Commenting on Bob Gordon's early work is a humbling experience that might compare to a composer commenting on early Beethoven or a painter on early Michelangelo. The eloquence of Gordon's writing is unparalleled. It is an absolute delight to read and enjoy every turn of phrase. Gordon perfectly describes what others can only grasp at.
My comments focus on the first chapter of Taming the Past, which consists of a classic essay published in 1975 describing the dominant body of legal history as being overly "internal" in its perspective. (1) As Gordon highlighted, legal historians often presented the legal order as operating autonomously, in isolation from major social and economic events as well as from societal power dynamics, and were overly focused on "courts, equitable maxims, [and] motions for summary judgment." (2) The chapter presents a wonderful critique of an earlier historiography.
Much of the chapter appraises the state of colonial legal history, a main interest of the field of legal history at the time. Rather than analyzing the most extreme of the scholars taking the internal view, these comments focus on the work of a number of legal historians whom Gordon identifies as writing with an awareness that law was not primarily shaped by "the logic of an internal dynamic, independently of surrounding political, social, and economic conditions," but whose work, even so, "did not bring about any very substantial redefinition of the field of legal history." (3)
Herbert Johnson's historiographical essay, cited by Gordon, provides a useful frame for understanding the large questions motivating the legal historians who were among the first to take an external view. (4) Johnson describes the field of legal history as divided according to an ideological debate between Frederick Jackson Turner and Perry Miller. (5) Turner's frontier thesis put forward the idea that democracy had its origins in the egalitarianism, the lack of high culture, and the violence of the frontier. Paul Samuel Reinsch, who followed Turner in his account of legal history, characterized the colonists as codifying law and as adopting "the essential elements of law for the guidance of the colonists who had taken up their abode in a wilderness without books or facilities for legal study" and who "established] rules dictated by their special polity or by the conditions of primitive and simple life in which they found themselves." (6) As Gordon and Johnson emphasize, Reinsch's conclusions were discredited, but Johnson views the Turnerian tradition in far more expansive terms and as having far greater impact on the field. (7) To Johnson, Turnerian scholarship recognized strong geographical factors, density of population, landholding patterns, and family structure as directly affecting law, in many ways anticipating more modern law and society approaches. (8)
The Turnerian approach might be said to be in conflict with a competing school, reflected in George Lee Haskins's Law and Authority in Early Massachusetts. (9) Haskins sees himself as a follower of Perry Miller. (10) In contrast to the frontier thesis, to Haskins, the colonial legal tradition began in religious, intellectual thought carried out by highly intelligent educated elites, people who were "persons of wealth and ability, brought together by the ties of marriage and friendship and by a sense of common purpose." (11) The book describes...