Context in history and law: A study of the late nineteenth-century American jurisprudence of custom

Law and History Review

Volumn 24, Issue 3, 2006, Pages 473-518

  Parker, Kunal M ^a  

^a CLEVELAND STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 38149089324     PISSN: 07382480     EISSN: None     Source Type: Journal    
DOI: 10.1017/S073824800000078X     Document Type: Review

References (90)

1. Donald R. Kelley, The Foundation of Modern Historical Scholarship: Language, Law and History in the French Renaissance (New York: Columbia University Press, 1970)
2. J. G. A. Pocock, Barbarism and Religion, Volume One: The Enlightenments of Edward Gibbon, 1737-1764 (Cambridge: Cambridge University Press, 1999)
3. Barbarism and Religion, Volume Two: Narratives of Civil Government (Cambridge: Cambridge University Press, 1999)
4. The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (1957; Cambridge: Cambridge University Press, 1987). I do not know of any single work that explicitly and systematically makes the connection between legal history and historical thought for the nineteenth century
5. Robert W. Gordon, "J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975): 9
6. See also Robert W. Gordon, "Historicism in Legal Scholarship," Yale Law Journal 90 (1980-1981): 1017
7. "Critical Legal Histories," Stanford Law Review 36 (1984): 57
8. I discuss the extension and collapse of distance as a motor of historical knowledge in Kunal M. Parker, "The Historiography of Difference," Law and History Review 23 (2005)" 685-95
9. Morton White, Social Thought in America: The Revolt against Formalism (Oxford: Oxford University Press, 1947)
10. The literature seeking to orient our understanding of late nineteenth-century legal thought away from the "revolt against formalism" is growing. See James E. Herget, American Jurisprudence, 1870-1970: A History (Houston: Rice University Press, 1990)
11. Lewis A. Grossman, "James Coolidge Carter and Mugwump Jurisprudence," Law and History Review 20 (2002): 577
12. William P. LaPiana, "Jurisprudence of History and Truth," Rutgers Law Journal 23 (1992): 519
13. David M. Rabban, "The Historiography of Late Nineteenth-Century American Legal History," Theoretical Inquiries in Law 4 (July 2003): 540
14. Stephen Siegel, "Historism in Late Nineteenth-Century Constitutional Thought," Wisconsin Law Review 1990 (1990): 1431
15. For an overview, see Stephen J. Kern, The Culture of Time and Space, 1880-1918 (Cambridge: Harvard University Press, 1983)
16. Heidegger's writings of the 1920s grew directly out of the late nineteenth and early twentieth-century German debate about the status of historical knowledge. See Martin Heidegger, Being and Time, trans. John Macquarrie and Edward Robinson (1927; New York: Harper & Row, 1962)
17. Jeffrey Andrew Barash, Martin Heidegger and the Problem of Historical Meaning (New York: Fordham University Press, 2003)
18. Constantin Fasolt, The Limits of History (Chicago: University of Chicago Press, 2004)
19. Fasolt's work has recently received a somewhat negative review by James Q. Whitman in the pages of this journal. See Law and History Review 23 (2005): 459. It seems to me that Whitman's review unfairly takes Fasolt to task for not engaging with various canonical figures in the philosophy of history literature, while refusing to engage Fasolt on his own terms
20. Fasolt, Limits of History, 151
21. Kunal M. Parker, "The History of Experience: On the Historical Imagination of Oliver Wendell Holmes, Jr.," PoLar: Political and Legal Anthropology Review 26 (2003): 60
22. John Lewis Gaddis, The Landscape of History: How Historians Map the Past (Oxford: Oxford University Press, 2002)
23. This discussion draws in part from Marilyn Strathern, Partial Connections (Savage, Md: Rowman and Littlefield, 1991)
24. Bigelow (1846-1921) was a professor and dean at Boston University Law School; Bliss (1814-1889) was a congressman, served on the Missouri Supreme Court, and founded the University of Missouri Law School; Carter (1827-1905) was a prominent corporate lawyer and civil reformer in New York City and an active alumnus of Harvard Law School; Cooley (1824-1898) was professor and dean at the University of Michigan Law School, a judge on the Michigan Supreme Court, chairman of the Interstate Commerce Commission, and president of the American Bar Association; Dillon (1831-1914) was a lawyer, a judge on the Iowa Supreme Court, and a law professor at Columbia University; Hammond (1829-1894) was a professor at the Iowa Law School and later dean of St. Louis Law School; Holmes (1841-1935) was a lawyer in Boston, a professor at Harvard Law School, and a judge on the Massachusetts Supreme Judicial Court and the United States Supreme Court; Thayer (1831-1902) was a practicing lawyer in Boston before becoming a professor at Harvard Law School in 1874; Tiedeman ( 1857-1902) was a professor at the University of Missouri Law School and the University of the City of New York and dean at the University of Buffalo Law School; Wharton (1820-1899) had a varied career as a lawyer, theologian, priest, law professor at the Boston University Law School, and solicitor of the Department of State. I derive many of these biographical details from Rabban, "The Historiography of Late Nineteenth-Century American Legal History," 568
25. Roscoe Pound, Interpretations of Legal History (New York: The MacMillan Company, 1923)
26. Melville M. Bigelow, ed.. Centralization and the Law: Scientific Legal Education: An Illustration (Boston: Little, Brown, and Company, 1906)
27. Bigelow, "Introduction," in ibid., 1
28. Brooks Adams, "Nature of Law: Methods and Aim of a Legal Education," in ibid., 25
29. Quoted in Peter J. King, Utilitarian Jurisprudence in America: The Influence of Bentham and Austin on American Legal Thought in the Nineteenth Century (New York: Garland Publishing, 1986), 34
30. Thomas Jefferson to James Madison, Paris, September 6, 1789 in Thomas Jefferson, Writings (New York: Library of America, 1984), 959
31. Morton J. Horwitz, The Transformation of American Law. 1780-1860 (Cambridge: Harvard University Press, 1977)
32. Christopher Tomlins, Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993)
33. Pocock, The Ancient Constitution and the Feudal Law, 15
34. I explore ideas of custom in early nineteenth-century legal thought in Kunal M. Parker, "A New Time for Law: Historical Consciousness in Antebellum Legal Thought" (unpublished manuscript on file with author)
35. Francis Lieber, Legal and Political Hermeneutics, or Principles of Interpretation and Construction in Law and Politics, with Remarks on Precedents and Authorities, ed. William G. Hammond, 3d ed. (1839; St. Louis: F. H. Thomas and Company, 1880), 188
36. To be sure, there were significant differences between the historical imaginations of Lieber and Burke. I investigate precisely these differences in Parker, "A New Time for Law."
37. Lieber, Legal and Political Hermeneutics, 193, 186
38. For a discussion of the test, see Andrea C. Loux, "The Persistence of the Ancient Regime: Custom, Utility, and the Common Law in the Nineteenth Century," Cornell Law Review 79 (1993-1994): 192-95
39. John D. Lawson, The Law of Usages and Customs, With Illustrative Cases (San Francisco: Bancroft-Whitney Company, 1887)
40. J. H. Balfour Browne, The Law of Usages and Customs: A Treatise Wherein is More Particularly Pointed Out When and to What Extent Usages and Customs May Be Set Up as a Defence, and How, as a Matter of Evidence, Their Existence Will Control, Vary, or Explain Writings and Agreements (First American Edition by S. S. Clarke) (Jersey City: Frederick D. Linn & Co., 1881), 17. Page numbers in the following text refer to this work
41. Peter J. Bowler, Evolution: The History of an Idea, 3d ed. (Berkeley: University of California Press, 2003)
42. Jerome Hamilton Buckley, The Triumph of Time: A Study of the Victorian Concepts of Time, History, Progress, and Decadence (Cambridge: The Belknap Press of Harvard University Press, 1966)
43. Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Vintage Books, 1973)
44. The only systematic treatment of the influence of German historical/legal thought on nineteenth-century AngloAmerican legal thought is Mathias Reimann, Historische Schule und Common Law: Die Deutsche Rechtswissenschaft des 19. Jahrhunderts im Amerikanischen Rechtsdenken (Berlin: Dunker & Humblot, 1993). In my view, for all his exhaustiveness, Reimann exaggerates Savigny's influence on historical thought in the Anglo-American legal world by failing to take account of the shift in historical imaginations between the early and late nineteenth centuries
45. James Bradley Thayer, Legal Essays (Boston: The Boston Book Company, 1908), 379
46. Sir Henry Sumner Maine, Ancient Law: Its Connection with the Early History of Society and Its Relation to Modern Ideas (1861; Dorset Press, 1986), 20
47. Quoted in Stein, Legal Evolution, 71
48. The Institutes of Justinian: With English Introduction, Translation, and Notes, trans. Thomas Collett Sandars, First American Edition, from the Fifth London Edition, with an Introduction by Wm. G. Hammond, LLD (Chicago: Callaghan & Company, 1876), xxx
49. Francis Wharton, Commentaries on Law, Embracing Chapters on the Nature, the Source, and the History of Law; on International Law, Public and Private; and on Constitutional and Statutory Law (1884; Holmes Beach, Fla.: Gaunt, Inc., 2001), 51, 55, 56
50. John Chipman Gray, The Nature and Sources of the Law, 2d ed. (New York: MacMillan Company, 1921), 296
51. Gray's example of mining customs in Gold Rush California was drawn from Gregory Yale's Legal Titles to Mining Claims and Water Rights in California (1867)
52. John F. Dillon, Commentaries on the Law of Municipal Corporations (Boston: Little, Brown, and Company, 1890), 23
53. I provide only a single citation for each word, but the same words are repeated across texts and writers. James C. Carter, The Proposed Codification of our Common Law: A Paper Prepared at the Request of the Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure (New York: Evening Post Job Printing Office, 1884), 41
54. James Coolidge Carter, Law: Its Origin, Growth and Function: Being a Course of Lectures Prepared for Delivery Before the Law School of Harvard University (G. P. Putnam's Sons, 1907), 21
55. Christopher G. Tiedeman, The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law (New York: G. P. Putnam's Sons, 1890), 9
56. Wharton, Commentaries on Law, iv; ibid., 43
57. Oliver Wendell Holmes, Jr., The Common Law (1881; Boston: Little, Brown and Co., 1938), 36
58. Sir Frederick Pollock, Oxford Lectures, No. VI: "Sir Henry Maine and His Work" (November 10, 1888), Oxford Lectures and Other Discourses (1890; Buffalo: W. S. Hein, 1970), 166
59. Wharton, Commentaries on Law, 166
60. Thomas M. Cooley, The Influence of Habits of Thought Upon our Institutions; Second Annual Address Delivered Before the South Carolina Bar Association, Columbia, S.C., 2d December, 1886, 12
61. Christopher Tiedeman, The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law (New York: G. P. Putnam's Sons, 1980), 6
62. Thomas M. Cooley, "The Uncertainty of the Law," American Law Review 22(1888): 347, 365
63. Philemon Bliss, Of Sovereignty (Boston: Little, Brown and Company, 1885), 26
64. Christopher Tiedeman, A Treatise on the Limitations of the Police Power in the United States: Considered from both a Civil and Criminal Standpoint (St. Louis: F. H. Thomas Law Book Co., 1886), 300
65. Holmes, The Common Law, 36
66. Carter, Law: Its Origin, Growth and Function, 13
67. These views were widespread at the time. For example, an 1882 committee of the Association of the Bar of the City of New York, in the context of opposing the codification of New York's civil law, wrote: "The common or unwritten law relates mainly to the principles and rules governing the conduct and affairs of men in their private relations and dealings. It is not made up of the arbitrary enactments of legislative bodies; but is a system or body of doctrine developed from the application of original principles to the actual experiences of life." Association of the Bar of the City of New York, Report of the Special Committee to Urge the Rejection of the Proposed Civil Code, October 10, 1882 (1882), quoted in LaPiana, "Jurisprudence of History and Truth," 532
68. Carter, Law: Its Origin. Growth and Function, 119. Page numbers in the following text refer to this work
69. James C. Carter, The Proposed Codification of Our Common Law: A Paper Prepared at the Request of the Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure (New York: Evening Post Job Printing Office, 1884), 32-33
70. John F. Dillon, American Institutions and Laws: Annual Address Before the American Bar Association at Saratoga Springs, Aug. 21, 1884 (Philadelphia: George S. Harris, 1884), 4
71. Francis Lieber, On Civil Liberty and Seif Government, 3d ed. (Philadelphia: J. B. Lippincott Company, 1911), 210
72. Cooley, Constitutional Limitations, 63
73. Dillon, Laws and Jurisprudence in England and America, 8
74. See Paolo Grossi, An Alternative to Private Property: Collective Property in the Juridical Consciousness of the Nineteenth Century, trans. Lydia G. Cochrane (1977; Chicago: University of Chicago Press, 1981), 17, for a discussion of Maurer's and Haxthausen's influence on Maine
75. J. W. Burrow, "The 'Village Community' and the Uses of History in Late NineteenthCentury England," in Historical Perspectives: Studies in English Thought and Society, ed. Neil McKendrick (London: Europa Publications, 1974)
76. Dillon, Commentaries on the Law of Municipal Corporations, vi
77. Cooley, A Treatise on the Constitutional Limitations, 230, 239
78. Hammond's annotion of Lieber, Legal and Political Hermeneutics, 308
79. Bliss, Of Sovereignty, 163
80. Cooley, Influence of Habits of Thought Upon Our Institutions, 2
81. Tiedeman, A Treatise on the Limitations of the Police Power in the United States, 10
82. Tiedeman, The Unwritten Constitution of the United States, 125
83. Christopher G. Tiedeman, A Treatise on Equity Jurisprudence: With Particular Reference to the Present Conditions of Jurisprudence in the United States (St. Louis: The F. H. Thomas Law Book Co., 1893), 2
84. Gray, The Nature and Sources of the Law, 238
85. Dillon, The Laws and Jurisprudence in England and America, 28
86. Parker, "The History of Experience: On the Historical Imagination of Oliver Wendell Holmes, Jr.," 60
87. Pound, Interpretations of Legal History, 152-53
88. The discussion of the memorandum is in N. E. H. Hull, Roscoe Pound and Karl Llewellyn: Searching for an American Jurisprudence (Chicago: University of Chicago Press, 1997), 296-97
89. See Hirokazu Miyazaki, The Method of Hope: Anthropology, Philosophy, and Fijian Knowledge (Stanford: Stanford University Press, 2004)
90. Jed Rubenfeld, Freedom and Time: A Theory of Constitutional Self-Government (New Haven and London: Yale University Press, 2001)