* Willard H. Pedrick Distinguished Research Scholar and Professor of Law, College of Law, Arizona State University.
B.A. 1960, University of Pennsylvania; LL.B. 1963, University of Minnesota. The author wishes to express appreciation
to Paul Brand, Richard Helmholz, David Lieberman, Daniel Klerman, Owen Jones, Jeffrie Murphy, Anthony Musson,
Michael Saks, and George Schatzki for their helpful comments. As usual, the author bears full responsibility for the
Article’s analysis and conclusions.
1. See G. Edward White, Reflections on the “Republican Revival”: Interdisciplinary Scholarship in the Legal Academy,
6 Yale J. Law & Humanities 1, 23 n.54 (1994).
2. For a lawyer-anthropologist collaboration, see K.N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict
and Case Law in Primitive Jurisprudence (1953, 1941).
3. Some scholars have included history within Law and Society. See Marc Galanter & Mark Alan Edwards, Introduction:
The Path of Law Ands, 1997 Wis L. Rev. 375, 379.
1
English Legal History and Interdisciplinary Legal Studies
in Anthony Musson, ed., Boundaries of the Law:
Geography, Gender and Jurisdiction in Medieval and Early Modern Europe (Ashgate, forthcoming).
Jonathan Rose*
I. Introduction
This paper will focus on two issues: the nature of medieval and early modern English legal history
and its place in interdisciplinary legal studies and the possible opportunities for expanding the interface
between English legal history and other additional disciplines. Before turning to these issues, an overview
of interdisciplinary activities seems necessary since many of them may be unfamiliar to English legal
historians.
II. Interdisciplinary Legal Studies: An Overview
Interdisciplinary intellectual pursuits in the legal academy have increased significantly in the last
several decades, particularly in the United States. Some interest in the relationship between law and other
disciplines existed previously of course.1 Jurisprudence has always been part of modern legal education and
a traditional subject of scholarship. The Law and Society movement is a longstanding multi-disciplinary
effort that has produced a rich and substantial body of scholarship. The University of Chicago Law School
has harbored economists in its midst long enough for the phrase “Chicago School” to become an academic
household word. The Yale Law School faculty has had an assortment of social scientists for decades.2 Nor
should legal history be omitted from this catalogue of early interdisciplinary efforts.3
The broadened law and economics movement that began in the 60's was perhaps the catalyst for
4. See Richard Posner, The Economic Approach to Law, 53 Tex. L. Rev. 757 (1974-75).
5. See Richard A. Posner, Economic Analysis of Law 23 (6th ed. 2003). He specifies the various fields and includes legal
history. See id. at 23, 253-70.
6. James Boyd White, The Legal Imagination (1973).
7. Richard Posner has provided a useful summary of this movement. See Richard A. Posner, Law and Literature: A
Misunderstood Relation 9-14 (1988).
8. William Page dated the inception of law and literature as Wigmore’s 1907 publication of a list of legally related novels.
See William H. Page, The Place of Law and Literature, 39 Vanderbilt L. Rev. 391(1986). He also noted Law and Letters
in American Culture by Robert Ferguson, discussing the fusion of law and literature from 1765-1840. During the 19th
century, the numerous legal themes in Shakespeare sparked the interest of lawyers. See C.K. Davis, The Law in
Shakespeare (1883).
9. Again Richard Posner joined in this interdisciplinary activity. See, e.g. Richard A. Posner, The Problems of
Jurisprudence (1990).
10. See Mark Kelman, A Guide to Critical Legal Studies (1987).
2
this surge in the contemporary interest in interdisciplinary activities. In the words of the movement’s high
priest, Richard Posner, this intensified activity was the “new” economics and law,4 whose “hallmark” was
“the application to the legal system across the board.”5 To say that law and economics took the academy
by storm, at least in the United States, may be an understatement. Many law schools have at least one
economist on their faculty .
Shortly thereafter, the law and literature movement emerged with the publication of James Boyd
White’s seminal book, The Legal Imagination.6 Like law and economics, this field rapidly expanded with
the publication of substantial scholarship in the late 70's and 80's7 and differed from its earlier
manifestations.8 Law and literature courses became a commonplace fixture in law school curricula. H.L.A.
Hart was the pioneer whose work created the mutuality of interests of philosophers and lawyers in
jurisprudence, which has also grown beyond its traditional role in legal academia, perhaps a result of the
profound impact of the work of John Rawls. Not only did traditional philosophy of law efforts increase with
the significant influence of scholars such as Ronald Dworkin,9 but there was a huge increase with all the new
jurisprudential movements that grew out of postmodern ideas. The Critical Legal Studies movement and
its progeny produced an avalanche of scholarship and controversy.10
Nor was this expanded interest in interdisciplinary legal studies limited to the social sciences and
11. My own school, the Arizona State College of Law, has faculty with graduate degrees in philosophy, psychology,
physics, electrical engineering, mathematics, astronomy, political science, public policy, and genetics.
12. See J.M. Balkin, Interdisciplinarity as Colonization, 53 Wash. & Lee L. Rev. 649, 650 (1996).
13. Several commentators have compared law and economics with law and literature ( see, e.g., Posner, supra note 7, at
1; Geoffrey P. Miller, A Rhetoric of Law, 52 Chi. L. Rev. 2478, 255 (1985)(book review)) and with law and society. See
Symposium, Law and Society & Law and Economics: Common Ground, Irreconcilable Differences, New Directions,
1997 Wis. L. Rev. 375 et seq.
14. Such scholarship is has been criticized as less useful to lawyers and judges. Harry Edwards, The Growing
Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992); Symposium: Legal
Education, 91 Mich. L. Rev. 1921-2219 (1993)(broad response to Judge Edwards' criticisms). One commentator suggested
that the best explanation for this movement was “the theory of intellectual influence and revisionism.” See Charles
Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal
3
the humanities. Interest in subjects such as computers, genetics, and the environment generated a whole
new type of interdisciplinary interest in law, science, and technology. Like the other interdisciplinary areas,
this new activity greatly surpassed the older manifestations in this area such as patent law and law and
medicine. Following the typical interdisciplinary pattern, the curriculum of many law schools is peppered
with wide array of such interdisciplinary courses and faculty.
In summary, when one looks now at the curricula and faculty of law schools, the interdisciplinary
picture is quite different than it was several decades ago. Almost all law schools offer several “law and” or
other interdisciplinary courses and programs. Not only are many faculty interested in these interdisciplinary
approaches to law, but many have advanced degrees in nonlaw fields.11 Others spend considerable time
in autodidactic efforts. Some law faculty do not have law degrees. Nothing evidences this heightened
interest in interdisciplinary legal studies more than the scholarship, published both in law journal and the
journals of other disciplines. One commentator has suggested that at “elite” law schools all “serious
scholars” are expected to do interdisciplinary work and those without such interests would have a hard time
finding a job at these institutions.12
What has caused this increased interest and activity in interdisciplinary legal studies? Although the
nature of the various nonlaw disciplines and their relation to law differs,13 some common and interrelated
themes emerge. First, the nature of legal scholarship has changed. Greater emphasis on empirical studies
and legal theory have been prevalent, with a corresponding movement away from traditional doctrinal
analysis.14 The leading law journals seem to be more interested in this “new scholasticism” than they are
Scholarship 191, 193 (1991).
15. See Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 Harv. L. Rev. 761, 778-79
(1987); George L. Priest, Social Science: Theory and Legal Education: The Law School As University, 33 J. Legal Educ.
437 (1983)
16. See Galanter & Edwards, supra note 3, at 376.
17. See Posner, supra note 15.
18. See White, Reflections on the “Republican Revival” supra note 1, at 13.
4
in doctrinal analysis Interdisciplinary legal scholarship also may involve the desire to get “outside” of law
to learn more about law with a hope that these complementary disciplines will assist in solving the social
problems with which law deals. These other disciplines may attract some scholars because they are useful
in achieving desired political objectives. In addition, the internal approach reflected in doctrinal analysis
may seem pedestrian whereas academics would like to be known as innovators, intellectual leaders, and
profound thinkers. Dissatisfaction with legal education and a desire to make it more like other graduate
education may also have been a factor.15 Some intellectual imperialism may be present.This increase in
interdisciplinary activities reflects the continuing influence of legal realism and its skepticism toward
traditional legal doctrine and analysis. Marc Galanter and Mark Edwards have called these developments
an aspect of “the displacement and disintegration of the prevailing legalist creed, and its replacement with
an arena of competing programs.”16 Richard Posner has characterized these developments as evidence of
“the decline of law as an autonomous discipline.”17 Edward White viewed this change in legal scholarship
not just as one in subject matter, but the adoption of “a research design approximately that of the arts and
sciences.”18
Some scholars have voiced skepticism toward interdisciplinary legal studies. G. Edward White
believes that the notion of interdisciplinarity may be neither meaningful nor intelligible. In identifying “the
governing assumptions of ‘law and’ scholarship,” he said that “‘interdisciplinary scholarship’ allegedly
reinvigorated the research design of the legal academy by bringing in fresh, extraprofessional perspectives
. . . but in the process . . . the intelligibility of a disciplinary perspective, indeed the concept of an academic
19. See White, Reflections on the “Republican Revival”supra note 1, at 28-29.
20. See Balkin, supra note 12, at 952, 957-67.
21. Laura Kalman, The Strange Career of Legal Liberalism 239 (1996).
22. See id. at 240.
23. See id. at 241-46.
24. See Collier, supra note 14, at 193.
25. See Jane Baron, Law, Literature, and the Problems of Interdisciplinarity, 108 Yale L.J. 1059 (1999). Commentators
frequently identify Langdell’s conception of legal education at Harvard as the origin of law’s traditional orthodoxy and
autonomy. See, e.g. Jane Barron, Interdisciplinary Legal Scholarship as a Guilty Pleasure, in Michael Freeman &
Andrew D.E. Lewis, Law and Literature 21, 23-29 (1999); Posner, supra note 15, at 762-66.
26. See Kathleen M. Sullivan, Foreword: Interdisciplinarity, 100 Mich. L. Rev. 1217, 1218-1220 (2002).
27. See id. at 1221-26.
5
discipline, became elusive.”19 J.M. Balkin questions whether interdisciplinarity is truly possible, viewing it
as an attempt by one discipline to colonize another.20 He believes that law, a frequent target, is resilient and
never conquered because it is a professional, not academic, discipline. Interdisciplinary legal scholarship
is “the product of this failed assault.” In The Strange Career of Legal Liberalism, Laura Kalman raised
doubt about whether lawyers want to improve their use of other disciplines and believed that there was a
“current backlash against interdisciplinarity.”21 She suggested that cross-fertilization had often not occurred”
22 and that effort reflected the legal academy’s disillusionment, frustration, and schizophrenia.23 Charles
Collier asserted often the legal uses of other disciplines was “an ‘abuse’ of them.”24 Jane Baron argued that
the legal academy had not been sufficiently interdisciplinary and that the proliferation of “law and”
scholarship and courses actually reinforced and confirmed the disciplinary autonomy and orthodoxy of
law.25 On a contrary note, Kathleen Sullivan stated that “the discipline of law is itself multidisciplinary,”
never had been an autonomous discipline, and other disciplines were implicitly embedded in law 26 and that
“self-consciously interdisciplinary work” increased the knowledge of law and legal institutions.27
Given all these views, it becomes problematic to define interdisciplinary legal studies. It certainly
involves the engagement by the practitioners of one discipline of institutions of the other. But perhaps it is
useful to distinguish interest in another discipline from its use in scholarship, and more particularly between
28. I am grateful to Daniel Klerman for pointing out this distinction to me.
29. See, e.g., Clive Holmes, Book Review, 118 Eng. Hist. Rev. 206 (2003)(reviewing J.H. Baker, The Law’s Two Bodies).
6
the use of another discipline’s knowledge and the use of its theories and methodology.28 Thus, there are
multiple senses in which scholarship can be interdisciplinary.
III. English Legal History and Indisciplinarity
While some might characterize English legal history as interdisciplinary, it seems different than the
numerous “law ands” that populate the intellectual landscape. There is a difference between “legal history”
and “law and history?” First, it is not clear that there is any “boundary” (a favorite commentator word)
between the two different fields, in this case law and history. In thinking about legal history scholarship, the
use of the typical terms, “inside” and “outside” (of law) seems inappropriate. First, the various types of
legal history and history scholarship are not totally isolated from each other. Scholars of different
orientations work together and use each other’s work. Second, although the focus of much of the
scholarship has internal characteristics, which some consider myopic,29 good scholarship cannot ignore
contemporary mores, customs, and context. Also the “nonlaw” aspects of some scholarship are not really
exogenous as they are part of a broader fabric in which law is woven, sometimes in primary colors.
English legal history also seems dissimilar from the “law and” phenomena as the notion of the
decline of law’s autonomy seem irrelevant to legal history. Richard Posner identified several reasons for
the decline - the dissolution of political consensus within the legal academy, a boom in disciplines
complementary to law, diminished confidence in the efficacy of law as a solution to systemic problems, the
restlessness of scholars, the increased prestige of science and other exact modes of inquiry, and the
increasing importance of statutes as opposed to judge made law as a source of law. But none of these
factors seems relevant to the attractions of legal history scholarship. The endeavors of legal historians are
not the product of any dissatisfaction or dysfunction relating to law as an independent discipline nor of its
unfashionability.
A final reason for not characterizing English legal history as a “law and” is that most of the current
criticisms of legal interdisciplinarity scholarship seem inapplicable. Such criticisms characterize the latter as
30. See White, Reflections on the “Republican Revival” supra note 1, at 3 (quoting Daniel Rodgers).
31. See Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 Yale J. Law & Humanities 79, 79- 80 (1992).
32. . See Kalman, Strange Career, supra note 21, at 180-90; Stolzenberg, supra note 36, at 1033-39; White, Reflections
on the “Republican Revival” supra note 1, at 19-20 & n.43.
33. See, e.g., Linda K. Kerber, Making Republicanism Useful, 97 Yale L.J. 1663, 1672 (1988).
34. See id. at 16.
35. See Morton Horowitz, Republican Origins of Constitutionalism, in Toward a Usable Past: Liberty Under State
Constitutions 148-49 (Paul Finkelman & Stephan Gottlieb eds., 1991). Many historians claimed the history used by these
lawyers was inaccurate and unrecognizable. “Constitutional discourse is replete with historical assertions that are at
best deeply problematic and at worst, howlers.” See Martin S. Flaherty, History “Lite” in Modern American
Constitutionalism, 95 Col. L. Rev. 523, 525 (1995). But perhaps such work should be judged by criteria different from
those used for evaluating the practice of history. See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case
of History-In-Law, 71 Chicago- Kent L. Rev. 917, 932-35 (1996).
36. See Flaherty, supra note 35, at 525; Kalman, supra note 21, at 132-246; Laura Kalman, Border Patrol: Reflections on
the Turn to History in Legal Scholarship, 66 Fordham L. Rev. 87, 107 (1997); Nomi M. Stolzenberg, A Book of Laughter
and Forgetting: Kalman’s “Strange Career” and the Marketing of Civic Republicanism, 111 Harv. L. Rev. 1025 (1998);
Tushnet, supra note 35, at 925-32; White, Reflections on the “Republican Revival” supra note 1, at 15-23.
37. See Tushnet, supra note 35, at 917-34. Also English legal historians have not exhibited “past dependency,” treating
history as form of idolatry or vesting the past, simply because it is the past, with a normative quality. See Richard A.
Posner, Past-Dependency, Pragmatism, and Criticque of History in Adjudication and Legal Scholarship, 67 U. Chi.
L. Rev. 573 (2000).
38. See Flaherty, supra note 35, at 554; John P. Reid, Law and History, 27 Loyola L. Rev. 193, 197-203.(1993).
39. See Flaherty, supra note 35. As John Reid has pointed “forensic history” is not new and can be observed in the
polemics of 17th century English ancient constitutionalism and longstanding English and American contractarian
constitutional theories. See Reid, supra note 38, at 205-17.
7
imperialistic, parasitic, and scavenging.30 Brian Leiter charged that “its most striking feature is its
‘intellectual voyeurism’: superficial and ill-informed treatment of serious ideas apparently done intellectual
‘titillation’ or to advertise, in a pretentious way, the sophistication of the writer.”31 Nor can English legal
historians be charged with the high sins of “presentism”32 and anachronism.33 They have not engaged “in
the artful manipulation of historical sources to serve adversarial positions in contemporary disputes,”34
“roaming through history looking for [their] friends.”35 Thus, they are not practitioners of “forensic history,”
which has led critics to challenge its current use in American constitutional and political theory, 36 labeling
it “lawyers history” and “history-in-law”37 or more pejoratively, “law office history”38 and “history lite.”39
None of these criticisms seems relevant in appraising the nature or value of the scholarly contributions to
40. Perhaps William Nelson tripartite classification of “lawyers legal history,” “historians legal history,” and “factual
legal history” is useful in capturing the differences between these current uses of history and English legal history. . See
William E. Nelson and John Phillip Reid, The Literature of American Legal History 235-60 (1985).
41. “Invaders” are members of the colonizing discipline intending to enlighten the target discipline; and “turncoats”
(“importers” or “first wave of arbitragers”) are members of the target discipline bringing in the approaches of the other
discipline. See Balkin, supra note 12, at 961-62.
42. Some of these historians emphasize the importance of law. See, e.g., Alan Harding, Medieval Law and the
Foundations of the State (2002). Others seem to de-emphasize it. See, e.g., Christine Carpenter, The War of the Roses:
Politics and the Constitution in England, c. 11437-1509 (1997).
43. See John. H. Baker, Why the History of English Law Has Not Been Finished, 59 Cambridge L.J. 62, 63 (2000) (Downing
Professor Inaugural Lecture).
44. See Frederic William Maitland, Why the History of English Law is not Written, reprinted in I The Collected Papers
of Frederic William Maitland 480, 487-94 (H.A.L. Fisher, ed., 1911, 1981 reprint).
8
English legal history.40 Nor does one sees “turncoats” or “invaders.”41 Thus, “legal history” is different than
“law and history.”
IV. Legal History and Legal Historians
If English legal history is not interdisciplinary in the “law and” sense, then what is its nature? For
over one hundred years, historians and lawyers, united in their focus on original sources, have engaged in
the study English legal history. They have produced a truly successful intellectual tradition and a rich body
of scholarship. Two strands have emerged, which might be labeled institutional and contextual. The primary
strand has explored the intellectual history of the law, the evolution of legal institutions and legal doctrine.
Another strand has explored the place of law in a larger social and political context and the social history
of law, perhaps blending with social history. Moreover, there is a third body of scholarship, which is
historical, that is often critical in providing the context for both strands of legal history. It would seem
difficult to write about the medieval era without familiarity with the work of Richard Southern or Joseph
Strayer, about the late medieval period in ignorance of Bruce McFarlane, or the Tudor period without
reading Geoffrey Elton, and the current counterparts of these giants.42 Thus, English legal history is not
isolated from either law or history, and, as John Baker has noted, is “an essential dimension in the social
and intellectual history” of England.43
An inquiry into the nature of English legal history begins, not surprisingly, with Maitland. In his
Downing Professor lecture, Maitland took the view that legal history was history and not law.44 Maitland
45. See T.F.T. Plucknett, Maitland: Law and History, reprinted in Early English Legal Literature 13 (1958). Plucknett
himself said that “the completely opposite aims and methods of the lawyer and the legal historian are inherent in the very
natures of history and of English law.” See id. at 14.
46. See Maitland, Why the History of English Law is not Written, supra note 44, at 488-92. Milsom believes that Plucknett
caused some of these views to be misunderstood. See S.F.C. Milsom, ‘Pollock and Maitland’: A Lawyer’s
Retrospective, in 89 Proceedings of the British Academy, The History of English Law: Centenary Essays on ‘Pollock
and Maitland 252 & n.39 (John Hudson ed., 1996);
47. See Baker, supra note 43, at 66. Nor is Milsom’s treatment of the legal history inconsistent although his more legal
approach may confuse historians. See Hector L. McQueen, Common Law and Feudal Society in Medieval Scotland
11 (1993); John Hudson, Milsom’s Legal Structure: Interpreting Twelth-Century Law, 19 Tijdschrift voor
Rechtsgeschiedenis 47(1991).
48. See Plucknett, supra note 45, at 7.
49. See Plucknett, supra note 45, at 17. Maitland initially expressed that fear. See Maitland, supra note 44, at 492.
50. See id. at 14. John Reid asserted that lawyers’ and historians’ interpretations of the past are incompatible. See Reid,
supra note 38, at 195.
51. See id. at 493. He believed that the teaching of legal history “falls to the ground between two schools,” but that there
is very “little room” for teaching it in law schools. See id. at 494-95. Plucknett seemed to disagree with this. See Plucknett,
supra note 45, at 13-14, 17-18. Plucknett’s comments prompted a harsh reaction from Milsom. See Milsom, supra note
46, at 252 n.39; S.F.C. Milsom, Maitland, 60 Cambridge L.J. 265, 267-68 (2001).
9
contrasted law and history and found that “their material, their method, and their logic were incompatible.”45
He noted that history involved comparison, but lawyers focus only on their own system; history requires
evidences and law depends on authority and thus there is the temptation to confuse “the logic of evidence”
and the “logic of authority;”and lawyers are orthodox, which would be a contradiction in terms for a
historian.46 The Maitland legacy has persisted in this view as John Baker recently explicitly stated.47
Plucknett said Maitland was “at heart a historian”48 and that his mission was to separate law and legal
history so that the latter not become “the handmaid of dogma.”49 Plucknett said that “once the professor
of law embarks upon legal history he has become a historian, for legal history is not law, but history.”50 The
adjectival word, “legal” reinforces this conclusion, suggesting that the enterprise is a kind of history, like
political or social or economic history.
But to characterize the enterprise as history rather than law does not necessarily make its
practitioners historians. Maitland believed that thorough training in modern law was indispensable to be a
good legal historian.51 Although his memorial tablet in Westminster Abbey calls him a historian and
52. See Geoffrey R. Elton, F.W. Maitland 19-55 (1985). Elton made him a “patron saint.” See id. at 97-103.
53. See, e.g., S.F.C. Milsom, Maitland, supra note 51; Milsom, ‘Pollock and Maitland’, supra note 46; S.F.C. Milsom,
F.W. Maitland, in Studies in the History of the Common Law 261, 267-73 (1985).
54. See Milsom, Pollock and Maitland’, supra note 46, at 252.
55. Of the 11 identified contributors, four have formal training only in history, six only in law, and one in both fields.
56. One rather idiosyncratic commentator bemoaned Maitland’s influence on the study of legal history, thinking it too
narrow. See Calvin Woodward, History, Legal History and Legal Education, 53 Va. L. Rev. 89, 99-113, 120-21.
10
historians have claimed him,52 Milsom has on several occasions emphasized Maitland, the lawyer.53 In fact,
the legal history scholar needs to know something about both fields. But this assertion leaves uncertain how
much knowledge of history is required by those scholars who emphasize law or knowledge of law by those
whose scholarship is more contextual. For example, it is doubtful whether the latter need to know about
the intricacies of pleading. Perhaps, it depends on the issue being explored. However, whatever the
scholarly orientation, some knowledge of legal institutions and doctrine, the legal process (in Milsom’s
words, “how law works”54), contemporary context, and the historical nature of institutions are all necessary
for competent legal history scholarship. The three categories into which these scholars fall in terms of their
training and experience confirm this blending of knowledge. Some are lawyers with no formal training in
history; others have advanced degrees in history, but no legal training; and the final group has formal
training in both fields. The mixed backgrounds of the contributors to the future Oxford History of Laws
of England are an apt illustration.55 Thus, a legal historian is distinct from both a lawyer and a historian.56
If so, some reconsideration of the nature of legal history is in order. First, it seems unlikely that it
should be characterized as law although some legal historians’ perspective is distinctly legal. But legal
history scholarship seems quite different than the typical doctrinal scholarship and courses that have been
the traditional focus of the legal academy. Despite the pedigree of Maitland and his successors, I am
reluctant to call it history as it requires a significant knowledge of law and legal institutions, at both
conceptual and practical levels. Moreover, it seems to be more than just another kind of history. Law is
more of a formal discipline than seems to be true of the adjectival “others,” social and political, although
57. Some treat economic history as a branch of economics, not history. See, e.g., Ron Harris, The Encounters of
Economic History and Legal History, 21 Law & Hist. Rev. (2003)(forthcoming); Ron Harris, The Encounters of Economic
History and Legal History, 4 Theoretical Inquiries in Law No. 2 (2003) (forthcoming).
58. See John H. Baker, The Law’s Two Bodies 1-2 (2001).
59. See III Collected Papers of Frederic William Maitland, supra note 44, at 319, quoted in David Runciman, Maitland
and the Real Personality of Associations, in Pluralism and the Personality of the State 89-123 (1997). As Runciman
notes, Maitland’s introduction to Gierke’s book on medieval political theory and a series of articles on organized group
personality did venture into jurisprudence, despite Maitland’s “conscious ignorance and unfeigned humility” on the
subject. See III Collected Papers, supra at 319. Maitland referred to continental legal and political theory as well as Austin
and Hobbes. See Frederic William Maitland, Introduction, Otto Gierke, Political Theories of the Middle Ages vii-xlv
(1958).
60. See Morris Arnold, Toward an Ideology of the Early English Law of Obligations, 5 Law & Hist. Rev. 505 (1987);
A.W.B. Simpson, The Common Law and Legal Theory, reprinted in Legal History and Legal Theory 359 (1987).
11
economic history may be closer.57 But if English legal history is neither history nor law and is different from
the “law ands,” how should one characterize it? Perhaps the answer is that it is a distinct intellectual
endeavor, separate from both law and history, but one that combines the methodology, objectives, insights,
and knowledge of both law and history.
IV. Expanding the Interdisciplinary Interface: “English Legal History and”
Whatever its nature, would a greater connection between legal history with other disciplines be
intellectually beneficial? The possible complementary interests of philosophy, literature, and economics will
be considered.
A. Legal History and Philosophy
Most legal history scholarship is not conceptual. The legal history tradition has tended to be
jurisprudentially agnostic, eschewing philosophical questions. In The Law’s Two Bodies, John Baker said
“I am not trying to reinvent legal realism, still less to invent any new kind of -ism, and I am not keen to
become involved in deep jurisprudential questions about whether law can logically be derived from cases
alone . . . .58 Maitland said, “As to philosophy, that is no affair of mine.”59 But legal history scholarship
raises interesting jurisprudential questions. Two noted legal historians, Brian Simpson and Morris Arnold,
have explored such questions.60
One interesting topic is the nature of law, a primary jurisprudential topic. The work of legal
61. See Jonathan Rose, Doctrinal Development: Legal History, Law, and Legal Theory, 22 Oxford J. Leg. Studies 323
(2002).
62. See John Baker, Why The History of English Law Has Not Been Finished (Downing Professor Inaugural Lecture Oct.
14, 1998), 59 Cambridge L.J. 62 (2000).
63. See Baker, supra note 58, at 2.
64. See, e.g , Paul Vinogradoff, Reason and Conscience in Sixteenth-Century Jurisprudence, 24 Law. Quart. Rev. 373
(1908); Richard H. Helmholz, Christopher St. German and the Law of Custom, 70 U. Chi. L. Rev. 129 (2003); J.W. Tubbs,
The Common Law Mind: Medieval and Early Modern Conceptions (2000).
12
historians and theorists might complement each other on several matters.61 John Baker’s recent book, The
Law’s Two Bodies, has strong jurisprudential overtones and gives his most developed answer to the
question he raised several years earlier, “what is law for the purposes of legal history?”62 His answer is that
it contains two bodies, a formal one of statutes and cases and an informal one “perceived through practical
operation and the actual state of juristic understanding at a given time.”63 This second body, found in a
variety of nonstatutory and noncase sources, consists of “common usage and common learning” with focus
on professional thinking and common erudition and opinion as well as “lay assumptions.”
Pursuing this topic raises interesting questions about how the medieval and early modern legal
system generated and evidenced law and the kind of ideas that influenced law. Those sources include
statutes, jury verdicts, judicial determinations, the interstices of pleading rules, custom, Yearbooks and
other law books and the ideas include “reason,” conscience, and the scientific nature of law. These
evidences of law and influential ideas raise questions that might interest legal philosophers and whose
contributions might enhance the understanding of legal historians. For example, the idea of custom as law
and the ability of custom to override the generally applicable law pose interesting jurisprudential questions.
Moreover, the tempering of law with conscience, as evidenced by the Chancellor’s role and St. German’s
Doctor and Student, also raises philosophical questions. Similarly, the notion of “reason,” given its dynamic
nature and Coke’s elevation of it as a core idea in what was law, also pose jurisprudential questions. Legal
historians have long been interested in the influence of reason and conscience.64 Not much argument would
seem necessary to establish the jurisprudential nature of these topics. The first sentence of John Baker’s
book says, “What is the law? That Socratic question has been much debated by writers on jurisprudence,
65. See Baker, supra note 58, at 1.
66. See Ronald Dworkin, A Matter of Principle 146 (1995). This particular essays discusses “how law is like literature.”
Moreover, he says that such statements are descriptions, evaluations, and interpretations of legal history. See id. at 147.
67. See Harold Berman, Law and Revolution: The Formation of the Western Legal Tradition 12 (1983); Anthony
Musson & W. M. Ormrod, The Evolution of English Justice: Law, Politics, and Society in the Fourteenth Century
(1999); Robert Palmer, English Law in the Age of the Black Death 1348-1381 (1993). Economic and legal change have
been of significant interest to American legal historians such as Willard Hurst and his intellectual descendants.
68. See David J. Ibbetson, A Historical Introduction to the Law of Obligations 294-302 (1999).
69. See, e.g., Michael Freeman & Andrew D.E. Lewis, supra note 25 (1999). Interestingly, Andrew Lewis is a legal
historian.
70. See Anthony Julius, Introduction, in id at xi, xii-xiii.
71. See, e.g., Posner, supra note 7, at 54-70, 320-52; Betsey Seaman, Lawyers in Chaucer’s Time, 6 ALSA Forum 187
(1982); White, supra note 6, at 51-56, 104-14, 281-84, 899-926.
13
in its modern sense of abstract legal philosophy . . . .”65 Ronald Dworkin states that understanding what
lawyers say the law is, a notion that seems similar to Baker’s second body, is “the central problem of
analytical jurisprudence.”66
Legal history scholarship also raises issues of institutional and doctrinal change that might be of
interest to both philosophers and social scientists. Several legal historians such as Harold Berman, Anthony
Musson, and Mark Ormrod, and Robert Palmer have used the concepts of revolution and evolution to
characterize this process.67 Although David Ibbetson’s A Historical Introduction to the Law of
Obligations focuses on the development in tort and contract doctrine, it also illustrates the author’s view
of “legal change and legal continuity.”68 Further, Robert Palmer recently presented an impressive paper,
Conceptualizing Major Legal Change, dividing the period 1100-1570 into periods of revolution,
transformation, incremental change, and evolution. But institutional change and the phenomenon of
transformation are not limited to history and law and may be of interest to scholars in various disciplines.
B. Legal History and Literature
Law is ubiquitous in literature. Literary works from Greek tragedies through modern literature have
been studied in law and literature courses and the subject of interdisciplinary scholarship. This law and
literature movement, although attracting interest in England,69 has been more robust in the United States.70
This movement has included medieval and early modern English literature,71 producing substantial
72. See, e.g., Richard F. Green, A Crisis of Truth: Literature and Law in Ricardian England (1999); Richard F. Green,
Medieval Literature and the Law, in The Cambridge History of Medieval English Literature 407 (1999); Joseph A.
Hornsby, Chaucer and the Law (1988); Daniel J. Kornstein, Kill All the Lawyers: Shakespeare’s Legal Appeal (1994);
Emily Steiner & Candace Barrington, eds, The Letter of the Law: Legal Practice and Literary Production in Medieval
England (2002); E.F.T. Tucker, Intruder into Eden: Representations of the Common Lawyer in English Literature 1350-
1750 (1984); Luke Wilson, Theaters of Intention: Drama and Law in Early Modern England (2002); John Alford, Law
and Literature in Medieval England, 92 Publications of the Modern Lang. Assoc. 941 (1977).
73. See Alford, supra note 72, at 941.
74. See Frederick Pollock & Frederic William Maitland, The History of English Law Before the Time of Edward I 161 (2d
ed. 1968).
75. See, e.g., Tucker, supra note 72.
76. See Green, Medieval Literature and Law, supra note 72, at 418-31.
77. See Hornsby, supra note 72. The author was a lawyer before becoming an English professor.
78. See Alford, supra note 72.
14
scholarship.72 Medieval and early modern literature contains numerous portrayals of the legal system and
lawyers that may offer a rich scholarly opportunities. One commentator noted that “the association
between law and literature has never been more impressive than in Medieval England”73 and Maitland
concurred.74 Thus, another possibility for interdisciplinary expansion involves the use of literature in the
study of legal history.
Contemporary literary sources might be of interest to the legal historian. This literature reflects
social attitudes toward lawyers and perceptions of the legal system.75 Whether these frequently hostile
views, which are commonly conveyed through satire, romanticization of outlaws, and nostalgic glorifications
of bygone years and practices,76 accurately reflect the full range of social attitudes is questionable. Literary
sources might be of greater interest if they reflected doctrinal and institutional insights and provided
knowledge about the operation of contract, tort, and property law or courts, juries, legal procedure, and
pleading. One scholar saw Chaucer as a rich source of information about the secular and canon law
governing agreements and about criminal law and procedure.77 Another commentator found similar
information about pleading, legal procedure, land law, and charters in works such as Langland’s Piers
Plowman, The Pearl, The Owl and the Nightingale, and Grosseteste’s Chateau d’ Amour.78 Another
79. See Robert Wilcher, The Writing of Royalism 16-28-1650 (2001).
80. See Jonathan Rose, Of Ambidexters and Daffidowndillies: Defamation of Lawyers, Legal Ethics and Professional
Reputation, 8 U. Chi. Law School Roundtable 423 (2001).
81. See, e.g., Alford, supra note 72, at 941; Hornsby, supra note 72, at 7-30; Kornstein, supra note 72, at 13-21.
82. See Ernst. H. Kantorowicz, The King’s Two Bodies 24-41, 451-95 (1997).
83. See Green, Law and Literature, supra note 72, at 407; Steiner & Barrington, supra note 72, at 1-2.
84. See Green, Law and Literature, supra note 72, at 407; Steiner & Barrington, supra note 72, at 2.
85. See Steiner & Barrington, supra note 72, at 2, 4.
15
used 17th century literature to indicate the ideological development of “royalism.”79 Using 16th and 17th
literary works helped me understand why accusing a lawyer of disloyalty, being an “ambidexter” in
contemporary parlance, was so clearly defamatory in early defamation law.80
Two factors limit the usefulness of the literary sources for the legal historian. First, literature is
fiction. Second, it is indirect evidence of legal institutions and doctrine. For both reasons, it is not as reliable
as direct evidence - plea rolls, statutes, and contemporary law books. However, the issue is whether the
literature would be worth examining, not whether they ought to be a determinative source. Many of the
authors were lawyers or otherwise connected to the legal system and many of their depictions may be
valid.81 Finally, although they may be indirect sources of law, they still may enhance understanding and
knowledge. Kantorowicz’s classic, The King’s Two Bodies suggests a positive answer, beginning with
an inquiry into Shakespeare and ending with one into Dante.82
Whether medieval and early modern literary scholarship would be of interest is less clear. Its
traditional focus has been on legal writing as literature and on the thematic depiction of law in literature.83
More recently, it has attemped to understand law and literature as “parallel forms of discourse.”84 This
approach capitalizes on the perceived integration of medieval law, political theory, and theology and
“enable[s] medievalists productively to reshape law-and-literature studies, namely, the peculiar linguistic,
rhetorical, and generic affinities between medieval law and literature. . . . and develop innovative
approaches to medieval texts.”85 The traditional approach may be of interest to legal historians because it
discusses the subject in both legal and literary terms that will be understandable to most legal historians, as
86. See Victoria Kahn & Lorna Hutson, Introduction, Rhetoric and Law in Early Modern Europe 4 (Victoria Kahn &
Lorna Hutson eds 2001).
87. See Steiner & Barrington, supra note 72,.
88. See id. at 3.
89. See id. at 9.
90. See Wilson, supra note 72, at 6.
16
Richard Green’s A Crisis of Truth illustrates.
On the other hand, many historians will confront significant problems in understanding the newer
scholarship, which reconceives legal history as a “critical reading of law,”86 as its post-modern approaches
and jargon present significant barriers. For example, the introduction to a recent work on medieval literature
describes its “encounter” with law as “significantly determin[ing] explorations of character, negotiations of
discursive and literary boundaries, definitions of genre, the positioning of disciplinary and spiritual authority,
the notions of a literary career, the status of material text, and the conceptualization of linguistic truth.”87 It
characterized the work of John Baker, Paul Brand, and others as “new histories of insular law [that] have
also helped to renegotiate the relationship between law and literature by uncovering issues significant to the
conditions of medieval literary productions: political and ethical authority, coercion and social class,
competing local and royal jurisdictions, communal negotiations, the rise of literate professions, and the status
of the written record.”88 Finally, it asserted that the “new incarnation” of Anglo-Norman, which was
declining as a “language of personal and literary expression” as law French “signaled the channeled
authority of the aristocracy’s representatives, the lawyers and legal clerks of Westminster and the courts
(those who, not incidentally would form a ‘coterie’ of poets reshaping a tradition of English letters.)”89
Similarly, a recent book on early modern drama and law, focusing on drama’s creation of a language of
intentional action and agency, asserted that the “imbrication of agencies, crossing the gap between lived
experience and its simulation, will turn out to suggest complexities that lead in several related directions:
toward the phenomenology and economics of theatrical practice; toward legal fictions of personality that
like similar theatrical fictions arise in order to serve a range of needs; and toward a series of metaphors of
agency, ”90 identifying the vulnerability of drama “to the upstaging intrusions of other institutions and
91. See id. at 3-4. The book asserts, that “theater and law both reflected the evolving discourse of actions, where these
actions are at the same time governed by a shifting notion of intention, understood as the open-ended process by which
people figuratively stretch towards some conclusion which is not yet forgone.” See Erith Jaffe-Berg, Book Review, 33
Sixteenth Century Journal 1200 (2002).
92. See, e.g., Paul Brand, Book Review, 12 The Ricardian 526 (2002)(reviewing Richard Green, A Crisis of Truth). Although
Brand found much in the book to be of interest and suggestive, he also found “much that is plainly wrong or at least
highly misleading.” See id. at 528. Similar problems exist in Steiner & Barrington, supra note 72. Another reviewer of
Green’s book, stated that venturers from other disciplines into law were “brave” and expressed hope that legal historians
would take Green’s literary views as authoritative, but not his views on legal history. See Elizabeth Fowler, Book Review,
78 Speculum 179, 181 (2003).
93. See Fowler, supra note 92, at 180-81. My participation in a conference on medieval literature and law left me with such
an impression.
94. There is considerable interest in the history of contract law, including assumpsit and Slade’s Case. See
David Sacks, The Promise & Contract in Early Modern England: Slade's Case in Perspective & Luke Wilson, Ben
Jonson and the Law of Contract, in Kahn & Hutson, supra note 86, at 28-53. 143-65. A bibliography of medieval law
and literature scholarship identified over 900 such works, although many were not related to English law. See John
A. Alford & Dennis P. Seniff, Literature and Law in the Middle Ages: A Bibliography of Scholarship (1984).
95. See Fowler, supra note 92, at 181.
17
discourses” and law as one of the primary upstaging institutions, “whose discourse is often so hermetic.”91
Perhaps legal historians ought to examine the literature contemporary with their scholarly period.
Whether a corresponding interest in literary scholarship will emerge is more doubtful. Some may raise
questions about this scholarship as some of its treatment of law seem superficial and sometimes erroneous.92
Scholars in both fields may think the other discipline is insular.93 But there is no doubt that literature
professors are interested in law and legal history scholarship94 and believe that explorations of law by
outsiders from literature and other fields is “salutary.”95
C. Legal History and Economics
Economics has sparked the interest of some legal historians. Dan Klerman has been the pioneer
in this effort. Both the American Society of Legal History and the American Law & Economics Association
meetings have had panels, some of which involved medieval and early modern English history. Two
different ways exist in which economics might be relevant to legal history. First, one might use economic
theory to explain institutional and doctrinal development; and, second one might apply economic and
quantitative methods to historical data to enhance understanding its implications.
Exposure to a few articles using legal history to explain institutional development creates some
skepticism as to whether such scholarship will create much resonance with legal historians. For example,
96. See Chris William Sanchirico, Games, Information, and Evidence Production: With Application to English Legal
History, 2 Am. Law & Econ. Rev. 343 (2000).
97. See id. at 358-61.
98. See David Haddock & Lynne Kiesling, The Black Death and Property Rights, 31 J. Leg. Studies 545 (2002).
99. See id. at 585-87.
100. See Gary Anderson & Robert Tollison, Barristers and Barriers: Sir Edward Coke and the Regulation of Trade,
13 Cato Journal 49 (1993).
101. Ron Harris has identified examples of the increased use of history by law and economics scholarship. See Harris,
The Uses of History in Law and Economics, supra note 57, at 12-28.
102. See Robert C. Ellickson, Order Without Law: How Neighbors Settle Their Disputes (1991).
18
one scholar used game theory and a trade-off model “between the ‘fixed costs’ of holding hearings and cost
of evidence produced therein to offer an explanation for the transition from from a self-informing jury to
a system where the parties supplied the evidence.96 He posited that the transformation of the jury and the
consequent reliance on party produced evidence was a “cost saving measure, made urgent by ever
increasing opportunity costs of process” due to increases in labor productivity.97 Another article used the
“decreased marginal value of nonhuman assets” and the increased marginal value of labor and human capital
to explain the impact of the Black Death on the feudal system and the evolution of property rights.98 The
authors suggest that Black Death made human factors of production more valuable, weakening feudal
institutions and communal property, and that nonhuman resources such as land became less valuable,
causing abandonment of land and titles.99 Another piece used public choice theory and rent seeking to
undermine Edward Coke’s free market reputation, noting the influence of judicial fees on the 17th century
jurisdictional disputes.100 Economists may find medieval and early modern English legal institutions and
doctrine worthy objects of research101 although many legal historians may not have reciprocal interests.
However, one development in law and economics, the norms literature, should be noted. The
seminal work is Robert Ellickson’s 1991 book, Order Without Law.102 Since its publication, a substantial
body of scholarship has emerged, examining the nature of norms and their formation, their role in regulating
103. See, e.g., Richard McAdams, The Origin, Development, and Regulation of Norms, 96 Mich. L. Rev. 338 (1997); Eric
A. Posner, The Regulation of Groups: The Influence of Legal and Nonlegal Sanctions on Collective Action, 63 U. Chi.
L. Rev. 133 (1996); Lisa Bernstein, Merchant Law in a Merchant Court: Rethinking the Code’s Search for Immanent
Business Norms, 144 U. Pa. L. Rev. 1765 (1996); Symposium, The Legal Construction of Norms, 86 Va. L. Rev. 1577 (2000);
Symposium, Law, Economics, and Norms, 144 U. Pa. L. Rev. 1643 (1996). Ron Harris has shown how norms scholars have
used history in their work. See Harris, The Uses of History in Law and Economics, supra note 57, at 26-28.
104. See Harris, supra note 57. The author identifies “historical new institutional economics” as a new development with
potential to increase the use of economic history by legal historians. See id. at 21-40, 61-66.
105. Daniel Klerman, Settlement and Decline of Private Prosecution in Thirteenth-Century England, 19 Law & Hist. Rev.
1 (2001).
106. See Ron Harris, The Encounters of Economic History and Legal History, supra note 57; Daniel Klerman, Statistical
and Economic Approaches to Legal History, University of Illinois (2002) (forthcoming).
19
social behavior, and their relationship to law.103 This literature may suggest several areas in which
economics might intersect English legal history: custom, dispute settlement, and the law merchant. For
example, overriding legal rules by local social norms may suggest some analogy with the Kentish inheritance
custom of gavelkind. Extra-legal settlement of disputes might seem comparable to the medieval institution
of “love day” and the widespread use of arbitration. The literature regarding commercial norms might have
congruence with the process and rules of the medieval law merchant and the use of merchant juries. The
norms literature may suggest that changing trends in the discipline of economics may make it more relevant
to legal historians.104
Turning to the second way in which economics and statistics might be relevant to legal history, the
use of quantitative methodology, the potential is intriguing. Dan Klerman used quantitative methods to show
that in 13th century England “changes in the treatment of settled cases can explain the rate of private
prosecution.”105 More generally, both Klerman and Harris consider the absence of economic and statistical
approaches to legal history unfortunate, urge expanding their use, and discuss several scholarly works to
illustrate the potential that these theories and methodology hold for legal history.106 Christopher Brooks,
who chaired an American Society of Legal History program on quantitative methods, and Robert Palmer
have collected substantial data on the medieval and early modern legal systems that might be used in such
an effort. A problem in pursuing this suggestion for interested legal historians is the needed expertise, both
in economic theory and quantitative methods.
V. Conclusion
107. See, e.g., Edward Powell, Kingship, Law and Society 91-94 (1989); Susan Reynolds, The Emergence of Professional
Law in the Long Twelfth Century, 21 Law & Hist. Rev. 350-51(2003).
108. See K.B. McFarlane, The Nobility of Later Medieval England 2 (1973).
109. I am grateful to Robert Kagan and Robert Post for this suggestion.
110. See, e.g., Maitland, Introduction, Otto Gierke, Political Theories of the Middle Ages, supra note 59; Frederic William
Maitland, England Before the Conquest, in The Domesday Book and Beyond 220-356 (1897, 1966 ed.); The Corporation
Sole & The Crown as Corporation, Law Quarterly Rev. 1900 & 1901, reprinted in 3 Collected Papers of Frederic
William Maitland 210-243 & 244-70 (1981).
20
In summary, there are distinct possibilities for expanding interdisciplinary efforts involving English
legal history for those interested in pursuing them. That those possibilities are more feasible when using the
information of other disciplines, but more difficult when using their theories and methods. Nor are the three
disciplines discussed above the only possible interfaces. Science, religion, and anthropology are also
candidates. Some English legal historians have exhibited interest in anthropology.107 Further, connecting
in a more fundamental way with other disciplines offers greater potential for influencing the nature of English
legal history.
The intellectual strength of English legal history is its persistence and objectivity. Claims about the
development of legal institutions and doctrine must be solidly based in original sources to gain respect as
good scholarship. Although called the “King’s Friends,”108 legal historians have been relatively untouched
by the culture wars that have beset the academy, especially in the United States. Thus, English legal history
is neither trendy, as been charged of the “law ands” nor a political battlefield as has also been true for these
other endeavors. Perhaps its nature, as discussed above, has accounted for this persistency and immunity.
On other hand, if it has a shortcoming, it is its narrowness. Perhaps it would be useful if some scholars
connected the discussion of institutional and doctrinal development to “big ideas.”109 Those big ideas are
often likely to be found in theories of other disciplines. But not all English legal historians would view an
increase in conceptual scholarship as intellectually beneficial. On other hand, it is arguable that since
Maitland legal history scholarship has narrowed. Some of Maitland’s scholarship was quite conceptual.110
Thus, some forays in a conceptual vein would seem worthwhile.
Larger questions emerge in comparing the English and American scholarship. First, it is doubtful
111. See, e.g., John Watts, Henry VI and the Politics of Kingship (1996); Christine Carpenter, Political and
Constitutional History: Before and After McFarlane, in The McFarlane Legacy 175-206 (1995).
112. See, e.g. J.M. Beattie, Crime and the courts in England, 1660-1800 (1986); Douglas Hay, Peter Linebaugh, John G.
Rule, E.P. Thompson, & Carl Winslow, Albion’s Fatal Tree (1975). Several of these authors are Canadian.
113. See William Twining, Blackstone’s Tower:The English Law School 2-4, 37-38, 53-58, 177-81 (1994). Twining spent
time at the University of Chicago and with the noted realist, Karl Llewellyn.
21
whether what has been said about the nature of medieval and early modern English legal history would be
equally valid with respect to American legal history. These two types of legal history seem different. There
seems to be no Hurstian tradition in this English legal history. Nor is there anything comparable to Morton
Horwitz’s The Transformation of American Law. English constitutional history seems to within the
province of historians,111 not lawyers as compared with United States where both are mutually interested.
Similarly, scholarship on early modern crime has been of greater interest to historians112 than English legal
academics while in the United States it spans both disciplines. Also some American legal history seems
quite conceptual as well as less insulated from the socio-economic trends than its English medieval and early
modern counterparts.
Various reasons for these differences emerge. English and American legal institutions differ.
Horwitz’s work is a descendant of legal realism, a philosophical movement that had little influence in
England. Also, differences in the nature of the English legal academy may also be a factor. English legal
education is undergraduate and English legal academics have not had the same scholarly tradition as their
American counterparts. My impression is that scholarship is becoming more the norm in England, perhaps
as a result of external assessment. Also William Twining, an English academic, has suggested that English
legal education ought aspire to greater interdisciplinarity.113 Moreover, a more thorough comparison needs
to be sensitive time periods. Comparing medieval and early modern English legal history with American
legal history may be both apt and problematic and comparing similar time periods should be explored.
Thus, the more interesting essay, one comparing English and American legal history, is perhaps not the one
I have written, but one that remains.
Aug. 18, 2003
