The Making of Legal Authority by Jansen Nils
| Date | 01 January 2011 |
| DOI | http://doi.org/10.1111/j.1468-2230.2010.00841.x |
| Published date | 01 January 2011 |
| Author | John Bell |
REVIEWS
Jans en Nils, The Making of Legal Authority,Oxford: Oxford University Press
2010, 173 pp, hb d34.95.
The fundamental argument of Nils Jansen is that the creation of legal authority is
much more complex than the command of a legislator expecting to be obeyed.
The authoritative status of atext arises not only for rational reasons (the status of
the decision-maker, the persuasiveness of its content), but also for more irrational
reasons such as the typographicalprese ntation of the text and its structure (141). In
other words, the authoritative status of a text arises as much from its reception as
from the circumstances of its enactment. He argues that these dynamics of legal
authority explain way non-legislative compilations and codi¢cations of private
lawcan gain authority. Clearly this thesis has implications not merely for the spe-
ci¢c area of private law, but for the theoryof law in general. The book is shortand
lucid (especiallyby German standards).
For Jansencodi¢cation in private law is a process not a product. It i nvolves not
just the enactment of a text, but aprocess of prior development by a legal com-
munity and then subsequent acceptance by the same community. Although the
legislator mayenact the text, the success of codi¢cation as a projectdepends on the
process of preparation and receptionwithin the legal community. As he says,‘it is
the legal profession, rather thanthe political process, whichultimatelydetermines
the legal authority of legal texts’ (81).
Jansen’s discussion in Chapter 1 presents a rapid survey of codi¢cation from
Roman to medieval and then to modern, mainly German, law. It is obvious that
his analysis focuses around the authority of the legal text of a code: ‘the abstract
authority of a text giving expression to a legal norm consists i n the legal profession
accepting it as an ultimate source of the law, without requiring further legal reasons
to do so’ (43). Jansen sees this as, in many ways,a continuation of the practice of the ius
commune period, when local lawyers had to reconcile a range of competing texts from
various sources (Roman law, local customs, local enactments, opinion of
jurists, etc) and establish their own hierarchy.To that extent, lawyers cannot expect
a stable hierarchy of legal sources to persist over time. Jansen argues that the legal
profession, rather than the political legislator, ultimately determines the sources of
law (45). To that end, he cites the Louisiana Civil Code of 1808, which was largely
ignored by the local practitioner who continued to cite existing sources of legal
authority, leading to an adjustment of the Code in 1824^5. A similar fate was met
by the Prussian Civil Code of1794, which was largely ignored by academic opinion.
By contrast, the German Civil Code was the product of academic opinion and was
accepted as a fresh start (46^47).The German Constitution is also cited as a text which
underwent considerable change in the light of discussion within the legal commu-
nity, notably by the acceptance of the horizontal e¡ectof constitutional rights (48).
r2011The Authors.The Modern Law Review r2011The Modern Law Review Limited.
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(2011) 74(1) 150^170
To continue reading
Request your trial