Monday, July 25, 2011
David Rabban’s Law’s History
Posted by Ken Kersch
I will be in Seattle over Labor Day weekend, at the American Political Science Association’s Annual Meeting. There, I’ll be chairing a panel on David Rabban’s forthcoming book, Law’s History: American Legal Thought and the Transatlantic Turn to History (Cambridge). Joining me on the panel will be Mark Graber (Maryland), Carol Nackenoff (Swarthmore), and Keith Whittington (Princeton).
Over the last month, I’ve been absorbed in the book (in manuscript form), which is full of fascinating material, and does lots of interesting things simultaneously. One of those things is to challenge the view that the serious study of legal history in the U.S. was launched by J. Willard Hurst in the 1940s at the University of Wisconsin. Rabban’s book focuses on the legal thought of late nineteenth century American legal historians, including Henry Adams, John Norton Pomeroy, James Bradley Thayer, Melville Madison Bigelow, Oliver Wendell Holmes, Jr., James Coolidge Carter, Thomas Cooley, and Christopher Tiedeman. He discusses at length the (extensive) relationship of their work to nineteenth century German and English historical legal scholarship (by Savigny and von Jhering, e.g., and Sir Henry Maine, respectively), and details the degree to which the work of this group of American scholars was held in the highest regard in Europe as a genuinely original, and important, contribution to the study of legal history.
Many of the American thinkers got tagged – at the beginning of the twentieth century, right down to the present day -- with the labels “legal formalist” and “political conservative,” instead of "legal historian" (one who didn’t, Holmes, was tagged as having abandoned the historical approach of the early part of his career).
This gets a lot wrong, Rabban argues. His chief culprit is Roscoe Pound, who, as part of his full-court press for the adoption of “sociological jurisprudence,” misrepresented the nature of the work of his predecessors, and deprecated the depths of their scholarly accomplishments.
There is so much here that I will mention just a couple of things I found interesting. One is the “anxiety of influence” dynamic that Rabban shows shaping Roscoe Pound’s legal thought. To make room for his bold new vision, Pound seems to have believed he needed to obliterate the work of his legal historian predecessors. If that meant misrepresenting its nature and its politics (whether consciously or not), so be it. This is probably not an unusual dynamic in the history of legal thought, especially when a new school of thought seeks to displace an entrenched predecessor.
It is also pretty interesting that – if Rabban is right – the main lines of legal historians from Pound forward largely downplayed the widespread influence of organic/evolutionary/historical understandings of legal development that predominated within the group of American scholars he is profiling. This seems odd, given that it has long been understood that these types of understandings were predominant in the new social sciences of the era (see, e.g., Dorothy Ross’s The Origins of American Social Science (Cambridge, 1991). Is the fact that legal historians in the U.S. seem to have missed this close connection a consequence of the fact that (as Rabban observes at one point), in the U.S., the center of gravity of legal history is in the law schools, as opposed to history departments?
Reading this as a political scientist, I found the views of the scholars Rabban discusses concerning the relative merits of codification/legislation vs. adjudication to be very interesting. Rabban cites some excellent scholarship on this (which I didn’t know about). One of the major interests of American Political Development scholars over the years has been in the late nineteenth/early twentieth century emergence of what UCLA political scientist Karen Orren calls the “statutory state,” or what her frequent collaborator, Yale political scientist Stephen Skowronek, describes as the transition from the “state of courts and parties” to the “New American State.” There is probably very interesting APD work to be done on the relationship between the debates over codification (dating back at least to David Dudley Field), and the building of the modern American administrative state.
Many Legal History Blog readers, I'm sure, will find this book enjoyable and engaging.