by David M. Rabban. New York: Cambridge University Press, 2013. 564pp. Cloth $85.00. ISBN: 978-0-521-76191-8.
Reviewed by James Hackney, Northeastern University School of Law. E-mail: j.hackney at] neu.edu.
Why would 20th century historians, who by and large are politically progressive, be critical of their 19th century predecessors, as opposed to claiming them in an alliance of progressive thought evolving from the 19th century? This is the intriguing political question that David Rabban’s LAW’S HISTORY raises for us. David Rabban’s stated goal in LAW’S HISTORY is to reconstruct our account of 19th century legal history in America. He has done so in a meticulous and impressive fashion. Rabban is in some ways a throwback to the 19th century belief in history as history. LAW’S HISTORY is an intriguing blend of legal history and intellectual history. Ultimately, it is an intellectual history of American legal history. In large part the focus of this intellectual history is on late 19th century legal historians in an effort to more fully appreciate and contextualize their contributions. In undertaking this task, Rabban does not do so with a clean slate. In fact, much of the work in LAW’S HISTORY is an effort to wipe the slate clean. As Rabban carefully accounts, our understanding of 19th century legal history is well ingrained in the caricatures of “legal formalism”/ “classical legal thought”. This strand of legal theory has been derided as based on unfounded a priori principles, deductive logic, obsessive individualism, and conservative ideology. This is the stock description of 19th century legal theory, and by extension legal history, as articulated famously by Roscoe Pound and repeated in large part by contemporary legal historians following the lead of the legal realists. In contrast, Rabban portrays 19th century legal history as rooted in German historical science and a vital part of a transatlantic turn to history that coincided with the rise of history as a discipline established in the modern university. According to Rabban, these historians were actually more apt to call upon evolutionary ideas, empiricism, and historical induction in thinking about law, as opposed to deductivist logic. Nineteenth century American legal historians viewed themselves as making a break from natural law and analytic jurisprudence. Politically, Rabban argues that, as opposed to being rigidly conservative ‒ though he admits that some in their search for and idealization of the “Teutonic roots” of Anglo-Saxon law were racist ‒ the historians of this era frequently argued for reform in law and of “legal relics” based on historical change, and had affinity toward Mugwump reform and Jacksonian democracy. In fact, according to Rabban, they derided the rise of corporate power.
Under this revised intellectual history, the break with legal formalism does not begin with Pound in the early 20th century, but is begun with the 19th [*453] century historical turn led by Henry Adams, Melville Bigelow, Oliver Wendell Holmes, and James Bradley Thayer. This historical turn was part of a general shift towards historicism in Western intellectual thought. Its rejection and derision were also part of a general transformation at the turn of the 20th century at which scholars on both sides of the Atlantic rejected historicism in favor of social scientific modes of intellectual exploration. This turn is famously chronicled in Dorothy Ross’ ORIGINS OF AMERICAN SOCIAL SCIENCE (1991). Legal scholars joined their counterparts in other parts of the academy in not only rejecting historicism but critiquing 19th century historical approaches for being narrowly individualistic and methodologically flawed due to reliance on “mechanical” deductivism. In law, the sociological jurisprudence movement, led by Pound, and legal realist successors were particularly pointed in their critiques.
One of the commendable aspects of LAW’S HISTORY is that it historicizes a movement that has suffered much in the way of false characterization as has 19th century historicism ‒ critical legal studies. Many of the major contributions to American legal history over the past three decades have come out of the critical legal studies movement. These critical legal studies scholars are part of the group of 20th century interpreters of 19th century legal thought that Rabban refers to as “Pound’s successors”. Rabban, while taking many of the “crits” on for being overly political (a typical critique of crits) and engaging in precisely the type of mischaracterization that he thinks is indicative of those who falsely criticize 19th century legal historians, also treats them as seriously as he would have us consider his 19th century heroes. The reason for this is that historians in the critical legal studies tradition are less apt to fall into some of the traps that ensnare the liberal successors of Pound.
A case in point is Rabban’s insightful discussion of Duncan Kennedy’s path breaking, yet underappreciated, THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT (1975). Rabban credits Kennedy for not making the mistakes of Pound and the legal realists in wrongly disparaging late 19th century legal thought as being defined by its deductive methodology, but instead analyzing it at “length and with respect” (p.477). In particular, Kennedy disagreed that deductive reasoning was the distinctive feature of 19th century legal theory. In fact, deductive thinking plays a role in all forms of legal thought. Instead, according to Kennedy, classical legal thought raised the level below which deductivism came into play. Kennedy did extend the critique of 19th century legal thought as being about politics, but not politics in the narrow sense of political alignment with the forces of capitalism. Kennedy argued that legal consciousness in the 19th century was conservative but also relatively autonomous, doing its political work in a very abstract way through its mediation of law at the higher levels ‒ particularly with the extension of private law doctrine into public law. Kennedy was joined in his reconceptualization of classical legal thought by Robert Gordon who also rejected the liberal view that classical legal theory was simply an instrumentality for capitalist interests. Rabban notes that Morton Horwitz, in his canonical TRANSFORMATION OF AMERICAN LAW (1992) hues more closely [*454] to the liberal view of classical legal thought as being aligned with powerful economic interests, thwarting efforts at economic redistribution. Horwitz also criticized historians from the 19th century for being too internally focused on law and not connecting law with the larger social/political world. A similar charge, regarding lack of social context, was famously made by Robert Gordon (p.499). It was Willard Hurst, a leading figure in 20th century legal history, who led the way for moving beyond an internal view of legal history with the “law and society” school of legal history. The critique of internal history is related to the broader crit critique of 19th century legal theory ‒ scientism. It is the very same belief in science that Rabban lauds as part of the move to historicism in Western intellectual thought in the 19th century. The idea that law can be viewed as a science is, according to a crit view of the world, a political position and inherently conservative. This may be the answer to the my initial question: Why would 20th century historians, who by and large are politically progressive, be derisive of their 19th century predecessors as opposed to claiming them in an alliance of progressive thought evolving from the 18th century? From a crit perspective, the scientific pretensions of their 19th century predecessors was a conservative political stance in and of itself ‒ irrespective of their more immediate political commitments. The liberal contestation with 19th century historians was based on the belief that the law (and by extension legal scholarship) could and should do more good directly for society than argued for by their predecessors ‒ law and legal scholarship should be channeled for the political (progressive) good. Rabban's project is ambitious and provocative. We are benefited by his insights because not only has he provided us with a more balanced view of our 19th century predecessors, but also of their successors and ultimately ourselves.
Horwitz, Morton 1992. THE TRANSFORMATION OF AMERICAN LAW 1870-1960. New York: Oxford University Press.
Kennedy, Duncan 1975. THE RISE AND FALL OF CLASSICAL LEGAL THOUGHT. Maryland: Beard Books.
Ross, Dorothy 1991. THE ORIGINS OF AMERICAN SOCIAL SCIENCE. Cambridge: Cambridge University Press.
Copyright 2013 by the Author, James Hackney.