Your History of American Law is described as a "classic" on Amazon, and is the foremost general text published on American legal history in many years. Why do you think the book has achieved such a wide popularity?
Frankly, there isn't much competition – one other book (it's Kermit Hall's) and a few readers more or less on the style of case-books. When I look at my royalty checks, words like "wide popularity" don't pop into my mind. But there are more and more courses in the subject, and many of them turn to my book, and make the students buy it. Not all of them buy a second-hand copy. John Grisham would laugh at my sales figures, but the book has been in print for over 30 years. I do think it is fairly readable – maybe that helps. A third edition will appear in a very short time – I revised it considerably, though I kept the general format. I've proof-read the index, seen page proofs, so all that's left is waiting for it to be officially published.
Why did you write the History when you did? What about "market conditions" at the time you wrote it, and later revised it, made such projects worthwhile?
I was young and foolish. All sorts of people said it couldn't be done, and I took that as a challenge. I didn't think about market conditions at all – it wasn't my first book, and the first couple of books didn't sell at all (academic books usually don't). I was thinking it would fill a need, and enhance my career. I had no idea whether it would sell or not.
Your work is of course not limited to the History of American Law. In your twenty-page online CV, you list a rather huge number of publications dealing with a host of legal subjects. How has your knowledge of legal history informed your work in other areas?
You could ask the question the other way around: I feel my interest in law and society, in the interrelationship between the two, has been a decisive influence on my historical work. If somebody called me a sociologist of law who uses historical data, I would take that as an enormous compliment. From time to time, I've been involved in some project which called for interviewing actual living people, and I didn't like doing this one little bit. You can't interview dead people, and you don't need to ask them for an appointment, and you don't intrude on their lives; they haven't got lives any more. So I have always found historical data more congenial than modern data, specifically modern data that I would have to gather for myself. I admire the people who do this sort of work – empirical study that includes interviewing, surveying, listening and watching. But I don't want to do any of it myself.
Do you find the quality of American legal history studies to have been affected by larger political disputes, such as those involving the proponents and detractors of "progressivism" and "original intent"?
The people I admire in legal history – and there are many of them – try not to get sucked into the vortex of this sort of argument. Look: it is the duty of a legal historian to look for "original intent," but whether to pay attention to it politically is absolutely a horse of a different color. That's a political question. Anyway, I think it's all a joke. Nobody invokes original intent except when they want to reach some particular result. If you took original intent seriously, you'd flush 99% of our constitutional law down the toilet.
"Progressivism" and other movements are proper objects of study. Modern policy has to be made by modern people for modern reasons. Period.
All researchers have values and presuppositions, but the good ones work hard to avoid contamination. There are those who say it's not possible to do this. I disagree. It's not possible to do it 100% but we never get 100% of anything. If anybody really thinks there's no difference between inventing data for political purposes and honestly trying to interpret the data one actually finds, he or she doesn't belong in the legal history business. There are a lot of constitutional theorists and others who do phoney history. If you are really doing history, you have to be able to accept the fact that the data might not fit your wishes or confirm your hypothesis.
Do legal historians have ready or at least reasonable access to American primary sources, such as rural county court records, or must they still undergo a lot of travel and dust-inhalation to see early records of American law? Is there work yet to be done in editing and republishing such sources for a wider audience?
I think maybe 50 years from now it'll all be on the internet, but yes, now you have to trudge from courthouse to courthouse to study court records, with rare exceptions; and go from library to library to look at the papers of Justice So-and-so. And not just rural courts! There's just as much urban trudging. You ask: is there work yet to be done ... wow. We haven't even scratched the surface. I would estimate that 99.9% of all court records have never been looked at; and there are zillions of other records about which you could say the same thing. With court records – I've worked more with these than with anything else – there's a growing problem: destruction of records. Nobody values these records (well, if they're from 17th century Salem, yes; but 19th century Salem, no); and when a courthouse runs out of space, they either shred or microfilm their records. It's cultural vandalism, but there it is.
In The Formative Era of American Law, Pound discussed the work of earlier figures such as Kent and Story. Most law students today have probably never even heard of these writers, despite their importance to American law. Do you feel that a young lawyer suffers in some way by not being familiar with American law's earlier phases and thinkers?
I don't think anybody suffers from not knowing about Kent and Story. I would even throw in Oliver Wendell Holmes, Jr. I'm not much of a fan of intellectual legal history. It's a big blind spot. I admit it. Does a young lawyer suffer from not knowing about legal history in general? Yes and no. Yes, in that I don't think his or her education is complete; no, it's not going to have the slightest impact on lifetime earnings. I would never stoop to telling students they need legal history in their practice. Let's face it: they don't.
Courses dealing exclusively with legal history often get short shrift in U.S. law school curricula. Among dozens of course listings, one might find only three or four courses that deal with historical matters and are not at the same time really focused on present-day legal issues. Why do you think that is?
In most schools, three or four courses would be an awful lot of legal history. I'd settle for one or two. It's never going to dominate the curriculum; nor should it. I'm tickled pink that the field has made as much progress as it has. At one time, Willard Hurst was a lonely pioneer. Nobody taught legal history at the University of Chicago Law School when I was a student – or anyplace else, with only a few exceptions. We had one old property teacher who talked about old English statutes. It was a crashing bore; and for all you could tell from this course, there never was an American revolution. American legal history has come a long, long way since then. I give Willard Hurst a good deal of the credit, but somehow the time was ripe. I think people in law schools – faculty and students – realized that conventional legal scholarship (what I call arid doctrinalism) was a dead end. They looked for something else. Law and economics was one way out. Legal history was another. And why not? It's terrifically interesting.
Do you believe that English legal history, or for that matter Continental or non-European legal history, has much to teach twenty-first century American lawyers?
I'm a great believer in comparative law, comparative legal culture, and comparative legal history. A rigorous study of anything requires a control group; and the legal systems of other societies are not only valuable and interesting in themselves, they are marvelous ways of understanding our own system better. Somebody who studies French grammar, or Turkish grammar, or Arabic grammar, comes away with greater insight into English grammar. Again, let me repeat: learning French legal history is not going to help you make money, any more than American legal history, or legal philosophy, or anthropology of law. That doesn't make these subjects unworthy. And the law schools, though of course their primary mission is professional training (which they don't do very well, but that's another subject), are the logical place for rigorous research on legal systems. Who else is going to do it?
The real problem with comparative legal history is that it's so difficult. How many people can master more than one contemporary legal system – let alone historical systems? I think of Jim Whitman at Yale, whose work I much admire, but there are not many scholars with his skills.
On the other hand, there are some wonderful legal historians who write about particular legal systems – they aren't "comparative," strictly speaking, but there is always the implicit comparison with the United States. Incidentally, I think there is enormous value in studying English legal history, or Canadian or Australian legal history. Yes, these are common law countries. But they have been drifting apart for centuries. English legal history is as different from the American legal system as, say, the French language is from Spanish. Nobody would say French and Spanish are "the same" because they're both derived from Latin. I'd love to see work on comparative common law systems – in what way has the common law evolved in Barbados? Nigeria? Singapore?
How did you first get interested in legal history?
I don't really remember. Maybe I have a gene for pedantry and a love of the old and obscure. I was already interested in law school.
Where do you most often encounter an appreciation and enthusiasm for legal history?
My students are really enthusiastic. They appreciate legal history. They know it's not on the bar, they know it's not practical, it's an elective; and they take it because they like history. Many of them are former history majors who realized there was no money in history, so they fled into law school. Another great group is made up of librarians and archivists. They love helping you do your research. I owe a tremendous debt to the Stanford Law Library, and before that, to the Wisconsin Law Library. And to places like the San Diego Historical Society, where I've done some work. The biggest scrooges are court clerks and their employees. They always want to know, why does this guy want to rummage around in this old stuff? Why is he bothering us?
Are you working on any legal history projects at the moment?
I recently finished a book about family law; it's called Private Lives, and it's out in the sense that I have a pile of copies in my office, in fact since October 2004, though for some mysterious reason the Press decided on a February 2005 publication date. It's a fairly short book. With two younger colleagues, we're planning a bigger book which would try to be a comprehensive history of American family law in the 20th century. It's just getting started. Meanwhile, I'm writing (among other things) a book on the history of the legal protection of reputation – it has chapters on blackmail, defamation, and a lot of other things I find really interesting. I already mentioned the third edition of History of American Law. I have a couple of other projects going or about to get going, but they are less overtly historical.
Prof. Friedman was interviewed by Peter C. Hansen.
© Peter C. Hansen, The Legal History Project.