The Making of Legal Authority

For the legal scholar from Münster, Prof. Nils Jansen, the study of law concentrates excessively on law that has been officially issued. Up to now it has been concerned almost entirely with constitutionally passed laws and judicial decisions. “These legally recognised institutions fit comfortably into the traditional, state-centred understanding of law and justice, but this approach neglects the important dogmatisation processes whereby non-state legal texts become recognised as legally authoritative,” as Prof. Jansen writes in his new book, ‘The Making of Legal Authority: Non-legislative Codifications in Historical and Comparative Perspective’.

The legal scholar from the Cluster of Excellence ‘Religion and Politics’ concentrates on texts which achieved legal authority without being issued by legislatures or courts. The book draws on numerous examples from the Middle Ages to today: from Justinian’s Institutes and Blackstone's Commentaries, to modern examples such as the American Law Institute's Restatements and the UNIDROIT Principles of International Commercial Contracts. In all these cases, normative texts which were written by professional legal scholars, often professors, have been recognised as legally authoritative even in court.

In his book, Prof. Jansen looks at how such ‘non-legislative codifications’ become established as legal reference texts, how they thereby achieve quasi-legal authority, and to what extent such processes demand that conventional ideas of law be revised. It therefore provides the first historically comparative analysis of these kinds of dogmatisation processes and a provocative contribution to the current international debates about the harmonisation of European private law and the globalisation of private economic law.

Literature: Jansen, Nils, The Making of Legal Authority. Non-Legislative Codifications in Historical and Comparative Perspective, Oxford: Oxford University Press 2010.