"A Mere Feigned Case": Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture
Abstract
Frederic Maitland, the great English legal historian, once wrote that "[t]he only direct utility of legal history... lies in the lesson that each generation has an enormous power of shaping its own law."1 As I read this, Maitland makes two points. The first is that the value of history to law lies in its capacity to empower by illuminating the human element in the process by which law is made. The second is that each generation does in fact shape its own law; i.e., that the law of a given time is the product of contemporaneous human agents. The law produced by a given generation-Maitland himself was interested in the Middle Ages-can best be interpreted by reference to the circumstances driving its creation. Modem scholars, lawyers and jurists interested in understanding the meaning of an old opinion can best do so by understanding the history of its rendering. One might call this "history illuminating law." I would suggest that it is the dominant rationale underlying most legal history being written by lawyers. There is another rationale at large in the academy, and, not surprisingly, it posits the reverse. Legal history tells us much about culture. Law is, after all, at its base simply the means by which we regulate interaction between people. By looking to the history of individual instances of dispute resolution, we can learn much about the values of a given age or set of individuals. This vision drives many non-legally trained historians who make use of legal materials. One might call this approach "law illuminating history."
Recommended Citation
Robertson, Lindsay G.
(2001)
""A Mere Feigned Case": Rethinking the Fletcher v. Peck Conspiracy and Early Republican Legal Culture,"
Utah Law Review: Vol. 2000:
No.
2, Article 4.
Available at:
https://dc.law.utah.edu/ulr/vol2000/iss2/4