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• Foreword
• Zane’s Legal Career
• An Appreciation
• Introduction
• Chapter 1: The Physical Basis of Law
• Chapter 2: Law Among Primordial Men
• Chapter 3: The Aryan Law
• Chapter 4: Babylonian Law
• Chapter 5: The Jewish Law
• Chapter 6: Law Among the Greeks
• Chapter 7: A Greek Lawsuit
• Chapter 8: Greek Philosophy of Law
• Chapter 9: The Roman Creation of Modern Law
• Chapter 10: The Greek Compilation of Roman Law
• Chapter 11: Medieval Law In Europe
• Chapter 12: The Origins of English Law
• Chapter 13: English Law—righteous and Unrighteous
• Chapter 14: The Reconciliation of the English Systems of Law
• Chapter 15: The Absolute Reign of Law
• Chapter 16: International Law
• Chapter 17: Conclusion
• Appendix: the Five Ages of the Bench and Bar of England
• Introduction
• The Five Ages of the Bench and Bar of England *
• I.: The Golden Age of the Common Law: From the Norman Conquest to the Death of Bracton 2
• II.: The Silver Age of the Common Law: From the Accession of Edward I. To the Death of Edward III. 6
• III.: The Bronze Age of the Common Law: From the Death of Edward III. To the Death of Littleton 10
• IV.: The Iron Age of the Common Law: From Henry VII. To the Revolution of 1688 16
• V.: The Period of Reform: From William III. To Victoria 24

foreword

“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

The great historians of the age, naturally, were able to draw on these twin tendencies for insights but were not limited by them. In the English tradition, Sir Frederic Maitland, Sir Frederick Pollock, and Sir William Holdsworth sought to describe the development of English legal institutions, although they were all mindful that English law was not the product of purely insular forces but shared in a much deeper Western legal tradition. Other historians proposed an evolutionary understanding of the whole of legal development. Thus, Sir Henry Sumner Maine argued that all legal development in the progressive societies of the West should be understood as a movement from status to contract—from collectivism, in other words, to individualism—while Sir Paul Vinogradoff set out to describe the development of law as the gradual elaboration and systematization of popular customary practices. Other scholars—whose names and works can be found in the annotated bibliography—wrote general outlines of the history of law, tracing its growth from the first stone tablets of Mesopotamia to the sophisticated efforts of contemporary lawyers to subject human life on a global scale to the rule of law.

The Story of Law was published as this outpouring of scholarship was drawing to a close. In a sense, this work stands as a sort of late summer harvest, collecting and winnowing the best of that which had gone before. Layer by layer, Zane re-creates the gradual growth and elaboration of the law from the first attempts of neolithic man to regulate his living arrangements to recent times. Widely and deeply read, he drew judiciously upon his predecessors. One can detect the influence of Maine, Maitland, Vinogradoff, and others in the pages of this work.

But this work also stands as a monument to a now lost heroic age of lawyering. In the second half of the twentieth century, the kind of panoramic vision Zane’s contemporaries took for granted has been kept alive by only a few historians. In the United States, Harold Berman has boldly defended the integrity of the Western legal tradition, contending that it has had a continuous existence from the eleventh century to the present, although its continued survival is grievously threatened.3 Judge John Noonan, for his part, has examined the elaboration of the belief that justice should be uncorrupted by special favor or partisanship from Mesopotamian beginnings,4 while Brian Tierney has identified a Western constitutional order with deep roots in the eleventh and twelfth centuries.5 Alan Watson, whose career has bridged both the United States and Great Britain, has written systematically on Roman law and a number of other important questions.6 In England, John H. Baker, S. F. C. Milsom, and the late T. F. T. Plucknett have examined comprehensively the growth of English law,7 while on the Continent, Manlio Bellomo, Helmut Coing, and Jean Gaudemet have explored the essential unity of European—and by extension Western—legal history.8

John Zane has much to offer a new generation of readers. Unlike the legal positivists, he believed passionately in the transcendent importance that legal history has for the practice of law. Only by knowing the history and principles of the law could one become a truly great lawyer. That was because the law was, for Zane, a much deeper phenomenon than simply the particular pronouncements of a court or legislature. Indeed, the sovereign instruments of government were themselves bound to obey the law. The most these bodies could hope to achieve was to discover the law through a deep search of the past and a sympathetic understanding of present needs.

[1. ]See Harold J. Berman, “The Origins of Historical Jurisprudence: Coke, Selden, Hale,” Yale Law Journal 103 (1994): 1651–1738.

[2. ]See John W. Burrow, Evolution and Society: A Study in Victorian Social Theory (Cambridge: Cambridge University Press, 1966), especially pp. 137–78 (discussing the application of this new method to legal history); see also Krishan Kumar, “Maine and the Theory of Progress,” in Alan Diamond, ed., Sir Henry Maine: A Centennial Reappraisal (Cambridge: Cambridge University Press, 1991), pp. 76–87.

[3. ]See Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983).

[4. ]See John T. Noonan, Jr., Bribes (New York: Macmillan, 1984).

[5. ]See Brian Tierney, Religion, Law, and the Growth of Constitutional Thought, 1150–1650 (Cambridge: Cambridge University Press, 1982).

[6. ]Watson’s contributions to legal history are reviewed in the bibliography.

[7. ]See John H. Baker, An Introduction to English Legal History, 3d ed. (London: Butterworths, 1990); S. F. C. Milsom, Historical Foundations of the Common Law, 2d ed. (London: Butterworths, 1980); and T. F. T. Plucknett, A Concise History of the Common Law, 5th ed. (Boston: Little, Brown, 1956).

[8. ]See Manlio Bellomo, The Common Legal Past of Europe, 1000–1800 (Washington, D.C.: Catholic University of America Press, 1995); Helmut Coing, Europäisches Rechtsgeschichte, 2 vols. (Munich: C. H. Beck, 1985–89); and Jean Gaudemet, Église et cité: Histoire du droit canonique (Paris: Montchrestien, 1994).