From my post Book Recommendations: Private, International, and Common Law; Legal Theory on the Mises Blog:
A friend interested in law, legal theory, and possibly law school asked me for some recommendations for some good books (or articles, I suppose) that discuss private law systems, international law, the common law, etc.–with particular emphasis on explaining the common law’s or private law’s philosophical underpinnings.
I am drawing a blank on “the” book to read, since in my experience various interesting strands tend to be scattered across a wide array of books and articles; and moreover, most of the best stuff tends to be by mainstreamers or those with otherwise-flawed philosphical, political, or economic viewpoints. So you have to take what you can find here and there.
Here are some of my suggestions, most of which have a lot of implicit caveats:
- Trakman, Leon E., The Law Merchant: The Evolution of Commercial Law
- Bruno Leoni, Freedom and the Law
- Oliver Wendell Holmes, The Common Law
- Jhering, Dr. Rudolph von, The Struggle for Law
- The Bramble Bush: On Our Law and Its Study, by Karl N. Llewellyn
- Arthur Hogue, The Origins of the Common Law (nice Liberty Fund edition)
- John Maxcy Zane , The Story of the Law (online)
- Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition. “The latter is one of the greatest books (not just of law, but of any subject) I’ve ever read; and the former is full of interesting argument and facts. Berman also has a sequel, published a few years ago, that carries the story through the Protestant Reformation, but I haven’t read it yet. I venture to recommend it, sight unseen, on the strength of my admiration of its predecessor.” (Thanks to Robert Higgs.)
- Rosalyn Higgins: Problems and Process: International Law and How We Use It
- Buckland, W.W. & Arnold D. McNair, Roman Law and Common Law: A Comparison in Outline
- Merryman, John Henry, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, 2d. ed. 1985 (book reviews by: Mary Ann Glendon, Robert O. Homes, Jr., Homer, A. M. Honore, and A.T. von Mehren; also Robert A. Pascal (diff book))
- Alan Watson, The Making of the Civil Law; also: Roman Law and Comparative Law
- A History of American Law, 2d. ed., 1985, Lawrence M. Friedman
- A.W.B. Simpson, ‘The common law & legal theory’ & ‘The survival of the common law system’ both in his Legal Theory & Legal History (Hambledon Press 1987.) The first is a defence of the common law against legal positivism; the second discusses some of the corrosive impact of legislation on the common law. Simpson himself doesn’t much like spontaneous orders — he doesn’t use the term — & therefore the common law; but he does a good job nevertheless (thanks to Sudha Shenoy for these comments)
- S.F.C. Milsom is possibly the most brilliant legal historian writing today. He summarises his insights into “the reconstruction of lawyers’ thinking” in A Natural History of the Common Law (Columbia U.P. 2003.) The past is alive to him; people are real — they have everyday legal problems which lawyers are trying to solve. He shows that this is how the common law evolved; & he integrates the (changing) economy & society of the time into his account. _Not_ an easy read, but well worth the effort. Also see his: ‘The past & the future of judge-made law’, ‘Reason in the development of the common law’, & ‘Law & fact in legal development’ in his Studies in the History of the Common Law (Hambledon 1985.) (thanks to Sudha Shenoy for these comments)
- The best most recent introductory history for law students is J. H. Baker, An Introduction to English Legal History (Butterworths 4th ed 2002.) Prof. Baker (he holds Maitland’s chair at Cambridge) also has a magisterial editorial preface to a volume of essays, Judicial Records, Law Reports, & the Growth of Case-Law (Berlin 1989.) In this preface he incisively compares Continental & English legal developments — the parallels & divergences — in terms of the layman’s role, the use of custom, etc. (thanks to Sudha Shenoy for these comments)
- Bruce Benson‘s The Enterprise of Law, and other publications
- William Holdsworth, A History of English Law. (Multi-volume)
- Frederick Pollock and Frederic W. Maitland, A History of English Law Before the Time of Edward I
- Gordon Tullock opposes common law in A Case Against the Common Law, available in the Liberty Fund Volume 9 of Tullock’s Selected Works, Law and Economics (David Gordon’s suggestion)
- Richard Posner has an essay that discusses Savigny and Roman law in his Frontiers of Legal Theory
- Various works by Lysander Spooner… http://www.lysanderspooner.org/bib_new.htm
- there is also Hayek’s legal theory, but I found it hard to slog through; but for those interested, there is this symposium: Southwestern University Law Review: Economic Symposium: F.A. Hayek and Contemporary Legal Thought (1994) (full symposium)
- See also the sources listed in Tom W. Bell’s discussion of “polycentric law”
(I am omitting here some of the less “readable” ones like Blackstone and Justinian.)
Also, I have a growing online version of my private collection of classic, eclectic, and other law review and related articles on my site at www.StephanKinsella.com/texts, in particular: the sections on Law: Miscellaneous; Law; Civil, Roman, Common, Louisiana Law; and Law: International Law. some very interesting ones are:
- Great American Law Reviews, Berring, Robert C., and Salley Gunderson, Editors (Birmingham: The Legal Classics Library, 1984-1990. Three volumes) selected pieces
- Nowak, John, Woe Unto You, Law Reviews
- some of Epstein’s work may be of interest, e.g. The Social Consequences of Common Law Rules and The Static Conception of the common Law
- Watson, Alan, The Importance of “Nutshells”, AJCL, 1994 [Excellent article]
- Watson, Alan, Roman Law and English Law: Two Patterns of Legal Development, Loy.L.Rev., 1990
- Roman Law in American Legal Culture, by M.H. Hoeflich
- Stein, Peter G., Relationships among Roman Law, Common Law, and Modern Civil Law, Tul.L.Rev. 1992
- Pascal, Robert A. and Rodolfo Batiza, Tournament of Scholars: articles debating the actual sources of the Louisiana Civil Code of 1808–Spanish or French Law
- Pascal, Robert A., Review of F.H. Lawson, Introduction to the Law of Property
- Pascal, Robert A., The Sources of Civil Order According to the Louisiana Civil Code
- Rabel, Ernst, Private Laws of Western Civilization, La.L.Rev. 1949
- Re, Edward D., The Roman Contribution To The Common Law, Loy.L.Rev. 1993
- Vetter, Bernard Keith, The Roman Contribution to the Common Law, Loy.L.Rev. 1993
- Brownlie, Ian, The Reality and Efficacy of International Law, 1982
- Elshtain, Jean Bethke, Sovereign God, Sovereign State, Sovereign Self
Anyone have any different perspective on this or recommended readings? Any good or obvious introductory, background, etc. works on law I am omitting?
