknett, supra, note 7 at 289, describes the treatise as “the triumph of substance over

form”, i.e., subjective rights over procedure.

1919) at 54.

the development of Institutes as statements of national law, see Cairns, supra, note 41.

55See generally, on the “rise and fall” of the legal treatise, Simpson, supra, note 12; and for
56See F G6ny, Mthode d’interprtation et sources en droit priv positif vol. 2 (Paris: L.G.D.J.,
57See Carbonnier, supra, note 34 at 109-10.
58See generally R R6my, “Eloge de l’exfg~se” (1982) 7 R.R.J. 254, reprinted in (1985) 1 Droits
115 [hereinafter cited to Droits] (distinguishing 20th-century scientific positivism from the
rationalist tradition of the exegetical school). This movement did not lessen legal controversy
within France iself, where the chaos d’ides claires continued unabated, but substantially re-
duced the number of permissible authorities used in legal and judicial practice.

59See the explicit statement to this effect in Marty, supra, note 34 at 104.

McGILL LAW JOURNAL

[Vol. 32

and French legal science, for the first time in its history, turns resolutely
inwards to secular authority. In Germany the process is largely the same.
The Kommentar is the preferred form of literature; it is recognized that
there is no more communis opinio doctorum; constructive reception rarely
occurs in the post-codification law-making process; and judicial references
to foreign law are highly exceptional. 60 Roman law is, however, more widely
known and taught than in France, as an historical phenomenon, and the
exclusion of doctrine as a source of law does not prevent the citation of
even contemporary writers as representative of dominant opinion (herrsch-
ende Meinung), on unresolved points of law. The doctrine cited, however,
is national doctrine.

In the common law world legislative reform of the law and codification
were the objects of vigorous debate in the seventeenth and nineteenth cen-
turies. Coke, however, carried the day and his glorification of the common
law both excluded comprehensive codification and largely eliminated re-
sidual pockets of civilian and Roman learning in the English legal system. 61
Case reporting became progressively more sophisticated as a source of hu-
man authority and its mass by the nineteenth century was adequate for the
construction of a formal theory of binding precedent. Judges thus became
formal sources of substantive, national law, and any lacunae or imperfec-
tions in the judicial process could be filled by national legislation. English
authors could be cited, if dead,62 and the function of the treatise writer, as
on the Continent, became that of the fleshing out of the national law, given
its authentic, national sources. Some authors, such as Dicey and Chalmers,
did so in the form of codes, black-letter rules, and it has been said by a
contemporary English legal historian that the aim of authors of standard
English treatises is today “to avoid incursions into both history and other
legal traditions”, presenting English law as “capable of standing alone”,
while “only occasionally reliev[ing] their insularity with references to other
common law jurisdictions” and “hardly ever stepp[ing] outside the common
law world”; in so doing “they conceal the historical origin of much of what

6For a recent statement of the German perspective see J. Kropholler, “Die Wissenschaft als

Quelle der intemationalen Rechtsvereinheitlichung” (1986) 85 ZVglRWiss at 143 and 145.

61See, for the decline of the English civilians, whose domain was largely that of Chancery
and Admiralty, Coquillette, supra, note 47; and for the “rationalisation” of the Inns of Court,
see Baker, supra, note 12. As to the incorporation of the law merchant, see J.H. Baker, “The
Law Merchant and the Common Law Before 1700” (1979) 38 C.L.J. 295.

62 0n the rule, and its slow decline, see Lord Denning, “The Universities and Law Reform”
(1949) 1 J. Soc. Pub. Teachers of Law 258; B. Laskin, The British Tradition in Canadian Law
(London: Stevens & Sons, 1969) at 95. By the mid-1970’s approximately one-tenth of English
cases refer to doctrinal writing, but only one quarter of this is to living authors. See W. Gray,
“To What Extent Are Judicial Decisions and Legal Writings Sources of Law?” in Rapports
generaux au IXe Congrs international de Droit compar (Bruxelles: Bruylant, 1977) 31 at 45.
Cf. the Canadian position: see below, text accompanying notes 109 and 119.

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PERSUASIVE AUTHORITY

they transmit as homespun law.”63 The national character of judicial de-
cisions is, moreover, easily accepted by codified jurisdictions as a somewhat
primitive version of their own law-making process. 64 The notion of a na-
tional legal tradition is thereby given a major identifying characteristic and
“families” of law are defined largely in terms of legislative or judicial sources
of national law, though there is continuing unease as to the accuracy of such
a criterion of classification.

In the United States the process most closely paralleled that of England,
but there were tendencies towards Continental models as well. Gilmore has
described post-revolutionary United States lawyers as “convinced eigh-
teenth-century rationalists” in the French tradition 65 and this commitment
to the mos gallicus manifested itself in the constructive reception of French
sources, in codification of some state laws, and in a much stricter form of
precedent (using per curiam decisions) than that which prevailed in England.
Whatever further measure of instrumentalism was present in the use of law
by United States lawyers, law was thus an important instrument in the
process of constructing a distinctive Nation State. The process occurred
with remarkable speed; by the mid-nineteenth century, legal thinking in the
United States tipped towards the deductive, as had French, German and
English legal thinking before it. The post-1850 period is known in United
States law as one of “formalism” in the sense that decisions were capable
of justification through a formal process of reasoning from given, national
(though largely borrowed) sources. As in Europe, United States legal science
then becomes that of demonstrating the plenitude of local law, and even in
his lifetime Story (who contributed largely to the process) complained of
the emerging mass of United States law and of its “perpetually receding
farther and farther from the common standard”. 66 He recommended the
“habits of generalization” but happily did not live to see the measure of
rejection of his advice, as twentieth-century United States authors produced
the “ultimate treatises” of national law, such as those of Williston, 67 Corbin 68

63Simpson, supra, note 42 at 256-57. For earlier forms of nationalist legal historiography in
England, linked to the concept of the primacy of the common law as derived from immemorial
custom unaffected by foreign incorporations and even the Conquest (and thus a key conceptual
instrument against Royal authority), see Pocock, supra, note 13, notably c. 5 (indicating the
contribution of Spelman to appreciation of the mixed sources of English law).

“For case law being “as strongly national as legislation”, see recently H.-J. Puttfarken, “Droit
commun l6gislatif und die Einheit der Profession: Eine ketzerishe Reflexion zur Rechtsverein-
heitlichung” (1981) 45 RabelsZ 91 at 96.
65G. Gilmore, The Ages ofAmerican Law (New Haven: Yale University Press, 1977) at 10.
66J. Story, “Address to the Suffolk Bar” (1829) 1 Am. Jur. 1 at 13-14, cited in Stein, supra,

note 47 at 416-17.

67S. Williston, A Treatise on the Law of Contracts, vols 1-18, 3d ed. by W.H.E. Jaeger (New

York: Lawyer’s Co-operative, 1957-78).

68A.L. Corbin, Corbin on Contracts, vols 1-8 (St. Paul, Minn.: West, 1950-63).

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and Scott,69 enormous collections of particular, positive rules, authenticated
by references to staggering quantities of reported, national decisions. Corbin
on Contracts is subtitled as A Comprehensive Treatise on the Working Rules
of Contract Law [emphasis added] but its 500-odd page table of cases is
surpassed by that of Williston, which in its third edition lists the names of
decisions for 1120 pages. “And so to judgment” is a forgotten phrase. A
French theory of law is joined to an English judicial model and hundreds
of thousands of United States law students are introduced to the science of
discovering the creativity of the judicial process, through intense and exe-
getical examination of national decisions. A century later, their resistance
to the process is but a part of the larger problems being encountered by the
notion of law as national response.

By the second half of the twentieth century the notion of law as national
response had yielded an enormous mass of particular rules. While nine-
teenth-century codifications had sought the most universal forms of expres-
sion (hence their exportability) and their principal purpose was that of national
unification, the newer rules were infused with detailed and varying purposes,
and the notion of the goal or purpose of law became current. Jhering wrote
Der Zweck im Recht in 187770 and crystallized an intellectual drift which
began with Cujas’ discovery of the particularity of law and led, through
Montesquieu, to increasing fascination with the detail of its particularity,
with possible relations between the richness of social life and the nature of
norms produced in a particular society. The combination of heightened
empirical awareness with an accepted ability to rationally make law thus
led to an increase in the use of law. From the given of established norms,
new norms could re-direct social activity in increasing particularity accord-
ing to the will of the maker of the norm, and the new empirical sciences
could both predict the need for new forms of regulation and reflect the
efficacy of that which already existed. The new mass of law thus reflects the
varying and detailed purposes of successive, national makers of law in a
manner apparently particular to each society. Law has lost not only its
reticence but its breadth, and with the realization of the subjectivity and
particularity of the new law comes its fall from grace, in certain jurisdictions
at least. Enormous energies are spent demonstrating the evident, that the
act of judgment, the act of giving life to law, is an individual decision and
that the multiplication of rules in itself cannot control the act of decision
cannot effectively bind. The forms of national reaction are well known and
are listed in the first paragraph of this paper. Curiously, however, the de-

69A.V. Scott, The Law of Trusts, vols 1-6, 3d ed. (Boston: Little, Brown, 1967).
70R. Jhering, Law as a Means to an End, Modem Legal Philosophy Series, vol. 5, trans. I.

Husik (Boston: Boston Book, 1913).

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PERSUASIVE AUTHORITY

constructionist movement does not result in a call for less law, but for more.
In a massive and contradictory fuite en avant, those in disagreement with
current decisions castigate the process as “mechanical” and call for greater
awareness of social “reality” and still greater particularity in the utterance
of national norms. The solution to law which cannot control social conduct 7′
is more law; above all law which conforms to the purposes of reformers
and which reaches to the particular effects they seek.

Again, the national reactions to law as national response take different
forms, but they all share in the process of demonstrating the inadequacy of
existing sources of law while calling for more law, and more particular law.
In some cases severe counter-reactions are provoked. On the Continent the
early movements of deconstruction (Freirecht, libre recherche scientifique)
were followed initially by an increase in commitment to the legislative text,
and the formalism of the mid-twentieth century recalled that of the nine-
teenth. Today, however, resignation has set in, and expressions of the twilight
of comprehensive legislation multiply.72 For some, the necessary conse-
quence is a return to judge-made law and the role of the Continental ju-
diciary is today in ascendance. 73 The judiciary is associated with the earlier
ius commune as a suppletive and tolerant means of realisation of law. Nos-
talgia is here dangerous, however, since the Continental judiciary is not
what it was from the twelfth to the fourteenth centuries and the notion of
judicial law-making is today as widely accepted as that of legislative law-
making. Indeed, it is within the Continental judiciary that the movement
of revolt against legislative forms of law and in favour of a newer, enlarged
and more particular form of law has taken its most evident form. Many
Continental judges now explicitly seek to use their judicial office as a means
of restructuring society and their organizations call for an enlarged judicial
role (both on the Bench and in public debate) and an enlarged perspective
on law and society.74 More making of law is urged, of a more particular
kind, as a means of implementing the purposes of those calling for more
law. Doctrinal writing would have its role to play in this process and already
an “enlarged” commentary on the German Civil Code is being produced,

no means the “realism” of the philosophical tradition.

71″Realism” is the accepted term for this view, when what is meant is scepticism, and by
72See, e.g., Mouly, supra, note 11 at 936 on “the failure of legislative organization of society”;
Puttfarken, supra, note 64 at 97 on the “wavering” character of contemporary legislation in
West Germany; and the articles in (1986) 4 Droits, devoted to the subject crises dans le droit.
73See Mouly, ibid. at 936; Puttfarken, ibid. at 97; and more generally A. Pouille, Le pouvoir
judiciaire et les tribunaux (Paris: Masson, 1985); J. Esser, Grundsatz und Norm in der Richter-
lichen Fortbildung des Privatrechts (Tfibingen: Mohr, 1956).

74See generally G.E Mancini, “Politics and the Judges – The European Perspective” (1980)
43 Mod. L. Rev. 1; and for reaction within the judiciary itself, see H.P. Glenn, “Limitations
on Judicial Freedom of Speech in West Germany and Switzerland” (1985) 34 I.C.L.Q. 159.

McGILL LAW JOURNAL

[Vol. 32

though the authors acknowledge with refreshing candour that the identifi-
cation of social tendencies and social consequences will not reduce the dif-
ficulty of the decision-making process. 75 The resurgence of a movement for
the unification of European law is a further indication of disenchantment
with national oracles of law, though there is doubt as to whether a new
European legislative unity is either desirable or possible.76 In France an
eloquent plea has been made for the contemporary use of Roman law –
“Oh! une reception discrete, mesur~e – nous avons d6ja tant de textes …
Plut6t des gorg6es de droit prises de temps en temps, selon la soif, A ‘antique
fontaine.” 77

In the common law world it is the national, law-making judiciary which
is the principal target of deconstruction. The politics of the judiciary is a
general theme in the United Kingdom 78 and in the United States, where
the institutional security of the English judge is married to the constructiv-
ism of the French rationalists, the combination is said to represent “the
arrogation of unlimited power by the judges”. 79 Again, there is some transfer
of affection amongst formal sources of law and legislation is urged by many
as a scientific and legitimate alternative to traditional case law, usually with-
out regard to its current effectiveness abroad. 80 Reaction to national law is
thus most severe in the United States, where confidence in both judicial
and legislative sources has led to more law than can ever be read, let alone
known. The plethora of law, and its evident subjectivity and relativity, then
leads to more severe reactions than the simple scepticism of the early twen-
tieth century. Since it is impossible to know all the law being made,8’ and
since in any event new law is merely a statement of purpose by a present
member of the State hierarchy, which cannot bind, there is no real impe-
diment to seeking to make law oneself, in the sense of statements of personal
purpose in legal form in a particular field of endeavour in which some
expertise may be claimed. The style of legal education contributes to this
process, as the multiplicity of positive sources leads to more and more
detailed study of them in narrower and narrower fields of activity. The
(relatively) modest task of producing “ultimate treatises” of national law is

75R. Wassermann, ed., Reihe Alternativkommnentare: Kommentar zum Bfirgerlichen Gesetz-
76Sce generally Mouly, supra, note 11; H. Katz, “Rechtsvereinheitlichung – Nutzen, Kosten,

buch, vol. 2 (Neuwied: Verlag Luchterhand, 1980) at vii.

Methoden, Ziele” (1986) 50 RabelsZ 1.
77Carbonnier, supra, note 34 at 107.
78J.A. Griffith, The Politics of the Judiciay, 2d ed. (London: Fontana, 1981).
79Gilmore, supra, note 65 at 35. The United States Supreme Court is, however, presently

reducing its visibility and blurring the significance of its decisions.

80Remarkably, even the process of choice of law has recently become the object of much

legislative intervention in the United Kingdom.

81The growth of legal research firms to assist lawyers in finding the law is the best indication

of the extent of this problem.

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PERSUASIVE AUTHORITY

largely abandoned, in favour of more vigorous personal statements, usually
in law reviews.82 It has been said that legal writers in the United States have
therefore become largely preoccupied with giving “an account of what is
happening amongst themselves” 83 and accusations of narcissism, personal
bias and self-interest are now common coin in United States legal discourse,
to the regret of those who look to United States law as a model. This national
implosion is similar to others, however, in that the scepticism towards ex-
isting law is not so much productive of a call for less law (though this also
occurs) as of a larger movement in favour of more law; this is again the
law of the reformers and in the particular detail they favour in the field they
have come to know. The fascination with law affects even those dedicated
to its elimination and “enlarged” doctrine emerges in United States legal
academic thought as the means of implementing detailed projects of per-
sonal reform, as it has amongst the European judiciary.

These national reactions to national law, however, represent more than
the personal sensibilities of increasingly vocal academics. On the Continent
they affect in the most immediate fashion the functioning of tribunals, as
the engaged judiciary is itself challenged by litigants, state officials and other
members of the judiciary. In all the States of national law, moreover, law
itself as a collective and objective enterprise comes to be challenged and
threatened. In the language of Professor Berman: “It is impossible not to
sense the social disintegration, the breakdown of communities that has taken
place … . What has this to do with law? A great deal.”‘ 84 This sense of the
decline of law is not, however, universal, since the continuation of law is
not limited to law in the form of national response. The notion of law as
enquiry presents a continuing, and even dominant, though largely unpro-
claimed, alternative.

B. Law as Enquiry

Outside the jurisdictions which have contributed most affirmatively to
the Western legal tradition there has been less confidence in the notion of
law as national response. To be more precise, there has been less confidence

820n the multiplication of specialized law reviews as an indication of decline in fundamental
legal thought, see C. Atias, EpistMnologie juridique (Paris: Presses universitaires de France,
1985) at 71.

83C. Stone, “From a Language Perspective” (1981) 90 Yale L.J. 1149 at 1151; and for U.S.
legal academics declining in utility since they “write primarily for other academics”, R. Cram-
ton, “Laws unto Themselves” Times Literary Supplement (22 November 1985) 1329 at 1330;
for self-conscious footnoting of indebtedness to colleagues as an effort towards visibility in a
crowded field, see A. Hunt, “The Theory of Critical Legal Studies” (1986) 6 Oxford J. Legal
Stud. 1 at 2.
84H.J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cam-

bridge, Mass.: Harvard University Press, 1983) at vi.

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[Vol. 32

in national response as law, and this hesitation as to the adequacy of local
sources is seen in continuing loyalty to overarching political structures, or
to the memory of them, and in adherence to foreign models of law idealized
as rational. As Roman law was thus revered in Europe, so have Roman,
French, German, English and American law come to be revered in much
of the rest of the world and come to represent ongoing sources of law in
other States. The law of these other States is thus not composed exclusively
of binding State law and the use of extranational persuasive authority is,
as has been said, 85 indicative of freedom in the choice of law on the part
of legal officers. To the extent that the law used by these officers is not
definitely made and imposed upon them but is rather chosen by them in
an ongoing process, the underlying notion of law is that of enquiry. There
is never a closing of sources, never a declaration of satisfaction with existing
knowledge, never a pure process of deduction from a single given, never an
entire commitment to an exclusive paradigm of law. In general, there is also
less assurance as to the role of law and the ongoing commitment to external
sources is therefore accompanied by a certain reticence as to the extension
of legislative or judicial jurisdiction. The remainder of this paper will set
out the Canadian experience with the notion of law as enquiry, as a means
of continuation of law, but it is important to emphasize how widespread
this view of law is in the contemporary world. Thus there is much practical
use of English law in the Commonwealth, of United States law in countries
with similar constitutions, of French or German law in countries with de-
rived codifications, and the list could be lengthened. There are directions
of loyalty, but the fundamental characteristic of the phenomenon is the
openness to even a single extranational source. Of course there is much
contemporary nationalism and there are many calls for original, national
jurisprudence (for purposes of political demarcation), but the practice of
much of the world of law is to remain continuingly receptive (and not once
and “critically” receptive) to extranational legal experience. Where loyalty
to a single, foreign source is taxed as derivative, moreover, it is frequently
done in order to effect a change in alliance (as from English to French law,
or English to American law). Here, as in the process of reception itself,
accusations of the derivative or unoriginal character of reliance on foreign
models neglect the wider field of choice which such models present and the
original character of all realisations of law.s6

It should also be noted that the concept of law as enquiry was the
dominant concept of law in all jurisdictions of the Western legal tradition
until the constructive receptions of the seventeenth through nineteenth cen-
turies. The English common law developed as an island in the Romanist

85See the introduction to this article.
86See above, text accompanying note 31.

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PERSUASIVE AUTHORITY

sea, as a local and customary exception to the universal learning, but it has
co-existed with Continental forms of law (in Chancery, Admiralty and com-
mercial law) for much of its existence. The customary laws of France and
Germany did not displace Roman law until the nineteenth and twentieth-
century codifications. Receptions in these jurisdictions were thus in large
measure ongoing receptions; the continuation of law was through enquiry
amongst the range of domestic and allied sources. This was so because it
was not thought that law could be made; since it could not be made it could
not be made complete; and domestic law could never be taken as entirely
occupying the range of choice. Law as enquiry is thus the dominant concept,
both in space and in time, in the continuation of Western law.

In the contemporary world the notion of law as enquiry has had to
accommodate the existence of the State and the utterance of norms by
officers of the State. It is in the nature of persuasive authority, however, to
tolerate assertions of local particularity. This has been seen in discussing
the reception of Roman law in Europe. 87 Contemporary State law is thus
entirely compatible with the notions of persuasive authority and law as
enquiry, in the sense that State law is taken as displacing but never entirely
eliminating extranational sources. National, positive law is the equivalent
of the local custom of an earlier era and takes its place within an existing
field of persuasive authority. Law thus precedes the State and continues to
surround it.

In Canada the continuation of law, following reception, has been marked
by continuing political loyalty to England and France and by a newer North
American loyalty to the United States. Loyalties to England and France
persisted after the acquisition of independence by Canada in the early twen-
tieth century; loyalty to the United States has developed largely since that
time. Political loyalties have been accompanied by appreciation and ad-
miration of English, French and American legal thought and the essential
elements of reception as alliance have thus been equally present in the
continuation of law. The Canadian Nation State thus emerged slowly and
the slow construction of its “vertical mosaic” has not eliminated an “internal
point of view” on the part of its citizens which is accommodating to ex-
tranational institutions. There has never been a formal “adoption” of con-
temporary English, French or American law in Canada; each of them is
simply there. They are not seen as radically “foreign” laws; they represent
living law which may be useful in the practical process of dispute resolution.
There have, however, been discernible differences in attitude towards per-
suasive authority in the last two centuries of Canadian legal history.

87See above, text accompanying note 13.

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[Vol. 32

The nineteenth century in Canada was one of openness to foreign models
of law and the natural affinity of Canadian lawyers to look to the law of a
metropolitan jurisdiction, in a spirit of alliance, was reinforced by views
then current of constructive borrowing. France had borrowed in its codi-
fication; England and the United States had embarked upon a major process
of incorporation of civil law into their national systems of precedent; there
was a flow of translations of major works across the boundaries of legal
“families”. In Nova Scotia, Murdoch praised the utility of American and
Roman law in ameliorating local institutions; 88 in what is now Ontario a
certain flamboyance of judicial style became evident (“We are about to
define the position of multitudes by whom a country is being peopled”);8 9
and law libraries provided an eclectic range of common and civil law au-
thority.90 In the colony of Lower Canada the mix of sources was even greater 9
and de Tocqueville, arriving from the newly unified Nation State of France,
now totally engrossed in its own legislative texts, expressed dismay at the
mixture of language and traditions in the court practice of Quebec. 92 In the
Supreme Court of Canada, newly-created in 1875, United States cases num-
bered ten to twenty-five per cent of those cited to the Court93 and the Court
displayed clear tendencies towards imposition of a rationally inspired, uni-
form Canadian law, in large measure borrowed from abroad. With the adop-
tion of the Civil Code of Lower Canada in 1866 and the formal enunciation
by the Supreme Court of the binding character upon itself of its own de-
cisions in 1909,94 the instruments of formal positivism were put in place.
This was the time for closing the door to persuasive authority and the
building of complete, distinctive and unifying sets of local law. As England,
France and the United States had terminated their constructive receptions

88See B. Murdoch, supra, note 28 at 6, 16-17 and 35. See also B. Murdoch, “An Essay on
the Origin and Sources of the Law of Nova Scotia: Read on Saturday 29 August, 1863” (1984)
8(3) Dal. L.J. 187 at 191.

Dal. L.J. 713 at 724, citing Chancellor Blake in O’Keefe v. Taylor (1851), 2 Grant’s Ch. 95.

89See R.C.B. Risk, “Sir William R. Meredith C.J.O.: The Search for Authority” (1983) 7
90See G.B. Baker, “The Reconstitution of Upper Canadian Legal Thought in the Late-Vic-

torian Empire” (1985) 3 Law & Hist. Rev. 1.

L.J. 521.

91J.E.C. Brierley, “Quebec’s Civil Law Codification: Viewed and Reviewed” (1968) 14 McGill
92See A. de Tocqueville, Oeuvres completes: Voyages en Sicile et aux Etats Unis, t. 5, vol. 1,
2d ed. by J.-P. Mayer (Paris: Gallimard, 1957) at 212-13. The tradition of central imposition
of uniformity in the name of reason is also evident in matters of language and de Tocqueville
found that the resident avocats “manquent particulirement de distinction parlant frangais
avec l’accent normand des classes moyennes”.

93J.M. Maclntyre, “The Use of American Cases in Canadian Courts” (1966) U.B.C. L. Rev.
478 at 486: “certainly there was no hesitation in citing them, and their parentage was not
considered important.”
94Stuart v. Bank of Montreal (1909), 41 S.C.R. 516, aff’d for different reasons (1910), [1911]
A.C. 120, 80 L.J.P.C. 75 (PC.).The rule has been abandoned since the 1970’s, paralleling similar
developments in the United Kingdom.

1987]

PERSUASIVE AUTHORITY

and turned to the detailed elaboration of national, binding law, so could
other jurisdictions complete the process of nation-building through law,
isolating themselves from extranational sources which would dilute the im-
age of law as a distinctive product of the Nation State.

Since the last years of the nineteenth century there has thus been con-
siderable sentiment in Canada in favour of the concept of national, binding
law. This could be said to be a highly derivative phenomenon, but the
decision to be as original as others is probably as capable of individual
justification as the decision not to be as original as others. Whatever the
ultimate in originality, the use of law for national purposes was vigorously
urged, nowhere more so than in Quebec, where a culturally distinct pop-
ulation was often said to require a distinctive law as a means of cultural
demarcation and even cultural survival. This sentiment had contributed in
some measure to the codification process itself in Quebec, but became more
vigorous in the twentieth century. It was said that “[c]’est par sa fa~on
d’exprimer le Droit qu’une nation manifeste en partie son originalit6”, 95
and a more contemporary visitor from France has praised, with superb
disdain for the entire history of Quebec law, the “originalit6 et puret6 qui
sont des pieces maitresses de la civilisation juridique du Canada d’expres-
sion et de pens~e frangaises. ” 96 The political sentiment in favour of enlisting
law in support of cultural particularity has manifested itself clearly in Quebec
legislative activity and in studied indifference to feeble efforts towards Ca-
nadian legislative uniformity.97 The claims of Quebec nationalism on law
have thus been most evident, as elsewhere, in legislation, but they have
manifested themselves as well in antagonism towards those foreign sources,
here of the common law, which are judged incompatible with civilian tradition.
The same general statement may be made, though with somewhat less
force, of the effect of nationalist thought on law in the Canadian common
law provinces. Horace Read argued in the 1950’s for “Canadian judges
developing Canadian law to meet Canadian needs”, 98 and this insistence
on particularity inspired both legislative activity and hostility to (selected)
foreign sources. Read was arguing against the use of English precedent, but
a decline in the use of other foreign sources had already occurred. Resistance

95A. Perrault, Pour la d~fense de nos loisfrangaises (Montreal: Action frangaise, 1919) at 8.
96P Azard, “Le probl~me des sources du droit civil dans la province de Qu6bec” (1966) 44
Can. Bar Rev. 417 at 418. See also P. Azard, “Le Droit Qu~b~cois, piece maltresse de la
civilisation canadienne frangaise” (1963) 5 C. de D. 7.

97A distinguished Quebec jurist has thus remarked laconically that “‘uniformisation du droit
n’est pas un mal en soi”, reflecting the universal ambivalence, if not hostility, to still wider
forms of uniformity imposed in a binding fashion in the name of reason: A. Mayrand, “Le
droit compar6 et la pens~e juridique canadienne” (1957) 17 R. du B. 1 at 2.

98H. Read, “The Judicial Process in Common Law Canada” (1959) 37 Can. Bar Rev. 265

at 268.

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to the citation of United States case law had in some cases been explicitly
stated by the judiciary99 and nineteenth-century use of civil law authorities
largely disappeared, even for constructive purposes. The particularity of
provincial legislation became an increasing source of conflicts of laws and
there was as little enthusiasm in common law Canada as elsewhere for
imposed legislative uniformity. 100 Even where there was borrowing of uni-
form United States legislation a process of constructive reception occurred,
with domestic “improvement” in each province of the foreign model, and
uniform foreign law became distinctive and diverse domestic law.10’ There
was, in short, some confidence in the ability to make as much law as was
necessary.

While nationalist legal thought was thus clearly present in twentieth-
century Canada, there were major intellectual obstacles to its dominance.
Diverse political loyalties continued to exist and while these were often
sharply focussed on England or on France, or to a lesser but increasing
extent on the United States, each of them was an external loyalty, a denial
of the power of the domestic Nation State to command exclusive allegiance.
In the case of loyalty to England there has been criticism by nationalists of
a “colonial” mentality, since contemporary attitudes could be seen as a
continuation of abandoned colonial structures, but the intellectual dtmarche
is the same here as in cases of loyalty to France or the United States, where
formal colonial structures are largely forgotten or have never existed. Such
nations are not perceived as “foreign”; there is rather a sharing in their
intellectual tradition and a commitment to that tradition, as there was a
sharing in and commitment to the intellectual legal tradition of Rome. This
sense of personal sharing in the experience of others is more dangerous to
constructive and exclusive nation-building than a diffused universalism; it
provides a specific object of external loyalty, an obvious illustration of the
mixed character of national construction, and a means of integrating foreign
law into daily legal practice.

99See the judgment of Ritchie J. in R. v. Miller (1976), [1977] 2 S.C.R. 680 at 706,63 D.L.R.
(3d) 193, 31 C.C.C. (2d) 177; see also MacIntyre, supra, note 93; Note, “The Use of American
Legal Literature” (1943) 21 Can. Bar Rev. 57 at 57, commenting on “a prejudice, commencing
in the law schools and extending to the courtroom, against the use of American authorities
and texts.”

‘0On the failure of Canadian efforts towards provincial legislative uniformity, see E.E. Pal-
mer, “Federalism and Uniformity of Laws: The Canadian Experience” (1965) 30 Law and
Contemp. Problems 250; R.C.C. Cuming, “Harmonization of Law in Canada: An Overview”
in R.C.C. Cuming, co-ord., Perspectives on the Harmonization of Law in Canada (Toronto:
University of Toronto Press, 1985) 1 at 35.

10tJ.S. Ziegel & R.C.C. Cuming, “The Modernization of Canadian Personal Property Security

Law” (1981) 31 U.T.L.J. 249 at 251.

1987]

PERSUASIVE AUTHORITY

In legal matters there were more precise obstacles to the construction
of a purely national law. In Quebec the codification process did not purport
to be complete and the Civil Code itself did not command exclusive atten-
tion, as did the Napoleonic Code. The ancien droit was not entirely abro-
gated, but only in cases of duplication or inconsistency with the Civil’ Code,
which could therefore be supplemented by other sources of law. 0 2 Nor were
judicial decisions prohibited as a source of law, and it has been observed
that “the codification of the Quebec laws seems rather like a half-measure,
typical of compromise”, 10 3 though such a codification is perhaps more rep-
resentative of the codification process in general than that accomplished
through radical elimination of other sources of law, as occurred in France.’0 4
In common law Canada a similar indication of the necessarily incomplete
character of local law existed in the “declaratory theory” of the common
law, acted upon explicitly or implicitly by judges of the common law throughout
most of its history. The declaratory theory teaches that judges do not make
law but only declare pre-existing law, here a transnational common law the
content of which may be derived from decisions of the courts of any com-
mon law jurisdiction. The difficulty of identifying a fixed source of such a
pre-existing law, outside of the judiciary itself, resulted in ridicule being
heaped upon this theory in an age of national legal construction, binding
precedent and radical scientific positivism, particularly in jurisdictions fully
committed to the national law-making process. In common law Canada,
however, the notion of binding precedent had to maintain a precarious co-
existence with the declaratory theory, said in 1968 to be “the theory of our
system of law” and reformulated to mean more simply that the “common
law is a developing system in the sense that there is a continuing process
of development and exposition of rules.”105 Seen in this light the declaratory
theory is simply a denial of the existence of a single, binding source of law
and the assertion of an ongoing process of enquiry in which the most per-
suasive authority is sought, regardless of its origin, for the resolution of a
given case. It is a warning not to take single institutions, or authors, too
seriously. They are called upon to decide cases or enact norms or give
opinions, but the search for law is too important for any potential external
source to be eliminated a priori. The law is never definitively given; it is
always to be sought, in the endlessly original process of resolution of in-
dividual disputes through law. In France, after two centuries of inspired and

102Art. 2712 C.C.LC.
’03M.A. Tancelin, “Introduction” in EP Walton, The Scope and Interpretation of the Civil

Code of Lower Canada, new ed. by M.A. Tancelin (Toronto: Butterworth, 1980) 1 at 27.

104The Swiss Civil Code, designed to achieve national uniformity, nevertheless provided for

the opting out of many of its provisions on the part of particular cantons.

105Jackett, supra, note 29 at 29.

McGILL LAW JOURNAL

[Vol. 32

brilliant legislation, voluminous beyond description, the declaratory theory
of law is receiving renewed attention. It has recently been stated: “Le droit
est variable et diffus. II est done une matirre i ddcouvrir et non pas a
cr~er.”1 06

In Quebec the view that domestic law is necessarily incomplete has led
to reliance on French law in matters of private law, on the common law
(from England, Canada and the United States) in matters of public law and
some (contested) use of sources outside their own “family”, as where the
common law is used in private law matters (reversing the pattern of the use
of civil law in common law jurisdictions in the nineteenth century). It has
been observed, correctly it is felt, that this is done because the judge “se
sent beaucoup plus sfir de lui, ayant comme appui la continuit6 jurispru-
dentielle 6trangre plutrt que ses seules propres ressources d’exdg~se du
texte”,10 7 echoing Professor Coing’s statement that the development of law
in Europe was characterized by a process of interpretation of the ius com-
mune rather than by pursuit of original constructions. 0 8 A recent study’ 09
of citation patterns in Quebec courts thus indicated the following use of
domestic and foreign sources, listed in order of frequency of citation: Quebec
decisions (129 citations), French authors (117),110 common law decisions,
with no indication of country of origin (79), Quebec authors (29), French
decisions (25) and common law authors (13). Approximately sixty percent
of citations are therefore to non-indigenous sources, and there is clear ap-
preciation of the merits of civilian academic writing and common law ju-
dicial opinions. While there is sometimes fierce controversy as to the merits

106C. Mouly, “La doctrine, source d’unification internationale du droit” (1986) 38 R.I.D.C.
351 at 364; and see J.-M. Varaut, “Le droit commun de l’Europe” Gaz. Pal., 19-20 September
1986, Doct.9: “le droit est ant~rieur A la r~gle de droit et la dfborde de partout”; C. Atias,
“Une crise de ldgitimit6 seconde” (1986) 4 Droits 21 at 32: “le droit n’est pas une construction
mais une r~alit6 A d~couvrir”; and more generally see the work ofM. Villey, notably Philosophie
du droit: D(finitions etfins du droit, vol. 3, 3d ed. (Paris: Dalloz, 1982) and Le~ons d’histoire
de la philosophie du drolt, 2d ed. (Paris: Dalloz, 1962).

07J.-L. Baudouin, “Le Code civil qub~cois: crise de croissance ou crise de vielllesse” (1966)

44 Can. Bar Rev. 391 at 406.

t08H. Coing, Handbuch der Quellen und Literatur der neueren europdischen Privatrechtsges-

chichte, vol. 1 (Munich: C.H. Beck’sche Verlagsbuchhandlung, 1973) at v.

09P.-G. Jobin, “Les ractions de la doctrine A la creation du droit civil qu6bfcois par les

juges: les debuts d’une affaire de famille” (1980) 21 C. de D. 257 at 270.

11 These authors are frequently those of the nineteenth century exegetical school, concerned
with elaboration of the purportedly universal significance of the Napoleonic Code, and less
frequently modem French authors who have immersed themselves in more particular and
positive expressions of French law. On the decline of the exegetical authors in France and their
continuing citation in Quebec, compare Rrmy, supra, note 58 at 255 and Tancelin, supra, note
103 at 15.

1987]

PERSUASIVE AUTHORITY

of particular sources in relation to individual questions,”‘ the relatively
free exchange of persuasive authority has not led to radical uniformity or
the elimination of an autonomous body of Quebec law. One of the staunchest
defenders of the autonomy of Quebec civil law, Mr Justice Mignault, was
able to conclude at the end of his career in 1938 that “till n’y a pas eu
immixtion ou absorption de l’un au profit de l’autre [syst~me]”, 1 2 and
similar sentiments have been expressed recently13

In common law Canada, adherence to a declaratory theory of law pro-
duced a continuing reception of English and Commonwealth case law, and
the decline of scientific positivism in the second half of the twentieth century
has seen a reopening towards other foreign sources. The commitment to
English law has been so strong as to be expressed in terms of obligation,”14
though it is evident, as in the process of reception, that there is a constant
process of screening and evaluation.” 5 A widely used introductory textbook
to law justifies these phenomena on the ground that it is “closer to the truth
to regard the law as a continuing process of attempting to solve the problems
of a changing society, than as a set of rules …,.116 The refusal to accept local
decisions as definitive has prevented any real notion of distinctive provincial
case law from developing, while ensuring interprovincial circulation of de-
cisional law. The main beneficiary of the reopening in favour of a wider
range of foreign sources has been United States law, accessible in terms of
language, concepts and publishing patterns, and the recent adoption in Can-
ada of a charter of rights has already resulted in increased use of United

I’See, e.g.,

.-A. Cr6peau, “La responsabilit6 civile de 1’6tablissement hospitalier en droit
civil canadien” (1981) 26 McGill L.J. 673 at 694-95, on the question of whether a plaintiff
may opt for a delictual cause of action in spite of a pre-existing contractual relation with the
defendant, relying on French sources in preference to those of other civil law jurisdictions and
the common law, as being more compatible with the structure of Quebec codification, largely
that of the Napoleonic Code.
12PB. Mignault, “Les rapports entre le droit civil et la’common law’ au Canada, sp6cialement
dans la province de Qu6bee” in Introduction e l’ tude du droit compare: Recueil d’ttudes en
l’honneur d’Edouard Lambert, vol. 2 (Paris: Librairie de la Soci6t6 Anonyme du Recueil Sirey,
1938) 88 at 93.

” 3J.-L. Baudouin, “The Impact of the Common Law on the Civilian Systems of Louisiana
and Quebec” in J. Dainow, ed., The Role of Judicial Decisions and Doctrine in Civil Law and
in Mixed Jurisdictions (Baton Rouge: Louisiana State University Press, 1974) 1 at 9; J.-L.
Baudouin, “Linterpr6tation du Code civil qu6bbcois par la Cour supreme du Canada” (1975)
53 Can. Bar Rev. 715 at 736.

” 4See, e.g., R. v. Carribre (1955), 17 W.W.R. 317, 113 C.C.C. 11 (B.C.S.C.) (British Columbia

judge “constrained” to follow post-reception U.K. case law).

” 5For instances of rejection of U.K. case law, see Read, supra, note 98 at 277-78 and 289,
and for a more recent judicial statement of the danger of excessive reliance on Englishjudgments
see Yepremiam v. Scarborough General Hospital (1980) 28 O.R. (2d) 494 at 515, 110 D.L.R.
(3d) 513 (C.A.).

” 6S.M. Waddams, Introduction to the Study of Law (Toronto: Carswell, 1979) at 5.

REVUE DE DROIT DE McGILL

[Vol. 32

States decisions in constitutional law. Even prior to these constitutional
changes, it had been said that a contemporary reception of United States
law in common law Canada was underway, as generations of Canadian law
teachers received graduate training in United States law schools and re-
turned to teach that which they had come to most admire in United States
law. A criticism of this reception has been voiced to the effect that it “often
was not apparent to those who were responsible for it … [and that it] has
not been subjected up to date to any really critical examination and dis-
cussion”,, 117 and loyalty to United States law thus encounters, though less
frequently, the same type of resistance as that earlier expressed by nationalist
writers with regard to Canadian reliance on English law. There is less re-
sistance, however, to use of a broad range of persuasive authority than to
the exclusive reliance on the law of a single foreign country. That the process
of enquiry is not necessarily limited to a given “family” of law was illustrated
recently by a decision of the Ontario Court of Appeal, which referred to the
laws of England, Australia, New Zealand, West Germany, Israel and
Switzerland. 118

The recent practice of the Supreme Court of Canada, increasingly a
public law court, is also indicative of a reopening towards non-formal sources
of law. From the late 1950’s to the late 1970’s references to doctrine and
foreign law tripled in frequency in the judgments of the Court,1 19 and in
1985 a formal rubric was added to the official Supreme Court Reports to
indicate the specific doctrinal sources which had been cited. An analysis of
a recent volume of the reports of the Court 20 indicated the following fre-
quency of citation of doctrinal writing: Canadian authors (63), United King-
dom authors (29), United States authors (24), French authors (9), Australasian
authors (7), other (2); while the frequency of citation of decisions was as
follows: Canadian decisions (367), United Kingdom decisions (110), United
States decisions (45), Australasian decisions (14), French decisions (2), other
(4). The Court has therefore substantially broadened its frame of enquiry
while embarking on the perilous task of judicial review of legislation.

117E. McWhinney, “New Frontiers in Jurisprudence in Canada” (1958) 10 J. Leg. Ed. 331
18R. v. Morgentaler (1985), 52 O.R. (2d) 353, 22 D.L.R. (4th) 641, 48 C.R. (3d) 1; and see,
for use of international human rights law in Canadian constitutional law, J. Woehrling, “Le
rrle du droit compar6 dans la jurisprudence des droits de ]a personne – Rapport canadien”
in A. de Mestral et al., eds, The Limitation of Human Rights in Comparative Constitutional
Law (Cowansville, Qu6.: Yvon Blais, 1986) 449 (with further references).

” 9See D. Casswell, “Doctrine and Foreign Law in the Supreme Court of Canada: A Quan-
titative Analysis” (1981) 2 Sup. Ct L. Rev. 435 at 442. This study excluded decisions of U.K.
courts from its definition of “foreign” law. In the late 1970’s the judgments of the Supreme
Court referred to foreign law and doctrine approximately 1.5 times per judgment and textbooks
counted for approximately one third of these references: supra at 442 and 445.

at 333-34.

120(1985] 1 S.C.R.

1987]

PERSUASIVE AUTHORITY

While law as national response has been closely linked to massive doc-
trinal statements of national law, either as a base for subsequent law-making
by State institutions or as a means of elaborating State law, the notion of
law as enquiry is largely incompatible with such a dominant role for national
legal writing. Since external sources will continue to be used, there is no
possibility of definitive, local works entirely occupying a field, no possibility
of single doctrinal statements being taken as necessarily given in subsequent
elaboration of law. Canadian doctrinal writing in its entirety has been modest
in comparison with French, English, German or United States writing, as
has been the doctrinal writing of the rest of the Western world. This relative
modesty is certainly due in part to relatively fewer resources, but it is also
due to the different perspective on law which prevails in Canada and else-
where. One does not set out to write a definitive statement of law because
definitive statements of law should not be written. This does not prevent
doctrinal writing and high individual achievements are possible (Accursius
and Bracton are known today), but there is an inherent check on the delib-
erate construction of monolithic works and monumental academic repu-
tations. Since the judges do not presume to make law, neither should the
academics, and both regard with necessary scepticism the increasing mass
of legislation. Paradoxically, the citing of academic writing by courts can be
therefore much freer than in jurisdictions where the academic contribution
has been greater. Having established the foundations for formal State law,
doctrine was excluded as a source of law in the nineteenth century in ju-
risdictions having espoused most radically the concept of law as national
response. Where academic writing never undertook such a massive task, it
never created the conditions of its own exclusion, and remains a working
participant in the dialectical, ongoing process of enquiry. The treatise of
national law has thus not occupied a major place in the history of Canadian
law and while there have been occasional, vigorous statements in favour of
distinctive, national doctrine and even enlarged and instrumentalist na-
tional doctrine, these have not received wide support in either the profes-
sional or legal academic community. Persuasive authority from abroad is
always to be welcomed, and alliances are as essential for the continuation
of law as for its reception.

Conclusion

The nationalization of law has made it vulnerable. Its sources become
too close, too particular, too subjective. In seeking to bind it fails to persuade
and resistance becomes easier to justify than adherence. Opponents to laws
made by the State are excluded from the world of law and are driven to
attack it. Multiplying the sources of law, however, means multiplying the
sources of legal dialogue. Law is less precise but more communal and there
are more possibilities of persuasion and adherence to law, and eventually

McGILL LA1W JOURNAL

[Vol. 32

of eliminating it. Decisions are less conclusive, other sources may later
prevail, and broader forms of agreement become possible, tolerant of dif-
ferences now seen as minor and perhaps transient. The use of persuasive
authority is thus essential to law itself and uniformity of law comes not
through imposition but persuasion, in the daily world of legal practice. This
was the first message of Gaius, in the Institutes, in stating that peoples are
governed both by law which is particular to them and by law which is
common to humanity.1 21 In the measure that enquiry after universal law is
abandoned, there is a danger of abandonment of law, and an urgent call has
thus recently been made “to overcome … the identification of all our law
with national law and of all our legal history with national legal history.”1 22
Law is so challenged, however, only in those jurisdictions which have taken
the risk of leading, and forming, the Western legal tradition. They have
given law to the rest of the world, and it is only fitting that the rest of the
world give law back to them, and that each give law back to the others.

121Inst. Gaius 1.1: Ommes populi qui legibus et moribus regunturpartim suo proprio, partim
122Berman, supra, note 84 at vi.

communi omnium hominum iure utuntur.

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