Law’s Political Foundations

Law’s Political Foundations

Rivers, Rifles, Rice, and Religion

Elgar Studies in Legal Theory

John O. Haley

Law’s Political Foundations explains the development of the two basic systems of public and private law and their historical transformations. Examining the historical development of law in China, Japan, Western Europe, and Hispanic America, Haley argues that law is a product, rather than a constitutive element, of political systems.

Chapter 2: Rivers, rifles, rice, and religion: paradigms and trajectories of legal change

John O. Haley

Subjects: law - academic, comparative law, legal theory


Comparative law requires more than merely the identification of the elements and attributes of law, its enforcement, aims, and development. We cannot adequately overcome the hurdles of comparative analysis of law in diverse cultures and moments in time without an understanding of the historical foundations of law and the dynamics of legal change. How law develops historically should thus be the central concern of any comparative effort. Recall, however, that both the recognition of legal norms (law making) and their enforcement (law enforcing) involve an exercise of political authority, which, as described in the previous chapter, equates with legitimacy. Historically, therefore, law by definition first emerges in any society at the initial stages of the development of political institutions along with sources of political legitimacy. Similarly, in the first regimes in which, with or without political legitimacy, rulers developed the capacity to coerce, legal rules grounded on power also could be imposed. Thus from an historical perspective, we cannot adequately appreciate much less compare legal systems without some understanding of their relative degrees of political institutional development. Assuming, moreover, that the same or similar factors help to explain institutional features they share, the development of political institutions in any single society is apt to be shared by other societies with common institutional experience. These propositions lead to a core proposition of this book that legal institutions rest on political institutions that in turn develop in relation to the sources and uses of wealth.

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