THE STORY OF LAW
This book is published by Liberty Fund, Inc., a foundation established to encourage study of the ideal of a society of free and responsible individuals.
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© 1998 by Liberty Fund, Inc.
This eBook edition published in 2013.
eBook ISBNs:
Kindle 978-1-61487-092-0
E-PUB 978-1-61487-181-1
CONTENTS
Foreword by Charles J. Reid, Jr.
9 The Roman Creation of Modern Law
10 The Greek Compilation of Roman Law
11 Medieval Law in Europe
12 The Origins of English Law
13 English Law—Righteous and Unrighteous
14 The Reconciliation of the English Systems of Law
15 The Absolute Reign of Law
16 International Law
17 Conclusion
Appendix: The Five Ages of the Bench and Bar of England
Bibliography of the Works of John Maxcy Zane
Selected Bibliography on Legal History
Index
“IT IS THE MOST ORIGINAL BOOK in the English language on comparative law since Sir Henry Maine’s great work sixty years ago. It is the richest canvas, if not the only one of its kind, yet produced.” So wrote Dean John Henry Wigmore of the Northwestern University School of Law in his review of John M. Zane’s The Story of Law when it first appeared in 1927. Wigmore, one of the most distinguished legal scholars of his time, appreciated Zane’s unique contribution to legal history; for here was the first complete outline story of how law came into existence, developed, and changed through the ages, and why it plays such a prominent part in our lives today.
John Zane was not, however, an isolated genius. He was, rather, part of an age that treasured legal history in a way that the present age does not. The Story of Law appeared near the close of a period of enormous creativity. The nineteenth century had witnessed the flowering of two new ways of understanding legal history. The first was associated with a relatively new school of jurisprudence, historical jurisprudence, founded by Carl Friedrich von Savigny, which challenged the premises of natural lawyers and positivists alike. Historical jurisprudes argued that the law was neither the concrete expression of transcendent norms, as the natural lawyers contended, nor the product of sovereign command or toleration, as the positivists asserted. Rather, they claimed, law must be understood as the unique product of particular nations’ backgrounds and cultures. It was the lawyer’s task, according to this school of thought, to look to the past to identify principles consistent with a given nation’s culture which could be used to resolve contemporary problems. The lawgiver who failed to understand his nation’s tradition and relied upon reason or political will alone to promulgate laws was inevitably doomed to failure.
The roots of this new jurisprudence are traceable to such great seventeenth-century English lawyers as Sir Edward Coke, Sir John Selden, and Sir Matthew Hale, who deployed historical arguments both to restrict monarchical powers by appeal to a historically rooted constitution and to explain the paradox of a legal system that changed over the centuries yet remained the same system. But Coke, Selden, and Hale wrote against the backdrop of a unified and transnational European legal culture—called by many contemporary legal historians the ius commune—and in the context of a larger European jurisprudence that had successfully integrated natural law, positivism, and historical reasoning. The late eighteenth and early nineteenth centuries, nevertheless, witnessed the destruction of the ius commune and the severe weakening of an integrated understanding of the law under the assault of the nationalist impulse to exalt the law-making power of the state and the rationalist desire to reform traditional practices and institutions.1
Historical jurisprudence, as it developed during the course of the nineteenth century, rejected the rationalism of the reformers, substituting for it the history of the nation and the proper understanding of its “spirit” (Volksgeist). Large numbers of historians, moved by the desire to trace the growth of their national legal systems, scoured the past to identify uniquely French or German or Italian or English elements, thereby shredding the wholeness of the old ius commune.
The second approach to the writing of legal history that blossomed in the nineteenth century was an offshoot of a particular kind of belief in the progress of humankind. In the eighteenth and nineteenth centuries, this faith came to acquire a peculiarly scientific cast: It came to be presumed that all of human development must have followed the same trajectory and that the organization and structure of primitive societies might therefore be taken as evidence of the ways in which all persons must at one time have lived. The belief that societies grew in stages which could be labelled as more or less advanced led in turn to an effort to employ all of the skills of the scientist to classify and categorize and thereby discover the basic rules by which those stages developed. This basic concern also moved many of the leading legal historians of the time to look to non-Western societies in an attempt to discern within them the stages of legal development and the rules that governed their emergence, their flourishing, and their inevitable senescence.2
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