[Here is the latest in a series of posts by David Rabban, Texas Law.]
In my last two posts about my new book, Law’s History: American Legal Thought and the Transatlantic Turn to History, I focused on the original scholarship on the history of English law by five late nineteenth-century Americans: Henry Adams, Melville Bigelow, Oliver Wendell Holmes, Jr., James Barr Ames, and James Bradley Thayer. Their internationally respected work provided a fascinating intellectual link between the two great nineteenth-century English legal historians, Henry Maine and Frederic Maitland. In this post, I emphasize that the turn to history in late nineteenth-century American legal scholarship was not limited to the relatively few who became legal historians. During this period, American legal scholars generally viewed history as the key to legal analysis. They often identified their historical approach to law as a distinctive jurisprudential school. Among the most eminent of these scholars were James Coolidge Carter, Thomas McIntyre Cooley, William Gardiner Hammond, John Norton Pomeroy, Christopher G. Tiedeman, and Francis Wharton. Demonstrating the existence and analyzing the characteristics of this “historical school of American jurisprudence” are major goals of my book.
While emphasizing the distinctiveness of their historical school of jurisprudence, the late nineteenth-century American legal scholars often explicitly differentiated it from prior jurisprudential schools, particularly natural law and analytic jurisprudence. They especially criticized the speculative approach of these prior schools based on “mere theory.” They stressed instead their “scientific” reliance on induction from the empirical evidence of history to derive and classify legal principles. In conveying their conception of law as an inductive science deserving inclusion in the emerging American research university, they compared it to other inductive sciences, such as biology and physics, and differentiated it from the deductive science of mathematics.
The American legal scholars who formed the historical school of American jurisprudence frequently expressed and elaborated in the context of legal analysis key themes of the evolutionary historical thought that pervaded Western intellectual life in the nineteenth century. They generally viewed history as an evolutionary process of development that organically connected the past with the present. They often referred to the “seeds” or “germs” of legal doctrine “ripening” into the more developed “fruit” or “offshoots” of current law, or to the “genealogy” of law from its original “parents” to its “lineal descendants” among its living “children.” They typically used evolution as a synonym for development rather than in its more specific Darwinian sense as a theory of natural selection extending over many generations. Indeed, as Wharton observed, evolutionary historical thought had become pervasive well before Darwin published his theories of biological evolution.
The American legal scholars reflected the variations as well as the central themes of nineteenth-century evolutionary historical thought. They recognized discontinuity as well as connection between past and present. While some acknowledged periods of decline, they generally viewed evolution as progressive, often portrayed as a movement from barbarism to civilization. They lauded the growth of liberty, democracy, and morality as nations, particularly their own, became increasingly civilized. Although some detected immanent principles or governing laws that determined the evolutionary process, others viewed evolution as a sequence of contingent events. Frustratingly, like evolutionary thinkers in other fields, they often were unclear or expressed inconsistent positions about these and other issues.
Though they had different views about the evolutionary process, they uniformly agreed that understanding current law depends on tracing its evolution from its earliest origins. They focused on the history of a nation, which they often identified with race, and viewed all aspects of national culture, including law, as related parts of its historical development. Occasionally, they explicitly contrasted meaningful history, which contributes to understanding the connections between past and present, from superficial history, which does not. Exhibiting what current historians characterize and typically deprecate as “presentism,” they made clear that they concentrated on meaningful history. They frequently dismissed history that does not help explain the present as irrelevant and merely “antiquarian.” Particularly interested in the history of their own legal system, the American legal scholars often endorsed the “Teutonic-germ theory” that was popular among English and American scholars in many fields. A few explicitly associated the racial consciousness of the Teutonic-germ theory with racial superiority, but most did not, assuming instead the distinctiveness of different races.
In applying evolutionary thought to legal analysis, American legal scholars frequently emphasized that evolving custom is the source of law. They conceded that positive law does not always reflect the prevailing customs in a society, but they stressed that in these circumstances the positive law will not be obeyed and cannot be effectively enforced. While observing that judicial or legislative error in recognizing existing custom can produce “inoperative” positive law, they devoted particular attention to the evolutionary phenomenon of new customs superseding the earlier customs on which current law is often based. When evolving custom advances beyond existing law, they maintained, the law must change. They were confident that their scholarship, by demonstrating whether legal survivals should be retained or abandoned, would be an aid to judges and legislators. Based on their historical research, they hoped to reconceptualize the legal system to make it more functional for their own time and place. In contrast to the timeless formalism later attributed to them, many assumed, and some explicitly stated, that their classifications were temporary, subject to further revision as part of the continuous process by which law responds to evolving custom. Just as functional laws in the past had become dysfunctional in the present, functional laws in the present could become dysfunctional in the future.
The late nineteenth-century American legal scholars applied their historical analysis to some of the most fundamental legal issues of their time. Because they believed that judges were typically in a better position than legislators to respond to evolving custom, they favored adjudication over legislation. Yet they approved legislation in exceptional circumstances, such as periods of rapid social transformation when immediate and substantial changes in the law are required. In response to the dramatic industrialization of the United States, for example, many of them urged legislation governing child labor, the operation of dangerous machines, and tenement housing, thereby challenging the claim by many subsequent scholars that their general opposition to legislation was based on conservative resistance to legislative reform. Their emphasis on law as a response to evolving custom also explains many of their views about constitutional interpretation. Rather than focusing on the text of the Constitution or the original intent of the framers and ratifiers, they believed that constitutional law, like law generally, evolves as circumstances change. While they generally acknowledged that the written text of the constitution imposes some interpretive limits on judicial discretion, they urged judges to recognize transformations of popular understandings of the Constitution, such as the definition of citizenship during and after the Civil War, even as some of them cautioned that judges should often defer to legislative interpretations of constitutional meaning.