When History Mattered
Brophy, Alfred L., Texas Law Review
When History Mattered LAW'S HISTORY: AMERICAN LEGAL THOUGHT AND THE TRANSATLANTIC TURN TO HISTORY. By David M. Rabban. New York, New York: Cambridge University Press, 2013. 564 pages. $85.00.
David Rabban's Law's History: American Legal Thought and the Transatlantic Turn to History is one of the finest works of legal history produced in recent memory and one of the finest works of the branch of legal history that deals with intellectual history of the last several decades. Law's History is a grand title, but appropriate for a work this capacious in execution and in subject matter. Rabban sweeps across European history from the Middle Ages through the early twentieth century and the United States as he discusses how legal theorists thought about history, about the sources of law, and about law's relationship to economy and society. The book centers on the question primarily of why jurisprudence in the United States took a supposed turn towards historicism in the post-Civil War era and secondarily why it stopped. To answer that, Law's History delves deeply into the history of the leading legal theorists of the nineteenth century in the United States and Europe. The major players range from Friedrich Savigny and Rudolf von Jhering in Germany to James Barr Ames, Melville Bigelow, James Coolidge Carter, Thomas M. Cooley, John Chipman Gray, Oliver Wendell Holmes, and James Bradley Thayer in the United States. Rabban concludes with two chapters that link his meticulous reconstruction of late-nineteenth-century historical jurisprudence and the early-twentieth-century turn to the social sciences. Rabban focuses first on Roscoe Pound and then on later legal historians who have assessed the nature of late-nineteenth-century jurisprudence and often found it the domain of rather uninteresting and narrow-minded thought, which was dismissively entitled "mechanical jurisprudence" by Pound1 and formalism by later legal historians.2
Rabban is engaged in a deep reconstruction of ideas. Part of the mission is to show that late-nineteenth-century historical writers understood that legal doctrine and statutes were embedded in their social and economic context and evolved in reaction to surrounding changes. Relatedly, he critiques those who portray that jurisprudence as static, backwards, and disconnected from society. Perhaps he also hopes to re-establish for legal history a larger place in early-twenty-first-century jurisprudence. On that first mission, Rabban builds on some other very good work in late-nineteenth-century jurisprudence. 3 On the second, his findings correlate with some others about the nature of late-nineteenth-century jurisprudence, which see the labeling of Gilded Age jurisprudence as formalist as incorrect.4 There is much to say about Rabban's methods, his findings, and his argument that we should think rather differently about Gilded Age legal thought and the transition to the Progressive Era than we have as we have followed the writings of Roscoe Pound.
Given the extraordinary number of themes running through this book and the attention it has already received,5 I want to focus on three issues of particular interest to me. First, what accounts for the shift to historicism in American jurisprudence? In mapping the rise in historical jurisprudence there are issues in dating the shift and in explaining how and why it occurred. That is partly a methodological question about how change in legal thought occurs. I think that the shift began before the Civil War and was driven at least partly by the arguments for and against slavery. My second area of interest is the nature of historical jurisprudence itself. How did historical jurisprudence see the relationship between law and its surrounding culture? Between legal thought and legal doctrine? Rabban shows that the historical jurisprudence was quite varied, but presumably it is helpful in understanding Gilded Age jurisprudence. While this historical jurisprudence varied in its understanding of the process of evolution and in the role that historical analysis played in understanding law, I believe that a central tendency of it was towards a jurisprudence of individualism and freedom of contract. …