Watson, The Importance of “Nutshells”

by Stephan Kinsella on February 21, 2026

In my libertarian and law school studies I was fascinated with law and legal history, reading books and articles touching on both topics, e.g. Bruce Benson’s The Enterprise of Law, Bruno Leoni’s Freedom and the Law, and so on. ¹ As an aspiring legal scholar and lawyer, and Louisiana-educated “civilian” lawyer, I was also interested not only in the common law but the Roman and European civil law, and in law reviews in general. Even footnotes. ² I also became interested in international law when pursuing an LL.M. in international law at King’s College London, and ended up publishing a lot in this area and melding it with my libertarian-related theorizing.

One article I read really fascinated me was by Alan Watson, famous Scottish legal historian and Roman law expert: “The Importance of ‘Nutshells,’” American J. Comparative Law 42 (1994): 1-23; I’ve since read many of his works (other favorites include Failures of the Legal Imagination (University of Pennsylvania Press, 1988), The Evolution of Law, The Making of the Civil Law, and Roman Law and Comparative Law), and even corresponded briefly with him in 2005–2007 (he died in 2018). I mention him in “All that is not permitted is forbidden”. I asked ChatGPT to summarize the Nutshells article and its relevance to my thinking:

Overview

In this thread, I first summarized the Watson article as arguing that legal development occurs primarily through transmission, borrowing, and juristic mediation rather than social determinism or pure legislative invention, emphasizing the relative autonomy of law and the central role of commentators and inherited doctrine; I then explained its relevance to your thought by linking Watson’s thesis to your view of law as discovered rather than made, your interest in Roman juristic method, your reflections on commentators and codes, and your Austrian-influenced skepticism of constructivist legislation—while showing how Watson helps reconcile appreciation for codification with Hayek/Leoni critiques of central planning; finally, I drafted a one-page essay integrating Watson with Hayek and Leoni, arguing that the real divide is not between code and common law but between constructivist design and doctrinal transmission, and that a properly understood civilian code can function as a structured crystallization of evolved legal principles rather than as an exercise in legislative omnipotence.

ChatGPT Analysis/Summary:

Below is a structured summary of the Watson article (the UGA Law faculty piece you linked), followed by an analysis of why it is especially relevant to your own work on legislation, codes, commentators, and the discovery of law.

I. Summary of the Watson Article (in up to 5 paragraphs)

1. Law as Transmission Rather than Invention.
Watson’s central thesis is that legal development is driven less by organic social necessity than by the transmission of legal rules across time and jurisdictions. Legal change, he argues, often occurs through borrowing, adaptation, and imitation rather than through internal social evolution. Legislators and jurists routinely adopt foreign solutions because they are available, intelligible, and prestigious—not because they perfectly fit local social conditions. Thus, law is relatively autonomous from society; it is not merely an expression of prevailing social forces.

2. The Role of Legal Elites and Intellectual Tradition.
Watson emphasizes the decisive role of jurists, commentators, and learned intermediaries in shaping legal systems. Legal doctrine spreads through scholarship, teaching, and elite networks. Codification is not a spontaneous crystallization of popular norms but the product of intellectual activity—often derivative, selective, and sometimes accidental. Lawmakers frequently operate within inherited conceptual frameworks, importing models (e.g., Roman law, French code structures) and reshaping them for new contexts.

3. Codification as Reorganization, Not Creation.
Codification, in Watson’s account, does not represent a complete break with the past. Codes reorganize, synthesize, and systematize pre-existing materials. Even revolutionary codes, such as the French Civil Code, depend heavily on earlier doctrinal traditions. The image of a rational legislator deducing a complete system ex nihilo is historically misleading. Instead, codifiers draw heavily on available sources—commentators, Roman texts, prior customs—often without deep concern for social “fit.”

4. The Relative Autonomy of Law.
Watson challenges the sociological assumption that law mirrors economic or social needs. Law can survive social transformations; it can be transplanted across radically different societies and still function. Legal rules often persist because of institutional inertia, professional conservatism, and intellectual continuity. Legal development thus has its own internal logic, mediated by juristic reasoning and doctrinal structure.

5. Legal Change as Contingent and Path-Dependent.
Finally, Watson stresses contingency. Which rules are adopted depends on which texts are accessible, which scholars are influential, and which traditions carry authority. Legal history is less a story of rational planning or democratic will than of intellectual bricolage. This makes codification and legislative reform deeply shaped by prior materials and inherited categories.

II. Relevance to Your Thought

Watson’s framework intersects with—and in some respects reframes—several themes in your own work.

1. Codification and the “Discovery” of Law

In your essay Legislation and the Discovery of Law in a Free Society, you argue that law is not properly “made” but discovered through decentralized processes of dispute resolution, custom, and reasoning. Watson’s account helps explain why even legislative codes often appear to discover rather than invent law: codifiers inevitably rely on inherited doctrinal materials.

This bolsters your position against naïve legal positivism. Even when law is presented as legislation, it is frequently a structured restatement of pre-existing legal principles. In that sense, Watson provides historical ammunition for your argument that law emerges from tradition and juristic reasoning rather than sheer political will.

2. Commentators and the Juristic Class

Your recent reflections in Commentators & Codes resonate strongly with Watson’s emphasis on the central role of learned jurists. Watson’s thesis that legal transmission occurs through intellectual elites dovetails with your interest in Roman jurists, glossators, and civilian commentators as the real engines of legal development.

Rather than treating codes as sovereign commands, Watson implicitly supports your more Romanist view: the doctrinal community shapes law through interpretation, systematization, and conceptual refinement. The code becomes a focal point for juristic elaboration—not a closed legislative artifact.

This reinforces your admiration for the Roman–civilian tradition in which legal science, not legislative omnipotence, drives coherence.

3. Roman Law and Hypothetical Cases

In your piece on Roman law and hypothetical cases, you highlight how Roman jurists developed law through structured reasoning about disputes. Watson’s work shows how that Roman intellectual method was transmitted through centuries into modern codes.

That transmission story explains why civilian systems retain conceptual clarity: they are not raw legislative products but layered intellectual inheritances. This perspective helps explain why you find the civilian conception of property (clean dominium, usufruct, servitudes) superior to the tangled common-law estates. The civilian system is the result of centuries of juristic refinement transmitted through doctrinal continuity.

4. Watson vs. Leoni/Hayek — A Productive Tension

Your 1993 letter to Herman () shows you wrestling with Leoni’s and Hayek’s critique of legislation as central planning. Watson complicates that dichotomy.

Leoni:

Legislation resembles central planning.
Judge-made law resembles market order.

Watson:

Even legislation is largely derivative.
Codifiers transmit inherited law rather than inventing it.

This suggests a synthesis that fits your evolving view:

Pure legislation (social engineering) is problematic.
Codification of evolved principles may be less so.

Watson provides historical evidence that major civil codes function more like restatements of inherited doctrine than like planned blueprints imposed ex nihilo. This helps reconcile your Austrian skepticism of central planning with your appreciation of civilian conceptual clarity.

5. Implications for Your Theory of Property and IP

Watson’s idea of legal autonomy and doctrinal transmission strengthens your broader jurisprudential method:

Property norms are not arbitrary legislative constructs.
They evolve within juristic traditions.
Intellectual property, by contrast, appears historically as a legislative intervention lacking deep juristic pedigree.

In other words, Watson’s transmission theory may indirectly support your anti-IP position: robust property norms have centuries of doctrinal refinement; IP regimes do not share that same organic juristic lineage.

III. Why You Likely Find It So Intriguing

You are drawn to:

Roman juristic method
Conceptual clarity of civilian property
Skepticism of legislative will as ultimate source of law
The role of commentators and doctrine

Watson gives you a historical meta-theory explaining how those elements persist across centuries despite political upheaval. He provides the transmission mechanism that connects Roman jurists → medieval glossators → French codifiers → Louisiana civilians.

That transmission story helps explain how law can be “discovered” across generations, even when it is packaged as legislation.

If you’d like, I can next:

Map Watson explicitly against Hayek and Leoni in a structured comparison table, or
Draft a short essay (3–5 pages) integrating Watson into your “discovery of law” framework.

Watson, Hayek, and the Discovery of Law: Transmission, Codification, and the Limits of Legislation

A persistent tension in jurisprudence concerns whether law is made or discovered. Classical liberals such as Bruno Leoni and F.A. Hayek famously argued that legislation resembles central planning: it is an attempt by politically situated actors to impose abstract schemes upon a complex social order they cannot fully comprehend. Judge-made law, by contrast, emerges incrementally from disputes and resembles market processes—adaptive, decentralized, and information-rich. On this view, codification risks embodying the rationalist hubris of the Enlightenment: the belief that society can be architected from first principles.

Alan Watson’s account of legal development complicates this dichotomy. His central thesis—that legal systems evolve primarily through transmission rather than invention—undermines the caricature of codes as pure legislative constructions. Codifiers, even revolutionary ones, do not create law ex nihilo. They borrow, adapt, reorganize, and restate inherited materials. The French Civil Code, often treated as the triumph of legislative rationalism, rested heavily on Roman law, customary law, and doctrinal synthesis. The Louisiana Civil Code likewise reflects layers of Roman, Spanish, and French juristic thought. What appears to be “legislation” is often structured continuity.

Watson’s insight thus reframes the Hayek–Leoni critique. The true danger is not codification as such, but constructivist legislation: the attempt to design legal institutions without deference to evolved doctrine. A code that crystallizes pre-existing principles—analogous to a Restatement—does not represent central planning in the economic sense. It may instead function as a focal point for juristic refinement, preserving doctrinal coherence while providing clarity and accessibility. In this respect, codification can be an instrument of legal science rather than political will.

This perspective illuminates the civilian tradition’s distinctive strength. Roman jurists developed law through reasoned responses to hypothetical and actual disputes. Medieval glossators and commentators transmitted and systematized those materials. Modern codifiers inherited a conceptual architecture already refined across centuries. The civilian conception of property—dominium structured by usus, fructus, and abusus—exhibits this accumulated clarity. It is not the product of abstract social engineering, but of intellectual sedimentation.

Watson also reinforces the importance of commentators. Legal change occurs not primarily through plebiscitary demand, but through the intellectual mediation of jurists. Codes do not close interpretation; they invite it. The doctrinal community remains the engine of continuity. In this sense, law’s development resembles discovery more than manufacture: principles are uncovered, clarified, and transmitted across generations.

The implication for contemporary jurisprudence is significant. One need not choose between rationalism and evolutionary order. A legal system can acknowledge objective principles discoverable by reason while recognizing that their institutional expression must emerge from tradition and doctrinal refinement. The civilian code, at its best, is not an assertion of legislative omnipotence, but a structured distillation of juristic insight.

The real divide, then, is not between code and case law, but between discovery and design—between law as transmitted wisdom and law as political instrument. Watson’s historical account shows that even codes often belong to the former. The task for a free society is to ensure that they continue to do so.