The Legal Historian as Entomologist

The law school curriculum is now full of interdisciplinary subjects. Law and economics may dominate but almost other every social science is well represented. These perspectives offer innovative methods to analyze the effects of law and inform the content of legal reforms. But long before the rise of this alphabet soup of interdisciplinarity, law and history were a well-established combination, providing an important part of legal education and an essential element of legal science.

The early salience of legal history for the study of law is all the more reason to welcome the splendid volume, Law’s History: American Legal Thought and the Transatlantic Turn to History by David Rabban. Rabban, a professor at the University of Texas Law School, meticulously documents and dissects American, English and German legal thought in the latter part of the nineteenth century– a time when to analyze law was to analyze its history. Rabban offers incisive accounts of fascinating theories that were undoubtedly widely known years ago but today are largely the province of specialists.

He details the basis of Henry Maine’s famous claim that civilization progresses from status to contract as the individual replaces the family as the basic building block of society. He shows that the great historian Henry Adams began as a legal historian and pushed the “Teutonic germ theory” – the view that the freedom prized by Teutonic tribes was translated through the ages into the New England town meeting and other institutions of liberty. Rabban reminds us that English legal historian Fredric Maitland was one of the first thinkers to emphasize the importance of the corporate form as mediator between the individual and the state.

Rabban himself provides superb short biographies of these important legal thinkers. While Henry Adams remains well known, most Americans in this school, like James Coolidge Carter and Henry Bigelow, have disappeared from legal consciousness. We even learn that before he became the leader of the Republicans in the United States Senate, Henry Cabot Lodge contributed to the historical movement by writing an important dissertation on Anglo-Saxon land law, which he argued survived in the common law even after the Norman invasion.

Rabban persuasively shows how the turn to the historical analysis pervaded the era’s thinking about the nature of law. As opposed to earlier nineteenth century theorists, like John Austin, who saw law as the command of the sovereign, many sophisticated American legal thinkers of the post- Civil War period, like Carter, understood law as “enforced custom.” Their historical inquiries charted the embryology of legal doctrine, as it were,– its evolution from Saxon England to Norman influenced Britain and beyond. They were not only historians but adherents of historicism, which Rabban well describes as “the belief that the meaning of a phenomenon depends on its place within a process or stream of historical development.”

This historical sensibility shaped these theorists’ preferences for the institutional arrangements of their own day. By and large they favored judge made common law over legislative codification, because they believed that judges were better able to capture the complexities of custom and apply it to new situations. Indeed, the political stance of many of American legal historians was marked by sympathy with the Mugwumps—liberal Republicans who favored civil service reform and were generally sympathetic to a greater role for experts in the steering of policy.

Rabban shows that the frequent claim that nineteenth century legal thought was formalist is belied by the dominance of this historical school. It is true that the legal theorists of whom he writes were mostly legal conceptualists in law. They explored the internal evolution of legal concepts which they believed had a large measure of social autonomy. They emphatically did not see law simply as a plaything of larger political movements. But they also viewed law as a moving picture of a world whose boundaries were in constant flux. Legal concepts were not fixed in meaning, and the law thus could not be derived deductively, like a proof from the timeless axioms of geometry. Indeed, many in the historical school appealed to past cases to show that a particular legal concept that had made perfect sense in its time had become a fiction and should be scrapped. Legal history was thus valued not only for itself but for its contribution to the present welfare: historical analysis could clear away the underbrush of the past and show the path to reform. Thus, law’s first interdisciplinary foray was in some measure an attempt to understand the past to perfect the present.

At times the debates that Rabban describes between the legal theorists of his period have a surprisingly modern ring. Take my own specialty of constitutional theory, for instance. Christopher Tiedeman, a law professor in Missouri and then New York, pursued the view that law was evolving custom with such vigor that he believed that the most important principles of the Constitution were not to be found in its text, but were unwritten. While the unwritten constitutional restraints he advocated prohibited legislative interference in private economic ordering, in methodology his theory has a family resemblance to those of modern theorists, like David Strauss of the University of Chicago, who also see constitutional law as an evolving common law historical process, but defend a very different set of constitutional restraints, like those protecting sexual autonomy.

In contrast, Thomas Cooley, perhaps the most famous constitutional theorist of his day, sharply distinguished the interpretation of a written document from the common law. While he recognized that the progress of history generated many more kinds of activities to which the Commerce Clause applied than the Framers ever imagined, for Cooley the meaning of the clause itself did not change. A constitution had to have an unvarying interpretation, if it was to protect the “fundamental framework” against the varying gusts of popular opinion. In my view Cooley correctly located the dynamo of change for the constitutional order in its amendment process. Here the people could reflect on the maturing national experiences and forge new law. As a result, Cooley linked the importance of adhering to a written constitution of the United States with the capacity to resort to Article V. I confess to feeling a great deal of an intellectual kinship with Cooley. In Originalism and Good Constitution (Harvard University Press 2013), Michael Rappaport and I show that there can be no originalism without a vigorous amendment process and no vigorous amendment process without originalism.

Some theorists at the time pursued a via media between Tiedeman and Cooley in the treatment of constitutional text. Francis Wharton, for instance, agreed that the written Constitution should be binding when it was clear and precise but argued that some of the Constitution language was so vague that it had to be continually filled in. John Norton Pomeroy also thought that constitutional interpretation necessarily alternated between narrow and more elastic (or in his phrase “statesmanlike”) forms of interpretation. Wharton in particular seems to argue for a theory of constitutional interpretation not unlike the so-called New Originalists, who adhere to the text of the Constitution when it has a clear meaning, but can resort to more extratextual methods when it does not.

Rabban ends his historical narrative by describing the process by which the legal historical school died out—to be replaced by the sociological school of jurisprudence. Roscoe Pound, the Dean of the Harvard Law School, argued that legal historians had previously focused too much on legal concepts, accusing them of formalist jurisprudence. Taking his cue from the German legal theorist Rudolph von Jhering, he believed that law tended to be more a reflection of the competing social interests of the day rather than an evolutionary process. He thus began the movement by which the historical school was replaced by legal realism—the view that all law is but a temporary truce that reflects the balance of political forces at any given time. Enthusiastic about the rise of the social sciences, Pound wanted to deploy their empirical methods to find the legal doctrines that solved the problems of the day.

Like many legal theorists, Pound was unfair to his predecessors the better to proclaim his own originality and intellectual triumph. The most powerful part of Rabban’s book is his demonstration that Pound’s disparagement was almost wholly inaccurate. The legal historical school was not formalist but historicist. It was nothing if not empirically minded. For these theorists history provided the data to understand law and push legal change where warranted.

Paradoxically, the very continuity of the historical school with sociological jurisprudence suggests that legal history, at least as its nineteenth century legal practitioners envisioned it, may not have the same present pay off that many of its nineteenth century practitioners envisioned. As an aid to achieving better policy results, legal history cannot easily compete with sociological jurisprudence and its modern descendant, empirical legal studies. Modernity with its relentless increase in computational power gives researchers access to ever better data sets about the present and such current information is likely to be both more comprehensive and more relevant to matching the law to human welfare than the study of the past. Moreover, our accelerating technology is likely to make our problems ever more distant from those of former ages. Rabban’s elegant book is thus an elegy to an age of brilliant scholarship, but that scholarship does not offer much insight into how legal history today can contribute to contemporary legal decision making or reform.

If legal history is to contribute to contemporary law and be studied for more than the inherent interest past patterns of life always have for the intellectually curious, it is likely to do so more in probing the historical meaning of fixed texts rather than charting the history of the evolution of the common law. Insofar as originalism continues to gain currency, it makes history directly relevant to current law. But rather than to trace a concept through the hedges and byways of case law, this kind of legal history would seek to capture the meaning of words, concepts and legal practices at the particular time at which an important legal document, like the Constitution, was written. Thus, the legal historian of tomorrow may contribute to the making of contemporary law not so much as an embryologist who studies the development of legal concepts but rather as an entomologist who pins down the historical meaning of text, preserving the butterfly in its various shades of brilliant color for all to see.


Introducing Myself

As an academic, I have worked in various fields, but my dominant passion has been the libertarian pursuit of free markets and freedom under the law. In recent years, I have focused mainly on constitutional originalism. At the University of San Diego, I am the Director of the Center for the Study of Constitutionalism and have a book coming out next year from Harvard, Originalism and the Good Constitution (co-authored with John McGinnis), which presents a new defense of originalism.