Table Of ContentLaw’s History
This book 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 sup-
ported moderate legal reform, conclusions that challenge conventional
accounts of legal formalism. Unprecedented in its coverage and its inno-
vative 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.
David M. Rabban is Dahr Jamail, Randall Hage Jamail, and Robert Lee
Jamail Regents Chair in Law and University Distinguished Teaching
Professor at the University of Texas School of Law. Rabban is the
author of Free Speech in Its Forgotten Years (Cambridge 1997), which
won the 1998 Morris D. Forkosch Prize presented by the Journal of the
History of Ideas and the 1998 Eli M. Oboler Award of the American
Library Association Intellectual Freedom Roundtable.
Cambridge Historical Studies in American Law and Society
Series Editor
Christopher Tomlins, University of California, Irvine
Previously Published in the Series:
Kunal M. Parker, Common Law, History, and Democracy in America,
1790–1900
Steven Wilf, Law’s Imagined Republic
James D. Schmidt, Industrial Violence and the Legal Origins of Child Labor
Rebecca M. McLennan, The Crisis of Imprisonment: Protest, Politics, and the
Making of the American Penal State, 1776–1941
Tony A. Freyer, Antitrust and Global Capitalism, 1930–2004
Davison Douglas, Jim Crow Moves North
Andrew Wender Cohen, The Racketeer’s Progress
Michael Willrich, City of Courts: Socializing Justice in Progressive Era
Chicago
Barbara Young Welke, Recasting American Liberty: Gender, Race, Law, and
the Railroad Revolution, 1865–1920
Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery,
and the Thirteenth Amendment
Robert J. Steinfeld, Coercion, Contract, and Free Labor in the Nineteenth
Century
David M. Rabban, Free Speech in Its Forgotten Years
Jenny Wahl, The Bondsman’s Burden: An Economic Analysis of the Common
Law of Southern Slavery
Michael Grossberg, A Judgment for Solomon: The d’Hauteville Case and
Legal Experience in the Antebellum South
Law’s History
American Legal Thought and the Transatlantic
Turn to History
DaviD M. Rabban
University of Texas, Austin
cambridge university press
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Singapore, São Paulo, Delhi, Mexico City
Cambridge University Press
32 Avenue of the Americas, New York, NY 10013-2473, USA
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Information on this title: www.cambridge.org/9780521761918
© David M. Rabban 2013
This publication is in copyright. Subject to statutory exception
and to the provisions of relevant collective licensing agreements,
no reproduction of any part may take place without the written
permission of Cambridge University Press.
First published 2013
Printed in the United States of America
A catalog record for this publication is available from the British Library.
Library of Congress Cataloging in Publication data
Rabban, David M., 1949–
Law’s history : American legal thought and the transatlantic turn to
history / David M. Rabban, University of Texas, Austin.
pages cm. – (Cambridge historical studies in American law and society)
Includes bibliographical references and index.
ISBN 978-0-521-76191-8
1. Law – United States – Philosophy – History – 19th century. 2. Law – United
States – Interpretation and construction – History – 19th century. 3. Law – Study
and teaching – United States – History – 19th century. I. Title.
KF380.R33 2012
349.7309′034–dc23 2012012605
ISBN 978-0-521-76191-8 Hardback
Cambridge University Press has no responsibility for the persistence or accuracy of URLs
for external or third-party Internet Web sites referred to in this publication and does not
guarantee that any content on such Web sites is, or will remain, accurate or appropriate.
Contents
Acknowledgments page 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
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
vii
viii Contents
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
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
