Kunal M. Parker

Context in History and Law: A Study of the Late Nineteenth-Century American Jurisprudence of Custom

Lawyers have long been depicted as having a conflicted relationship to that modern style of contextual thought we call "history." Their efforts to think about law have been alternately lauded for contributing to, and criticized for falling short of, a full-fledged historical consciousness.	1
On the one hand, scholars have long assigned lawyers a prominent role in the unfolding of modern historical consciousness. The foundational relationship between the emergence of legal history and the emergence of historical thinking is one of the received truths of the intellectual history of early modern Europe. The same is true of the relationship between legal history and historical thinking in the nineteenth century, with legal thinkers such as Savigny, Fustel de Coulanges, Maine, Maitland, and Henry Adams filling out the ranks.¹	2
On the other hand, scholars regularly castigate lawyers for their inability to think of law in a fully rounded historical context. Among contemporary American legal historians, Robert Gordon has perhaps made this point most powerfully. For Gordon, the shortcoming of much American legal history, at least before the pioneering work of J. Willard Hurst, was that lawyers tended to write "internal" rather than "external"—i.e., not thoroughly contextualized—history.²	3
In this article, I seek in part to reverse the directionality of the constructed relationship between legal thought and history according to which legal thought is judged in terms of its contribution to, or falling short of, that mysterious black box called historical consciousness. Instead, I render a specific fragment of vanished historicist legal thought—the late nineteenth-century American jurisprudence of custom—into a provisional vantage point from which to look upon historical consciousness in our own moment.	4
It is important that I be explicit about what I intend in seeking a provisional vantage point from which to examine contemporary historical consciousness. Historians can produce or eliminate difference between objects—or between parts of a single object—through the intellectual device of extending or collapsing distance between them, that is, through changing scale. Kept at a certain remove, the late nineteenth-century American jurisprudence of custom might reveal certain features of itself that could usefully illuminate certain features of contemporary historical consciousness. Brought closer, those features might recede from view and reveal other levels of detail; the late nineteenth-century American jurisprudence of custom might then begin to look just like contemporary historical consciousness. The one is not more correct than the other. Here, I attempt the former, while remaining aware of the latter as a possibility.³	5
The fact that I use an instance of historicist legal thought as opposed to a species of non-historical legal thought—say, law and economics or natural law or religious law—as a vantage point from which to look upon contemporary historical consciousness should be read as evidence of my commitment to the historical method and of the fact that this article is intended as a critique "from within." But it also has implications that will become clear shortly.	6
From a basic historiographical point of view, that of "filling out" our picture of the past, this article extends recent scholarship on the historical thought of late nineteenth-century American lawyers. As such, this article forms part of an ongoing attempt to reorient our understanding of the intellectual world of late nineteenth-century American lawyers toward the broad significance of historical thinking and away from the over-represented story of the "revolt against formalism."⁴ In the late nineteenth century, historical thought in law—often labeled the "Historical School"—was centrally concerned with custom.	7
Contemporary disciplinary history is a type of contextual thinking. In this regard, it shares much with other contextualizing disciplines in the human sciences. However, what distinguishes history is its explicit choice of context. Unlike kindred disciplines in the human sciences, history's ultimate, unshakeable, and unquestionable context is time, specifically, that brand of time we have come to know as "historical." Historians continually identify objects—things, figures, texts—and then situate them in relationship to one another "in" historical time.	8
Evidence of historians' commitment to locating objects "in" historical time abounds. Among the gravest errors a professional historian can commit is "anachronism"—situating an object "in" the "wrong" historical time or, God forbid, treating it as if it existed "outside" historical time altogether. Furthermore, a large part of historians' professional activity consists of giving density and meaning to historical time as objects are progressively added "to" it. I am referring, of course, to the organization of historical time into "periods" that are alternately set off from, or made to bleed into, each other. All of these different aspects of one basic type of contextualization—situating objects "in" historical time, identifying and correcting anachronisms, coming up with different periodizations—keep the formidable engine of professional history running.	9
There has been a rich philosophical—not to mention artistic and literary—tradition that has sought, implicitly and explicitly, to criticize professional historians' efforts to contextualize objects by placing them "in" historical time. I will advert to that tradition before moving to the characterization of contemporary historical consciousness with which I am concerned. This juxtaposition is important in order to distinguish what is being attempted here.	10
In the early twentieth century, professional historians' efforts were often described as attempts to domesticate whatever was vital or charged about the past and to render the past itself a kind of dead object—an object contained in and as a historical time distinguished chiefly by being irretrievably gone, never to return, fit only for scientific contemplation. Within the logic of this critique, the past can never be contained as an object "inside" a historical time that has vanished irretrievably. Past time and past objects keep bubbling up, speaking to us, and claiming us in unpredictable, "non-scientific" ways despite professional history's strenuous efforts to present us with a formal garden landscape of discrete objects located in discrete periods. These forms of bubbling up have been represented variously as the registers of memory, experience, hope, the fundamental temporality of Dasein, types of historical ontology, and so on. Many early twentieth-century thinkers—Henri Bergson, Walter Benjamin, Ernst Bloch, Martin Heidegger, and Marcel Proust, to mention only a few of the most prominent—might be read as associated with this tradition in different ways.⁵	11
In a marvelous book tellingly entitled The Limits of History (2004), the historian Constantin Fasolt reinvigorates this tradition. Fasolt shares many of the concerns about contemporary historical consciousness that animate this article. My aim in engaging with his work at some length is in part to draw legal historians' attention to it. But there are also differences.⁶	12
Through a detailed reading of the work of the seventeenth-century German scholar Hermann Conring, Fasolt argues that historians routinely objectify the past. He reads this objectification as a conceit originating in early modern Europe that sought to drive a sharp break between the past, on the one hand, and the present and the future, on the other hand. Rendering the past a delimited—hence contextualizable—object served to free up the present and future for radical reimagination, often in the form of "politics." This observation is developed in the conclusion where I speculate about the link between historical consciousness in early twentieth-century legal thought and the attack on the "law"/"politics" distinction.	13
But Fasolt goes further. Like many of the early twentieth-century thinkers associated with the tradition to which he is heir, he appears to take very seriously indeed the idea that there is something that professional history fragments or destroys. At one point, he depicts professional history as a murderous science that yields "butterflies on pins." As professional historians, we seem to be killing something—but what is it?⁷	14
Fasolt's answer has a distinctly Heideggerian ring: "The search for greater objectivity is bound to deepen [professional] history's failure to tell the truth about the world of time ..." (emphasis added). Shortly thereafter, Fasolt suggests that the "way to extricate oneself from history's spell" might lie in "experience." Even later, he approvingly cites Wittgenstein's invocation of the "inexpressible" that "shows itself...."⁸	15
Fasolt is reworking the classic early twentieth-century opposition between a formal, scientific, objectifying, simplifying, fragmenting, professional history and a vital, non-scientific, non-objectifiable, complex, continuous "world of time" and "experience" (my agglomeration of adjectives is admittedly hyperbolic). For Fasolt, one might speculate, the former is ultimately grounded in the latter. The former emerges out of the latter, even as its drive—and ultimate inability—fully to grasp the latter keeps the engine of professional history running.	16
Fasolt's object is not so much to give us access to the "world of time" or "experience" as it is to alert us to the limits of historical knowledge. We should not pretend, he cautions, that history can accomplish everything for us. To understand something "historically" is an act of assertion and violence, a splintering of the "world of time." In a tragic vein, he affirms his commitment to the historical method in full consciousness of its limits: "No other way leads forward than to practice the principles of the craft in full awareness of their poverty."⁹	17
Yet Fasolt secures for his reader the experience and imagination of history's "poverty" in part through the invocation of a classic European (declension) narrative—the gap, or what he calls the "incommensura[bility]," between non-modern forms of authority and temporality and modern forms of historical temporality.¹⁰ Fasolt details how his subject, Hermann Conring, caricatured the thought of the medieval legal thinker Bartolus of Sassoferato in an attempt to historicize the Holy Roman Empire. In so doing, Fasolt shows, Conring brutalized Bartolus's complicated account of the relationships among God, political order, and time. In Fasolt's rendering, then, our inability as historians to capture "the world of time" acquires form through the "incommensurability" between medieval and modern, God and History (to be sure, Fasolt would argue that God merely stands in for many kinds of non-historical knowledge).	18
To start off, we have no reason to believe that one end of Fasolt's dichotomy is any less an act of assertion or violence than the other. In their emergence, deployment and thematics as categories, "the world of time" and "experience" are as thoroughly asserted as any of the "butterflies on pins" whose limits Fasolt is at such great pains to point out.¹¹ Such a statement might summon forth the charge that it is already too thoroughly historical in its suspension of faith, its fatal incomprehension of medieval holism, and its bald attempt to bridge the "incommensurability" we have had so beautifully pointed out for us.	19
My object, in contradistinction to Fasolt's, is not to point (yet again) to that hidden lack, that "incommensurability," that simultaneously drives and deludes the engine of professional history. It is emphatically not to diagnose the problem of historical objectivity, its ambitions and failures. It is rather to tarry, if indeed that is possible, at the level of surfaces or forms—to illuminate one surface or form (contemporary historical consciousness) through another (the late nineteenth-century American jurisprudence of custom).	20
There is a point to focusing on forms of historical consciousness and to eschewing references to philosophically derived categories such as "the world of time" or "experience" that are ultimately not only immediately external to the workaday concerns of professional historians, but also—far more important—both utterly familiar and often predictable in their valences. It is often the compulsions of form, rather than any felt apprehension of "incommensurability" and the need to bridge it, that drives professional history. And it is in the details of forms that we may yet hope to surprise ourselves. For the "limits of history"—and we will suggest in conclusion that these limits might serve different purposes from those Fasolt gives them—might be discovered in places other than the classic European narrative, tragic or triumphal or Stoic, about the advent of a historicizing modernity. They might lie on the surfaces of utterly modern historical forms.	21
My decision to use one modern historical framework with which to view another, therefore, should be read as a turning away from an overdetermined European meta-narrative with deep roots in modernism's own quest for deep roots. However, it might also be seen as history attempting to learn from law, of the historian taking his or her object of inquiry so seriously as to learn from its very form for his or her purposes. As I show in my examination of the late nineteenth-century American jurisprudence of custom, law can produce its own context. If this is a source of frustration for many students of law with a grounding in the humanities and social sciences, it is also evidence of law's ability to regenerate itself from and through itself. In seeking to contextualize one historical form in terms of another, I seek to replicate this form. Let us turn, then, to these historical forms themselves.	22
Contemporary historical consciousness produces the effect of limitlessness. Part of its effect of limitlessness lies in the way professional history effortlessly absorbs the language of any critique into its self-representations. Fasolt's characterization of the professional historical enterprise—as scientific, fragmenting, simplifying, yielding "butterflies on pins"—is completely at odds with the way many contemporary professional historians describe what they do (which does not mean at all that Fasolt is wrong on his own terms). If anything, contemporary professional historians are more likely to characterize their activities as thoroughly non-scientific, complex, and continuous, i.e., in terms ironically closer to traditional characterizations of the "world of time" or "experience" than to Fasolt's characterization of professional history. Witness the historian John Lewis Gaddis's recent extravagant paean to historians' commitment to complexity and aversion for oversimplification, to their faith in multiple causes and the interdependence of variables, and to their essentially unscientific contextualizing practices.¹² But by far the more important part of professional history's effect of limitlessness lies, I suggest, in the form and aesthetic of "complexity" that characterizes contemporary historical knowledge.	23
Contemporary historians are fond of affirming their commitment to "complexity"; this is often how they go about distinguishing history from other law-setting disciplines. But how do historians go about producing the effect of "complex" knowledge? One extremely important means of producing this effect, I suggest, is through a simultaneous absorption and containment within the frame of historical time of mutually inconsistent or opposed or distinct objects. For example, a favored device in social history is to hold together a species of oppression and a species of resistance (for every landlord, a peasant). Intellectual history regularly points to, indeed insists upon, the existence within the same historical time of objects—for example, schools of thought—radically different from each other that "complicate" any picture we can produce (this could, indeed, be a reading of what this very article is about when set against the backdrop of the received wisdom about late nineteenth-century American legal thought). This holding together of mutually opposed objects implies a transcending of the limits of any one of them. As such, "complexity" is a gesture toward limitlessness.	24
There is a related way in which professional history produces a sense of limitlessness. We have been living for some time now under an intellectual regime that dictates that every object is "socially" or "historically" constructed (the distinction between the two terms is often blurred and is at any rate unimportant for my purposes). Objects mutually opposed, objects theoretical and practical, objects of different levels of specificity, indeed the future itself may all be grasped as social and historical. So it is worth asking: what precisely do we gain by placing objects—especially opposed or inconsistent or distinct objects—"into" social/historical context when we know in advance that every object is socially/historically constructed and every historical period is as "complex" as every other? What we obtain, I suggest, is nothing other than a self-indexing of the social/historical context as "complex" and hence limitless. The aesthetic here is one of delighting in the ceaseless reconfirmation of the "complexity"—hence the infinite extensibility—of the social/historical frame.¹³	25
This commitment to "complexity" fully describes contemporary American legal history. Under the aegis of the thoroughly stultifying formula according to which law is simultaneously "constitutive of and constituted by" the social/historical, every legal artifact and its effects may be lifted out of, only to be dissolved back into, the social/historical. Indeed, the very way in which the logical opposites "constitutive of" and "constituted by" are simultaneously contained and transcended within the social/historical serves to index the "complexity" and limitlessness of the context itself. At the same time, a variety of objects—judicial opinions, statutes, constitutions, treatises, legal personalities, and so on—are continually assembled and reassembled so that they confirm or deny or render "complex" a progression of periods (Classical Legal Thought, Sociological Jurisprudence, Legal Realism, Legal Process, and so on) through which historical time receives its extension and meaning.	26
It is against this backdrop of hypertrophic self-indexing social/historical "complexity" and limitlessness that I turn to the late nineteenth-century American jurisprudence of custom. The late nineteenth-century American jurisprudence of custom affords us a different model of the relationship between a temporal context and its object.	27
Instead of thinking in terms of a temporal context that could accommodate any object whatsoever, as our contemporary social/historical frame can, late nineteenth-century legal scholars thought in terms of a perpetual mismatch between temporal context and object, a mismatch having to do with the way they represented time itself. This mismatch acted as a sharp brake on the ability of a temporal context to fully contain objects, which in turn prevented it from acquiring the effect of "complexity" and limitlessness that historians produce today. Unlike contemporary historians, who remind themselves of the limits of history only to forget them soon thereafter, late nineteenth-century legal thinkers built limits directly into their contextual or framing devices.	28
I am not advancing this late nineteenth-century model as a straightforward means of liberation from our own engulfment in "complexity" and limitlessness. This model came with its own forms of self-indexing, as we shall see, and was furthermore associated with all manner of pernicious politics. Nevertheless, tracing its emergence and demise shows us several things.	29
First, at least with respect to nineteenth-century legal thought, it makes visible a form of historical thinking before the emergence of historical thinking committed to "complexity." Early traces of "complex" historical thinking in law are discernible, I suggest, with figures like Roscoe Pound and Melville Bigelow in the early twentieth century and are accompanied by an attack on the "law"/ "politics" distinction so central to nineteenth-century legal thought. Second, the specific discursive ways in which late nineteenth-century legal scholars structured the mismatch between temporal context and object—and the ways in which this mismatch was overcome in the early twentieth century—tell us a great deal about recurrent images of the law and time in late nineteenth and early twentieth-century American legal thought. These images spring up during the most cursory perusal of late nineteenth and early twentieth-century legal texts, but still have not to my mind been sufficiently accounted for. Finally, tracing the development, unfolding, and demise of the late nineteenth-century jurisprudence of custom affords us an example of how lawyers go about producing contexts for law.	30
During the second half of the nineteenth century, custom—which had formerly been equated with the common law and invested with the weight of precedent—was chipped off from law, as it were, and transformed into a context for thinking about law. As such, law produced a frame for itself from a bit of itself. This is in sharp contrast to the contemporary critical historian's need to reach for "the world of time" to measure history's failing, a point that will be taken up in conclusion. At the same time, various politically charged private law ideas infused the idea of custom and gave meaning to this frame.	31
However, what is truly curious about custom as a context—what distinguishes it from our conceptions of social/historical context—was that it was not infinitely extensible. This was because custom was explicitly invested with "life." Thinking as we do in terms of the social and the historical, we find it hard to imagine that anything should resist assimilation into these concepts. But for the late nineteenth-century lawyer who thought of custom as a "living" context, not everything could be rendered alive—some things either could be, or always already were, "dead." As such, the "living" context of custom was not infinitely extensible.	32
To put it differently, "life" was the late nineteenth-century equivalent of Fasolt's "world of time" or "experience" in the sense that it acted as a limit on contexualization. However, unlike Fasolt's "world of time" and "experience," "life" was built directly into late nineteenth-century forms of contextualization. One could not avert one's glance from "life" in the effort to produce contextual knowledge.	33
To be sure, "life" was a discursive artifact. Late nineteenth-century legal thinkers were obsessed with time, and their ideas about time were expressed in terms of a mutually exclusive "life" and "death." "Life" stood for a present and future understood as ceaseless change; "death" stood for a past understood as a cessation of change.	34
Custom was thus a "living" context that, in keeping with the temporal attributes of "life," was the ultimate marker of law's time. It was simultaneously law's present (its "living" ground) and its always elusive future (as "life," custom represented something that was forever slipping ahead of law and in relation to which law was always behind, always a little "dead"). This is why, in the writings of so many late nineteenth-century legal thinkers, the ontology of law appears as that of "behindness," that of a perpetual temporal "gap" between law and its frame or context.	35
The American jurisprudence of custom, as I have called it, may be discerned in the writings of diverse legal thinkers in the closing decades of the nineteenth century (roughly 1870–1900). Here, I examine selected writings of Melville Bigelow, Philemon Bliss, James Coolidge Carter, Thomas McIntyre Cooley, John Forrest Dillon, William Gardner Hammond, Oliver Wendell Holmes, Jr., James Bradley Thayer, Christopher Gustavus Tiedeman, and Francis Wharton.	36
To be sure, there are numerous differences among these thinkers, not least in the extent to which their reputations have survived over time. Almost every jurisprudential school of the twentieth century has claimed Oliver Wendell Holmes, Jr. As a result, Holmes is extremely well known today, even though his major work, The Common Law, is rarely read. Carter is best remembered for his successful opposition to the codification of New York's civil law in the 1880s. Others such as Bliss, Cooley, Dillon, Tiedeman, and Wharton were celebrated constitutional theorists in their day (Bliss and Cooley were also judges). Still others, such as Bigelow and Hammond, were career academics.¹⁴	37
I conclude this introduction by invoking a moment—the early twentieth century—when the demise of the late nineteenth-century American jurisprudence of custom was being openly proclaimed. From this we get a sense of the charges leveled against it and can move swiftly beyond them.	38
In a series of lectures delivered at Cambridge University in 1922, subsequently published as Interpretations of Legal History (1923), Roscoe Pound dealt what he considered a deathblow to the Historical School that, in his view, had dominated jurisprudential thought during the second half of the nineteenth century.¹⁵ The Historical School, as I have stated earlier, was closely associated with the jurisprudence of custom.	39
Pound's chief charge against the Historical School was that, as a species of nineteenth-century idealism, it had promoted passivity and quietism. An important aspect of this passivity and quietism was the Historical School's choice of "life" as a metaphor: "The historical school thought ... in terms of the growth of an organism, in terms of a development by the force of something working from within, wholly apart from human activity." According to Pound, this view had led directly to the excesses of early twentieth-century substantive due process: This opposition [the judges' opposition to, and consequent invalidation of, redistributive legislation] was not due to class bias or economic association or social relations of the judges nor to sinister influences brought to bear upon them, as was assumed so freely in the American presidential campaign of 1912, when such decisions were in issue. The judges were imbued with a genuine faith in the tenets of the historical school, especially the political interpretation and the doctrine of progress from status to contract. Hence it seemed to them that the constitutional requirement of due process of law was violated by legislative attempts to restore status and restrict the contractual powers of free men by enacting that men of full age and sound mind in particular callings should not be able to make agreements which other men might make freely. At the same time, Pound charged, the Historical School had promoted a pernicious romantic antiquarianism: "Something of this sort threatened for a time in America when the historical school was at the height of its influence and teachers were disposed to find solutions of modern legal problems in oracular fragments of the Year Books."¹⁶	40
For all this, Pound recognized that an important legacy of the Historical School had been its discovery of custom as a context for thinking about law. Characteristically, he saw this discovery as a step on the way to his own view of the "social" as a frame for thinking about law: Finally through its attempt to generalize the phenomena of primitive law and of developed systems by a theory of custom it led to the idea of the legal order as part of a wider social control from which it cannot be dissociated. For the historical school thought of the legal order not as a whole nor as a wholly self-sufficient part of social control but as one phase of it, merging back into an undifferentiated religion, morals and law. This way of thinking did much to break down the conception of law as something existing of itself and for itself and to be measured by itself; it prepared the way for the functional attitude of the legal science of today.¹⁷ As this passage hints, Pound has arrived, albeit with greater overt emphasis on control than would now be fashionable, at something recognizable from the perspective of the social/historical frame we operate with today—ultimately, law always is "part of a wider social control from which it cannot be dissociated."	41
Further proof that Pound's frame is similar to our own inheres in the fact that, for Pound, the correct context for understanding law is one that accommodates radical opposites—as such, it is "complex" and extensible. This is clear from Pound's praise of a German legal scholar, Kohler, whose theory of history, according to Pound, accomplishes the following marvelous things: it "recognizes the creative element in legal history, yet it avoids the confident rejection of the past"; it takes account of the need for stability ... and of a need for change"; it "does not hold legal development down to eternally fixed paths with but a narrow margin of wandering within the two walls of each path."¹⁸ One can discern here some of the (future) banality of the idea of showing that everything is socially/historically constructed or that law is simultaneously "constitutive of and constituted by" the social and historical.	42
None of this is intended to contest Pound's reading of the politics of the Historical School. As we shall see, several of the major figures explicitly identified with the American jurisprudence of custom—Carter, Cooley, Dillon, Tiedeman, and Wharton—were conservatives vigorously opposed to codification and social legislation (from workers' rights to civil rights), whether as Jacksonian democrats or otherwise; many disdained the chaotic democratic politics of the late nineteenth century and openly sought to sanctify property arrangements by writing them into the "living" frame of custom; and several wrote long paeans to the history of the common law as the history of the English-speaking peoples or races, in which legislation was dismissed either for not being "real law" or for being a virulent Continental disease.	43
Let us take all this as given. The object here is different. It is to retrieve from a much larger configuration of ideas and impulses, many of which we currently deem objectionable or unacceptable or unsophisticated, a fragment maintained at a specific distance in order that we might use it for ourselves.	44

"Life" and "Death" in the Late Nineteenth-Century Jurisprudence of Custom
To showcase the late nineteenth-century vocabulary of "life" and "death," let us begin with a somewhat obscure text from 1906—a collection of essays written by various members of the Boston University Law School faculty entitled Centralization and the Law and edited by that law school's dean, Melville M. Bigelow.¹⁹ If one were to speak the language of historical periods, this text is already "transitional." Even though it retains late nineteenth-century ideas of "life" and "death" as mutually exclusive markers of time, it has moved beyond such ideas insofar as everything has been dissolved into a "complex" play of mutually opposed social forces assuring a stilling of time into periods of relative equilibrium.	45
Through this collection of essays, Bigelow wanted to set forth a programmatic statement of the Boston University Law School faculty's conception of law: The conception of law which the Faculty of the Boston University Law School stand for is that law is the expression, more or less deflected by opposition, of the dominant force in society. According to this view, society, and with it, the law stand as upon a pivot affected by gravitation. In the classical state of equilibrium we have equality; when that is changed, as lately it has been, we have inequality, and society consequently tottering in its first foothold. This change may too come in the end to equilibrium—a state of inequality as the dominant force in society.²⁰ Inflected by the language of mechanical physics, this is a picture of law lurching from one relatively stable period of equilibrium to another (in this case, a period of equality to a period of inequality), with each period of equilibrium expressing the calibration of opposed social forces.	46
However, what is interesting about these "transitional" essays is the fact that they retain a powerful late nineteenth-century jurisprudential theme, the anxiety of law's "catching up" to a frame explicitly thematized as "life." In the late nineteenth century, as we shall see in greater detail, this frame acted as a temporal marker, simultaneously standing for law's present (as ground) and future (as something that was perpetually ahead of law and in relation to which law was always already a little "behind," a little "dead"). The problem is, of course, that this notion of the perpetual "behindness" of law is at odds with Bigelow's idea of the history of law as a history of relatively stable periods of equilibrium.	47
For Bigelow and his colleagues, the fact that the struggle of heterogeneous, mutually opposed, social forces ensures periods of relative equilibrium means that law can actually "catch up"—this is precisely how the law "expresses" the dominant social force "more or less deflected by opposition." Thus Bigelow can read the Anglo-American legal structure of the first half of the nineteenth century as having eventually "caught up" with the society of the time: Apart from slavery and the condition of the dependent classes, society has been established on that basis [the basis of practical equality] long enough to compel the law, as the servant of dominant influences, to catch up with it and deal with men accordingly; and so the law of the nineteenth century, sometimes called the "classical" age of the common law, was made, or adopted from England where similar conditions on the whole obtained, to preserve such equality, and did preserve it except as slight restrictions on the tariff affected matters.²¹ As a result, this period can be characterized as a classical "age"—the age of Marshall and Story. For Bigelow, when the law "catches up" with the current configuration of dominant social forces, as he has no doubt it will, it will constitute an "age" of inequality.	48
However, at the same time that Bigelow speaks the language of the relative stability of the "ages" of law, he is thoroughly in the grip of the language of law's relationship to an elusive temporality thematized as "life," a relationship that insists on the fact that the law can never catch up with any "age." Immediately after he posits the existence of a classical "age," for example, Bigelow is bound to confess: It does not follow—if it did follow, the facts would contradict the inference—that the law worked satisfactorily in all respects even in such conditions of society [the classical "age"], for no insignificant part of the law of the nineteenth century was an inheritance of preceding centuries and their social conditions. The law is necessarily a continuous stream from past times, down which to our day survivals of other social states and the wreckage of other times have floated. To change the figure, the law is handicapped in all its branches with historical survivals. The lawgiver will not put these aside when he can, and often finds it impossible to put them aside when he would. The law as we have it indeed for us to-day—it is our own law; but it has been made for us to no small extent by other men, living under conditions different from those under which we live. Still this law is for us in our own day, and it should be constantly laying aside the grave-clothes of a dead past.²² Bigelow's fundamentally historicist idea that each "age" possessed its "own" law can make him argue that the law should be taught like "the Order of a Cosmos, every part of it related to and in harmony with every other and the whole."²³ Yet this "Order of a Cosmos" is constantly being disrupted by evidence of the wreckage of the past, which is the being of law itself—"a long dead level, untouched by serious social change...."²⁴	49
Interestingly, the turn to the idea of law as a "complex" play of heterogenous, mutually opposed, social forces that ensures periods of relative stability each resembling the "Order of a Cosmos"—however disrupted by the late nineteenth-century idea that the law is simultaneously reaching toward "life" from "death"—is accounted for in terms of the wrenching experience of the unfolding of historical time, a recognition of contingency. Bigelow's colleague Brooks Adams stated in the same volume: Another aspect of the problem [that law cannot be accounted for by abstractions] is presented in modern civilization, which every few decades is torn from its pasts by the introduction of new mechanical forces. These forces are powerful enough to change the conditions under which competition is carried on, and thereby revolutionize the relations of daily life. To keep pace with this movement we must learn to look on all institutions as tentative....²⁵ The Boston University Law School faculty's proposed "scientific" solution to this experience of tentativeness—a classic forerunner of legal realism—is to have the law learn from a plurality of social groups. This plurality is itself perhaps a version of "complexity" and will no doubt eventually overshadow that experience of tentativeness: "Let us call in business men to help in our teaching in the Law Schools; let us ask them to speak to the students of the relation between business and law—of the difficulties created by constitutions and statutes and judicial decisions, and of the proper remedy. Let us ask underwriters, for instance, to speak of state legislation on matters of insurance, of federal decisions and federal regulation of the subject."²⁶	50
Centralization and the Law is a useful point of departure not only because it is a "transitional text," but also because it casts a glance backwards at the dominant jurisprudential debate of the second half of the nineteenth century. Here is Bigelow describing the state of the field: Two distinct schools have in succession held the field, more or less, of legal education in English and American law, the analytical school of Bentham and Austin and the historical school, imported from Germany and founded at Oxford by Sir Henry S. Maine; though the first named, conspicuous in England in its day, hardly played any part at all in America. Discussed here with interest some thirty years ago, as expounded by its more recent master spirit, Austin—Bentham had long been only a name—it was discussed on the whole adversely, to give place to the historical school, so far as any distinct school of legal ideas followed. In England too the school of Bentham and Austin failed to take root and has been entirely superseded by the historical school. The latter holds its place, wherever it has been received, in undiminished favor.²⁷ As one might expect, Bigelow represented his own "scientific" account of law as the play of social forces as an advance over both schools—the Analytical School was dismissed for grounding law in a priori conceptions, whereas the Historical School was criticized for according too much weight to historical continuity.	51
For all of Bigelow's dismissal of the Analytical School, however, it is important to understand the Historical School of the late nineteenth century, whether in England or America, as a response to the Benthamite challenge.	52
The outlines of Bentham's position were well known. Beginning from the idea that the individual was the basic unit of society and that the purpose of government was to maximize individual happiness and minimize individual pain, Bentham proposed a rational reconfiguration of political and legal arrangements. Espousing the idea of legislative sovereignty, he proclaimed law to be nothing other than the command of the sovereign—an explicit attack on the common law of his day.	53
Quite apart from his identification of the common law's irrationality, excessive fees, unnecessary fictions, complicated procedures, and warped evidentiary rules, Bentham's greatest criticism was, in fact, expressed as a problem of time. As "judge-made law," the common law was uncertain and its precedents misapplied—it did not allow men to approach either the past or the future with certainty. As Bentham put it in one of his more celebrated passages: "It is the judges ... that make the common law. Do you know how they make it? Just as a man makes laws for his dog. When your dog does anything you want to break him of, you wait until he does it, then beat him for it. This is the way you make law for your dog: and this is the way the judges make law for you and me."²⁸	54
Bentham's solution, as is well known, was the code (he invented the word "codification"). He was not proposing a code that would simply distill principles of existing statutory and common law, but a code that would break with the past and truly begin anew—a radical beginning grounded in reason. Codes would render the law clear, straightforward, and easily cognizable by all men. In their very legibility, they would enable all men to approach past, present, and future with confidence. Every man would be his own lawyer; learned professions, as well as mountains of reports, records, and decisions, would be obviated.²⁹	55
In his commitment to a radical new beginning, although he was no democrat, Bentham shared something with the revolutionary political thought of the late eighteenth century. In the name of a self-renewing politics that could alone assure true democracy, American political thinkers such as Thomas Jefferson argued that no society should be able to bind its successors indefinitely through the promulgation of laws—every generation should reinvent its laws and politics. In a celebrated 1789 letter to James Madison from Paris, Jefferson makes this clear: "I set out on this ground, which I suppose to be self-evident, that the earth belongs in usufruct to the living; that the dead have neither rights nor power over it.... No society can make a perpetual constitution, or even a perpetual law."³⁰ Thus, for Jefferson, the problem of law was equally a problem of time—the government by the past of the present and future.	56
Historians of early Republican and antebellum America have demonstrated repeatedly that the commitment to a self-renewing democratic "politics" was often defeated by the efforts of conservative Federalist common law judges in the name of "law," even as those judges instrumentalized law to further capitalist development.³¹ An important part of the deployment of "law" as a bulwark against "politics" lay in the common law's claim to represent the "general custom of the community."	57
If the democratic and Benthamite ideas of the late eighteenth and early nineteenth centuries had sought to justify themselves through a radical break with the past, if they had sought to generate a sense of sharp discontinuity between past and future and deal with this sense of discontinuity by generating mediating ideas like that of a Code or of every generation creating its own law, the competing idea of the common law as the "general custom of the community"—as John Pocock has told us, an idea that had been identified with the very course of English history and liberty since the seventeenth century—contained an entirely different idea of time. In Pocock's formulation, "[c]ustom was tam antiqua et tam nova, always immemorial and always perfectly up-to-date."³² As such, custom was freely confused with precedent, an idea that blurred distinctions among past, present, and future in the name of authority. In other words, the idea of the common law as precedent/custom collapsed temporal difference.	58
During the first half of the nineteenth century, conservative American legal thinkers freely mingled precedent and custom in order to repudiate the democratic and Benthamite commitment to a radical break with the past.³³ For example, in his celebrated Legal and Political Hermeneutics (1839), the German émigré political and legal theorist Francis Lieber could assert that "an old law ... has left a beaten track, it has all the force of custom and habit";³⁴ for this reason alone, it should not be discarded lightly. Indeed, Lieber could compare the respect due to precedent/custom to the respect due to elders: We honor our parents and the aged, because the probability of greater experience is in favor of them—a manner of reason of especial force in those periods in which nearly the whole store of public experience is traditionally handed down, or has to be gathered by personal experience through a long life—in short, when books have not yet, in a considerable measure, supplanted, if not individual experience, for that they never can, yet knowledge of public matters, individually gathered.³⁵ But precedent and custom were not immutable—their weight was the greater because they could always accommodate change. For Lieber, just as for Burke a half-century earlier, precedent and custom brought continuity and change together in a way that radical democratic politics or codification could not.³⁶ Thus, Lieber could caution against "an idolatry of the past or the established" but also argue that, "if we were never to build upon what has been established and decided, but were to begin in every single case entirely anew, progress in any sphere of action would be impossible."³⁷	59
For this reason, Lieber could assert that there was something lifeless about the attempt to fix the law in a Benthamite code. Fortunately, he argued, the essential mutability of language itself defeated attempts thus to render law lifeless. "It would ... be a subject greatly to be deplored if it were possible—happily it is not—to produce a code so constructed as to be closed forever."³⁸ Using the plant life metaphors so prevalent during the first half of the nineteenth century, he followed up: "A code is not a herbarium, in which we deposit law like dried plants. Let a code be the fruit grown out of the civil life of a nation, and contain the seed for future growth."³⁹	60
During the second half of the nineteenth century, this ability to posit the common law's effortless linking up of past, present, and future through a mingled notion of custom and precedent was coming under severe strain. This is clear from two late nineteenth-century Anglo-American treatises on the common law doctrine specifically relating to the recognition of customs at variance with the common law.	61
In order to understand the problem, a few details are in order. If the common law had represented itself as the "general custom of the community," it had also laid down as a related matter certain specific requirements for the legal recognition of customs at variance with the common law, i.e., usages existing outside the pronouncements of common law judges and on behalf of which parties sought legal recognition. This test for recognizing customs at variance with the common law was formalized in the seventeenth century, revised in its details in the eighteenth and nineteenth centuries, and applied in all common law jurisdictions during these centuries. It assumes an idea of custom that is highly revealing of how the common law understood itself as the "general custom of the community."	62
The seventeenth-century test had required that a party seeking recognition as custom of a usage or institution had to show that such usage or institution met certain requirements: (i) antiquity; (ii) continuity; (iii) certainty; and (iv) reasonableness. The requirement of antiquity was that a usage should have existed from a "time whereof memory of man runneth not to the contrary," in other words, that it should have existed "immemorially." The date of legal memory was fixed at 1189, by analogy to the time period for bringing writs of right established by the Statute of Westminster. The requirement of continuity was that a usage should have been exercised without interruption by a number of individuals, any significant interruption constituting proof that the usage had never been a custom at all. The requirement of certainty was that the usage had to be definite—and hence limited—in scope. Finally, the requirement of reasonableness was that the usage should not contradict what the common law considered reasonable.⁴⁰	63
The first two of these requirements, antiquity and continuity, reveal how custom—whether in its guise as the "general custom of the community" or as a custom at variance with the common law—was understood in terms of its link to the past. It is accordingly not difficult to see why it had been so easy to mingle custom with precedent.	64
However, during the second half of the nineteenth century, especially in America, the common law relating to the recognition of customs was increasingly divorcing itself from a link with the past. Practices pressing upon courts for recognition as customs seemed to arise spontaneously. They could point to no extended lineage. This brought about a drastic American revision of the seventeenth-century common law test relating to legal recognition of usages at variance with the common law.	65
John Lawson's Law of Usages and Customs (1887), the only American treatise from this period on the common law relating to custom, faithfully listed the requirements of the seventeenth-century common law test for a usage to win legal recognition as a custom at variance with the common law.⁴¹ Yet the break between custom and the past in Lawson's treatise could not be sharper.	66
Lawson dismisses outright the common law requirement of antiquity as irrelevant to the United States: "[I]t is obvious that the English rule [with respect to the antiquity of a custom] could never have any application here ... for the excellent reason that this country was not discovered until several hundred years [after the legal date that could establish a usage's antiquity]."⁴² But what about the idea that a practice should possess continuity—repetition over an extended period of time by a number of individuals—in order to be legally recognized as a custom? We learn that the requirement of continuity was also under siege: But while usage of trade or business need not be "ancient," as that word is used in the books, it is nevertheless required that it shall be fully established as a usage of trade or business. And time, it is plain, is one ingredient, at least necessary to accomplish this. What length of time shall be sufficient can, of course, not be stated in the form of a general rule, but each case must depend upon the various relations of the trade to the public, the exigencies of the business, and the frequency of the repetition of the particular usage in the time which it may be proved to have existed. Thus, three weeks in the city of New York, where a great number of transactions of the same character take place daily, was considered ... a sufficient length of time to establish a usage in the insurance business restricting the ordinary signification of the word "storehouse," as used in a fire policy....⁴³ According to American courts, therefore, a usage that had lasted only three weeks could possess sufficient continuity to be recognized as a custom of the New York insurance business.	67
A contemporary English treatise on the common law of custom from which Lawson borrowed heavily, J. Balfour Browne's Law of Usages and Customs (1881), best expressed the new view of the relationship between custom and the past. To put it briefly, there was to be none.	68
While admitting that the common law had required that a usage possess antiquity as a condition for its legal recognition, Browne argued that the real point of the requirement of antiquity was not that a usage be old. Rather, its origin should not be attributable to the act of a single individual on the theory that no single individual could be allowed to create law. In other words, Browne read the common law's concern with a usage's age as a concern that a usage be social in origin (the use of the term "social" is mine, not Browne's).⁴⁴ Browne's reading reveals how far custom had come by the 1880s to be delinked from the past—and hence from precedent.	69
Browne's treatise also makes clear something much more significant—and in this respect it is also followed almost word for word by Lawson's. It reveals not only how custom had separated itself from the past, but also how it had separated itself from law.	70
Custom had become a ground of law—it was now not law itself but something upon which law was founded or from which law emerged. Browne wanted to point out "how large a portion of our law—which may be looked upon as crystallized common sense, and rational experience—was at one time a form of heterogeneous custom. Indeed, all laws have been in practice before they are put in words ..." (1). Adopting a highly anti-Benthamite position, Browne could state: "There has been a very gradual evolution of law from the nebulous justice which was scattered in men's minds and found an expression in their conduct, to the Statute Book and the whole body of text-book law" (1–2). Indeed, Browne declared that particular regional/trade customs that had long been recognized by the common law provided they met the requirements of the seventeenth-century common law test were not, strictly speaking, customs at all. "These seem to us to be undeserving of the appellation customs—which we would reserve for law when it is being modeled in clay—so to speak—and before it has been transferred to the marble. Custom seems to us to be applicable to the law before it has been recognized as law, but when it is in a condition to claim judicial sanction ..." (15, emphasis added).	71
As a ground of law, custom was a marker of legal time—it was law's present. But custom was also a marker of legal time insofar as it was law's future. And as both present and future, custom was associated with "life." Drawing an explicit analogy between custom and language, Browne argued that, just as German philologists had shown language to pass "from unity to diversity and variety," customs proliferated outward from a common origin (21). This ability to proliferate endlessly over time was a marker of custom's "life." Might we not apply almost the same true words to customs—which in our estimation bear an exactly similar relation to a system of law that dialects do to a language—that the great German philologist [Grimm] has applied to dialects, and say that customs have developed themselves progressively, and that the unity which we find in the history of jurisprudence has been developed into the variety of customs which we find at the present time. This capability of change in the law is not an indication of its inferiority, but of its vitality. So long as men progress, so long as new events happen, new trades arise, new commerce floats upon hitherto unsailed seas, new manufactures change the features of our lives, and new and higher principles take the place of those which governed conduct, regulated acts and guide life, so long must we expect progressive change and almost lavish variety in our customs. When a people is dead, when there are no transactions to be governed, no rights to protect, no interests to regard, the law may remain unchanged, for the law is dead. We have indeed dead laws just as we have dead languages.... (21, emphasis added) In investing custom with "life" because of its ability to proliferate over time, Browne posited a perpetual gap between law and custom: "[T]here is a slow progress of customary regeneration going on, which will be observable to the diligent student of legal history, and which makes up for the gradual decay of law which is going on pari passu, and which results from the gradual tendency that almost every fixed enactment has to become obsolete" (22).	72
But the "life" of custom, for all of its ability to mark the present and future of law and to capture a rapidly changing world of new trade, commerce and manufacture, is a curious kind of life. To begin with, custom had always been a legal category; it was how the common law had justified itself to itself. Furthermore, in Browne's treatise, custom was imagined so that it was a reflection of bits of common law doctrine—contract, property, crime. For example, here is Browne offering an example of the origins of custom that is really a projection of a common law private property regime: It must have been understood by men that theft—the act of taking the property of another without his consent—was wrong before they made a law to punish the thief, with the view of preventing similar depredations. But long before men made a law they had bolts to their doors, and if they caught the robber they exercised their right by taking his booty from him and possibly even by inflicting upon him a vengeful punishment. This was not done by one man but by many, and we see in it the embryonic custom out of which the law has developed. (1) Insofar as custom has become a "living" context for law—something that frames law by constantly giving rise to it and being ahead of it and in terms of which law must be understood—it is as if law has produced its own temporal context, a bit of itself detached from itself, hypostatized as "life" and set afloat as time.	73
From this discussion, the most important point about late nineteenth-century legal thought is that custom as a "living" context for the understanding of law entailed the positing of an unbridgeable gap between law and custom/"life"—the ontology of law would be one of forever "catching up," one of condemnation not only constantly to try to capture "life" but also never to succeed in capturing it, in other words, one of condemnation to "death" in the ceaseless quest for "life." In other words, there was a built-in mismatch between the temporal frame or context (custom/"life") and its object (law)—the former could never fully contain the latter, the latter never fit fully into the former. Scholars of American legal thought during the second half of the nineteenth century have not sufficiently remarked upon—let alone explored—the vocabulary of "life" and "death," unbridgeable gaps and tireless "catching up," that pervades thinking about law during this period. And yet it is present wherever one turns.	74
If one were to attempt to contextualize the frame of custom as "life" within a conventional historical register, one would of course point to the unmistakable parallels to contemporaneous biological, geological, and philological models that we are apt to group under the label "Darwinist," to the Victorian obsession with time (thematized variously as history, progress and decadence), and to the Foucauldian insight that "life" itself—as distinguished from individual "lives"—had become an object of scientific contemplation by the nineteenth century. One would also point to the impact of the historical thought of German legal thinkers, who enjoyed a considerable reputation in both England and America during the second half of the nineteenth century.⁴⁵ These and other correspondences are there for the making. But seeking correspondences between legal and other sets of discourses is not the primary object here. The object is rather to explore how the frame of custom/"life" might speak to our own social/historical frames.	75
One starting point for the jurisprudence of the perpetual "gap" between law and its frame is Sir Henry Maine's Ancient Law (1861), the work that was widely accepted as having inaugurated historical jurisprudence in England and America. Even though English and American scholars in the 1870s and after openly acknowledged the influence—even the superiority—of German historical jurisprudence, it was not uncommon for legal thinkers to suggest, as did James Bradley Thayer in the early twentieth century, that "Sir Henry Maine's book, like that of Darwin in a different sphere, at about the same time, created an epoch."⁴⁶	76
In Ancient Law, after positing the difference between progressive and stagnant societies, Maine posits an unbridgeable gap between law and the social. I confine myself in what follows to the progressive societies. With respect to them it may be laid down that social necessities and social opinion are always more or less in advance of the Law. We may come indefinitely near to the closing of the gap between them, but it has a perpetual tendency to reopen. Law is stable; the societies we are speaking of are progressive. The greater or less happiness of a people depends on the degree of promptitude with which the gulf is narrowed.⁴⁷ One should take seriously the fact that Maine posits a gap between law and the social, rather than between law and custom. Maine was different from many late nineteenth-century American theorists of custom insofar as he did not posit custom imagined as "life" as a framework within which to understand law itself.	77
Custom, for Maine, was simply a stage in law's development—something that had been left behind. For Maine, objects belonged "to" their "own" time; his reformist/progressive sensibilities were directed at identifying and pruning away those objects that were, in a sense, "out of" their "own" time.	78
This is clear from his conflicted relationship to Benthamism. Although much of Maine's research was directed at dispelling Benthamite pieties about the nature of law, in many respects, Maine supported classic Benthamite positions. History showed, Maine argued, that Bentham had been wrong to claim that law was necessarily the command of the sovereign. Law had existed in societies long before a sovereign had—indeed, in the earliest acephalous societies, law had simply been "in the air."⁴⁸ Bentham was also wrong roundly to criticize the common law for being rife with fictions—in doing so, Bentham had failed to understand that the historical development of law had taken place through successive stages during which fictions, equity, and legislation predominated.	79
At the same time, however, Maine endorsed Bentham's criticism of the common law and his faith in legislation: We must ... not suffer ourselves to be affected by the ridicule which Bentham pours upon legal fictions wherever he meets them. To revile them as merely fraudulent is to betray ignorance of their peculiar office in the historical development of law. But at the same time it would be equally foolish to agree with those theorists who, discerning that fictions have had their uses, argue that they ought to be stereotyped in our system. They have had their day, but it has long since gone by. It is unworthy of us to effect an admittedly beneficial object by so rude a device as a legal fiction.... If English law is ever to assume an orderly distribution, it will be necessary to prune away the legal fictions which, in spite of some recent legislative improvements, are still abundant in it (emphasis added).⁴⁹ Indeed, in 1874, in what was surely a tribute to Bentham given Maine's reformist commitments, Maine could assert: "I do not know of a single law reform effected since Bentham's day which cannot be traced to his influence."⁵⁰	80
As we shall see shortly, Maine's closeness to Benthamism was not lost on perceptive adherents of custom/"life" such as James Coolidge Carter. Without denying Maine's enormous influence on late nineteenth-century legal thought, it is safe to conclude that he is not representative of the late nineteenth-century American jurisprudence of custom. Let us turn directly to the object of our inquiry.	81
To begin with, it is important to emphasize that, in the late nineteenth-century American jurisprudence of custom, there is a complete lack of interest in the common law doctrine relating to customs (the doctrinal area covered by the Browne and Lawson treatises discussed above) as well as in specific regional or trade or group customs. In other words, the details of "customs," understood in the plural, have become irrelevant. "Custom" has become generalized as a singular and transformed into a context in terms of which to think about law.	82
One cannot overestimate the role of historical and anthropological research during the second half of the nineteenth century in producing for legal scholars this idea of custom as a context or frame. From the perspective of legal scholars in the late nineteenth century, the vast outpouring of historical and anthropological research into law in England, Germany, France, and the United States was experienced as changing the very understanding of what law was. Books and reports and articles and lectures on Native Americans and Eskimos, ancient Greeks and Romans, Anglo-Saxons and Teutons, medieval France, Germany and England, "Asiatic" communities, and contemporary American frontier settlements appear to have been consumed voraciously (indeed, the range of literate references in late nineteenth-century texts puts contemporary legal scholarship to shame). The new knowledge seemed to suggest that law did not emanate, as Bentham had so powerfully asserted, from the sovereign. Law's origins, and hence its nature, seemed to lie "elsewhere"—and custom was widely taken to be that place.	83
In 1876, the Roman law scholar William G. Hammond characterized the sea-change that had occurred in the understanding of law when he described the eclipse of Benthamism: The elaborate system of Bentham must serve as one example out of many. If there had been no other reason for its lack of final success, a sufficient one might be found in this: Before all that was really admirable in his system had overcome its first unpopularity and commended itself to a new generation, mankind had learned to regard law as something very different from legislation, which was all that it meant in the eyes of Bentham and his contemporaries (emphasis added).⁵¹ In other words, it was no longer possible by the 1870s to imagine law as nothing but a series of abstract and mediated dictates issued by a monarch or legislature.	84
There was a canon of set references when one spoke about custom—alternatively, the new idea of custom was built up from a collection of discursive objects familiar to the educated lawyer. For example, in his Commentaries on Law (1884), Francis Wharton made the case for custom underlying law by referring, inter alia, to the "unconscious action of the community in [Gold Rush California] mining districts," to the customs of American Indian tribes, and to the "Asiatic communities specified by Sir H. Maine...."⁵²	85
The image of Gold Rush California mining customs as evidence of custom's foundational character seems to have been especially popular. It struck a chord even in a committed positivist like John Chipman Gray. Gray observed: One remarkable instance, however, in late years, of the use of custom as a source of Law in matters non-contractual can be found—it is the introduction of miners' customs in California. The discovery of gold brought, in 1849, a large and turbulent population into an almost uninhabited country; the civil authority could be but feebly enforced and the miners made rules for themselves. These rules related not only to matters of contract, but also to questions of property and possession. They prescribed how possession was to be taken, how much could be taken into possession (four hundred feet by a discoverer and two hundred by a subsequent locator on a lode), and how possession was lost. These rules were adopted into the Law, and, though not formally enacted, they were recognized by the legislature and thus received a statutory sanction as sources of Law.⁵³ The new sense that custom underlay law, at all times and all places, produced an exhilarating sense of connectedness across time and space that was very different from the more formally periodized historicism of Maine, with its concern to identify and excise anachronisms. There was something unabashedly romantic in such expressions of historical connectedness. For example, in his 1890 treatise on municipal corporations, after citing research on the customary foundations of contemporary and ancient local communities, John Forrest Dillon wrote: It is no slight degree instructive, and certainly in the highest degree interesting, to trace the institutions of this new country back to their germs in the Saxon or Anglo-Saxon polity; for when we touch to-day, even in our frontier settlements, the electric chain wherewith Providence has bound the ages and generations of men together, we discover that we are in historic communion with rude and remote ancestors although separated by sea, mountains, and centuries.⁵⁴ Dillon's metaphor of an "electric chain" binding Americans to Anglo-Saxons and the like was part of a new vocabulary that had come into being to describe the frame of custom in the 1880s and 1890s. Words such as "unconsciously," "felt," "plastic," "original," "invisible," "universally known," "spontaneous," "instinctive," "mysterious," "irresistible," "habitual," "emanations," "involuntary," "unobserved," and "inarticulate" acquired considerable currency.⁵⁵ They would have been out of place in a world in which custom had been an actually existing legal category.	86
From this it follows that, just as Browne's and Lawson's treatises on the common law relating to the recognition of customs at variance with the common law had done, the late nineteenth-century American jurisprudence of custom insisted upon a divorce between custom and precedent. The authority of custom was very explicitly not to be confused with the authority of the past. To be sure, thinkers acknowledged that custom acquired meaning through repetition over time. But, in sharp contrast to someone like Francis Lieber, the past had little claim as past. Legal thinkers were much more interested—exactly as were Browne and Lawson in their treatises—in using custom as a frame to mark legal time, law's present and future.	87
In its capacity to mark law's time, as should be obvious by now, custom was explicitly associated with "life." It is "life" that indexes itself over and over again in late nineteenth-century discussions of custom. In this sense, to be sure, "life" operated rather like "complexity" in our social/historical frames. But it not the self-indexing quality of "life" that is of interest here, but its other features.	88
In keeping with the Darwinian spirit of the age, "life" stood for perpetual—even obligatory and fatiguing—change. Sir Frederick Pollock put it dramatically in his 1883 Oxford Lectures: "Whatever has ceased to change is dead."⁵⁶ A year later, in a discussion of Spencer's and Savigny's views of law, Francis Wharton argued that both thinkers were in agreement on the following point: "When growth and modification are arrested comes death."⁵⁷ Thomas Cooley made exactly the same point: "Change is the law of life, and it enters into all things, seen and unseen."⁵⁸	89
Custom gave "life" to a law in the present to the extent that law depended for its success upon its observance as a matter of custom. Thus, in 1890, Christopher Tiedeman was able to state: "[T]he life of a rule of law is derived from its habitual and spontaneous observance by the mass of people."⁵⁹ So strong was the faith in the "life" of custom that custom was invested with the ability to hold society together even if written law—statutes and decisions—were to disappear temporarily. In 1888, Thomas Cooley put it thus: "[T]here is a vital force which is more than the words, and which, if the word were all blotted out, would still hold the units of society together and in order, while the words were being reproduced."⁶⁰ And of course, custom also represented "life" because of its ability to represent the elusive future of law, a future imagined as endless spontaneous change and variability spinning ahead in relation to which law was always "behind," always "dead."	90
For this reason, the "living" frame of custom was not infinitely extensible—not everything, and specifically not every aspect of law—could be rendered "living." This lack of extensibility—what I have called a built-in mismatch between context and object—existed with respect to both present and future. In the present, any lack of correspondence between law and custom/"life" could instantly render law a "dead letter." With respect to the future, because the law was by definition always a few steps behind custom/"life," law was always a little "dead."	91
There was a specific thematic—i.e., not just temporal—content to the non-extensibility of the "living" frame of custom. Just as Browne's and Lawson's treatises on the common law of custom had done, the late nineteenth-century American jurisprudence of custom had transformed an already existing legal category—custom—into a context for thinking about law. More important, it tended to define custom/"life" in terms of private law doctrine and, not coincidentally, to naturalize private law concepts. If one reads late nineteenth-century texts on the relationship between custom and law, revered common law areas—generally, contract and property—are privileged with the ability to represent custom/"life." In other words, custom as a "living" frame existed as a "living" frame only to the extent that it mirrored some already existing facet of law. This is made clear from John Chipman's Gray's grudging admission, mentioned above, that custom could sometimes arise before law—for Gray, it was precisely Gold Rush California miners' "spontaneous" property regime that "proved" the priority of custom/"life." Similarly, in his well-known tract On Sovereignty (1885), Philemon Bliss could assert that even the "rudest societies" exhibited "the primary precepts of the law of contracts" without the command of any sovereign.⁶¹ We have an odd situation, then, in which custom/"life" was simultaneously defined as both private law doctrine and constant variability and change. In the very same text, writers oscillated effortlessly between one definition and the other.	92
The larger conclusion was clear and draconian. In addition to asserting that law was always already "dead" because of its ontological (temporal) "behindness," thinkers also freely declared laws "dead" if they failed to correspond to certain political and social positions. For example, Christopher Tiedeman bemoaned the passage of any law that could not "enlist in its cause the strong motive power of self-interest"—laws like this, Tiedeman argued, were "stillborn laws, laws which are dead letters before they have been promulgated to the people."⁶² There was thus a clear and familiar, conservative politics to much of the late nineteenth-century jurisprudence of custom.	93
However, this conception of a relationship between law and custom/"life" was not only about politics. It specifically entailed related questions of method and stance. How was one to deal with dizzying change, evidence of which was pervasive in the late nineteenth-century? If custom/"life" was a marker of the future of law, and law could never "catch up," the best way to deal with the gap was, not surprisingly, through the past, something that one "already knew." Many American thinkers of custom disdained legislation not only because of its political implications, but because it was "unscientific" to the extent that it attempted to shape an essentially unknown and unknowable future. The superior "scientific" method was to deal with disputes as they presented themselves, in other words, to deal with the future when it had already been rendered past in some sense in the form of a dispute. This method was, not surprisingly, the traditional method of the common law judge.	94
A few—but notably not all—of these themes appear in the work of a thinker eminently familiar to American legal and intellectual historians, namely, Oliver Wendell Holmes, Jr. In Holmes's The Common Law (1881), "life" operates as a ground of law and as a marker of law's elusive future. Holmes sets up the unbridgeable gap between law and "life" as follows: The truth is, that the law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow.⁶³ And, of course, The Common Law is full of references to "death," obsolescence, decay, and survivals. There are some clues that what Holmes meant when he referred to "life" was custom—not the old custom that had been mingled with precedent, nor the custom that could be viewed as a mere stage in the historical development of law in the manner of Sir Henry Maine, but precisely the new custom that was the ground from which law emerges and that perpetually exceeds law. The clues inhere in the fact that, like many other texts of this period, The Common Law was a celebration of the unique ability of the common law judge—that classic declarant of custom—to sniff out the true ground of law and to adjust law's apparatuses to it. Holmes describes this ground of law—and, indeed, law's future—in the classic language used to describe custom in the late nineteenth century. He calls it the "unconscious result of instinctive preferences and inarticulate convictions" that hold the community together.⁶⁴	95
For all its employment of a certain established vocabulary, however, The Common Law is not a good exemplar of the late nineteenth-century American jurisprudence of custom. The idea of "life" is freely mingled with ideas such as "experience" and "expediency" that would take Holmes along a highly instrumentalist trajectory in the decades following the publication of The Common Law and win him his reputation as the first major legal pragmatist. More important, Holmes is not especially concerned with upholding the distinction between private law and public law, law and politics, judiciary and legislature. Indeed, he would play a crucial part in collapsing these distinctions in his writings and opinions of the 1880s and 1890s. For the full-blown late nineteenth-century American jurisprudence of custom, then, we must look elsewhere.	96
The themes of the jurisprudence of custom are present in most brilliant outline in the writings of the conservative late nineteenth-century Mugwump lawyer, James Coolidge Carter, who is remembered today for his successful mobilization of opposition to the proposed codification of New York's civil law in the 1880s. Many of Carter's published writings were initially produced in the context of opposing codification and then, as is the case with so many late nineteenth-century legal thinkers, endlessly recycled in lectures, addresses, pamphlets and the like. As might be expected of an opponent of codification, Carter devoted much intellectual effort to opposing Benthamite philosophy. To a lesser extent, Carter also criticized Maine, whose progress-oriented historicism he accurately read as ultimately supporting the Benthamite position. While praising Maine's historical research, Carter expressed regret that Maine "did not devote himself to a systematic and sustained inquiry ... instead of accepting the hypothetical conclusion of Austin."⁶⁵ I discuss Carter's thought in some detail for its coherence and completeness as an exemplar of late nineteenth-century customary thought.	97
"Law, Custom, Conduct, Life—different names for almost the same thing—true names for different aspects of the same thing—are so inseparably blended together that one cannot even be thought of without the other," Carter pronounced with a flourish toward the end of a set of lectures published posthumously as Law: Its Origin, Growth and Function (1907).⁶⁶ What is significant here is that Carter deemed "Law, Custom, Conduct, Life" only "almost the same thing." Indeed, from his perspective, it was absolutely critical to distinguish between law and custom. His intellectual activity over the previous two decades had been directed toward arguing that custom captured "life," that the only law that expressed "life"/custom was private law (even though it could never do so entirely because it was perpetually behind them), and that state-generated law—i.e., legislation—could not even remotely hope to do so.	98
Thus, Carter was able to claim: "[T]he whole private law which governs much the larger part of human conduct has arisen from and still stands upon custom, and is the necessary product of the life of society, and therefore incapable of being made at all"⁶⁷ (as something preexisting, it could only be "declared" by the common law judge). At the same time, Carter was able, rather calmly, to assert that legislation was not really law at all. The state "can express its will in these particulars [matters like the building of roads] only by declaring it in writing, but such declarations are not in the strict sense laws, because they are not designed to regulate directly the conduct of men in their dealings with each other."⁶⁸	99
A wide sweep of current history and anthropology, drawing upon scholars from Fustel de Coulanges on the Greeks to Lewis Henry Morgan on the Iroquois, and dealing with practices ranging from those of savages to those of contemporary Americans, revealed that law generated by sovereign authority had historically been—and continued to be—a strictly delimited public law. Rarely had private law, which was a true reflection of custom, been touched by public law. Where such interferences had taken place, it was only to clear up marginal conflicts in customary norms.	100
Not surprisingly, given the equation of custom and private law, Carter's "survey of human life in all ages and in all stages of progress" revealed that custom was not just a stage in the historical development of law: instead, "habit and custom in each of these different conditions furnish rules which govern human conduct, and ... they still exert over enlightened man the same imperious dominion that they did among the primeval hordes which peopled the world before the dawn of civilization."⁶⁹ In this sense, as should be evident, Carter was markedly different from Maine.	101
From this it followed that Carter insisted vehemently, contra Blackstone, that the authority of custom was not founded upon its antiquity: "Such a limitation of custom in the making of law seems to me to be without foundation, and the object ... is to show that present custom, provided it is established, is as efficient as if it were centuries old" (71). As proof, Carter pointed to the judicial practice of invoking "the ordinary use of language" in interpreting contracts. Whenever courts invoked "principles," according to Carter, they were invoking present customary norms.	102
Carter admitted that the essence of custom was repetition over time. "It is important to observe that the establishment of custom requires time, and long periods of time, and as all conduct is preceded by thought, it also involves a long series of similar thoughts—that is, of long-concurring common opinion"(19–20). Nevertheless, what was significant about custom was not its age, but that its solidification over time rendered it susceptible of description through terms such "unconscious," "universally known," "nature," "[repository] of the numberless conclusions of experience," "mysterious inward monitor," and "felt" (19, 77, 124, 155, 191).	103
Precisely because custom stood for "life," legislation that sought to interfere with custom would be "dead." And there were many examples, both in the past and present, of such examples of dead law. The historical example of sumptuary legislation afforded "a spectacle ... of the impotence of man's conscious effort to overrule the silent and irresistible forces of nature" (249). Of his own day, Carter observed "[t]here are a vast number of laws on the statute-books of the several States which are never enforced, and generally for the reason that they are unacceptable to the people. There are great numbers of others the enforcement of which, or attempts to enforce which, are productive of bribery, perjury, subornation of perjury, animosity, and hate among citizens, useless expenditure, and many other evils" (3). Examples included antitrust legislation with respect to railroads and civil rights legislation for African Americans (206–13).	104
For all this naturalization of custom and celebration of private law, however, we must not forget that Carter, like many thinkers of his day, was firmly convinced of the ubiquity of change and of the necessity of responding to it. Even though custom was "unconscious" and "felt," the essential part of custom was that it was always spinning ahead of law—that was, after all, what made it stand for "life." "[S]ociety in most fully civilized nations is in a condition of incessant change, which means that customs are subject to incessant change and that the law resting upon custom must change in accordance with it" (257–58).	105
Putting his conservative politics to the side, one gets the sense that Carter's preference for the judicial (private law) over the legislative (public law), for common law over code, has everything to do with the way in which he thought about the problem of the future and of the best way for law to "catch up" with it. In other words, there was a correct method for dealing with the future. There was something unjust and "unscientific" about codes when compared with the common law. In a pamphlet written in the mid-1880s, right around the time of the codification controversy in New York, Carter stated: We repeat, therefore, for the truth is a vital and fundamental one upon which the main question for codification in large measure depends, that all just law, all law which consists in applying directly the standard of justice to human conduct, consists in applying that standard to known facts, and can have, in human apprehension, no existence apart from the facts. Until the facts come into existence, the questions arising upon such facts cannot be known, and surely cannot be decided. The law, therefore, in respect to future and unknown cases is and must be unknown; and if it be not, and cannot be known, it cannot be codified.... [Codification] does not embody justice; it is a mere jump in the dark; it is a violent framing of rules without reference to justice, which may or may not rightly dispose of the cases which may fall under them. (emphasis in original)⁷⁰ "Science" was about t

Context in History and Law: A Study of the Late Nineteenth-Century American Jurisprudence of Custom

KUNAL M. PARKER

"Life" and "Death" in the Late Nineteenth-Century Jurisprudence of Custom