History Departments, Law Schools, and the Abyss in Between

We are pleased to have a guest post from Andrew Porwancher, who is an Assistant Professor of Classics & Letters at the University of Oklahoma.  

His first book is entitled The Devil Himself: A Tale of Honor, Insanity, and the Birth of Modern America (under contract with Oxford University Press).  This book argues that honor killing enjoyed widespread acceptance outside the American South during the Gilded Age.  His next book project, The Hidden Origins of Modern Legal Thought, looks to the institution of the jury trial to understand how American society separated fact from fiction amid the uncertainties of modern life.  In 2013-2014, he served as the Alistair Horne Fellow at the University of Oxford (St Antony’s College).  His publications have appeared in Journalism History, Journal of Supreme Court History, History of Education, and Paedagogica Historica.  He received his PhD from the University of Cambridge in 2011.

On most campuses, a university’s history department and law school are nowhere close to each other. And the distance is more than just physical.

Scholarship on the history of legal ideas largely divorces the subject from American intellectual history writ large. Given the institutional structure of the academy, this should come as little surprise. Law professors work in largely autonomous law schools, almost always have JDs, publish in law reviews, and focus on legal doctrine. By way of contrast, history professors work in history departments, almost never have JDs, publish in peer-reviewed journals, and live for context. While there are of course numerous exceptions to these generalizations, much work remains to integrate legal ideas into the broader fabric of intellectual history.

The history of legal thought should be of special interest to intellectual historians because it allows us to see ideas in action. The onus on legal theorists is to write with practitioners in mind, and so the history of jurisprudence is very much the history of ideas touching the ground.

John Henry Wigmore—who served as dean of Northwestern Law from 1901-1929—was one such theorist. He offers a vivid example of the kind of legal thinker whom intellectual historians should care deeply about. His life and work provide valuable insight into how American society grappled with the fundamental question, “What is truth?”

In 1904, Wigmore published a massive treatise on the law of evidence. This 4,000-page tome stipulated fact-finding procedures in jury trials. In other words, it gave lawyers and judges a set of guidelines that they could use to discriminate between truth and falsehood. This treatise, usually referred to as Wigmore on Evidence, appeared as the United States was in the throes of modernization. The accelerating forces of urbanization, industrialization, and immigration were remaking American society and rendering obsolete time-honored verities. Intellectuals in all fields grasped for new methods of making sense of the world around them. Amid the shadows of modernity, Wigmore provided a guiding light.

Wigmore on Evidence dominated American jury trials well past his death until the adoption of the Federal Rules of Evidence in the 1970s. For most of the twentieth century, legal epistemology—as it was actually practiced in court—began and ended with Wigmore.

The master narrative of legal thought suggests that the judiciary was enthralled with formalism in the decades surrounding the turn of the twentieth century. But formalism ultimately proved poorly suited to urban-industrial realities and, in the 1930s, was dethroned by legal realism. What surprised me about Wigmore was that the secondary literature described him as a formalist, a reactionary who clung to outdated ideas in the face of change. How was it, I wondered, that Wigmore could be so out of touch with modernizing trends and yet write a treatise that governed an entire branch of law for three-quarters of a century?

As I perused Wigmore on Evidence for the first time, I noticed that his approach to truth-seeking was not actually formalist at all. Contrary to the conventional wisdom, Wigmore was a consummate realist. The core values of legal realism, and of modernism more generally, informed every page. A rejection of absolutes, a belief in law as a social construct, a privileging of the collective over the individual—all characterized his treatment of evidence law.

I soon set off for the Northwestern University Archives. Amid the Wigmore Papers, I discovered that he was a prolific correspondent with every major legal realist of the era, including many Supreme Court justices. Oliver Wendell Holmes, Jr., Louis Brandeis, Benjamin Cardozo, and Felix Frankfurter were just some of the luminaries who readily recognized Wigmore as a kindred spirit on the road to legal modernism. Rare indeed were the realists who did not draw directly from Wigmore on Evidence in the development of their ideas.

What is the greater significance of Wigmore’s reform of the jury trial? It speaks to the importance of an intellectual history that is more than just the history of intellectuals. Ideas encode themselves within the machinery of institutional practice. Historians have long agreed suggest that modernism in its various forms—realism in law, pragmatism in philosophy, relativism in history, etc.—lost resonance in intellectual circles in the 1940s. As Louis Menand writes in The Metaphysical Club, “The notion that the values of the free society for which the Cold War was waged were contingent, relative, fallible constructions, good for some purposes and not so good for others, was not a notion compatible with the moral imperatives of the age.”

Yet these modernist values continued to characterize legal fact-finding in trials well past the 1940s. When intellectual history enlarges its scope to include the intellectual foundations of workaday institutional practices, we see that modernism is more enduring than a study of intellectuals alone suggests.

Enterprising graduate students in search of dissertation topics, take note: the field of legal history is wide open for intervention by intellectual historians. The traditional fodder of law professors—judicial decisions, treatises, law reviews—have untapped potential to shed light on questions of central concern to historians of ideas. But it may require finding your way to the law library on the edge of campus.