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Online Library of Liberty: The Story of the Law - Portable Library of Liberty
The Online Library of Liberty
A Project Of Liberty Fund, Inc.
John Maxcy Zane, The Story of the Law [1927]
The Online Library Of Liberty Collection
This E-Book (PDF format) is published by Liberty Fund, Inc., a private, non-profit,
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responsible individuals.
It is part of the Online Library of Liberty web site http://oll.libertyfund.org , which
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LIBERTY FUND, INC.
8335 Allison Pointe Trail, Suite 300
Indianapolis, Indiana 46250-1684
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Online Library of Liberty: The Story of the Law
Edition Used:
The Story of Law, 2nd ed., Introduction by James M. Beck. New Foreword,
Annotations, and Bibliographies by Charles J. Reid, Jr. (Indianapolis: Liberty Fund
1998).
Author: John Maxcy Zane
Introduction: James M. Beck
About This Title:
Written for the layman as well as the attorney, The Story of Law is the only complete
outline history of the law ever published. Zane lucidly describes the growth and
improvement of the law over thousands of years, and he points out that an increasing
awareness of the individual as a person who is responsible for decision and action
gradually transformed the law.
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Online Library of Liberty: The Story of the Law
About Liberty Fund:
Liberty Fund, Inc. is a private, educational foundation established to encourage the
study of the ideal of a society of free and responsible individuals.
Copyright Information:
The copyright to this edition, in both print and electronic forms, is held by Liberty
Fund, Inc.
Fair Use Statement:
This material is put online to further the educational goals of Liberty Fund, Inc.
Unless otherwise stated in the Copyright Information section above, this material may
be used freely for educational and academic purposes. It may not be used in any way
for profit.
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Online Library of Liberty: The Story of the Law
Table Of Contents
Introduction
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Online Library of Liberty: The Story of the Law
Foreword
“It is the most original book in the English language on comparative law since Sir
Henry Maine’s great work sixty years ago. It is the richest canvas, if not the only one
of its kind, yet produced.” So wrote Dean John Henry Wigmore of the Northwestern
University School of Law in his review of John M. Zane’s The Story of Law when it
first appeared in 1927. Wigmore, one of the most distinguished legal scholars of his
time, appreciated Zane’s unique contribution to legal history; for here was the first
complete outline story of how law came into existence, developed, and changed
through the ages, and why it plays such a prominent part in our lives today.
John Zane was not, however, an isolated genius. He was, rather, part of an age that
treasured legal history in a way that the present age does not. The Story of Law
appeared near the close of a period of enormous creativity. The nineteenth century
had witnessed the flowering of two new ways of understanding legal history. The first
was associated with a relatively new school of jurisprudence, historical jurisprudence,
founded by Carl Friedrich von Savigny, which challenged the premises of natural
lawyers and positivists alike. Historical jurisprudes argued that the law was neither
the concrete expression of transcendent norms, as the natural lawyers contended, nor
the product of sovereign command or toleration, as the positivists asserted. Rather,
they claimed, law must be understood as the unique product of particular nations’
backgrounds and cultures. It was the lawyer’s task, according to this school of
thought, to look to the past to identify principles consistent with a given nation’s
culture which could be used to resolve contemporary problems. The lawgiver who
failed to understand his nation’s tradition and relied upon reason or political will
alone to promulgate laws was inevitably doomed to failure.
The roots of this new jurisprudence are traceable to such great seventeenth-century
English lawyers as Sir Edward Coke, Sir John Selden, and Sir Matthew Hale, who
deployed historical arguments both to restrict monarchical powers by appeal to a
historically rooted constitution and to explain the paradox of a legal system that
changed over the centuries yet remained the same system. But Coke, Selden, and Hale
wrote against the backdrop of a unified and transnational European legal
culture—called by many contemporary legal historians the ius commune —and in the
context of a larger European jurisprudence that had successfully integrated natural
law, positivism, and historical reasoning. The late eighteenth and early nineteenth
centuries, nevertheless, witnessed the destruction of the ius commune and the severe
weakening of an integrated understanding of the law under the assault of the
nationalist impulse to exalt the law-making power of the state and the rationalist
desire to reform traditional practices and institutions. 1
Historical jurisprudence, as it developed during the course of the nineteenth century,
rejected the rationalism of the reformers, substituting for it the history of the nation
and the proper understanding of its “spirit” ( Volksgeist ). Large numbers of historians,
moved by the desire to trace the growth of their national legal systems, scoured the
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