The Diversity of the Common Law Tradition.

• Author: Rabban, David M.
• Position: Symposium on Robert W. Gordon's 'Taming the Past: Essays on Law in History and History in Law'

Bob Gordon's pathbreaking essay The Common Law Tradition in American Legal Historiography, (1) initially published in 1975, (2) was the first significant overview of the history of the field of U.S. legal history. In it, he defines the common law tradition as "the fictional continuity that each generation of common lawyers imposes, in its own fashion and for its own ends, on the development of judicial doctrine." (3) Unsurprisingly, in an essay written as an introduction to a Festschrift in honor of J. Willard Hurst, Gordon emphasizes that the common law tradition examined the internal development of legal doctrine as an autonomous field of study, in great contrast to Hurst's pioneering shift to the study of "external legal history" as a way to understand the role of legal institutions in society. (4) Gordon stresses that "the common law tradition was a source of normative authority," a way to rationalize current law and make it seem independent from social forces by documenting an unbroken connection to an ancient tradition. (5) In the context of the title of the book we are celebrating, Taming the Past, he views it as one of the "strategies that lawyers use to tame the past in order to normalize the present." (6)

In contrast to the constant ridicule of late nineteenth century U.S. legal scholarship largely initiated by Roscoe Pound in the decade before World War I and continued throughout the twentieth century, (7) Gordon makes one of his most original and important contributions by identifying and treating with great respect the American legal scholars who from the 1870s through the 1890s adhered to the common law tradition while initiating the study of legal history in the United States. (8) He maintains that these legal historians, like professional historians generally during this period, believed that societies continuously progress from the simple and primitive to the complex and civilized and that historians can help uncover laws governing this evolution by locating the origins of civilized societies and tracing developments to the present. (9) Gordon convincingly observes that the value of the work by Americans Oliver Wendell Holmes, Melville Madison Bigelow, James Bradley Thayer, and James Barr Ames was underlined by the fact that F.W. Maitland, the great English legal historian, corresponded with them about their shared interests in the history of early English law. (10) Gordon emphasizes that his critique of the assumptions of the common law tradition is not intended "to depreciate the achievement" of this first generation of American legal historians. (11) Rather, he bemoans that these assumptions persisted in U.S. law schools well after professional historians had repudiated them, particularly as manifested in simplistic "theories of a unilinear evolutionary development and of the Teutonic origins of Anglo-Saxon civilization." (12)

My own reading of late nineteenth century American legal scholars, itself stimulated by Gordon's essay, reveals that they had much more diverse views about the common law tradition than Gordon indicates. Legal historians of the common law, as well as the larger group of legal scholars who studied substantive areas of the common law without making original contributions to legal history, took different positions on various themes Gordon identifies with the common law tradition. (13) While virtually all focused on the internal evolution of the common law, many did not view it as a source of normative authority to "tame the past." (14) In these respects, they resembled Maitland, whose approach to legal history most modern legal scholars, including Gordon, praise as rejecting the common law tradition, in impressive contrast to Maitland's predecessors and contemporaries. (15)

As Gordon maintains, late nineteenth century American legal scholars overwhelmingly sought to identify the origins of the common law and trace its evolution to the present. (16) More specifically, like scholars in English and U.S. history and in the emerging field of political science, they endorsed the "Teutonic-germ theory," which identified the Teutonic sources of democratic laws and institutions that subsequently developed in England and the United States. (17) Yet many rejected other historiographical assumptions of the common law tradition as portrayed by Gordon and sometimes criticized English and European scholars for accepting them. (18) They denied that laws governing legal evolution could...