Document Type

Article

Publication Date

2020

Abstract

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.

Comments

Posted: 4 Jan 2020 Last revised: 2 Apr 2020

Citation/Publisher Attribution

https://doi.org/10.1515/ordo-2020-0004

Publisher Statement

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: https://ssrn.com/abstract=3502955

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