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 5: Rivers, rifles, and religion: the primacy of private law in Western Europe

John O. Haley

Subjects: law - academic, comparative law, legal theory


The Western legal tradition is today the paramount source of perceptions of law worldwide. Conceptions and processes, which for Europeans by the nineteenth century identified the attributes of law in all “civilized” nations, have become universally accepted. Hand in glove with prevailing notions of statehood, the understanding of law as predominantly a system of private law enforced through litigation was evidenced in the centrality of civil (private law) codes and judicially constructed common (private) law. Today law faculties throughout the world continue to treat private law—contracts, civil delicts (torts), property—as law’s core components. In law schools in the United States, multiple fields of regulatory public law—with the notable exception of criminal law—are sporadically taught as electives. Seldom if ever is any distinction as described in Chapter 1 noted between the manner of private and public law enforcement. This is in part the result of the pervasive influence of private law institutions. The role of judges and judicial processes, not to mention the emphasis on “rights,” are private law borrowings that have become fundamental features of the Western legal tradition. They shape all fields of law. We might well ask how could this be if in developmental terms public law orders represent the more advanced prototype as evidenced in the contemporary expansion of public law in all legal systems. Why Western law succeeded globally is a relatively easy question to answer.

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