# Legal History **URL:** **By** Leonard P. Liggio **Published:** March 1, 1987 --- “In the later nineteenth century, English legal historians, such as Henry Maine and Frederick Pollock, were largely unaware of the predecessors to their own work on the evolution of law.” Current public debates over the proper role of the judiciary have demonstrated a profound need for a firmer understanding of the _history of law_. This is so not only because of the historical issues that have arisen, for example, whether the founders of the American republic intended the U.S. Constitution to provide a charter of liberties or merely a framework for a majoritarian democracy, but also because an understanding of the history of law can help us to understand the law’s relations with other institutions as well as its proper role and content. This expanding field is a fertile one, as recent publications have shown. This brief review, while attempting to paint a broad picture of the history of thinking about legal evolution in the last few hundred years, will focus on two notable scholars: Peter Stein and Donald R. Kelley. In the later nineteenth century, English legal historians, such as Henry Maine and Frederick Pollock, were largely unaware of the predecessors to their own work on the evolution of law. Peter Stein, now Regius Professor of Civil Law at Cambridge University, first became interested in earlier ideas on legal change as an editor of Adam Smith’s _Lectures on Jurisprudence_. Stein, himself a scholar in the field of Roman Law, noted Smith’s background in Roman Law in the Scottish philosopher’s considerations of legal evolution. (See Peter Stein, “Adam Smith’s Theory of Law and Society,” in R. R. Bolgar, editor, _Classical Influences on Western Thought: A.D. 1650-1870_, Cambridge: Cambridge University Press, 1979, pp. 263-272.) On the eve of the eighteenth-century Scottish Enlightenment, there was already a vast body of writing contributing to an understanding of legal evolution. The central figure was Hugo Grotius, whose vast and detailed knowledge of law and legal history mightily strengthened his arguments on behalf of a natural basis for the law. Grotius was succeeded in the natural-law tradition by members of the Late Protestant Scholastic tradition, such as Samuel Pufendorf and John Locke. (See Henry Veatch’s bibliographical review essay, “Natural Law,” _Literature of Liberty_, 1978.) For his historical understanding of classical law, Adam Smith drew from Johann Gottfried Heineccius. The debates over the state of nature, the origins of private property, and the role of consent in grounding political institutions were closely interwoven with historical investigations into the emergence of law and its evolution. As Heineccius asked in his _Elementa iuris naturae et gentium_, > Why might not the more simple societies have produced all the advantages of union, since in these every one was at liberty to acquire what he pleased and there would be none of those tributes, taxes, imposts, upon persons or estates there, which now eat up the property and estates of subjects in civil governments?¹ Since Scottish law was based on Roman Law rather than English Common Law, there was much interest in legal history in Scotland, an important fact in understanding the emergence of the Scottish Enlightenment. Francis Hutcheson, professor of moral philosophy at Glasgow (1729-1746), set the foundation for Scottish attention to the development and growth of legal institutions, just as he did in the related sciences of economics, contracts, and morals. Hutcheson, in Stein’s words, emphasized “the importance of other men’s sense of approval and disapproval in determining the rightness and wrongness of conduct and the need to submit disputes to ‘unbiassed arbitrators’....” Stein argues, > Hutcheson felt that earlier writers, such as Hobbes, had exaggerated the disadvantages of a pre-political society. Man in the state of nature was not a solitary being fighting for survival against everyone else, but was part of a large family unit, in which there could be much happiness and even improvement of the arts. He investigates at length how controversies should be decided in natural liberty (_System_, II.141-7) and concludes that they would be submitted to an arbitrator, chosen by the parties, to whom they must submit the dispute absolutely.² Although he did not deal directly with legal development, the Scottish philosopher David Hume did develop important implications for the law through his concept of unintended consequences. (See F. A. Hayek, “The legal and political philosophy of David Hume,” _Studies in Philosophy, Politics, and Economics_, Chicago: University of Chicago Press, 1967.)³ Among French writers, important work was also being done. Montesquieu’s _De l’esprit des lois_ (1748; London, 1752), while significant for English and American political and legal thought, did not have a strong impact in the author’s own country until the beginning of the nineteenth century. Antoine Yves Goguet (councillor of the Parlement of Paris) published _De l’origine des lois, des arts, et des sciences, et de leurs progres chez les anciens peuples_ (1758; Edinburgh, 1761), where he took issue with earlier writers who had focused on property in land and had argued that property was not natural but artificial. Goguet emphasized that even without agriculture, laws were required regarding rights of property in moveables, and consequently, in marriage and criminal laws. As Stein concludes, “Goguet showed that the materials collected by Montesquieu could be so arranged as to suggest a scheme of development.” Other significant contributors to the study of legal history in the Scottish Enlightenment include D. M. MacCormick (for example, “Law and Enlightenment,” in R. H. Campbell and A. S. Skinner, _The Origins and Nature of the Scottish Enlightenment_, Edinburgh: J. Donald, 1982) and Knud Haakonssen, whose _Science of a Legislator: The Natural Jurisprudence of David Hume and Adam Smith_ (Cambridge: Cambridge University Press, 1981) provides an excellent introduction to the legal thought of the Scottish Enlightenment. Haakonssen has examined the contributions of John Millar, who continued the work of Grotius and other natural-law thinkers, as well as Montesquieu and Smith, in the application of the historical study of law to jurisprudence. (See also Haakonssen, “Hugo Grotius and the History of Political Thought,” _Political Theory_, 13 \[1985\], and “John Millar and the Science of a Legislator,” _Juridical Review_, 1985.) The development in continental Europe of bureaucratic, centralized regimes in the eighteenth century culminated in the French Revolution and Napoleon. As Tocqueville pointed out in his _Old Regime and the Revolution_, the _ancien regime_, the bureaucratic state of the monarchy, was the father of the Jacobin bureaucracy of the Revolution and Napoleon. The centralization in law represented by the Prussian Code of 1794, the Code of Napoleon of 1804, and the Austrian Code of 1811 were the final ruptures with the traditional legal systems of the European peoples. There was much opposition in Germany to this “French” centralization, especially at the University of Gottingen in Hanover (then united to England in the person of the king). English and Scottish ideas were strong in Gottingen, and Benjamin Constant, a former student in Edinburgh, found an intellectual home in Gottingen while exiled by Napoleon. Karl Friedrich von Savigny (1779-1861) was the founder of the German Historical School of Law. While building on Montesquieu’s rule that good law developed only from the spirit and customs of a society, Savigny was also strongly influenced by Edmund Burke’s emphasis on the English Common Law and the historical continuity of the English constitution as the foundations for individual liberty. Savigny saw language and law as parallel social developments. Each developed through their constant usage, with practice indicative of what was useful and what was not. Savigny pointed out that the Romans had developed a great law in the same way as the English, through the application of principles to problems. The Justinian Code, the basis of European Continental Law, was the law of the period of decline: “And when, in the sixth century, all intellectual life was dead, the wrecks of better times were collected to supply the demand of the moment.” (Savigny, _On the Vocation of our Age for Legislation and Jurisprudence_, London, 1831, p. 51.) Savigny emphasized the importance of law as custom and practice over the centuries and attacked legislation, statutes, and codes as assaults on law.4 Donald Kelley’s work, _Historians and the Law in Postrevolutionary France_ (Princeton: Princeton University Press, 1984), analyzes the impact of historical studies such as those discussed above on the law in France. Basing his own work on that of Lord Acton and Sir Herbert Butterfield, Kelley examines what the French classical liberal historian Augustin Thierry called a “historical revolution.” Thierry, author of _The History of the Conquest of England by the Normans_ and other works, as well as editor of an important collection of medieval town charters, was a leader of what he called the “new historical school” that emerged in France during the Restoration (1814) and continued during much of the nineteenth century. The precursors of the “new history” of the Restoration era, according to Kelley, are the Ideologue historians associated with Destutt de Tracy (author of a commentary on Montesquieu, which was translated into English by Thomas Jefferson) and Condorcet, including C. F. Volney, Pierre Daunou, and Claude Fariel. In addition, Thierry viewed as his own predecessors the sixteenth-century historians Claude de Seyssel and Francois Hotman, as well as the seventeenth-century natural-law thinkers, whom Thierry considered the leading creators of “modern liberal thought.” Thierry, who was also influenced by Sir Walter Scott and by David Hume’s six-volume _History of England_, had begun to raise the challenge of a new history in his articles in the _Censeur Europeen_ (1817-1820), edited by two legal scholars who became economists and legal historians under the influence of Jean Baptiste Say, Charles Comte, and Charles Dunoyer. With the suppression by the government of the _Censeur_, Thierry was able to publish his articles in the _Courrier Francais_ in the summer of 1820. Thierry was the most important of the French classical liberal historians of the first half of the nineteenth century, a group which included such figures as Francois Guizot, Adolphe Thiers, Prosper de Barante, and Francois Mignet. Through the sea change in historical studies wrought by Thierry and others, and through the impact of German historical legal studies, a major school of French legal historians emerged, including C. J. B. Giraud at the University of Aix, and Edouard Laboulaye, regarded by Acton as the only worthy disciple of Savigny. Like Pellegrino Rossi, professor of political economy at the College de France, Laboulaye believed that economics was central to a historical analysis of law; his major contribution was a history of property law in western civilization. Kelley’s chapter on “The Question of Property” provides an especially fruitful source for further studies in legal history. The important studies on the institution of property in nineteenth-century France became part of the wide-ranging debates in history and law, notably the work of Fustel de Coulanges (for example, his _Histoire des Institutions Politiques de l’Ancien France_). The richness of research possibilities into Thierry and other “new historians” of the nineteenth century, including the new legal historians, should make Kelley’s book necessary reading for classical liberal scholars. ## Notes 1Translated by George Turnbull as _A Methodical System of Universal Law_ (London, 1763) and cited in Peter Stein, _Legal Evolution: The Story of an Idea_ (Cambridge: Cambridge University Press, 1980), p. 7. 2Stein, p. 11. 3The implications of Hume’s insights have been drawn out by Hayek himself. See _The Constitution of Liberty_ (Chicago: University of Chicago Press, 1960), and his three-volume work, _Law, Legislation, and Liberty_ (Chicago: University of Chicago Press, 1973, 1976, 1979). See also Bruno Leoni, _Freedom and the Law_ (Princeton: Van Nostrand, 1961). 4See Stein, pp. 56-65. _Leonard P. Liggio is president of the Institute for Humane Studies at George Mason University._