This post, by José Argueta Funes is the sixth in a series of posts in which legal historians reflect on Outside In: The Oral History of Guido Calabresi (Oxford University Press), by Norman I. Silber. Argueta Funes is currently an Academic Fellow at Columbia Law School; as of July 1, he will be an Assistant Professor of Law at Berkeley Law.
The first volume of Outside In (OI) closes with a wonderful reflection on Guido’s third major book, A Common Law for the Age of Statutes (ACLAS). Published in 1982, A Common Law grew out of Guido’s 1977 Holmes Lectures at Harvard Law School. Over the course of the twentieth century, Guido argued, statutes had become the primary source of law in America, displacing the common law. This shift raised a problem of legal change. Statutes were much harder to alter once enacted, and therefore Americans could go on living under laws which would not survive the legislative process if put up to a vote once again. And some of these laws, even if reenacted, would still “not fit . . . our whole legal landscape” (ACLAS, 2). The law and the people would be out of sync. A Common Law set out a radical solution for this problem: allow judges to update statutes. It then endeavored to show that this solution was not radical at all, but rather built upon “antecedents in which a common law court can take comfort” (OI, 391).
A Common Law is usually considered as Guido’s entry in long-running debates about the relationship between common law and legislation and about the nature of legal change. But while reading Outside In, my mind went to a different historical problem: American empire. And I got there by way of Guido’s repeated invocation of a curious phrase: “legal topography.” Guido was not thinking about America’s encroachment on other sovereigns when he used this phrase, which is simply shorthand to describe the work of common-law judges and lawyers. And this shorthand is deeply informed by nineteenth-century ideas about the common law. So, I started to wonder if we might use the idea of a “legal topography” to think about nineteenth-century lawyers engaging with the various kinds of law that existed across the continent and the articulation of empire.
Let me first sketch out what I think Guido means. In A Common Law, Guido uses the phrase “legal topography” (ACLAS, 98) alongside the phrases “legal fabric” (ACLAS, 96) and “legal landscape” (ACLAS, 98). The three phrases seem to refer to legal principles underlying American society (ACLAS 96-97) and to the diverse sources of law and legal interpretation one can find across the land (ACLAS, 98-99). Lawyers and judges weave the fabric or map the landscape—meaning, they articulate the underlying principles and figure out how different pieces or sources of law fit with each other.
This mapping is complicated, for at least two reasons. First, law has its own internal logic that requires some sort of training. Second—and more to the core of A Common Law—these legal cartographers must also keep track of changes in society and figure out how the principles and pieces of law relate to each other in time. All of this is deeply evocative of how nineteenth-century common lawyers described their work. As Kunal Parker has argued, common law judges claimed to “‘read’ the community as it presented itself” in the courtroom to articulate legal change while preserving social identity over time (Parker, 16).
But what if we reorient “legal topography” away from its temporal dimensions and take a more literal, spatial approach? There were many sources and kinds of law in nineteenth-century America. We are used to thinking about state and federal sovereigns and their law, and this problem was central for many nineteenth-century jurists, like Joseph Story. But Story understood that the complexities of this topography extended beyond federalism, hence his knowledge, as Kent Newmyer noted, of merchant customs (Newmyer, 121-22). Recently, Kellen Funk has shown that religious doctrine, too, could supply legal rules to apply in the distribution of church assets. And Greg Ablavsky has recently emphasized that American lawyers could not afford to ignore Spanish, French, or Mexican property law. These sources were out there as part of the topography for lawyers to incorporate them into legal argument. They might do this, too, with the laws of Indian tribes, even as the United States pursued efforts to attack and eliminate them.
Consider an example from Oregon, detailed by Peggy Pascoe in What Comes Naturally. In 1921 the Oregon Supreme Court held that an Indian woman named Ophelia Paquet (Tillamook) could not claim the estate of her deceased white husband, Fred Paquet, because Oregon’s anti-miscegenation statute forbade marriages between white men and Indian women. This was something of a surprise, because that court had previously recognized marriages between Indian women and white men as the source for husbands’ land claims under the Oregon Donation Act (Pascoe, 97). Pascoe astutely reconstructed this case as an example of a white supremacist retrenchment in the American West. But there are also hints behind the case of an underexplored legal topography.
We can glean some outcroppings in the story of how Fred and Ophelia came to be husband and wife. As Pascoe explained, their relationship began sometime in the 1880s, and they soon became the target of a local jury intent on punishing non-marital sexual relations. Fred “consulted a lawyer” who advised him to “hold a ceremony that would meet the legal requirements of an Indian custom marriage” (Pascoe, 104). Fred and Ophelia got married after Fred consulted Ophelia’s relatives and the Tillamook Chief Betsy Fuller. The jury’s harassment apparently stopped thereafter, and Pascoe’s narrative then goes to the end of the story, where shifting attitudes about race would invalidate the marriage and defeat Ophelia’s property claim.
But I would like to pause on the bit of legal advice that Fred received. The lawyer he consulted expected the jury to recognize such a marriage as a legitimate relationship. Put differently, this lawyer is telling us that Indigenous legalities were a feature of Oregon’s late-nineteenth-century legal topography. How extensive this phenomenon was is not clear, but some preliminary archival research suggests he was not alone. Thus, in 1900, a different lawyer could write a brief to the Oregon Supreme Court and claim that because Indians had “resided in the state of Oregon . . . [f]rom time immemorial,” their “customs, when not in conflict with positive law and reasonable in themselves, . . . must be considered as a part of the law of Oregon” (Appellant’s Brief, at 12, Non-she-po v. Wa-win-ta, 62 Pac. 15 (June 22, 1900) (Case No. 3805, Oregon State Archives)). But by 1921, Oregon’s Supreme Court was ready to erase tribal law from the legal topography.
I am likely far from the legal topography that Guido understood himself to be engaging with when he wrote A Common Law. But it is a credit to his understanding of the practices and ideologies surrounding the common law that we might get from him a useful heuristic to understand that work of lawyers in the nineteenth century, and, through them, a window into American empire. The accidents of a legal topography might usefully signal collisions among multiple legal orders, between state legal institutions and popular legalities, between power and law. If we broaden our sense of the sources of law and historicize the legal topography, we might ask, as Guido did, “[w]hat kind of confused landscape, what kind of ragged map, have we got” (ACLAS, 99)?
-- José Argueta Funes
