Published online by Cambridge University Press: 18 August 2010
Lawyers have long been depicted as having a conflicted relationship to that modern style of contextual thought we call “history.” Their efforts to think about law have been alternately lauded for contributing to, and criticized for falling short of, a full-fledged historical consciousness.
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2. Gordon, Robert W., “J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (1975): 9Google Scholar . See also Gordon, Robert W., “Historicism in Legal Scholarship,” Yale Law Journal 90 (1980-1981): 1017CrossRefGoogle Scholar ; “Critical Legal Histories,” Stanford Law Review 36 (1984): 57CrossRefGoogle Scholar.
3. I discuss the extension and collapse of distance as a motor of historical knowledge in Parker, Kunal M., “The Historiography of Difference,” Law and History Review 23 (2005): 685–95.CrossRefGoogle Scholar
4. White, Morton, Social Thought in America: The Revolt against Formalism (Oxford: Oxford University Press, 1947)Google Scholar . The literature seeking to orient our understanding of late nineteenth-century legal thought away from the “revolt against formalism” is growing. See Herget, James E., American Jurisprudence, 1870–1970: A History (Houston: Rice University Press, 1990)Google Scholar ; Grossman, Lewis A., “James Coolidge Carter and Mugwump Jurisprudence,” Law and History Review 20 (2002): 577CrossRefGoogle Scholar ; LaPiana, William P., “Jurisprudence of History and Truth,” Rutgers Law Journal 23 (1992): 519Google Scholar ; rabban, David M., “The Historiography of Late Nineteenth-Century American Legal History,” Theoretical Inquiries in Law 4 (July 2003): 540CrossRefGoogle Scholar ; Siegel, Stephen, “Historism in Late Nineteenth-Century Constitutional Thought,” Wisconsin Law Review 1990 (1990): 1431Google Scholar.
5. For an overview, see Kern, Stephen J., The Culture of Time and Space, 1880–1918 (Cambridge: Harvard University Press, 1983)Google Scholar . Heidegger's writings of the 1920s grew directly out of the late nineteenth and early twentieth-century German debate about the status of historical knowledge. See Heidegger, Martin, Being and Time, trans. Macquarrie, John and Robinson, Edward (1927; New York: Harper & row, 1962)Google Scholar ; Barash, Jeffrey Andrew, Martin Heidegger and the Problem of Historical Meaning (New York: Fordham University Press, 2003)Google Scholar.
6. Fasolt, Constantin, The Limits of History (Chicago: University of Chicago Press, 2004)Google Scholar . Fasolt's work has recently received a somewhat negative review by James Q. Whitman in the pages of this journal. See Law and History Review 23 (2005): 459CrossRefGoogle Scholar . It seems to me that Whitman's review unfairly takes Fasolt to task for not engaging with various canonical figures in the philosophy of history literature, while refusing to engage Fasolt on his own terms.
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8. Ibid., 37, 39, 151.
9. Ibid., 45.
10. Ibid., 216.
11. Parker, Kunal M., “The History of experience: On the Historical Imagination of Oliver Wendell Holmes, Jr.,” PoLar: Political and Legal Anthropology Review 26 (2003): 60.CrossRefGoogle Scholar
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13. This discussion draws in part from Strathern, Marilyn, Partial Connections (Savage, Md: rowman and Littlefield, 1991).Google Scholar
14. Bigelow (1846–1921) was a professor and dean at Boston University Law School; Bliss (1814–1889) was a congressman, served on the Missouri Supreme Court, and founded the University of Missouri Law School; Carter (1827–1905) was a prominent corporate lawyer and civil reformer in New York City and an active alumnus of Harvard Law School; Cooley (1824–1898) was professor and dean at the University of Michigan Law School, a judge on the Michigan Supreme Court, chairman of the Interstate Commerce Commission, and president of the American Bar Association; Dillon (1831–1914) was a lawyer, a judge on the Iowa Supreme Court, and a law professor at Columbia University; Hammond (1829–1894) was a professor at the Iowa Law School and later dean of St. Louis Law School; Holmes (1841–1935) was a lawyer in Boston, a professor at Harvard Law School, and a judge on the Massachusetts Supreme Judicial Court and the United States Supreme Court; Thayer (1831–1902) was a practicing lawyer in Boston before becoming a professor at Harvard Law School in 1874; Tiedeman (1857–1902) was a professor at the University of Missouri Law School and the University of the City of New York and dean at the University of Buffalo Law School; Wharton (1820–1899) had a varied career as a lawyer, theologian, priest, law professor at the Boston University Law School, and solicitor of the Department of State. I derive many of these biographical details from rabban, “The Historiography of Late Nineteenth-Century American Legal History,” 568.
15. Pound, Roscoe, Interpretations of Legal History (New York: The MacMillan Company, 1923).Google Scholar
16. Ibid., 40, 62–63, 52.
17. Ibid., 68.
18. Ibid., 150.
19. Bigelow, Melville M., ed., Centralization and the Law: Scientific Legal Education: An Illustration (Boston: Little, Brown, and Company, 1906).Google Scholar
20. Preface, in ibid., v-vi.
21. Bigelow, “Introduction,” in ibid., 1.
22. Ibid., 1–2.
23. Ibid., 13.
24. Bigelow, “Law under equality or Inequality Defined,” in ibid., 143.
25. Brooks Adams, “Nature of Law: Methods and Aim of a Legal education,” in ibid., 25.
26. Bigelow, “Scientific Method in Law,” in ibid., 195–96.
27. Ibid., 165.
28. Quoted in King, Peter J., Utilitarian Jurisprudence in America: The Influence of Bentham and Austin on American Legal Thought in the Nineteenth Century (New York: Garland Publishing, 1986), 34Google Scholar
29. Ibid., 30–40.
30. Thomas Jefferson to James Madison, Paris, September 6, 1789 in Jefferson, Thomas, Writings (New York: Library of America, 1984), 959.Google Scholar
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32. Pocock, , The Ancient Constitution and the Feudal Law, 15.Google Scholar
33. I explore ideas of custom in early nineteenth-century legal thought in Kunal M. Parker, “A New Time for Law: Historical Consciousness in Antebellum Legal Thought” (unpublished manuscript on file with author).
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35. Ibid., 186.
36. To be sure, there were significant differences between the historical imaginations of Lieber and Burke. I investigate precisely these differences in Parker, “A New Time for Law.”
37. Lieber, , Legal and Political Hermeneutics, 193, 186.Google Scholar
38. Ibid., 32.
39. Ibid., 33–34.
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43. Ibid., 29–30.
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