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An Appreciation - John Maxcy Zane, The Story of the Law [1927]

Edition used:

The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword, Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund 1998).

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An Appreciation

To appreciate The Story of Law, it is important to bear in mind that this work is not—and indeed cannot be—a comprehensive history, and that Zane was forced to employ principles of selection in determining what was to be included within his story. To say this is not to detract from the significance of Zane’s accomplishment. The Story of Law remains uniquely valuable as a learned and highly readable account of the shaping of Western law from the Neolithic age to the dawn of the twentieth century.

We are fortunate in having Zane’s own statement on the principles he used in selecting what went into the telling of The Story of Law. In a letter to John Wigmore in January 1928, Zane stated:

I do not claim that it is a history of law in general, but it is an attempt to show the great formative elements that determined why law is what it is among us [emphasis in original]. To compress the matter within reasonable limits, it was necessary to disregard all the systems of law that do not belong in this direct development. I took the original primeval man, followed him through the great formative institutions that make the great heads of law, then took the Aryan with his developments among the Celts and Gauls and the Hindus, then passed to the contributions of the Semites, Babylonian and Jewish, then showed the original Aryan, Greek, then the Roman, and thence by the mediaeval feudal system to the English. Necessarily I left out the Egyptian, and the Hellenistic law after Justinian, where I could have done much with the Basilicata, but this system was too late. I also left out the Spanish, French, and German developments, because I was sticking to the trunk of the genealogical tree and then following the English limb. But what I kept in mind was private law as between man and man and the legal rules and institutions through which one citizen obtains his rights against another citizen. So when I reached the English law I did not pay much attention to the genesis of the political institutions except as they were purely conceived with the production, the modification, and the application of private law. When I reached our legal development I changed to constitutional law, for the reason that we have the unique development by which in a private lawsuit, a machinery is furnished which makes constitutional law binding in private litigation. This I say is the Reign of an Absolute Law. Perhaps I should have explained this for the benefit of the ordinary reader, but I felt sure that he would catch the drift of the book on its general lines.24

Chapter by chapter, Zane unravels the evolution of law in Western civilization. He stresses that the historian must always bear in mind that the development of law is necessarily related to fundamental “social facts.”25 Philosophers especially tend to forget the relationship between law and society, with disastrous consequences.

To a degree unusual but welcome among legal historians, Zane emphasizes the development of commerce as an integral part of the story of the law. The contributions of Babylon, Greece, and Rome to the early history of commercial law are all reviewed here. Commerce is the main source of peace and progress in the world, and lawyers who promote its steady development are performing a public service. The English are especially praised for their integrity in dealing honestly even with their enemies: “[We are reminded] that during our Revolutionary War certain shares of Bank of England stock stood in the name of Washington, who was in arms against the English government, yet all through that war the dividends upon that bank stock were regularly paid to the commander of the army of rebellious Americans. Washington was a rebel in arms against England but the Bank of England was a commercial institution and here as always the honesty instituted by trade is far superior to any other conception of honest conduct.”

It is to be regretted, however, that Zane placed little emphasis on the role religious thought played in shaping Western legal principles and institutions. His story is for the most part a secular one, its heroes consisting of urbane Roman lawyers and largely secularized Englishmen and Americans. As recent scholarship has shown, however, the canon lawyers of the twelfth through fifteenth centuries made an enormous contribution to the history of Western law.26 Indeed, it has been convincingly argued that a distinctively Western law was only born in 1075 in the course of a “Papal Revolution” led by Pope Gregory VII against the domination of the Church by the Emperor Henry IV.27 It was at that time that lawyers in attendance at the papal and imperial courts began to rework older sources into coherent claims of legal right on behalf of their patrons.

Similarly, Zane ignores the contributions of Protestant lawyers, whether in Lutheran Germany or in England in the mid-seventeenth century. But the Lutherans gave to the West a new emphasis on the Ten Commandments as a source of natural-law reasoning as well as new methods for organizing the law, while deeply devout Protestant lawyers such as Sir Matthew Hale (1609–76)—whom Zane dismisses in a few lines because of his participation in witch trials—contributed to the shaping of a new English legal philosophy that stressed continuity with the past, an adversary system of presenting evidence, and new standards of proof drawn from the scientific methods of Robert Boyle and other members of the Royal Society.28

It has now been seventy years since John Zane published his Story of Law. Notwithstanding the passage of time, additional research, and newly discovered documents, his account remains in general a highly accurate picture of the development of the law. Of course, every specialist can think of certain matters important to the development of a particular line of inquiry that were omitted, underemphasized, or perhaps given too much weight. But in the light of his bold and far-reaching commission, Zane executed his assignment admirably.

[24. ]Letter of John M. Zane to John H. Wigmore, January 14, 1928, Wigmore Papers, Northwestern University School of Law.

[25. ]For Zane’s theory of law generally and the role that social facts play in his legal thinking, see his essay “German Legal Philosophy,” Michigan Law Review 16 (1918): 287–375.

[26. ]See James A. Brundage, Medieval Canon Law (London: Longman, 1995).

[27. ]See Berman, Law and Revolution, supra, note 3.

[28. ]See Harold J. Berman and John Witte, Jr., “The Transformation of Western Legal Philosophy in Lutheran Germany,” Southern California Law Review 62 (1989): 1575–1660 (discussing the development of a new type of natural-law reasoning); Harold J. Berman and Charles J. Reid, Jr., “Roman Law in Europe and the Jus Commune: A Historical Overview with an Emphasis on the New Legal Science of the Sixteenth Century,” Syracuse Journal of Law and Commerce 20 (1994): 1–31 (discussing the Lutheran development of a topical method by which to organize the law); Harold J. Berman and Charles J. Reid, Jr., “The Transformation of English Legal Science: From Hale to Blackstone,” Emory Law Journal 45 (1996): 437–522 (examining the various components of the new English science in the seventeenth and eighteenth centuries). See also Berman, “Origins of Historical Jurisprudence,” supra, note 1.