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....