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This paper draws a distinction between ‘communitarian’ and ‘rationalist’ legal orders on the basis of the implied political strategy. We argue that the West’s solution to the paradox of governance – that a government strong enough to protect rights cannot itself be restrained from violating those rights – originates in certain aspects of the feudal contract, a confluence of aspects of communitarian Germanic law, which enshrined a contractual notion of political authority, and rationalistic Roman law, which supported large-scale political organization. We trace the tradition of strong but limited government to the conflict between factions with an interest in these legal traditions – nobles and the crown, respectively – and draw limited conclusions for legal development in non-Western contexts.


Posted: 4 Jan 2020 Last revised: 2 Apr 2020

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Harwick, Cameron and Root, Hilton L., The Feudal Origins of the Western Legal Tradition (March 16, 2020). 2020, Jahrbuch für die Ordnung von Wirtschaft und Gesellschaft (Ordo), 70(1): 3-20.. Available at SSRN: