"This abstraction called the Law," Justice Oliver Wendell Holmes, Jr., once observed, is "a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!"1 Holmes believed that this "magic mirror" offered historians an opportunity to explore the social choices and moral imperatives of previous generations. This book is about what that magic mirror reveals to us; it is about law, constitutions, legal institutions, and the idea of the rule of law as separate subjects and as part of our social history.
The contemporary definitions of law fully stress its connection to society. The dictionary is very direct, describing the law as "a rule established by authority, society, or custom . . . governing the affairs of man within a community or among states. . . ." 2 The legal scholar Donald Black offered an even shorter definition. He described law as "governmental social control." 3 In sum, law is a system of social choice, one in which government provides for the allocation of resources, the legitimate use of violence, and the structuring of social relationships.
These simple definitions have one element in common: they define the law in social context. Without society we need no law; without law we would have no society. The rules of behavior for both individuals and government take on historical meaning as they affect and are affected by the social order. When we look back into Holmes's magic mirror, we seek in it answers to questions about how previous generations went about using the law to affect values and moral principles they deemed important. We tend, of course, to think of the law as something complex, as something that only lawyers and judges deal with in often obscure ways. But the internal workings of the law offer a beginning not an ending to historical understanding.
As the legal historian Lawrence M. Friedman has observed, we can think of these matters in a somewhat simple way. 4 The law can be viewed as a black box that contains various rules. Examining the chronological development of the rules would yield a literal, internal history of American law; until the mid-1960s most writers on legal history have done just that. Such an approach had the undesirable effect of confirming the mystery and complexity of law, making the black box all the more foreboding.
But the law can be understood in another way. What is important is not only what is in that box but what consequences its contents have had for the society it is meant to serve. Though an interesting intellectual exercise, what good does it do to know what went on in the box, if we do not understand what significance it had for the larger external world it aimed to serve? In the past two decades this concern with the external history of the law has taken on greater urgency. The legal historian still has to know what went on in the box, but now he or she must also address a large set of causal relationships. We want to know the law by what it has done, or by what has been done to it, rather than simply by what it was.
There is yet another reason to pursue this external approach to legal history. Law is, after all, a human institution; its history is a tale of human choices. Its abstract rules deal with the most central of human issues: the preservation of life, the protection of property, the exercise of individual liberty, the fashioning of creative knowledge, and the allocating of scarce resources. All encounters in the law, therefore, have been personal, human encounters. Its history is that of individuals caught up in the efforts of the state to allocate blame, to deter criminal behavior, to punish wrongdoing, and to encourage socially valuable activity.
The law, as Justice Holmes understood, is indeed a cultural artifact, a moral deposit of society. Because its life stretches beyond that of a single individual, its meaning reaches to the values of society. Thus, we cannot know the law only through the individuals who have administered and lived under it. We trivialize the rule of law, and we miss the opportunity to sort out the clashing views about it, when we disregard its inner logic and rules, its institutions, and its processes. This book seeks to encourage you to think about both the internal and external history of American law.