Historicizing Jurisprudence

Recent scholarship on legal history in postbellum America has undermined and, in many cases, upended our understanding of the period. The formalism-progressivism dialectic marked by the rise and fall of so-called “classical legal thought” no longer adequately explains a period when law faced so many challenges. But a great deal of this work has been negative; it has been more concerned with overturning “Lochner era” interpretations than in producing a new interpretive framework. The most successful work in the counterstruction of the Lochner era has been done at the local level of urban history, often not even explicitly engaging legal historiography.¹ Nonetheless, a growing body of work on intellectual history and jurisprudence is beginning to make inroads. This is where David Rabban’s new book comes in.

Law’s History is a highly readable reconstruction of an important and largely overlooked segment of postbellum legal thought. Rabban traces the transatlantic emergence of a modern and professional legal history, and its role in the emergence of historical jurisprudence in late nineteenth-century America. The transatlantic turn to history began in Germany as a response to the rationalism and universalism of the French Enlightenment. Over the first half of the nineteenth century, the German historical science moved its way across the channel to England, then to the United States. While Americans were latecomers to this turn, they nonetheless had an important impact on the transatlantic production of the new legal history and the emergence of a historical jurisprudence.

Rabban’s book raises innumerable questions for further exploration regarding the nature of jurisprudence in the late nineteenth century. Here, I will focus on a couple of methodological issues, as well as the related impact of the Civil War on postbellum jurisprudence. On a general level, I want to challenge Rabban’s transatlantic focus and suggest that indigenous pressures on law and jurisprudence were a great deal more important than one might take away from his book.

The transatlantic turn to history, Rabban tells us, began in the late eighteenth century and included much more than law. Thinkers in a wide variety of areas—including philology, biblical studies, philosophy, art, anthropology, economics, and geology—turned to history for explanations. The approach was generally evolutionary, meaning “history as a continuous process of connected events that reveals meaning over time” (p. 65). It was Johan Herder who “aroused historical consciousness” in response to French Enlightenment ideas of universalism and rationality. Herder’s was part of a larger German nationalist response to the French Enlightenment that focused on the particularity of human experiences.

Within jurisprudence, the most important antecedents of the American historical turn were the German scholars Savigny and Jhering, and England’s Henry Maine. For them, law evolved as the “national spirit of the people” (p. 92). Savigny provided the model for German legal history, stressing the “twofold spirit” of jurisprudence—historical and systematic. On the other side of the nineteenth century, Jhering emphasized the social historical context of law. The rise of the German research university facilitated the historical turn by providing students and institutional support for historical studies. The chief characteristics of the German historical school included “the organic development of law, the continuity of national traditions, parallels between law and language and the defect of statutes” (p. 115).

The turn to history worked its way slowly to England. Although work by Edward Gibbons, Edmund Burke, and William Jones had inspired the German turn, it wasn’t until the 1860s that history became a distinct field of serious inquiry in England. It was Sir Henry Maine’s Ancient Law that initiated the British turn to history in legal scholarship. Maine explicitly offered historical jurisprudence as an alternative to natural law and positivism, the dominant jurisprudential schools at the time. His characterization of historical change as a progressive movement “from status to contract” would be a major influence on historical legal thought, and on history more generally.

The historical turn in...