Legal History

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LEGAL HISTORY

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 vietnam war period. Legal historians such as Kermit L. Hall have built on these issues, interweaving legal history with social and cultural history to explain how law is both a reactive mechanism, responding to public problems, and an active mechanism, shaping behavior through its rules and structure. Hall's The Magic Mirror: Law in American History (1989) was the first major work to synthesize twenty years of social and legal history research into an overview of U.S. law, public and private.

Legal historians have looked at the role of law in U.S. history in several disparate ways. Hurst and many other historians have seen the law as a means of enhancing political and economic consensus. Their view is that law acts as a neutral party through which conflicting interests work to achieve their own ends.

Other, more radical historians see law as a formal device for perpetuating the domination of the ruling economic class. Their viewpoint emphasizes that law is not the expression of neutral rules but a creature of power and politics. Therefore, those who lack power—including women, members of racial minorities, and people who are poor—have been hurt by the law.

The consensus and conflict models of legal historical analysis turn on their positions concerning the principle called the rule of law. This rule, on which all other legal rules are based, has been a basic principle of Western culture since the seventeenth century. It posits that all persons are equal before a neutral and impartial authority, regardless of economic standing, gender, race, family connections, or political connections. Legal historians produce scholarship that goes to the question of whether all persons receive justice.

The field of legal history continues to grow, with historians now exploring every facet of the law. History is no longer defined as just Supreme Court decisions or congressional legislation. Historians examine the inner workings of state courts, frontier law of the nineteenth century, the role of law in slavery, criminal law, legal bias against homosexuality, and more.