Article by M.H. Hoeflich
The history of American legal culture is little known to us today in spite of the fact that the past twenty years have seen a renaissance in the study of our legal history. I say this because there has been very little attention paid to the development of what I am here calling “legal culture.” American legal historians have focused primarily upon either the development of various doctrinal rules over time or they have examined the development and role of law in American society at its “grass-roots” levels, but there has been surprisingly little attention paid to the “high culture” of the law in the United States. I am borrowing this notion of high culture from the European literary historians, and by this term I refer to the development of an accepted body of work and concentration upon a specific universe of issues by an educated elite. Thus, in modern terms, our present legal high culture embodies the study of legal philosophy in its various forms rather than the study of case law and precedent. Legal philosophy is generally the preserve of academics, judges, and professional legal scholars rather than of practicing lawyers. At times, of course, high culture may have a profound impact upon the broader parameters of professional study. Thus, today much of the theoretical work on feminist legal theory is having a transformative effect upon the everyday workings of our legal system. Other aspects of our present-day high legal culture may never have a serious impact upon everyday law. I doubt seriously that the brilliant analytic-philosophical work of H.L.A. Hart and Joseph Raz will ever have much effect upon or interest for most American lawyers.
Sadly, the study of the legal culture in the United States in the eighteenth and nineteenth centuries has been neglected by most mainstream American legal historians. Perry Miller and Robert Ferguson have done pioneering research, but both are literary rather than legal historians. This neglect is particularly troubling for those scholars of American legal history who are interested in the ways in which American lawyers of that period understood and were influenced by nontraditional materials such as religious works or other legal systems. My own work over the past decade has focused upon the influence of Roman and civil law upon the thinking of American lawyers and jurists during the eighteenth and nineteenth centuries. Inevitably I have been forced to consider the shape and extent of legal culture during this period, for Roman law was very seldom a part of the everyday law of the eighteenth and nineteenth centuries but was, however, an essential part of the legal high culture of this period.
It was during the eighteenth and nineteenth centuries that legal high culture in the United States reached its apogee. The number of practicing lawyers (and not simply professional academics) who took a serious interest in legal philosophy and legal literature not specifically designed for pragmatic courtroom use was, I believe, higher in the nineteenth century than it is today. Many of the lawyers of this period considered themselves to be part of a philosophical and literary profession, one that was as focused upon the library as it was upon the court and the legislature. These were individuals who often could read languages other than English, who built large personal libraries, and who dedicated substantial amounts of time to the pursuit of nonrevenue-producing legal activities such as discussion groups and writing about law for general audiences.
Not surprisingly, for these individuals Roman and civil law were intriguing subjects for study and discussion. Roman and civil law were included as parts of the basic legal curriculum by the pioneers of legal education, such as David Hoffman, Joseph Story, and Daniel Mayes. The great law libraries of the period, those amassed by Chancellor Kent, Joseph Story, and Hugh Lagaré, contained dozens of volumes on Roman and civil law. The great journals of the period, such as The North American Review, The Southern Literary Messenger, and The Western Law Review, contained numerous articles on these subjects.
As I have done research on this subject over the past decade, however, a number of important, and yet generally overlooked, sources and issues have come to my attention. This brief Article describes several of what I consider to be the most important of these issues. My goal is to further illuminate the influence of Roman law in the United States in the nineteenth century, as well as to begin to focus more attention on the general outlines of American legal high culture during this period.
About the Author
M.H. Hoeflich. Dean and Professor of Law and History, Syracuse University College of Law. B.A., Haverford College, 1973; M.A., Clare College, Cambridge, 1976; J.D., Yale, 1979.
Citation
66 Tul. L. Rev. 1723 (1992)