Brian Tamanaha and I have a couple of takes on David Rabban's Law's History in the February issue of the Texas Law Review. First, though a little bit about Rabban's important book. Cribbing now from the Cambridge University Press website:
Law's History is a study of the central role of history in late nineteenth-century American legal thought. In the decades following the Civil War, the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism. Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory and the history of higher education.
This long-awaited study is a very important work in the intellectual history of law, which goes back and reconstructs in detail the historical jurisprudence of the late-nineteenth century. It locates the turn to historicism in European thought, then traces the migration of those ideas across the Atlantic and it also traces the shift away from historical jurisprudence to Progressive-era sociological jurisprudence and legal realism.
Among the many things that interest me are how different Brian Tamanaha and my takes are. For instance, I call my essay "When History Mattered" -- which suggests that historical jurisprudence was once important but is not so much now. By contrast, Brian calls his review, "The Unrecognized Triumph of Historical Jurisprudence," which suggests that the historical jurisprudence continues to the present. Pretty interesting how two people who've thought a lot about this book and this subject can have divergent takes. I think part of our divergence is explained by our disciplines (history in my case, jurisprudence in Brian's), but also in our vantages. Brian is taking a big picture view and sees -- as does David Rabban -- more connections between historical jurisprudence and sociological jurisprudence (and later legal realism) than I do. This is something I hope I'll have the chance to talk about in depth sometime down the road -- and maybe I'll have the chance to bring Brian's Beyond the Formalist-Realist Divide into that discussion. There are some parallels in interpretation between Beyond the Formalist-Realist Divide and Law's History, though they look at different sets of data and also I think Tamanaha finds more similarites than Rabban between Gilded Age and Progressive era jurisprudence.
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 Pound and formalism by later legal historians.
Read the remainder here. I'm eagerly awaiting the other takes on Law's History that I'm sure are in the works.
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