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Law’s History

Law’s History American Legal Thought and the Transatlantic Turn to History

Author: David M. Rabban
Publisher: Cambridge University Press
ISBN: 9780521761918
Published In: May 2013
Format: Hardback , 577 pages
Jurisdiction: U.S. ? Disclaimer:
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This is a study of the central role of history in late nineteenth-century American legal thought. In the decades following the Civil War, 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. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism. Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory and the history of higher education.

• A comprehensive intellectual history of American legal thought

• Features detailed discussions of the work of major European and American legal scholars

• Challenges assumptions that have prevailed since the early twentieth century about the deductive formalism and conservatism of late nineteenth-century American legal thought

Acknowledgments	xi
Timeline	xv
Introduction	1
I. The Historical Study of Law in the United States	10
An Overview of the American Legal Scholars	15
Francis Wharton	20
Thomas McIntyre Cooley	21
James Coolidge Carter	27
John Norton Pomeroy	32
William Gardiner Hammond	35
James Bradley Thayer	40
Henry Adams	44
Oliver Wendell Holmes, Jr.	48
James Barr Ames	51
Melville Madison Bigelow	54
Christopher G. Tiedeman	57
Part I. The European Background	61
II. The Historical Nineteenth Century	63
Evolutionary Historical Thought	67
The Historical Turn in Germany	72
The Historical Turn in England	80
The Historical Turn in the United States	86
III. German Legal Scholarship	92
Savigny	94
Romanists and Germanists	101
Jhering	106
IV. English Legal Scholarship: Sir Henry Maine	115
Biographical Background	117
The Central Themes of Ancient Law	121
Elaborations in Specific Contexts	127
After Ancient Law	135
Maine’s Legacy	142
Part II. The Historical Turn in American Legal Scholarship	151
V. Henry Adams and His Students: The Origins of Professional Legal History in America	153
The Legal Education of Henry Adams	154
Teaching Medieval History at Harvard	156
Assessing German and English Scholarship	160
Correspondence with Morgan on Stages of Development	167
Essays in Anglo-Saxon Law	168
Adams on “The Anglo-Saxon Courts of Law”	169
Lodge on “The Anglo-Saxon Land Law”	174
Young on “The Anglo-Saxon Family Law”	177
Laughlin on “The Anglo-Saxon Legal Procedure”	179
Responses by Holmes and Maine to the Essays	183
The Mixed Legacy of Adams and His Students	184
VI. Melville M. Bigelow: From the History of Norman Procedure to Proto-Realism	187
The History of Procedure in Norman England	189
International Critical Responses	198
Bigelow’s Close Relationship with Maitland	204
From Legal History to Proto-Realism	207
Late Work in Legal History: The Perils of “Undisciplined Individualism”	211
VII. Holmes the Historian	215
The Influence of Savigny and Maine	218
Holmes and His American Contemporaries	220
Early Legal Scholarship: From Philosophical to Historical Analysis of Law	227
The Importance of History in The Common Law	234
Legal Survivals: “The Paradox of Form and Substance”	238
Examples of Legal Survivals	241
Functional Survivals	248
Holmes’s Instrumental Use of History in Legal Analysis	250
Survivals	252
Treatment of German Legal Scholarship	253
The Historical Inaccuracy of The Common Law	258
Holmes’s Lingering Historical Interpretation of Law	260
VIII. Thayer on the History of Evidence	269
The Law of Evidence as “the Child of the Jury”	271
The Lessons of History: Revising the Modern Law of Evidence	279
International Critical Responses	283
IX. Ames on the History of the Common Law	290
Ames and Holmes on the History of Consideration	294
Ames and Maitland on the History of Property Law	302
X. The History of American Constitutional Law	309
Thayer on Judicial Power to Declare Legislation Unconstitutional	311
Cooley on Freedom of Speech and Press	317
Tiedeman on the Constitutional Prohibition against the Impairment of Contracts	322
XI. The Historical School of American Jurisprudence	325
Evolutionary Legal Thought	329
Evolving Custom as the Source of Law	340
Evolving Custom and Constitutional Law	345
The Constraints of a Written Constitution	349
The Preference for Adjudication over Legislation	356
External Influences and the History of Legal Doctrine	361
Historical Legal Thought as a Distinctive Jurisprudential School	364
Legal History as Inductive Legal Science	367
Conclusion	377
Part III. Maitland, Pound, and Pound’s Successors	381
XII. Maitland: The Maturity of English Legal History	383
Biographical Background	385
Maitland’s Inaugural Lecture: “Why the History of English Law Is Not Written”	390
The History of English Law	392
Reliance on American Scholars	399
Evolutionary Themes	401
The Relationship between Law and Society	402
Codification	408
Maitland’s Critique of Maine	409
Maitland’s Late Essays: The Legal Treatment of Groups and English Pluralism	412
Maitland’s Legacy	417
XIII. Pound: From Historical to Sociological Jurisprudence	423
Biographical Background	424
Pound’s Project	426
Assessing Pound’s Critique of His American Predecessors	430
The Gap between Legal Individualism and Popular Collectivism	432
Examples of Individualism in American Law	436
Historical Sources of Legal Individualism	438
Historical Jurisprudence: Individualistic and Deductive	442
Savigny and Maine: Founders of Historical Jurisprudence	445
Historical Jurisprudence in America	448
Sociological Jurisprudence: Collectivist and Pragmatic	451
Jhering’s Teleological Jurisprudence	453
American Pragmatism	454
The Promise of Social Science	456
The Emergence of Sociological Jurisprudence	460
Sociological Legal History	462
Adjudication and Legislation in Sociological Jurisprudence	466
Conclusion	469
XIV. Pound’s Successors: Twentieth-Century Interpretations of Late Nineteenth-Century Legal Thought	472
Deductive Formalism	473
Political Conservatism	485
The Role of History	495
The Attack on Doctrinal Legal History	498
Rediscovering the Importance of History	505
Assessing the Twentieth-Century Critique	512
Conclusion	520
Index	537

David M. Rabban
University of Texas, Austin

'This is a pioneering study of American historical jurisprudence in the late nineteenth century. It is comprehensive, meticulous, and deeply learned. It is cosmopolitan, placing the Americans among their European predecessors and counterparts. And it is eye-opening: the standard picture of this era's legal scholars as political reactionaries and abstract deductive 'formalists' cannot possibly survive this splendid and important book.' Robert W. Gordon, Stanford Law School

'This accomplished work of intellectual legal history is the first complete account of American legal thought from the rise of Classical Legal Thought in the 1870s to the Sociological Jurisprudence of the pre-World War I era. Though it offers many illuminating challenges to conventional wisdom in the field, the book's first goal is to overthrow the still dominant Holmesian picture of Classical American legal thinkers as unhistorical prisoners of logic. Rabban shows instead the pervasive influence of historical consciousness on leading American legal thinkers, many of them influenced by Darwinian evolutionary ideas.' Morton Horwitz, Charles Warren Professor of American Legal History, Harvard Law School

'Law's History is an important analysis of the historical mentality of late-nineteenth-century legal scholarship and a revealing guide to ways twentieth-century scholars have interpreted it.' Dorothy Ross, Johns Hopkins University

'A remarkable book. Rabban amply documents the 'Atlantic crossings' in legal scholarship at the turn of the twentieth century and unpacks the deep connections between history and law in modern American and continental legal thought. Essential reading for those interested in the intellectual history of law.' Keith E. Whittington, Princeton University