Legal Historiography Research Articles

Three Generations of Mormon Legal History: A Historiographic Introduction

This is an essay on the past practice and future possibilities of legal history. For most legal scholars, the fact that there even is such a thing as Mormon legal comes as a surprise, and the idea that it should be proved . . . to be worthy of the interest of an intelligent man may sound dubious at best. In part, such a reaction stems from the marginal status of Mormons. At a broader level, however, the invisibility of legal history is simply part of the broader problem of the discussion of religion within the legal academy. The thesis of this essay, however, is that the relative invisibility of legal history lies mainly in the idiosyncratic intellectual development of legal historiography itself. By explaining that development and introducing the work that has already been done on legal history, I hope to assist future scholars to better integrate legal experience into the mainstream discussions of the legal academy.

Book Review: The Constitution of Independence

This article is a book review of Peter C Oliver The Constitution of Independence: The Development of Constitutional Theory in Australia, Canada, and New Zealand (Oxford University Press, Oxford, 2005) (367 + xx pages). The book is a contribution to the area of domestic constitutional law of the Commonwealth. Oliver addresses the question: are the former colonies of Britain ever truly independent, or is that independence illusory? He also asks how such colonies seek to understand and explain their constitutional history. Morris argues that the book had a great deal of potential but has been left unrealised. As a legal historiography, the book does not always satisfactorily explain how people involved in creating that legal history (or in analysing it since) understand it. As an exercise in constitutional theory, the book merely suggests that there is nothing much to choose between theories as a matter of logic. The book also suffers from very dense prose and a number of distracting metaphors for the process of constitutional independence. Morris ultimately concludes that the book fails to provide useful insight into New Zealand's constitutional theory.

Foreign Office International Legal History

This chapter focuses on the key inquiry of what styles of international legal historiography are within the realm of acceptable scholarship, advocacy, and judicial decision. In this manner, it opens a discussion as to the best practices and methods of international legal history. The chapter first charts the criticisms that have come to be levelled against many forms of legal history, as practiced by lawyers, judges, and (some) scholars. Next, it offers up two case studies, Sosa v. Alverez-Machain case and Kasikili/Sedudu Island case, of relatively recent judicial decisions (one domestic and one international) in which international legal history figures prominently in the resolution of albeit very different kinds of disputes. The purpose of these two case studies was to illustrate possible uses and abuses of history in particular litigation or forensic contexts. Keywords: foreign office international legal history; international law doctrines; judicial decision; Kasikili/Sedudu island case; Sosa v. Alverez-Machain case

Letteratura, processo e opinione pubblica

Beginning in the second half of the 18th century, the whole of Europe was inundated by anthologies of famous trials. The originator of this kind of collection is generally thought to have been François Gayot de Pitaval (1673–1743), one of so many advocates of uncertain fortune who crowded the courts. He modified for his own purposes a long tradition of heterogeneous texts which were very widely diffused not only in France. His work, frequently reprinted, expanded by supplements and often imitated, was utilised also by novelists and dramatists as a quarry of themes; it appeared at Paris in 22 small volumes between 1734 and 1743. It constituted the prototype of a literary genre which was extremely popular for more than two centuries, taking on a thousand different forms up to the television serials of our own days. Generally neglected by legal historiography, the causes célèbres nevertheless constitute a useful source of information on the practical application of norms, the administration of justice and the procedures of the courts and legal personnel. In addition they are of extraordinary interest for the study of law understood as a communicative system. The attention formerly paid by various jurists to the legal topics in the works of great writers could today be extended to the collections of famous cases, utilising the theoretical and methodological instruments fashioned by the various currents, differing among themselves, which are grouped under the heading Law and Literature. This article analyzes the structural characteristics of the literary genre and the changing perception of it by the reading public between the middle of the century and the Revolution. The collections, in fact, reaching an ever wider social milieu and gradually submitting the trials to the »court of the nation«, transformed the trial accounts from an occasion for entertainment to a stimulus for reflection on the vices of society and governments. They thus contributed significantly to the formation of a public opinion critical of the legal order and contemporary institutions.

Westen im Osten

Western European legal historiography deplores the 19th century as the age of destruction of the Romanrooted ius commune by national codes. In reality the French code civil, the Austrian ABGB and the German Pandectist jurisprudence effected rather a relative unification of private law. In the same way, French constitutionalism as well as the administrative and court system spread throughout the West. This wave of law reform also rolled over Eastern Europe, until then a patchwork of customary law. In South-Eastern Europe, previously under Byzantine influence, the Serbian Civil Code of 1844 followed the Austrian ABGB, while the Rumanian Code of 1864 followed the French code civil. All over the region the liberal Belgian constitution of 1831 was very influential. Bohemia and Poland, both of them forming the eastern periphery of the Central-European empires, simply had their law imposed upon them. Hungary and Russia, on the other hand, modernized their law mainly by means of German Pandectist jurisprudence. In this way the patchwork of eastern customary law was harmonized. The further circulation of western legal models in the interwar period completed the relative unification of continental European law. The communist rule left these common legal bases of West and East to a large extent intact.

So, If It Were Not Jones, Who Else Would It Be? Reply to Commentaries

Answering criticisms and comments by Gabbard and Makari, the author restates the considered position that underpins his paper. Drawing from recent discourses of child sexual abuse, feminist legal theory, poetics, rhetoric, and historiography, the author challenges assumptions still widely held by me psychoanalytic community. The concept of “persecuted speech” suggests new ways of reading between the lines of official psychoanalytic texts and offers possibilities for reclaiming the stories of “others,” like Fanny Harrigan and Dorothy Freeman, who have been excluded from the psychoanalytic discourse. Although the girls' allegations against Jones are compelling, the author continues to refuse to pronounce on Jones's innocence or guilt. Declining to be caught into these polarities, the author concludes by posing this question: Given that Jones had/has such a profound effect on psychoanalysis, and given that he has attracted little critical biographical attention, how has Jones become “possibly the least likeable figure in the early history of psychoanalysis? (Makari, this issue).

Helping Historians Write Legal History “From Below”

SUMMARY In the past fifty years, legal history has turned from a concentration on legal texts to a broader view of the social, political, and economic conditions that affected a particular legal system at a given time in the history of a nation. To assist scholars in realizing the potential of these new methodologies, law librarians who work with historical materials must have a firm grasp of the developing trends in legal historiography. This article outlines the information sources that a librarian may use to become familiar with the literature in legal historiography and, using practices at the Harvard Law School Library as examples, suggests ways that a library can form collections of non-traditional genres of research materials that support these new approaches to legal history.

History's living legacy: an outline of ‘modern’ historiography of the common law

This essay offers a survey and analysis of the principal methodologies adopted and the aims pursued by ‘modern’ historians of the common law in England, Canada, and America, from Blackstone's time to the opening of the twenty-first century. From the beginning of this period through to the 1950s, the analysis reveals a steady current of contention amongst legal historians in respect of what legal history could do and just how these aims might be realised. The post-1950s era is characterised by the accelerating influence of the methodologies and objectives of extra-legal disciplines. These include, most especially, the work and techniques of social and political historians, and, eventually, the various manifestations of the postmodernist challenge to the segregation of ‘objective’ historical interpretation from the polemical and creative reconstruction of the past. It is argued that the infusion of this methodological new blood has been largely beneficial, enhancing the reach and subtlety of legal historiography, and boosting its overall capacity to act as an intellectually enriching discipline.

A “Jewish State…to Be Known as the State of Israel”: Notes on Israeli Legal Historiography

In 1953 a musical titledThe Adventures of Nasseradinopened in Tel Aviv. One of its tunes, the “Song of Law,” had music and lyrics so appealing that overnight it became the most popular song in Israel. The subject of the lyric was a tyrant, the Emir of the Kingdom of Buchara. Two brothers were arguing over a pot, and the Emir in his capacity as judge, presided over their trial. His decree: plaintiff and defendant should be executed and the pot thrown into the royal treasury.

Willard Hurst and the Archipelago of American Legal Historiography

Leading works published since the 1980s relating to law and the modern administrative state that privilege economy and politics—work by scholars like William Novak tracing the nineteenth-century common law roots of the modern regulatory state, Stephen Skowronek on the construction of a national administrative state, and Martin Sklar on the intersection of reform with the rise of corporate capitalism in reshaping the political economy of the American state—remain intensely engaged with the work of Willard Hurst. Leading works published in the same period relating to law and the modern administrative state that privilege gender—work by scholars like Kathryn Kish Sklar on Florence Kelley and women's political culture, Linda Gordon on the welfare state, and Leslie Reagan on abortion—do not cite Hurst in the footnotes or, for the most part, in their bibliographies. For that matter, those from one subfield do not cite the other and vice versa. There is a simple, innocuous explanation for these silences—we all have too much to read.

In Retrospect: Richard B. Morris and Government and Labor in Early America (1946)

Richard B. Morris and Government and Labor in Early America (1946) Graham Russell Hodges (bio) On December 20, 1944, Dorothy M. Swart of Columbia University Press informed Richard B. Morris, then Associate Professor of History at the City College of New York, that he needed to cut approximately 40 percent of his original 1,000-page manuscript of Government and Labor in Early America or face a subvention fee of $250. Accordingly, Morris cut over four hundred pages, including nearly all tables and a hefty chunk of a chapter on concerted action by laborers. A few months later, Morris anxiously wrote to Charles G. Proffitt, his editor at Columbia University Press, urging him to publish the book quickly. With the end of World War II in sight, Morris explained, his book has a “great many implications [about] the current problem of wartime controls on wages and prices.” Morris worried that the end of the war and the gradual relaxation of such controls would make publication of the book less timely. As months wore on, Morris continued to urge rapid release of his book, only to learn from Proffitt that its appearance was delayed by wartime paper shortages. Both editorial decisions would affect the long-term responses to the book. 1 Publication finally occurred in 1946 and the book received highly favorable notices from commercial and academic reviews. Typical of these was Joseph Rosenfarb’s appraisal that Government and Labor would become the “point of departure” for any study of colonial labor and legal history. 2 The book collected additional appreciation over the next few decades. In 1952, it received some votes for “Preferred Books in American History, 1936–1950,” in a survey conducted by the Mississippi Valley Historical Review. As Morris rose to prominence in the historical profession, the book was reissued in several editions. Government and Labor is now out of print, but it continues to inspire scholars. This essay surveys the significance of the book in the half-century since its first publication, discusses how scholars have accepted or rejected Morris’s conclusions, and suggests how Morris’s findings might serve as markers for newer studies. 3 [End Page 360] Principally, Morris hoped that the book would convince legal scholars to employ social interpretations of court records. Prodded by negative criticism of the sweeping nature of his previous work, Studies in the History of American Law in 1929, Morris gathered voluminous amounts of evidence from court records in all thirteen original colonies to support his contentions. As in his earlier work, Morris tried to pry colonial legal historiography away from dismissive attitudes of Roscoe Pound, and push it toward a social understanding of the effect of law. In the estimation of Stephen Botein, legal historians’ appreciation of Morris’s achievements had to wait until the 1980s. Today, legal scholars such as Christopher Tomlins, Robert J. Steinfeld, and Karen Orren owe much to Morris for their social interpretations of labor law governing master/servant relations, rules of conspiracy, and the power of the remnants of feudalism in America. 4 Government and Labor’s greatest influence has been on social historians. This was not clear for many years. Although duly noted, Morris’s book languished as a “neglected classic” until it was rediscovered by the “new” social historians of the 1960s and 1970s. As Gary G. Nash points out, the book introduced scholars to the use of court records to rescue from oblivion the roles of ordinary Americans in the construction of a new society. Morris was also active in this revival. In the preface to a 1981 edition of Government and Labor, Morris suggested several ways his book had influenced contemporary scholarship. He claimed that its broadly brushed concerns about economic and social mobility inspired works by James Henretta, Charles G. Grant, James Lemon, Allan Kulikoff, and Nash. Similarly, he contended that the works of Jesse Lemisch and Marcus Rediker on sailors were indebted to Government and Labor. Laying claim to the ancestry of a major historiographic debate, he argued (1981 ed., pp. ix–xii) that evidence of labor grievances against employers in colonial cities he unearthed undergirded studies on “crowd” or “mob” actions by town artisans and mechanics...

The Supreme Court in United States History: A New Appreciation

The Supreme Court in United States History: A New Appreciation Michael Allan Wolf From a perspective long removed in terms of time and experience, I can still recall my first encounter with Charles Warren’s Pulitzer Prize winner that still serves as the standard insti­ tutional history ofthe Court. My undergradu­ ate constitutional history professor and I were engaged in a lively discussion concerning the nature of sovereignty and states’ rights in the wake of the Union victory in the Civil War. He pulled from an office shelfa well-worn vol­ ume from his set of Warren’s time-honored narrative.1 The professor proceeded to read the text and what impressed me most was the sensible, politi­ cally practical observation of the commentator: This decision [Texas v. White?] has constituted one of the landmarks in American history. It settled forever the question whether a State could legally secede, and it confirmed the permanence of the Union. Neverthe­ less, it has frequently been considered logically unsatisfactory in its reason­ ing; and the dissenting opinion . . . seems more easily to be supported .... The decision came, however, as a welcome solution to a greatly vexed and debated question; and Chase’s opinion, though adverse to the ex­ treme claims of Thaddeus Stevens and the Radicals, who deemed the se­ ceding States entirely out of the Union and properly subject to any legislation Congress chose to enact, was equally adverse to the claim of the Demo­ crats, who held that Congress had no power whatever to withhold from these States any of the rights which they had possessed before the war. The general views and plans of the more moderate Reconstruction states­ men were in complete consonance with the language of the opinion; and the growing fears lest the Court would interfere with their plans were thus allayed.3 This was a revelation. The author of this passage, though impressed more with the logic ofthe dissent, complimented the majority for so skillfully maneuvering very rough political wa­ ters and thus deemed the Court’s effort a suc­ cess. Law was not just the stilted, confusing 162 CHARLES WARREN REVISITED rhetoric of cases and statutes; it had an intimate relationship to the world outside. During law school, references to Warren’s work were few and fleeting—most were buried in footnotes designed to direct the reader to an­ tiquarian findings or interesting facts about Su­ preme Court history. Even in the legal history course, Warren’s insights and discoveries would be mere asides or quaint digressions, for the de­ velopment oflegal doctrine over time dominated the syllabus and class discussions. Graduate study brought new encounters and a greater appreciation for the scope and rich­ ness of Warren’s work. Harvard Law School professor Morton Horwitz, who directed my reading in the history ofAmerican law, included in his essential reading list Warren’s A History oftheAmerican Bar,4 in which the author dem­ onstrates his unabashed admiration for the com­ mon law as logical, adaptable, and responsive to political and societal changes. Some might find it surprising that one of the founders ofthe Critical Legal Studies movement would assign such an orthodox text, particularly one that was intended “not [as] a law book for those who wish to study law ... [but as] an historical sketch for those who wish to know something about the men who have composed the American bar of the past, and about the influences which pro­ duced the great American lawyers.”5 In fact, the assignment made perfect sense, for it dem­ onstrated that the appreciation of law as poli­ tics was neither novel nor radical in American legal historiography. At the time his most famous work appeared, Charles Warren, a Boston, Harvard-educated lawyer with Mayflower and American Revolu­ tion roots (James and Mercy Otis Warren were his great-great-grandparents), was practicing in Washington, D.C. After a successful, though controversial term as chairman of the Massa­ chusetts Civil Service Commission (during which he incurred the wrath ofa powerful ward boss), Warren in 1914 began four years of ser­ vice as assistant attorney general in the Wilson administration, a post that he resigned owing to his outspoken advocacy of the...

The courts, accounting evolution and freedom of contract: A comment of the case law research

The purpose of this paper is to explore the influence both of common law and of the judicial process on the development of accounting standards, and the role of contract in accounting activity. To this end, the paper reviews the leading case law research, including its response to positivist views of accounting regulation. The analysis also relates this work to a wider legal historiography, with the objective of generating a historical framework for the study of law and accounting during the prestatutory period.

An Exchange on Critical Legal Studies between Robert W. Gordon and William Nelson

I have been reading the book collecting the bibliographic essays on legal historiography you and John Reid have been contributing since 1962 to the Annual Survey ofAmerican Law. Although I'm writing to you because of an outraged response to one of the chapters in your book,2 I must allow it is nice to see all these pieces in one place, because for years they have provided one of the most useful (if inevitably idiosyncratic) reference guides to current work in our field (I'm glad, I've often said to myself, that somebody is reading all this stuff). In its early years the series could also be relied on for an acidic stream of comments on the abuses of legal history by lawyers and the courts; although more recently, as the authorship shifted from Reid to you, I thought I saw a definite alteration in this line. Reid's early essays (for 1962-66) are savagely critical of the two common lawyers' modes of historiography: 1) originalism, in which the lawyer seeks to establish the original intent of the framers of a text as defining its appropriate current meaning, and in so doing researches only the formal sources surrounding the text and usually ends up reading it anachronistically, as if it had been uttered in his own time; and 2) Whig in which the lawyer draws a trend line between old law and modern law and sees the past as an embryonic form of the present, or the present as a fulfillment of the past. Reid is especially irritated by the attempts of the Warren Court and its supporters to adduce historical authority for the liberal civil rights decisions of the 1960s (51, 53, 70, 80-81, 85). It is not completely clear to me whether Reid believes lawyers have invented bad history, where they could have used good history instead, to justify current decisions, or more sweepingly good history can

Legal Justice, Social Justice: An Incursion into the Social History of Work-Related Accident Law in Ontario, 1860-86

The historiography of work-related accidents in nineteenth-century Ontario is a product of two complementary but as yet unsynthesized lines of inquiry. On the one hand, legal historians have focused on the genesis of judge-made and statutory law respecting the liability of employers for the work-related accidents of their hired labor. Considerable light has been shed on political and ideological as well as formally “legal” factors that shaped judicial and legislative decision making concerning personal injuries at work. However, the legal historiography of the Victorian Ontario workplace pertains mainly to the law and those who made the law, rather than those subject to it. These studies of the dynamics of legal change, important as they are, lack a firm basis in tangible sociohistorical experience.

Introduction: J. Willard Hurst and The Common Law Tradition in American Legal Historiography

In 1963 the Italian historiographer Arnaldo Momigliano told an assembly of legal historians that they were gathered to celebrate “a historical event of some importance, the end of history of law as an autonomous branch of historical research.” At least in the historiography of ancient law, he said, “the elimination of history of law as independent history now seems to me to be settled.”