Monday, August 23, 2010

History in the interstices of law

Tomorrow is the first day of class at the University of Iowa law school. Among my courses will be first-year Property, which I begin with Pierson v. Post. Each time I teach the course, I'm reminded of how much legal history the students would benefit from knowing, but don't know yet. And when I introduce them to some legal history -- the forms of action, or Blackstone's Commentaries, or the distinction between law and equity -- I'm reminded that what I'm giving them is only a piece or two, at a time, of a much larger jigsaw puzzle. I think of Maitland's famous opening line: "Such is the unity of all history that any one who endeavors to tell a piece of it must feel that his first sentence tears a seamless web."
By the end of the Property course, students have learned a bit of Anglo-American legal history -- history secreted in the interstices of law, to paraphrase Maine. But I wish it were more. I wish that they would all take enough coursework to become familiar with the rich history of the common law. Can we really be graduating lawyers for whom Blackstone, Coke, and Mansfield -- let alone Henry II -- are largely unknown?
And what about the rich heritage of legal history outside the common law? The history of Roman and civil law, and canon law, are important components of the development of the law(s) of Europe. And we must not forget to include the history of law in other regions of our increasingly inter-connected globe.
All of this would be part of the schooling of a well-educated lawyer, were I the czar of the curriculum. But as it is, I manage to secrete history into the interstices of law. And with luck, some of the students will be inspired to learn more....


Anonymous said...

You can graduate practitioners who lack any real knowledge of the legal past very easily, at least when considering the legal past that is not still relevant to today. After all, if we accept the idea that much of what Coke et al thought about legal history was wrong, they managed!

Whether such practitioners are well-rounded lawyers is a different question, and I would agree that they are not. It's a difficult thing to remember, but contrary to most professors, most law students go on to do relatively humdrum work and rarely need historical, philosophical or other knowledge to do their jobs.

Dan Ernst said...

Let me suggest one way of making history a bit less interstitial in a property course.

One of the challenges of the first year is to introduce students to the legal practices and conventions that produce a body of law without exaggerating its fixity or suggesting it was the product of (to borrow from Bob Gordon) some immanent, functionalist logic. My corrective is to emphasize those moments in property course when seemingly fixed law changed, such as the landlord-tenant revolution, the remaking of servitude law to accommodate the residential subdivision, and the conservative legal foundation's campaign to resuscitate the regulatory takings doctrine. I don't consider these classes as detours from the teaching of doctrine but as the best way to explain, as John Langbein used to say, "how we got into this big mess" (or, I'll add, how we got to this, the best of all possible worlds, as the case may be).

Although these parables of stasis and change don't make a dent in the vast canon of Anglo-American legal history, they do seem to sell the students on the value of a historical approach, more generally considered.

Good luck tomorrow. My date with 113 students and a certain fox is next week.