|
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
|