The Historiography of Late Nineteenth-Century American Legal History

Abstract

Although the treatment of history in late nineteenth-century American legal scholarship remains largely unexplored, two recent areas of research have discussed this subject tangentially. Historiographical critiques of the emphasis on doctrine by American legal historians typically maintain that late nineteenth-century legal scholars viewed history as disclosing an inevitable evolutionary progression from primitive to civilized forms. This "whiggish" approach, the critiques add, ignored the context and function of past law while apologetically justifying conservative existing law as autonomous scientific truth. Without addressing the historiographical critiques, scholarship about late nineteenth-century legal thinkers has touched on their historical research and assumptions, mostly in passing as part of inquiries about other subjects. Designed primarily to convey how both areas of research have contributed to the historiography of late nineteenth-century American legal history, this article concludes by drawing on my own extensive reading of the original sources. Sometimes in support but often in refutation of the existing secondary literature, my findings reveal that the late nineteenth-century scholars formed a distinctive and sophisticated American school of historical jurisprudence that merits further study. Often warning against the very faults ascribed to them by dismissive subsequent scholars, many viewed legal evolution as a contingent response to social change and urged substantial reform of existing law. The American school of historical jurisprudence, moreover, provides an important intellectual context for new insights into two giants of American legal thought, Oliver Wendell Holmes, Jr. and Roscoe Pound.