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Vanderbilt Law Review

Article Title

Law and History

Authors

C. J. Friedrich

First Page

1027

Abstract

Law is frozen history. In an elementary sense, everything we study when we study law is the report of an event in history, and all history consists of such records or reports. It therefore cannot be my task to develop a sermon on the importance of historical records for the understanding of the law; the tie is too intimate and too obvious to need laboring." The work of Professor Maine on 'Ancient Law,'" wrote Professor T. W. Dwight in his Introduction to that book in the sixties of the last century, "is almost the only one in the English language in which general jurisprudence is regarded from the historical point of view."'This is an astonishing statement, considering the strikingly historical pattern of the common law. It is possibly correct, if taken very precisely. But was not the work of Blackstone or the work of Coke general jurisprudence from the historical point of view? Was it not their preoccupation with history, with the past, which aroused Jeremy Bentham against the jurisprudence of Blackstone and his predecessors? Law cannot of course be identified with "general jurisprudence" in any case; but leaving that issue aside, English and American law appear in fact to be "frozen history"; the institutions by which they are constituted are the outgrowth of that process which in Burke's memorable phrase links the dead of the past with the generations yet unborn. But what of history? Is history conceivable without law? Certainly not the history of our western world, though there are civilizations, such as the Chinese during most of its existence, which have not placed law into such a central position. It is patent that neither medieval nor modern history can be written or understood without careful attention to legal institutions. From feudalism to capitalism,from Magna Carta to the constitutions of contemporary Europe, the historian encounters law at every turn as a decisive factor."

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