October 4, 2024
[Editor’s note: This is the second of four posts for a mini symposium on Amalia Kessler’s article “Toward an Account of the Nineteenth-Century Emergence of the Comparative Accusatorial/Inquisitorial Divide“, The American Journal of Comparative Law, Volume 71, Issue 2, Summer 2023, Pages 296–327, https://doi.org/10.1093/ajcl/avad022]
In analyzing the emergence of the comparative accusatorial/inquisitorial divide, Amalia Kessler convincingly places French jurists in the broader context of the historical study of law during the nineteenth century. She observes that Ortolan and Helie, the two French scholars on whom she primarily focuses, exhibited many of the features that I ascribe to legal thinkers in Europe and the United States in my 2012 book, Law’s History: American Legal Thought and the Transatlantic Turn to History. She highlights their emphasis on the evolution of the nation-state, often compared to a living organism, and their distinction between accidental occurrences and meaningful historical events. In my comments, I will elaborate American approaches to the historical study of law. To the extent that this elaboration raises issues that Kessler does not cover, I am curious to learn if French jurists also addressed them.
Many American legal scholars endorsed the “Teutonic-germ theory,” which traced the English common law and its subsequent development in the United States to the Germanic tribes that conquered England. They asserted the German origins of specific institutions, including the jury trial, the English parliament, and American legislatures, and of national racial characteristics such as personal freedom, self-reliance, and self-government. A few of these scholars claimed that people who did not descend from Germanic tribes could not assimilate into the United States and should not be allowed to immigrate. But most did not, and James B. Thayer explicitly supported equal rights for native Americans.
The Americans generally treated the evolution of “Teutonic germs” over time as a progressive development. Like the Hegelian synthesis of accusatorial and inquisitorial procedure Kessler observes in Ortolan and Helie, some Americans viewed legal progress as leading toward a perfection which would terminate the historical process. But most viewed history as a process of continuous change that would never end. Many also stressed the contingency of history, citing major developments that could have turned out differently, such as the decline of equity in English secular courts and the establishment of judicial review in the United States.
Just as Ortolan believed that progress in the evolution of criminal procedure was not linear, many Americans referred to legal progress in their specialized fields as “undulatory,” marked by “vicissitudes,” and often receding before ultimately prevailing. They often asserted that the Norman Conquest produced a major “break” in the progress from Teutonic germs to contemporary Anglo-American law by introducing feudalism to England. And just as Ortolan believed that France had progressed further than England by overcoming the “vestiges of the Middle Ages and feudalism” in its criminal law and by refining accusatorial procedures to promote modern goals of rationalism and equality, Americans observed more broadly that law in the United States had advanced beyond its English origins by promoting individualism, equality, and democracy. These observations also reflect Kessler’s point about the link between law and broader political views. Just as French scholars associated accusatorialism with liberty and inquisitorialism with authoritarianism, American scholars portrayed the First Amendment as the constitutional embodiment of the commitment to popular sovereignty won through victory in the Revolutionary War. Yet many American scholars questioned whether history is ultimately progressive at all. For example, Melville B. Bigelow lamented that the decline during the Anglo-Norman period of the prerogative of English kings to issue new writs produced “the endless train of subtleties reaching down to the present day, which have so often resulted in the perversion of justice.”
American scholars often maintained that evolving custom is the source of law. Reflecting the debate between Savigny and Jhering in Germany, some viewed evolution as a gradual, even unconscious, process, while others viewed it as a struggle between competing forces. Many asserted that custom generally evolves more rapidly than law. They stressed that some existing law, which served the customs under which it arose, could not be adapted to evolved customs and had become dysfunctional. By identifying dysfunctional law that should be reformed, these scholars viewed their historical research as a service to judges and legislators. They generally believed that judges are more effective than legislators in detecting and responding to evolving custom, but they preferred legislation to adjudication in periods of rapid social change.
Kessler describes Ortolon’s embrace of historicism as a rejection of the exegetical school in France. The nineteenth-century American scholars themselves proclaimed that their historical study of law initiated a distinctive jurisprudential school of inductive science, which they compared favorably to prior schools of natural law and analytic jurisprudence. The American historical school investigated and debated many subjects, from narrow topics within technical areas of law to broad questions about the history of common law, such as the relative weight of Anglo-Saxon and Norman influences and the extent to which the English common law developed distinctively after the Norman conquest. Kessler’s article understandably focuses on the accusatorial/inquisitorial divide, but I’m curious about the range of issues to which French scholars applied their historical method. Because members of the American historical school interacted extensively with each other and with their counterparts in Germany and England (though not in France), I’m also curious about possible interactions of the French scholars with each other and with colleagues abroad.