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Charles Donahue, Jr., Private Law Without the State and During its Formation, 56 Am. J. Comp. L. 541 (2008).

Abstract: It is possible to have private law without the state. Indeed, it is possible for a society to develop a system of private law without the state in the modern sense. When we come to the Western Middle Ages, however, we have to qualify. Though there were no nation-states, the systems of private law that began to be created in the twelfth century made use of the existing structures of power and authority. If one does not want to call these structures proto-states, then one has to say that they performed in some measure the functions of the later state, most notably in establishing and supporting a system of courts and in promulgating legally binding decrees that can be called, without too much anachronism, legislation. With the rise of the nation-state in the sixteenth century, changes did take place, but they were more subtle and initially less dramatic than some have thought. There was more focus on the national level. National legislation became more common in this period, and more elaborate. Despite these facts, I suggest that the basic developmental mechanism of private law, juristic discussion, remained largely unchanged in this period. That characteristic may have changed with the codifications of the nineteenth century, but that story is beyond of the scope of this piece.