The State of Legal History

Abstract

Law has been both a distinctive institution in United States history, and a material factor playing on and influenced by other factors of that history. Until about the last forty years, however, historians paid relatively little attention to legal elements in the country's experience, and worked within only a narrow conception of the scope of legal history. The last generation has witnessed a substantial growth in the literature, expressing enlarged ideas of the socially relevant subject matter of the field. The expanded definition ranges more widely over (1) time, (2) place, (3) institutional context, and (4) legal agencies studied. The fourth dimension of this growth reflects the other three and forms the core character of legal history as a new-shaped specialty. Work on legal history in this country before the 1940s tended to a relatively narrow focus on place. Most study went into legal activity along the Atlantic seaboard, largely neglectful of varied roles of law in the continental expansion of the United States. There was, of course, a good deal of attention given to federalism, but mostly in terms of constitutional doctrine and related aspects of politics. Although marked economic and cultural sectionalism mingled with the development of a national economy and elements of a national culture, it is only within recent years that students of legal history have begun to explore ways in which legal doctrine and uses of law may have shaped or responded to sectional experiences and patterns different from or in tension with interests taking shape on a national scale. The country is too big and diverse to warrant assuming that what holds for New England, the Middle Atlantic, or Southern coastal states holds for all of the South, the Mississippi Valley, the Plains, the Southwest, or the Pacific Coast. In fact, an early, instructive lesson in regional differences in legal history was provided in 1931 by studies distinguishing development of water law in areas of generous and of limited rainfall; but until recently such essays had few counterparts. Moreover, from the 1880s on, the growth of markets of sectional or national reach under the protection of the federal system gave impetus to expanded roles of national law, ranging into quite different realms of policy from those embraced within the bounds of pre-1860 state common law or state statute law of corporations and private franchises. Legal historians have only lately begun to come abreast of the last hundred years' development of law made by the national government.