5 - Lawrence Friedman and The Roots of Justice

Summary

Legal history tends to have a distinctive identity within Law and Society – perhaps because of the different methodological training of historians compared to social scientists, or because of what Lawrence Friedman calls the “presentist” assumptions of scholars focused on the social and political concerns of today. Any perceived difference between the aims of legal historians from others in the field, however, should not obscure the sense that history fills the same vital role as comparative research: providing a “control group” that illuminates the enduring from the deviations and the universal from the extremes.

The Roots of Justice certainly accomplishes that aim, allowing contemporary scholars of criminal justice to see in the courts of yesteryear – in Alameda County, California – the same “confusion,” “circus,” and “kaleidoscope” (p. 324) that we may recognize today. In particular, Friedman and his co-author, Robert Percival, achieve this view by recovering from the dusty archives a level of statistical detail that invites social scientists into concrete comparison. The meeting point for the old and the new is the set of larger questions and themes of the Law and Society tradition, which never lie far from the surface of the book.

Such connections between legal history and the Law and Society tradition were embodied in the influential person of J. Willard Hurst (1910–1997), long-time professor of law at the University of Wisconsin. Hurst was an early proponent of interdisciplinarity among legal scholars and of seeing history as a way of understanding law as the “dependent variable” in a social context.