TEACHING OLD DOGS NEW TRICKS: FOUR MOTIFS OF LEGAL CHANGE FROM EARLY MODERN EUROPE

In the past millennium, there have been thousands of polities in Europe and millions of laws. This article contributes to efforts by historians and sociologists to make some sense of this sprawl by constructing common types of law and legal change. Such types constitute distinctive patterns by which historical actors change names, ideas, and applications of rules of law under various circumstances. Three classic forms of change, namely legislation, mutation of custom, and judge-made law, were described by Max Weber. To Weber's model I add four new types or motifs of change, which I dub legal deeds, voice-supersession, legal fictions, and anthropological expansion. The major advance of the four motifs is that they each combine what could be called a semantic and a social view of legal change. That is, they take seriously the fact that law is often bound in a self-conscious tradition of thought and practice. But each motif of change is also characterized by a typified social configuration of legal operators and legal subjects, who apply competing ideas to one another in distinctive ways. The paradigm of law in which the four motifs are embedded is evolutionary, pluralist, and liberal in that it posits creative social organization by multiple, independent, interacting individuals in society, weaving cumulative, complex orders.