This intellectual history of oft-forgotten founder James Wilson contends that as an outgrowth of his peculiar anti-Publian constitutionalism, Wilson’s post-ratification jurisprudence endeavored conceptually to reconcile American Law with the American Revolution in ways that even his ablest commentators have failed to appreciate but which boast a significance in the history of American legal thought that should command the attention of legal and constitutional historians alike. Spanning the period from 1774 to 1798, the Article’s historical analysis of Wilson’s ideas over time complicates prevailing literature on popular sovereignty’s origins and influence in post-Revolutionary America, revises influential scholarship interpreting pre-Marshallian Federalist jurisprudence in the 1790s, and sheds new light on the role of civic virtue in early American constitutional culture.The full article is available here, at SSRN.
Knapp on "James Wilson and the Birth of American Jurisprudence"
Via the Legal Theory Blog, we have word of an article of interest: "Law's Revolutionary: James Wilson and the Birth of American Jurisprudence," by Aaron T. Knapp (Boston University). It is scheduled to appear in Volume 29 of the Journal of Law and Politics (Fall 2013). Here's the abstract:
Custom Now: A Symposium
I've recently learned of an interesting symposium on custom published in volume 48 of the Texas International Law Journal, which is available on line:
Introduction, by Emily Kadens
In the Name of Custom, Culture, and the Constitution: Korean Customary Law in Flux, by Marie Seong-Hak Kim
Legal Autonomy Versus Regulatory Law: Customary Law in Eastern Scandinavia, by Kjell Å. Modéer
Western Scandinavia: Exit “Bürgerliches Gesetzbuch” — The Resurrection of Customary Laws, by Peter Ørebech
False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany, by Pascale Fournier & Pascal McDougall
The Law and Economics of Norms, by Juliet P. Kostritsky
Custom in American Property Law: A Vanishing Act, by Henry E. Smith
The Jurisprudence of Custom, by Frederick Schauer
An excerpt from the introduction by Emily Kadens, Northwestern Law, after the jump.
Read more »
Introduction, by Emily Kadens
In the Name of Custom, Culture, and the Constitution: Korean Customary Law in Flux, by Marie Seong-Hak Kim
Legal Autonomy Versus Regulatory Law: Customary Law in Eastern Scandinavia, by Kjell Å. Modéer
Western Scandinavia: Exit “Bürgerliches Gesetzbuch” — The Resurrection of Customary Laws, by Peter Ørebech
False Jurisdictions? A Revisionist Take on Customary (Religious) Law in Germany, by Pascale Fournier & Pascal McDougall
The Law and Economics of Norms, by Juliet P. Kostritsky
Custom in American Property Law: A Vanishing Act, by Henry E. Smith
The Jurisprudence of Custom, by Frederick Schauer
An excerpt from the introduction by Emily Kadens, Northwestern Law, after the jump.
Read more »
Walker on Llewellyn and the Law School Crisis of the 1930s
Anders Walker, Saint Louis University School of Law, has posted Bramble Bush Revisited: Karl Llewellyn, the Great Depression, and the First Law School Crisis, 1929-1939. Here is the abstract:
This article recovers the plight of legal education during the Great Depression, showing how debates over practical training, theoretical research and the appropriate length of law school all emerged in the 1930s. Using Bramble Bush author Karl Llewellyn as a guide, it strives to make three points. One, Depression-era critics of law school called for increased attention to practical skills, like today, but also a more inter-disciplinary curriculum – something current reformers discount. Two, the push for theoretical, policy-oriented courses in the 1930s set the stage for claims that law graduates deserved more than a Bachelor of Laws degree, bolstering the move away from a two year LL.B. and towards a mandatory three year Juris Doctor, or J.D. The rise of the J.D. following World War II, this article concludes, heightened the role of inter-disciplinary work in the first three years, even as it substantially diminished the role of advanced, graduate-level research, a point worth recalling as law school reformers, the ABA and, even the President of the United States lobby for shorter, more-practice oriented programs. While such proposals may be prudent, they may also warrant a return to plural law degrees.
Parry on the Grotian Tradition in International Law
John T. Parry, Lewis & Clark Law School, has posted What is the Grotian Tradition in International Law? which is forthcoming in volume 35 of the University of Pennsylvania Journal of International Law. Here is the abstract:
Recent scholarship in international law – for example, recent books by Mary Ellen O’Connell and Michael Scharf – relies on the idea of a “Grotian tradition” or of “Grotian moments” to provide normative foundations for significant parts of the contemporary international legal system. Despite the significant value of this scholarship, the underlying claim of a Grotian tradition is deeply flawed. The Grotian tradition itself was invented by mid-twentieth century scholars such as Hersch Lauterpacht to serve the goals of post-war liberal internationalism. There is no reason to believe that there is any more longstanding and normatively attractive tradition of engagement with the ideas of Hugo Grotius in international law and/or international relations. Indeed, many of the foundational ideas of Grotius’s own system of international law are deeply at odds with liberal or progressive approaches to contemporary international law.
“What Is the Grotian Tradition in International Law?” examines the claims made by and on behalf of the Grotian tradition and exposes the ways in which it fails to match up with the actual life and writings of Hugo Grotius. The article historicizes Grotius to demonstrate that much of his work – as propagandist, government official, attorney for the Dutch East India Company, and author of The Law of Prizes, The Free Sea, and The Rights of War and Peace – functioned to legitimate a violent and imperial conception of international law that served the interests of a simultaneously vulnerable and expansionist Dutch Republic. The result is not simply that the Grotian tradition is a fraud, or that Grotius is an inapt figure for any desirable conception of international law. Even more, a behind the scenes account of the Grotian tradition serves as a cautionary tale: international legal argument and international legal theory should reject the effort to claim deep historical foundations for the goals associated with liberal and progressive approaches to international law. A more self-conscious and critical stance holds out far better prospects of advancing those goals.
Mehrotra's "Making the Modern American Fiscal State"
Out this month, and available for preorder now, is Making the Modern American Fiscal State: Law, Politics, and the Rise of Progressive Taxation, 1877–1929, by Ajay K. Mehrotra, Maurer School of Law at Indiana University, Bloomington. The book appears in the series Cambridge Historical Studies in American Law and Society, edited by Christopher Tomlins.
Mehrotra has posted the Introduction and Conclusion on SSRN. CUP helps with the rest:
Read more »
Mehrotra has posted the Introduction and Conclusion on SSRN. CUP helps with the rest:
The TOC and blurbs by Brian Balogh, Richard Bensel, Michael A. Bernstein, -Andrea Louise Campbell, and Lawrence M. Friedman appear after the jump.Making the Modern American Fiscal State chronicles the rise of the U.S. system of direct and progressive taxation. Ajay K. Mehrotra provides historical perspective on the intellectual, legal, and administrative foundations of the current U.S. tax regime. In doing so, he uncovers the contested roots and paradoxical consequences of a fundamental transformation in American tax law and policy that took place at the turn of the twentieth century. He argues that the move toward a regime of direct and graduated taxation marked the emergence of a new fiscal polity – a new form of statecraft guided not only by the functional need for greater revenue, but also by broader social concerns about equity, fiscal citizenship, bureaucratic authority, and economic justice. This book explores what tax reformers at the turn of the twentieth century were able to accomplish and how their limited achievements were contested at nearly every turn.
Read more »
Madden on Law in the West after Justinian
M. Stuart Madden, formerly a former Distinguished Professor of Law at Pace University School of Law, has published "Paths of Western Law After Justinian," in the (gated) Widener Law Journal 22 (2013): 757. Here is the abstract:
This article relates the story of three principal paths of law in Western Europe from the periods preceding the gradual dissolution of the Western Roman Empire following the death of Justinian I in 565 A.D. through and including the several centuries thereafter. The period witnessed an acceleration of the absorption of Roman law into the customary law of the various Germanic groups that occupied and ruled the former Roman territories, and the recitation of such law in the form of new law codes promulgated by three of the major Gothic groupings: the Lombards, the Burgundians, and the Salian Franks.
In the main, the Germanic rulers were attentive to the need for laws that would suit not only German customary law as had been followed for many centuries, but also the Roman law to which their Roman constituencies, now under Germanic rule, had adhered. Importantly, even such Roman law as would be applied was only a bowdlerized version of Justinian’s contributions, as the Digests and other interpretative parts of the comprehensive Corpus Juris Civilis were somehow lost, only to be recovered some centuries later. Thus, for the first several centuries of Germanic rule, the only remnant of written Roman law available was the blunt-edged summarization contained in the Code of Justinian.
Germanic law was revolutionized by its new application to the governance of stable agricultural communities. The Gothic codes also advanced continental law in many ways that today can be seen as building blocks of emerging western law. Perhaps most significantly, the three law codes studied here demonstrate a preference for resolution of disputes by means of composition (compensation), and included monetary incentives therefore. By such means, the Goths were largely successful in turning their culture away from violent retributive justice towards systems of *758 composition for injury. Further to this end were the adoptions of wergeld as an appropriate compensation for a homicide, and also the widespread use of codified tables of composition to be associated with particularized lesser wrongs. These changes in Germanic law gave an increased likelihood of even-handed administration of justice, and provided also a monetized incentive for the family of a victim to forego mayhem in resolving disputes. As to the incidence of violent justice, many ancient Germanic practices, such as blood feud or trial by boiling water, were tamed or eliminated in the development of new agricultural societies. The Gothic codes also adopted remarkably modern distinctions between intentional and accidental harm, as well as negligence standards that assigned uncannily familiar significance to concepts of duty and proximate cause.
In sum, the law codes of the Lombards, the Burgundians, and the Salian Franks provided a civilizing legal bridge between the fall of the Western Empire and the more westernized law codes that would follow in the later Middle Ages.
Hovenkamp on Coase
Herbert J. Hovenkamp, Iowa Law, has published Coase, a “brief essay [that] considers the lifetime contributions of Ronald Coase and their influence. Comments are welcome.”
AJLH 53:3
Issue 53:3 (July 2013) of the American Journal of Legal History is out. Here are the contents:
Wilfred E. Rumble, “Austin in America: The Case of John Chipman Gray”
Robert F. Castro, “Liberty Like Thunder: Race, Article XI Enforcement, and the Odyssey of
Guadalupe Hidalgo (1848)”
Markus G. Puder, “Uncertain Land Titles in Louisiana's Formative Years: Colonial Grants,
John Marshall's Foster Opinion, and Lauterpachtian Interplays between Private Law and
International Law”
Vanessa Banni-Viñas, “Correcting a Ballerina's Story: The Truth Behind Makletzova v. Diaghileff”
Wilfred E. Rumble, “Austin in America: The Case of John Chipman Gray”
Robert F. Castro, “Liberty Like Thunder: Race, Article XI Enforcement, and the Odyssey of
Guadalupe Hidalgo (1848)”
Markus G. Puder, “Uncertain Land Titles in Louisiana's Formative Years: Colonial Grants,
John Marshall's Foster Opinion, and Lauterpachtian Interplays between Private Law and
International Law”
Vanessa Banni-Viñas, “Correcting a Ballerina's Story: The Truth Behind Makletzova v. Diaghileff”
Rethinking the History of American Legal Thought
[Here is the last in a series of post by David Rabban on his book Law's History: American Legal Thought and the Transatlantic Turn to History. The series begins here. All of here at LHB thank David for contributing them.]
In prior posts about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I emphasized the dominance of the "historical school of American jurisprudence" during the late nineteenth-century. In this final post, I discuss the implications of this historical school for modern understandings of the history of American legal thought. In brief, the historical school's analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, views that refute the conventional twentieth-century attributions of formalism and conservatism to late nineteenth-century legal thought.
During most of the time that I worked on my book, I did not intend to devote much of it to these implications. Even as I increasingly realized that my findings challenged conventional wisdom, I worried about deflecting attention from my primary focus on recovering the intellectual world of the historical school. Yet helped by discussions with many colleagues as I worked on and gave presentations about my work in progress, I ultimately concluded that these implications were too significant to ignore or to minimize. I decided to address them directly while hoping that doing so would not overshadow the nineteenth-century scholars themselves. I added two long chapters at the end of the book on twentieth-century interpretations of late nineteenth-century American legal thought. One chapter is on Roscoe Pound, who in the decade before World War I formulated much of the critique of legal formalism. The other chapter is on the scholars who followed Pound, from the legal realists Felix Cohen and Karl Llewellyn through important late twentieth-century commentators, especially Robert Gordon, Thomas Grey, Morton Horwitz, Duncan Kennedy, and Stephen Siegel.
Roscoe Pound was the key figure both in ending the dominance of historical explanation in American legal scholarship and in creating the influential, though often inaccurate, interpretation of late nineteenth-century legal thought that persisted throughout the twentieth century. Pound's crucial role in these major intellectual developments has been obscured by subsequent scholars, who have mostly concentrated on his nasty debate with Karl Llewellyn about legal realism in the 1930s. That debate, whose intellectual significance did not approach its emotional venom, occurred during the long twilight of Pound's career.
Pound's critique of his late nineteenth-century American predecessors derived largely from his strong personal belief that the traditional individualism of American society had become dysfunctional. In articles that made him a leading American legal scholar, Pound maintained that the social problems of twentieth-century industrial society could only be solved by recognizing collective interests. He stressed that prior jurisprudential schools, including what he called the school of "historical jurisprudence" that had prevailed in the United States since roughly 1870, both reflected and provided legal support for the excessive individualism that stood in the way of needed social reform. Throughout his critique of historical jurisprudence, Pound linked individualism with deductive formalism. Subsequent American legal scholars have largely followed Pound's criticisms of his nineteenth-century predecessors while losing sight of his emphasis on the centrality of history in their thought.
As Pound himself emphasized, his call for a collectively oriented and pragmatic sociological jurisprudence to supersede the individualism and deductive formalism of historical jurisprudence was part of a transatlantic intellectual trend. Both in Europe and in the United States, many maintained that collectivism should replace the individualism of the past in order to achieve necessary social and economic changes. Just as the general turn to history in many Western countries and scholarly disciplines affected American legal thought during the late nineteenth century, the movement from individualistic to collective perspectives across countries and disciplines affected it in the early twentieth century, especially through Pound's influential work.
Pound's criticism of historical jurisprudence focused on Savigny. In founding historical jurisprudence, Pound claimed, Savigny was as individualistic and as committed to formal deduction as the previous school of philosophical jurisprudence. Savigny simply substituted historical research for philosophical analysis as the method for identifying the legal principles from which to deduce a timeless legal structure. Just as philosophical jurisprudence derived individualistic legal principles from theories of natural rights, historical jurisprudence derived them from historical sources. It portrayed legal history as an unconscious and inevitable process that revealed the gradual unfolding of the idea of individual freedom and left no room for human will. It thereby produced a "juristic pessimism" incompatible with reform and oblivious to justice, which allowed the perpetuation of laws that did not serve current needs. Throughout his work, Pound made clear that he borrowed substantially from Jhering's earlier critique of historical jurisprudence in Germany in analyzing what he treated as an inferior, derivative version in the United States, to which he devoted substantially less attention.
In my chapter on "Pound's Successors," I observe that beginning with Duncan Kennedy's pioneering work in the 1970s on the structure of "classical legal thought," some commentators have treated their late nineteenth-century predecessors more respectfully and in greater detail than had Pound and the legal realists. Especially since 1990, when Stephen Siegel published his groundbreaking article on "Historism in Late Nineteenth-Century Constitutional Thought," legal historians have redirected attention to the importance of history in late nineteenth-century legal thought while providing more extensive and nuanced explorations of its content. Yet much of this excellent recent work perpetuates Pound's claims about the deductive formalism and resulting conservatism of his predecessors.
As previous posts have indicated, my book reveals that the widely held consensus about late nineteenth-century American legal scholarship is largely inaccurate. It prompts suspicion that this consensus derives more from the progressive intellectual and political agenda of twentieth-century scholars than from a close reading of their nineteenth-century predecessors. Evolutionary understandings of law, not unchanging deductive formalism, pervaded the legal thought of late nineteenth-century American legal scholars. As part of their rejection of "mere theory," they emphasized that their reliance on the empirical evidence of history made law an inductive science, in contrast to the deductive science of mathematics. Legal scholars often invoked history to reform rather than to justify existing law, identifying dysfunctional survivals from the past that should be eliminated. As some recent revisionist work has observed, in their personal politics they were more likely to be Mugwump reformers or Jacksonian democrats than conservative apologists for laissez-faire capitalism. They frequently spoke out against the increasing materialism of American society and denounced the excesses and inequalities produced by the growth of corporate capitalism. Some participated actively in public affairs, from opposition to slavery before the Civil War to postwar efforts combating municipal and corporate corruption, promoting civil service reform, and urging better treatment of American Indians. Yet unlike Pound and many twentieth-century progressives, they did not see American society in a state of crisis or view law as a pragmatic means to address contemporary social problems that required immediate attention.
In writing about the late nineteenth-century American legal scholars, my primary goal has been to understand them on their own terms. Immersed in the evolutionary social thought that dominated nineteenth-century Western intellectual life, the first professional legal scholars in the United States had confidence in the power of the past to explain, and potentially to reform, the present. Subsequent generations have lost this confidence, perhaps historians most of all. My attempt to recover the intellectual world and professional achievements of the late nineteenth-century American legal scholars, freed from the frequent misrepresentations and condescension of their successors, is a very different kind of history, reflecting very different assumptions and goals, from their own. I hope it provides insights into the intellectual history of American legal thought and adds to the healthy diversity of methodological approaches among modern legal historians.
I close this final post by thanking Dan Ernst for inviting me to contribute to the Legal History Blog. I have enjoyed hearing from some readers of these blogs, and I welcome additional comments.
In prior posts about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I emphasized the dominance of the "historical school of American jurisprudence" during the late nineteenth-century. In this final post, I discuss the implications of this historical school for modern understandings of the history of American legal thought. In brief, the historical school's analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, views that refute the conventional twentieth-century attributions of formalism and conservatism to late nineteenth-century legal thought.
During most of the time that I worked on my book, I did not intend to devote much of it to these implications. Even as I increasingly realized that my findings challenged conventional wisdom, I worried about deflecting attention from my primary focus on recovering the intellectual world of the historical school. Yet helped by discussions with many colleagues as I worked on and gave presentations about my work in progress, I ultimately concluded that these implications were too significant to ignore or to minimize. I decided to address them directly while hoping that doing so would not overshadow the nineteenth-century scholars themselves. I added two long chapters at the end of the book on twentieth-century interpretations of late nineteenth-century American legal thought. One chapter is on Roscoe Pound, who in the decade before World War I formulated much of the critique of legal formalism. The other chapter is on the scholars who followed Pound, from the legal realists Felix Cohen and Karl Llewellyn through important late twentieth-century commentators, especially Robert Gordon, Thomas Grey, Morton Horwitz, Duncan Kennedy, and Stephen Siegel.
Roscoe Pound was the key figure both in ending the dominance of historical explanation in American legal scholarship and in creating the influential, though often inaccurate, interpretation of late nineteenth-century legal thought that persisted throughout the twentieth century. Pound's crucial role in these major intellectual developments has been obscured by subsequent scholars, who have mostly concentrated on his nasty debate with Karl Llewellyn about legal realism in the 1930s. That debate, whose intellectual significance did not approach its emotional venom, occurred during the long twilight of Pound's career.
Pound's critique of his late nineteenth-century American predecessors derived largely from his strong personal belief that the traditional individualism of American society had become dysfunctional. In articles that made him a leading American legal scholar, Pound maintained that the social problems of twentieth-century industrial society could only be solved by recognizing collective interests. He stressed that prior jurisprudential schools, including what he called the school of "historical jurisprudence" that had prevailed in the United States since roughly 1870, both reflected and provided legal support for the excessive individualism that stood in the way of needed social reform. Throughout his critique of historical jurisprudence, Pound linked individualism with deductive formalism. Subsequent American legal scholars have largely followed Pound's criticisms of his nineteenth-century predecessors while losing sight of his emphasis on the centrality of history in their thought.
As Pound himself emphasized, his call for a collectively oriented and pragmatic sociological jurisprudence to supersede the individualism and deductive formalism of historical jurisprudence was part of a transatlantic intellectual trend. Both in Europe and in the United States, many maintained that collectivism should replace the individualism of the past in order to achieve necessary social and economic changes. Just as the general turn to history in many Western countries and scholarly disciplines affected American legal thought during the late nineteenth century, the movement from individualistic to collective perspectives across countries and disciplines affected it in the early twentieth century, especially through Pound's influential work.
Pound's criticism of historical jurisprudence focused on Savigny. In founding historical jurisprudence, Pound claimed, Savigny was as individualistic and as committed to formal deduction as the previous school of philosophical jurisprudence. Savigny simply substituted historical research for philosophical analysis as the method for identifying the legal principles from which to deduce a timeless legal structure. Just as philosophical jurisprudence derived individualistic legal principles from theories of natural rights, historical jurisprudence derived them from historical sources. It portrayed legal history as an unconscious and inevitable process that revealed the gradual unfolding of the idea of individual freedom and left no room for human will. It thereby produced a "juristic pessimism" incompatible with reform and oblivious to justice, which allowed the perpetuation of laws that did not serve current needs. Throughout his work, Pound made clear that he borrowed substantially from Jhering's earlier critique of historical jurisprudence in Germany in analyzing what he treated as an inferior, derivative version in the United States, to which he devoted substantially less attention.
In my chapter on "Pound's Successors," I observe that beginning with Duncan Kennedy's pioneering work in the 1970s on the structure of "classical legal thought," some commentators have treated their late nineteenth-century predecessors more respectfully and in greater detail than had Pound and the legal realists. Especially since 1990, when Stephen Siegel published his groundbreaking article on "Historism in Late Nineteenth-Century Constitutional Thought," legal historians have redirected attention to the importance of history in late nineteenth-century legal thought while providing more extensive and nuanced explorations of its content. Yet much of this excellent recent work perpetuates Pound's claims about the deductive formalism and resulting conservatism of his predecessors.
As previous posts have indicated, my book reveals that the widely held consensus about late nineteenth-century American legal scholarship is largely inaccurate. It prompts suspicion that this consensus derives more from the progressive intellectual and political agenda of twentieth-century scholars than from a close reading of their nineteenth-century predecessors. Evolutionary understandings of law, not unchanging deductive formalism, pervaded the legal thought of late nineteenth-century American legal scholars. As part of their rejection of "mere theory," they emphasized that their reliance on the empirical evidence of history made law an inductive science, in contrast to the deductive science of mathematics. Legal scholars often invoked history to reform rather than to justify existing law, identifying dysfunctional survivals from the past that should be eliminated. As some recent revisionist work has observed, in their personal politics they were more likely to be Mugwump reformers or Jacksonian democrats than conservative apologists for laissez-faire capitalism. They frequently spoke out against the increasing materialism of American society and denounced the excesses and inequalities produced by the growth of corporate capitalism. Some participated actively in public affairs, from opposition to slavery before the Civil War to postwar efforts combating municipal and corporate corruption, promoting civil service reform, and urging better treatment of American Indians. Yet unlike Pound and many twentieth-century progressives, they did not see American society in a state of crisis or view law as a pragmatic means to address contemporary social problems that required immediate attention.
In writing about the late nineteenth-century American legal scholars, my primary goal has been to understand them on their own terms. Immersed in the evolutionary social thought that dominated nineteenth-century Western intellectual life, the first professional legal scholars in the United States had confidence in the power of the past to explain, and potentially to reform, the present. Subsequent generations have lost this confidence, perhaps historians most of all. My attempt to recover the intellectual world and professional achievements of the late nineteenth-century American legal scholars, freed from the frequent misrepresentations and condescension of their successors, is a very different kind of history, reflecting very different assumptions and goals, from their own. I hope it provides insights into the intellectual history of American legal thought and adds to the healthy diversity of methodological approaches among modern legal historians.
I close this final post by thanking Dan Ernst for inviting me to contribute to the Legal History Blog. I have enjoyed hearing from some readers of these blogs, and I welcome additional comments.
Armitage on Why "Every Great Revolution is a Civil War"
Only earlier this year did I discover the Sussex Lectures in Intellectual History, available on iTunes and here. The latest, delivered last month, was by David Armitage on the topic, "Every Great Revolution is a Civil War." In these times, Stefan Collini's "The Very Idea of a University" is also very much worth a listen.
Schroeder Reviews Weiner's "Rule of the Clan"
Jeanne L. Schroeder, Benjamin N. Cardozo School of Law, has posted Family Feud: Mark Weiner, The Rule of the Clan. Here is the abstract:
In The Rule of the Clan, legal historian Mark Weiner confronts the paradox that freedom requires law. He takes aim at one common assumption of libertarian political theory: a strong state is a threat to individual freedom. He warns that nostalgia for earlier, simpler societies is a deluded fantasy.
Weiner examination of traditional societies throughout the world and across history show that they share a single broad organizational structure that belies their facial diversity: the clan. Within the clan, man, and even more strikingly, woman, is neither free nor an individual. She is subordinate to her function within the group – in the case of woman, reproduction. In the clan, there are no individual rights protected by law, only the honor of the extended family to be avenged by feud. Adopting the terminology of “founding father of legal history and legal anthropology, Henry Sumner Maine”, Weiner argues that individual rights only come into being with the development of the state when Status relations are superceded by Contract.
Surprisingly, in his defense of the classical liberal ideal of individual rights and equality, Weiner implicitly rejects one of liberalism’s founding propositions: a vision of the free individual in the state of nature. Weiner’s thesis is more consistent with the speculative tradition of Continental theory than with American liberalism.
Rabban on the Historical School of American Jurisprudence
[Here is the latest in a series of posts by David Rabban, Texas Law.]
In my last two posts about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I focused on the original scholarship on the history of English law by five late nineteenth-century Americans: Henry Adams, Melville Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer. Their internationally respected work provided a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland. In this post, I emphasize that the turn to history in late nineteenth-century American legal scholarship was not limited to the relatively few who became legal historians. During this period, American legal scholars generally viewed history as the key to legal analysis. They often identified their historical approach to law as a distinctive jurisprudential school. Among the most eminent of these scholars were James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, John Norton Pomeroy, Christopher G. Tiedeman, and Francis Wharton. Demonstrating the existence and analyzing the characteristics of this “historical school of American jurisprudence” are major goals of my book.
Read more »
In my last two posts about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I focused on the original scholarship on the history of English law by five late nineteenth-century Americans: Henry Adams, Melville Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer. Their internationally respected work provided a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland. In this post, I emphasize that the turn to history in late nineteenth-century American legal scholarship was not limited to the relatively few who became legal historians. During this period, American legal scholars generally viewed history as the key to legal analysis. They often identified their historical approach to law as a distinctive jurisprudential school. Among the most eminent of these scholars were James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, John Norton Pomeroy, Christopher G. Tiedeman, and Francis Wharton. Demonstrating the existence and analyzing the characteristics of this “historical school of American jurisprudence” are major goals of my book.Read more »
From Maine to Maitland via America
[Here’s the latest post from David Rabban on Law’s History.]
In my last post about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I discussed the importance of Henry Adams as the first major professional legal historian in the United States. Underlining the "transatlantic" theme of my book, this post emphasizes that Adams, followed by a small group of other American legal scholars who wrote about the history of English law during the last three decades of the nineteenth century, constituted a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland.
During his short career teaching history at Harvard from 1870 to 1877, Adams relied on German scholarship on the history of early Germanic law and on primary sources of Anglo-Saxon law to assert the Germanic origins of the English common law. He drew on his findings to challenge many of the generalizations about stages of legal evolution that Maine derived from the history of Roman law in his hugely influential book, Ancient Law, published in 1861. Maine claimed that the primitive family was patriarchal and probably preceded the state. He concluded that the transformation from primitive to progressive societies has uniformly "been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account." In his most famous expression of this transformation, Maine wrote that "the movement of the progressive societies has hitherto been a movement from Status to Contract."
Adams and his students rejected these claims. They emphasized the individualism of early Germanic societies, including Anglo-Saxon England. They asserted that in these societies the state was already supreme over the family and consisted of individuals democratically associated as equals. Unlike the patriarchal Roman family, they added, in the Germanic family the wife and children had rights against the father, and property was held by individuals rather than by the family as an entity. More dramatically, Adams maintained that Germanic law not only differed fundamentally from Roman law, but preceded it. Whereas Maine generalized from Roman law to all "progressive" legal systems, Adams called Roman law a "perversion" of earlier Indo-European law.
For a variety of reasons, neither Adams nor his students pursued careers in legal history after the publication of their Essays in Anglo-Saxon Law in 1876. But other Americans did, most prominently Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer, who all lived in the Boston area and knew each other well. In publications from the 1870s through the end of the nineteenth century, these four scholars often portrayed themselves as extending the original research Adams and his students had begun on the history of English law. They agreed with Adams and his students that the English common law derived mainly from Germanic sources, but they viewed those sources as primarily Norman rather than Anglo-Saxon. They, therefore, directed their research into the history of English law after the Norman Conquest, debating among themselves and with leading German scholars, particularly Heinrich Brunner, about the extent to which Norman antecedents, especially of the modern jury, developed independently in England.
Bigelow and Thayer focused on the history of particular subjects, procedure for Bigelow and evidence for Thayer, whereas Holmes and Ames wrote about numerous issues in the history of the common law. They shared the view, elaborated most explicitly in an article by Thayer entitled "The Teaching of English Law at Universities," that historical research into the entire development of current law is a prerequisite to understanding and, ultimately, to restating it. They referred to Maine less frequently than had Adams and his students, but they often recognized his influence in turning their attention to the historical study of law. English legal scholars, in turn, widely noticed and praised the work of these Americans, often observing that they had surpassed the English themselves in the study of English legal history, "however mortifying to our national vanity," as an English reviewer commented while praising Bigelow's major book, History of Procedure in England from the Norman Conquest, 1066-1204 (1880).
Maitland agreed with the English praise for the American scholars of English legal history. S.F.C. Milsom, a respectful late twentieth-century critic of Maitland, has asserted that Maitland essentially created the field of legal history. According to Milsom, Maitland "had nothing to stand on. There was no legal history worthy of the name." More recently, J.H. Baker reiterated that Maitland "inaugurated the scholarly study of English legal history." Maitland himself had a different view. In the preface to his great book, The History of English Law Before the Time of Edward I, published in 1895, Maitland listed Bigelow, Holmes, Ames, and Thayer among the eight scholars whose previous work he most admired and did not intend to duplicate by what he called "vain repetition." The frequent citation of these Americans throughout the book's two volumes made clear that this prefatory praise was substantive and not merely polite. Maitland corresponded extensively with Ames, Thayer, and especially Bigelow, who visited Maitland several times in England and became an extremely close personal friend. By contrast, Maitland frequently criticized Maine, often in terms that echoed Adams and his students. In addition to relying on the previous work of the Americans he cited, Maitland shared many of their historiographical views. Because so many subsequent scholars have viewed Maitland as distinctively interested in legal history as a window into social and economic history, it is particularly striking that he himself, like the American scholars who preceded him, emphasized his primary focus on the internal evolution of legal doctrine, precisely the attribute his successors condemned in others.
[The series continues here.]
In my last post about my new book, Law's History: American Legal Thought and the Transatlantic Turn to History, I discussed the importance of Henry Adams as the first major professional legal historian in the United States. Underlining the "transatlantic" theme of my book, this post emphasizes that Adams, followed by a small group of other American legal scholars who wrote about the history of English law during the last three decades of the nineteenth century, constituted a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland.
During his short career teaching history at Harvard from 1870 to 1877, Adams relied on German scholarship on the history of early Germanic law and on primary sources of Anglo-Saxon law to assert the Germanic origins of the English common law. He drew on his findings to challenge many of the generalizations about stages of legal evolution that Maine derived from the history of Roman law in his hugely influential book, Ancient Law, published in 1861. Maine claimed that the primitive family was patriarchal and probably preceded the state. He concluded that the transformation from primitive to progressive societies has uniformly "been distinguished by the gradual dissolution of family dependency and the growth of individual obligation in its place. The Individual is steadily substituted for the Family, as the unit of which civil laws take account." In his most famous expression of this transformation, Maine wrote that "the movement of the progressive societies has hitherto been a movement from Status to Contract."
Adams and his students rejected these claims. They emphasized the individualism of early Germanic societies, including Anglo-Saxon England. They asserted that in these societies the state was already supreme over the family and consisted of individuals democratically associated as equals. Unlike the patriarchal Roman family, they added, in the Germanic family the wife and children had rights against the father, and property was held by individuals rather than by the family as an entity. More dramatically, Adams maintained that Germanic law not only differed fundamentally from Roman law, but preceded it. Whereas Maine generalized from Roman law to all "progressive" legal systems, Adams called Roman law a "perversion" of earlier Indo-European law.
For a variety of reasons, neither Adams nor his students pursued careers in legal history after the publication of their Essays in Anglo-Saxon Law in 1876. But other Americans did, most prominently Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer, who all lived in the Boston area and knew each other well. In publications from the 1870s through the end of the nineteenth century, these four scholars often portrayed themselves as extending the original research Adams and his students had begun on the history of English law. They agreed with Adams and his students that the English common law derived mainly from Germanic sources, but they viewed those sources as primarily Norman rather than Anglo-Saxon. They, therefore, directed their research into the history of English law after the Norman Conquest, debating among themselves and with leading German scholars, particularly Heinrich Brunner, about the extent to which Norman antecedents, especially of the modern jury, developed independently in England.
Bigelow and Thayer focused on the history of particular subjects, procedure for Bigelow and evidence for Thayer, whereas Holmes and Ames wrote about numerous issues in the history of the common law. They shared the view, elaborated most explicitly in an article by Thayer entitled "The Teaching of English Law at Universities," that historical research into the entire development of current law is a prerequisite to understanding and, ultimately, to restating it. They referred to Maine less frequently than had Adams and his students, but they often recognized his influence in turning their attention to the historical study of law. English legal scholars, in turn, widely noticed and praised the work of these Americans, often observing that they had surpassed the English themselves in the study of English legal history, "however mortifying to our national vanity," as an English reviewer commented while praising Bigelow's major book, History of Procedure in England from the Norman Conquest, 1066-1204 (1880).
Maitland agreed with the English praise for the American scholars of English legal history. S.F.C. Milsom, a respectful late twentieth-century critic of Maitland, has asserted that Maitland essentially created the field of legal history. According to Milsom, Maitland "had nothing to stand on. There was no legal history worthy of the name." More recently, J.H. Baker reiterated that Maitland "inaugurated the scholarly study of English legal history." Maitland himself had a different view. In the preface to his great book, The History of English Law Before the Time of Edward I, published in 1895, Maitland listed Bigelow, Holmes, Ames, and Thayer among the eight scholars whose previous work he most admired and did not intend to duplicate by what he called "vain repetition." The frequent citation of these Americans throughout the book's two volumes made clear that this prefatory praise was substantive and not merely polite. Maitland corresponded extensively with Ames, Thayer, and especially Bigelow, who visited Maitland several times in England and became an extremely close personal friend. By contrast, Maitland frequently criticized Maine, often in terms that echoed Adams and his students. In addition to relying on the previous work of the Americans he cited, Maitland shared many of their historiographical views. Because so many subsequent scholars have viewed Maitland as distinctively interested in legal history as a window into social and economic history, it is particularly striking that he himself, like the American scholars who preceded him, emphasized his primary focus on the internal evolution of legal doctrine, precisely the attribute his successors condemned in others.
[The series continues here.]
Tamanaha, "The Third Pillar of Jurisprudence: Social Legal Theory"
Brian Z. Tamanaha (Washington University in Saint Louis - School of Law) has posted a new paper: "The Third Pillar of Jurisprudence: Social Legal Theory." Here's the abstract:
The full version is available here, at SSRN.Jurisprudence is generally thought to consist of two main classical rival branches — natural law and legal positivism — followed by a bunch of modern schools — legal realism, law and economics, critical theory, legal pragmatism, etc. In this essay I argue that three main branches of jurisprudence have existed, and battled, for centuries, not two, but the third goes unrecognized as such because it has traveled under different labels and the underlying connections have been clouded by various confusions. The core insights and focus of this third branch, what I call “Social Legal Theory,” trace in a continuous thread from Montesquieu, through historical jurisprudence, sociological jurisprudence, and legal realism, up to the present. This third branch, I argue, provides a contrasting/complementary perspective, in conjunction with natural law and legal positivism, which rounds out the full range of theoretical angles on law: natural law is normative; legal positivism is analytical/conceptual; and social legal theory is empirical. (Among a number of clarifications, I answer the common objection that empirically-grounded theories are not sufficiently theoretical.) The conventional jurisprudential narrative is redrawn in this essay in a way that exposes unseen connections among theoretical schools and brings into focus critical issues about the nature of law that currently are marginalized by natural law and legal positivism.
credit
Dorsett and McVeigh on Salmond and the Persona of the Jurist
Shaunnagh Dorsett, University of Technology, Sydney, Law, and Shaun McVeigh, Melbourne Law School, have posted The Persona of the Jurist in Salmond's Jurisprudence: On the Exposition of 'What Law is...,” which appeared in the Victoria University of Wellington Law Review 38 (2007). Here is the abstract:
If Sir John Salmond is taken as being an inaugural or founding father of not only a law school, but also of a New Zealand jurisprudence, two questions arise: What might have been inherited from Salmond's jurisprudence? And, How might that inheritance be received today? This article offers a response to these questions by considering Salmond's jurisprudence in terms of a conduct of life organised around the office and persona of the jurist.
Henry Adams and the Origins of Professional Legal History in America
[Here is another installment in Guest Blogger David Rabban's series of posts on Law's History.]
In my first post about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I highlighted its contents and major conclusions. This second post addresses the importance of Henry Adams as the first major professional legal historian in the United States, which I knew nothing about when I started my research for the book.
During an understandably overlooked period of his varied and productive career, Henry Adams taught history at Harvard from 1870 until he resigned in 1877 to pursue a more active and cosmopolitan life in Washington, D.C. Neither Adams himself nor subsequent biographers and scholars attached much significance to his few years as a Harvard professor. Compared to his subsequent multi-volume works of American history and especially to his great books, The Education of Henry Adams and Mont Saint Michel and Chartres, his brief career at Harvard seems minor. For an understanding of the history of legal history in the United States, however, the years Adams spent at Harvard were crucial. During this period, Adams and his students virtually created the field and provided a model for subsequent legal historians in England as well as in their own country. Most importantly, Adams applied the methods and the findings of German legal historians to the study of Anglo-American law while emphasizing its Teutonic origins.
For two years after his graduation from Harvard College in 1858, Adams, like many Americans of his generation, studied law in Germany. At the invitation of Charles W. Eliot, the recently appointed president of Harvard who soon transformed it into a major research university, Adams returned in 1870 to teach medieval history and to become the editor of the North American Review. Adams recognized that he was “brought in to strengthen the reforming party in the University,” led by Eliot, which assured him “of strong backing from above.” Soon after his appointment, Adams indicated his commitment to Eliot’s reforms by publishing an article in the North American Review stating that successful education must “make the scholar its chief object of interest.”
In a series of book reviews in the North American Review in the early 1870s, Adams assessed the work of major European legal scholars and set forth his own views about legal history. The Essays in Anglo-Saxon Law (1876) by Adams and three of his students, whose contributions earned the first Ph.Ds granted by the History Department, carried out the research in primary sources that Adams had urged in his reviews. Their publication announced a new school of American legal history, received international acclaim, and stimulated further historical research by American law professors.
Mostly reviewing books by English and German authors, Adams repeatedly criticized the English for not emulating the scientific history practiced in Germany. Particularly embarrassing for the English, Adams emphasized, German legal scholars had written numerous books that bore directly on the legal history of England and that the English themselves had not even consulted. Indeed, little of this outstanding German scholarship had even been translated into English. He declared German “scientific” scholarship vastly superior to the mostly insular and amateurish work produced in England, which was constrained by the historical fictions of the English common law and the weaknesses of the English educational system. According to Adams, the German scholars had demonstrated what English scholars resisted, that archaic German law, rather than Roman law or “William the Conqueror’s brain,” was the source of the English common law and of its constitutional system. Adams viewed Henry Maine’s Ancient Law, published in 1861, as a promising exception to the poverty of English scholarship, placing Maine at the same level of intellectual importance as Darwin. But Adams complained that Maine often advanced theories he did not attempt to prove, that his “brilliant hypotheses” remained “hazardous guesses.”
The Essays in Anglo-Saxon Law stressed the Germanic origins of Anglo-Saxon law in England, and thus the relevance of archaic German law on the continent to understanding the history of English law. More generally, they identified Germanic sources of positive English values, such as equal rights and democratic government. Differentiating German law from Roman law, they maintained that the archaic German family did not resemble the Roman patriarchal family, whose structure Maine assumed had been a universal stage of social development. From the extensive archival research I did for my book, one of the most interesting discoveries was an unpublished letter from Maine to Adams in the Lamont Library at Harvard, which praised the Essays by Adams and his students and acknowledged that he should have treated German law more extensively in his own work. Thus Maine, the most famous legal scholar in England, recognized the importance of the emerging American legal historians. I was also struck that Patrick Wormald, in his important book published in 1999, The Making of English Law: King Alfred to the Twelfth Century, called the Essays “serious, though now rarely cited,” and praised the one by Adams as “lastingly important.”
[The series continues here.]
In my first post about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I highlighted its contents and major conclusions. This second post addresses the importance of Henry Adams as the first major professional legal historian in the United States, which I knew nothing about when I started my research for the book.
During an understandably overlooked period of his varied and productive career, Henry Adams taught history at Harvard from 1870 until he resigned in 1877 to pursue a more active and cosmopolitan life in Washington, D.C. Neither Adams himself nor subsequent biographers and scholars attached much significance to his few years as a Harvard professor. Compared to his subsequent multi-volume works of American history and especially to his great books, The Education of Henry Adams and Mont Saint Michel and Chartres, his brief career at Harvard seems minor. For an understanding of the history of legal history in the United States, however, the years Adams spent at Harvard were crucial. During this period, Adams and his students virtually created the field and provided a model for subsequent legal historians in England as well as in their own country. Most importantly, Adams applied the methods and the findings of German legal historians to the study of Anglo-American law while emphasizing its Teutonic origins.
For two years after his graduation from Harvard College in 1858, Adams, like many Americans of his generation, studied law in Germany. At the invitation of Charles W. Eliot, the recently appointed president of Harvard who soon transformed it into a major research university, Adams returned in 1870 to teach medieval history and to become the editor of the North American Review. Adams recognized that he was “brought in to strengthen the reforming party in the University,” led by Eliot, which assured him “of strong backing from above.” Soon after his appointment, Adams indicated his commitment to Eliot’s reforms by publishing an article in the North American Review stating that successful education must “make the scholar its chief object of interest.”
In a series of book reviews in the North American Review in the early 1870s, Adams assessed the work of major European legal scholars and set forth his own views about legal history. The Essays in Anglo-Saxon Law (1876) by Adams and three of his students, whose contributions earned the first Ph.Ds granted by the History Department, carried out the research in primary sources that Adams had urged in his reviews. Their publication announced a new school of American legal history, received international acclaim, and stimulated further historical research by American law professors.
Mostly reviewing books by English and German authors, Adams repeatedly criticized the English for not emulating the scientific history practiced in Germany. Particularly embarrassing for the English, Adams emphasized, German legal scholars had written numerous books that bore directly on the legal history of England and that the English themselves had not even consulted. Indeed, little of this outstanding German scholarship had even been translated into English. He declared German “scientific” scholarship vastly superior to the mostly insular and amateurish work produced in England, which was constrained by the historical fictions of the English common law and the weaknesses of the English educational system. According to Adams, the German scholars had demonstrated what English scholars resisted, that archaic German law, rather than Roman law or “William the Conqueror’s brain,” was the source of the English common law and of its constitutional system. Adams viewed Henry Maine’s Ancient Law, published in 1861, as a promising exception to the poverty of English scholarship, placing Maine at the same level of intellectual importance as Darwin. But Adams complained that Maine often advanced theories he did not attempt to prove, that his “brilliant hypotheses” remained “hazardous guesses.”
The Essays in Anglo-Saxon Law stressed the Germanic origins of Anglo-Saxon law in England, and thus the relevance of archaic German law on the continent to understanding the history of English law. More generally, they identified Germanic sources of positive English values, such as equal rights and democratic government. Differentiating German law from Roman law, they maintained that the archaic German family did not resemble the Roman patriarchal family, whose structure Maine assumed had been a universal stage of social development. From the extensive archival research I did for my book, one of the most interesting discoveries was an unpublished letter from Maine to Adams in the Lamont Library at Harvard, which praised the Essays by Adams and his students and acknowledged that he should have treated German law more extensively in his own work. Thus Maine, the most famous legal scholar in England, recognized the importance of the emerging American legal historians. I was also struck that Patrick Wormald, in his important book published in 1999, The Making of English Law: King Alfred to the Twelfth Century, called the Essays “serious, though now rarely cited,” and praised the one by Adams as “lastingly important.”
[The series continues here.]
Coquillette on the Birth of Baconian Rulemaking
Daniel Coquillette, Boston College Law School, has posted Past the Pillars of Hercules: Francis Bacon and the Science of Rulemaking, which will appear in the University of Michigan Journal of Law Reform 46 (2013). Here is the abstract:
The parallels between Francis Bacon’s career and that of Edward H. Cooper are obvious. Bacon was one of the great legal minds of his day and, unlike the common law judges who formed the law by deciding cases, Bacon expressed his greatness in writing brilliant juristic treatises and, as Lord Chancellor, drafting one of the first modern rule systems, the Ordinances in Chancery (1617-1620). My thesis is that Bacon invented modern, scientific rulemaking by fusing his new theories of inductive, empirical research with the traditions of equitable pleading, and is, in fact, the intellectual forebearer of the likes of Charles Clark, Benjamin Kaplan, and Edward Cooper.
Law's History: An Overview
Thanks to Dan Ernst for inviting me to contribute posts to the Legal History Blog about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History. In this first post, I will highlight its contents and major conclusions. Later posts will address various historical and historiographical issues the book raises and will respond to comments readers might make.
Law’s History examines the central role of history in late nineteenth-century American legal thought. It argues that a distinctive “Historical School of American Jurisprudence” dominated American legal scholarship from the 1870s until superseded by the sociological jurisprudence promoted by Roscoe Pound in the decade before World War I. The American scholars who are the primary focus of the book include Henry Adams, James Barr Ames, Melville M. Bigelow, James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, Oliver Wendell Holmes, Jr., John Norton Pomeroy, Roscoe Pound, James Bradley Thayer, Christopher G. Tiedeman, and Francis Wharton.
I conclude that the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic during the nineteenth century. They viewed their historical study of law as an inductive science that rejected the prior speculation and “mere theory” of natural law and analytic jurisprudence. Making legal scholarship an inductive science, they believed, justified the inclusion of law schools in the emerging American research universities. Among these scholars, Adams, Bigelow, Holmes, Thayer, and Ames wrote internationally respected original works on the history of English law. Some American law professors also wrote about the history of American law, including constitutional law. I stress that they were much more sophisticated historians than portrayed by the condescending and cursory treatment of them by many subsequent American legal historians.
In developing sociological jurisprudence in the decade before World War I, Roscoe Pound created the characterization of his nineteenth-century predecessors that largely persists to the present. Borrowing substantially from Rudolph von Jhering’s critique of historical jurisprudence in Germany, Pound claimed that the late nineteenth-century American legal scholars were mechanical deductive formalists committed to individualistic principles that impeded needed social reform in the United States. Based on my research, I conclude that this characterization is largely incorrect, that the members of the “Historical School of American Jurisprudence” overwhelmingly rejected deductive formalism and often supported moderate legal reform.
After an introduction and a chapter presenting a biographical overview of the leading American legal scholars in the historical school, the book is divided into three parts. Part I, “The European Background,” discusses the general turn to history in the nineteenth century and the work of the German and English legal scholars who most influenced the Americans, especially Savigny, Sohm, Brunner, Jhering, and Maine. Part II, “The Historical Turn in American Legal Scholarship,” contains separate chapters on each of the major American legal historians; a chapter on “The History of American Constitutional Law,” focusing on Thayer, Cooley, and Tiedeman; and a final chapter, “The Historical School of American Jurisprudence,” that highlights its major characteristics. Part III contains chapters on Maitland, Pound, and twentieth-century interpretations of late nineteenth-century legal thought.
I close this first post by providing links to the full table of contents and to book reviews that have appeared thus far: by Adam Hofri-Winogradow, Ron Harris, Assaf Likhovski, and Roy Kreitner, and a response by me in The Jerusalem Review of Legal Studies, by Alfred Brophy and Brian Tamanaha in the Texas Law Review, and by Herbert Hovenkamp for the Journal of American History. I'm also linking two blog posts about the book: by Kenneth Kersch and by Alfred Brophy, commenting on his and Brian Tamanaha's reviews.
Update: Cambridge is offering Law's History at a 20 percent discount. Use code Rabban12 at the checkout. DRE
[The series continues here.]
Law’s History examines the central role of history in late nineteenth-century American legal thought. It argues that a distinctive “Historical School of American Jurisprudence” dominated American legal scholarship from the 1870s until superseded by the sociological jurisprudence promoted by Roscoe Pound in the decade before World War I. The American scholars who are the primary focus of the book include Henry Adams, James Barr Ames, Melville M. Bigelow, James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, Oliver Wendell Holmes, Jr., John Norton Pomeroy, Roscoe Pound, James Bradley Thayer, Christopher G. Tiedeman, and Francis Wharton.
I conclude that the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic during the nineteenth century. They viewed their historical study of law as an inductive science that rejected the prior speculation and “mere theory” of natural law and analytic jurisprudence. Making legal scholarship an inductive science, they believed, justified the inclusion of law schools in the emerging American research universities. Among these scholars, Adams, Bigelow, Holmes, Thayer, and Ames wrote internationally respected original works on the history of English law. Some American law professors also wrote about the history of American law, including constitutional law. I stress that they were much more sophisticated historians than portrayed by the condescending and cursory treatment of them by many subsequent American legal historians.
In developing sociological jurisprudence in the decade before World War I, Roscoe Pound created the characterization of his nineteenth-century predecessors that largely persists to the present. Borrowing substantially from Rudolph von Jhering’s critique of historical jurisprudence in Germany, Pound claimed that the late nineteenth-century American legal scholars were mechanical deductive formalists committed to individualistic principles that impeded needed social reform in the United States. Based on my research, I conclude that this characterization is largely incorrect, that the members of the “Historical School of American Jurisprudence” overwhelmingly rejected deductive formalism and often supported moderate legal reform.
After an introduction and a chapter presenting a biographical overview of the leading American legal scholars in the historical school, the book is divided into three parts. Part I, “The European Background,” discusses the general turn to history in the nineteenth century and the work of the German and English legal scholars who most influenced the Americans, especially Savigny, Sohm, Brunner, Jhering, and Maine. Part II, “The Historical Turn in American Legal Scholarship,” contains separate chapters on each of the major American legal historians; a chapter on “The History of American Constitutional Law,” focusing on Thayer, Cooley, and Tiedeman; and a final chapter, “The Historical School of American Jurisprudence,” that highlights its major characteristics. Part III contains chapters on Maitland, Pound, and twentieth-century interpretations of late nineteenth-century legal thought.
I close this first post by providing links to the full table of contents and to book reviews that have appeared thus far: by Adam Hofri-Winogradow, Ron Harris, Assaf Likhovski, and Roy Kreitner, and a response by me in The Jerusalem Review of Legal Studies, by Alfred Brophy and Brian Tamanaha in the Texas Law Review, and by Herbert Hovenkamp for the Journal of American History. I'm also linking two blog posts about the book: by Kenneth Kersch and by Alfred Brophy, commenting on his and Brian Tamanaha's reviews.
Update: Cambridge is offering Law's History at a 20 percent discount. Use code Rabban12 at the checkout. DRE
[The series continues here.]
Danner on the American Legal Treatise
Richard A. Danner, Duke University School of Law, has posted Foreword: Oh, the Treatise! Which appears in Michigan Law Review 111 (2013). Here is the abstract:
This foreword to the Michigan Law Review’s 2013 Survey of Books Related to the Law considers the history of the American legal treatise in light of the well-known criticisms of legal scholarship published by Judge Harry Edwards in 1992. As part of his critique, Edwards characterized the legal treatise as “[t]he paradigm of practical legal scholarship.” In his words, treatises “create an interpretive framework; categorize the mass of legal authorities in terms of this framework; interpret closely the various authoritative texts within each category; and thereby demonstrate for judges or practitioners what ‘the law’ requires.” Part I examines the origins of the legal treatise and its early importance to the U.S. lawyers; Part II the impact that the massive growth in published case law had on the treatise during the latter part of the nineteenth century; and Part III the implications for the treatise of shifts from print to electronic formats in the twentieth century. The Foreword concludes by speculating briefly on the continuing need for the treatise in light of Edwards’s concerns and its place in the digital legal information environment.
