Article by R.H. Helmholz
Men and women in the young American Republic held ancient Rome in esteem, sometimes almost to the point of veneration. They admired its architecture, its language and literature, its public institutions, even its personal names, drawing inspiration from what they knew of classical sources. Current developments in European thought also commanded the attention and respect of many Americans in the years following the Revolutionary War. The former colonists had looked to the Continent for support during the War, and they continued to look to the Continent for some of their most basic notions about the right ordering of society.
The question for anyone interested in the growth of American law, however, cannot rest with noting a general admiration for classical and European ideas. Instead, one must ask whether or not this habit of mind made any substantial difference in the development of American law. On this subject, various opinions have been expressed. Some commentators have minimized any influence coming from civil-law sources. A few have magnified it. The dominant view today, however, is undoubtedly the one elegantly expressed by Professor Peter Stein in an article published some twenty-five years ago. Stein concluded that the civil law played its principal role in the education of elite American lawyers. Although “its impact on the legal practitioners was disappointing,” he wrote, “the campaign for civil law had more success in the field of legal education.”
Stein found that the study of Roman law served as a broadening and enlightening introduction to the science of the law for young American lawyers. The civil law provided a happy alternative to immediate immersion in the arcana of practice that would otherwise have overwhelmed the beginner required first to sample and then to digest Sir Edward Coke's treatise on Littleton's Tenures and the other crabbed learning of the English common law. But that was all. In the courtroom, it made little headway. Other recent work on this subject has reached similar conclusions. American lawyers regarded Roman law and the Continental legal tradition as aids to understanding the overall structure of the law, or as scholarly adornment to be used to impress others in the rude environment of their new nation. Civil law served this secondary function; it was not a working component of American jurisprudence.
There is undoubtedly much to be said in favor of this view. The evidence of the ways in which the civil law was used in training young lawyers, unearthed and sifted by Stein, Hoeflich, and other scholars, is undoubted and impressive. To this writer, however, their conclusion seemed unsatisfying, and in its negative implications, actually unlikely. It seemed unsatisfying in that, within a legal system like ours in which so much depends on judges and cases, to speak of civilian influence that makes no difference in the decisional law is to speak of a very marginal sort of influence. It seemed unlikely in that, assuming American lawyers knew and used the civil law for purposes of legal education, systematic thinking, and scholarly adornment, it would be natural to think that these well-springs of admiration would spill over into the cases. Can human minds, even the minds of lawyers, easily keep their interests quite so separate? I thought not.
Dissatisfaction spurred investigation. The scope of the investigation begun in consequence included reading as many American cases decided between 1790 and 1825 as possible, noting whether and in what circumstances Continental sources were used. No one, it appeared, had undertaken this plodding assignment before. The search entailed looking at all American jurisdictions for which any appreciable number of reports survived from before 1825. There were fourteen in all. To their number were added cases from the various federal courts and United States Supreme Court. Although it would certainly have been burdensome, and probably also unnecessary, to read all the reports, it was possible to keep reading within each jurisdiction until a considerable accumulation of notes from each had developed. At the end of the day, patterns had emerged from these labors, and they are the subject of this Article.
About the Author
R.H. Helmholz. Ruth Wyatt Rosenson Professor of Law, University of Chicago.
Citation
66 Tul. L. Rev. 1649 (1992)