Abstract:

History was an obsession of American legal thinkers throughout the nineteenth century. Sharing the historical sensibilities of their non-lawyer contemporaries, American legal thinkers of varying stripe thought of their society as being in history and brought their historical sensibilities to bear upon the law in general and the common law in particular. Viewed in terms of these historical sensibilities, themselves shifting over the course of the nineteenth century, the common law could be seen as contingent, set in context, and subjected to critical analysis. It could be systematized and organized, explained and criticized, parts of it rejected or retained.

Yet at the same time, even as they brought varying historical sensibilities to the common law, many nineteenth century American legal thinkers nevertheless retained an affiliation to the special non-historical temporality of "immemoriality" associated with the common law in its claim to represent the "custom" of the community. "Immemoriality" was a special time given by the common law to itself: a time that came from a place outside history and that was not reducible to it. According to the logic of "immemoriality," the common law was both thoroughly temporal and utterly resistant to being pinned down in historical time. It embodied the wisdom of multiple generations. It began but could not be seen to have begun; it changed but could not be caught in the act of changing. It blurred distinctions among past, present and future.

In focusing on nineteenth century American legal thinkers' incessant shuttling between the times of history and the time of custom, the dissertation draws attention to a rich and varied conversation, itself historically sedimented and theoretical, about the relationship between history and law. This conversation stretches from the late eighteenth century to the beginning of the twentieth, and includes a range of legal and non-legal thinkers, from James Kent to Oliver Wendell Holmes, Jr., from Edmund Burke to Herbert Spencer. It continues in our own day.

In its focus on the intertwining of historical and legal thought, the dissertation contributes to American intellectual history, the history of American legal thought, and the philosophy of history.