The Unrecognized Triumph of Historical Jurisprudence
Tamanaha, Brian Z., Texas Law Review
The Unrecognized Triumph of Historical Jurisprudence 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.
Historical jurisprudence has been nearly erased from the annals of American jurisprudence. Legal theory revolves around rival schools of thought representing contesting positions. A common arrangement in jurisprudence texts is to begin with natural law and legal positivism, in that order, followed by legal realism, and then a host of contemporary schools of thought.1 This ordering is chronological as well as thematic: natural law theory began in classical times;2 legal positivism arose in the nineteenth century to challenge natural law;3 legal realism arose in the 1920s and 1930s to debunk the dominant formalist views of law;4 the Hart-Fuller debate of the late 1950s marked the reenergizing of legal positivism;5 social scientific approaches to law (Law & Society Movement) began to develop in the 1960s;6 in the 1970s, Dworkin mounted a challenge to Hart's dominance,7 law and economics subjected law to examination from an economic perspective,8 and Critical legal studies of the radical left burst onto the scene to challenge legal liberalism.9 A hodgepodge of descendants of these various schools then followed. Historical jurisprudence is rarely mentioned. In an encyclopedic entry on "The Nature of Law," Andrei Marmor observes:
In the course of the last few centuries, two main rival philosophical traditions have emerged, providing different answers to these questions [on the nature of law]. The older one, dating back to late mediaeval Christian scholarship, is called the natural law tradition. Since the early 19th century, Natural Law theories have been fiercely challenged by the legal positivism tradition promulgated by such scholars as Jeremy Bentham and John Austin.10
Contrast this narrative with a century ago, when Roscoe Pound wrote:
Until recently, it has been possible to divide jurists into three principal groups, according to their views of the nature of law and of the standpoint from which the science of law should be approached. We may call these groups the Philosophical [natural law] School, the Historical School, and the Analytical School.11
Pound and others at the time asserted that in the late nineteenth century the historical school was dominant over the other two jurisprudence schools.12 Natural law was in a state of decline. Renowned Oxford Professor James Bryce, writing in Studies in History and Jurisprudence, published in 1901, identified the same rival jurisprudential schools, but noted that "we now seldom hear the term Law of Nature. It seems to have vanished from the sphere of politics as well as from positive law."13
Not all contemporary jurisprudence scholars have forgotten historical jurisprudence. Robert Summers recognized that "legal theorists of the past two centuries have worked in one or more of the three . . . great jurisprudential traditions-continental natural law theory, British and Austrian analytical positivism, and historical jurisprudence."14 But this is unusual.
That a once-prominent theory of law could be nearly expunged from current memory, at least in the United States,15 is a puzzle that merits explanation. In Law's History, David Rabban aims to reawaken us to the former prominence of historical jurisprudence and to explain its apparent fall. He places much of the blame on Roscoe Pound.
By promoting "sociological jurisprudence" as an attractive alternative to "historical jurisprudence" in his enormously influential early work during the decade before World War I, Roscoe Pound contributed substantially to the demise of historical explanation in American legal scholarship as well as to what became the prevailing, though importantly inaccurate, view of its role in nineteenth-century legal thought.16
Rabban also argues:
Pound was both the last major figure who shared the historical understanding of law that dominated American legal scholarship in the decades after 1870 and the person who did most to bring that era to a close. …