Legal History

• Author: Jeffrey Lehman, Shirelle Phelps

Page 238

The record of past events that deal with the law.

Legal history is a discipline that examines events of the past that pertain to all facets of the law. It includes analysis of particular laws, legal institutions, individuals who operate in the legal system, and the effect of law on society. U.S. legal history is a relatively new subtopic that began to grow dramatically in the 1960s.

Before the 1960s legal history was confined mostly to biographies of famous lawyers and judges and to technical analysis of particular areas of SUBSTANTIVE LAW. In general it was an afterthought. Political historians made reference to important U.S. Supreme Court cases, but there was little in-depth analysis of topics such as CRIMINAL LAW, the law of SLAVERY, or the development of the state and federal court systems.

The study of U.S. legal history began with the work of James Willard Hurst. In 1950 Hurst published The Growth of American Law: The Law Makers, which examined many types of historical sources in order to fashion a history of U.S. law. Hurst went beyond the work of judges and courts to find material about the law in constitutional conventions, legislatures, administrative agencies, and the bar. Among his many other works, Hurst explored the relationship of law and the economy in Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836?1915 (1964).

In his scholarship Hurst tried to integrate public law (law created by government bodies) with private law (law implemented through public courts to resolve individual disputes). Legal historians who began researching and writing in the 1960s typically emphasized one of these types of law. Lawrence M. Friedman emphasized the work of private law in A History of American Law, first published in 1973. In this book Friedman examined, among many topics, the law of contract, real property, and TORT.

Paul L. Murphy focused on public law, writing a series of articles and books relating the U.S. Constitution to the social and cultural pressures of different historical periods. In World War I and the Origin of Civil Liberties in the United States (1979), Murphy analyzed the relationship between the United States' experience in war and developing interest in FIRST AMENDMENT civil liberties.

The field of legal history also benefited from the growth of social history in the 1960s. The issues of gender, race, and class became crucial to historians during the...