美國法律史

by Lawrence M. Friedman, 勞倫斯‧傅利曼, 劉宏恩 (Translator)

不只是美國法律史，也是美國社會生活史

一本影響美國法律史及社會史研究的劃時代巨著
榮獲「美國年度最優秀法學著作獎」及「崔尼爾書獎」

訴求人人平等的美國如何面對種族歧視的歷史？
作為民主大國為何採用繁複耗時的總統選舉制？
美國女性如何爭取曾經無緣的社會與政經權力？
為何即便犯罪頻仍槍枝管制依然受到層層阻礙？
想了解美國社會文化，必須先了解美國的法律

《美國法律史》是傅利曼於1973年出版的法律史巨著，多次增補、再版，本書是2005年最新版的中譯本。內容涵蓋美國殖民地時期、獨立革命至19世紀中葉、19世紀下半葉與20世紀四大部分，更擴及刑法、民法、商業法、海事法、離婚法等各類面向，並探討美國法律界組織文化的變遷。這是第一本，也是唯一一本美國學術界公認最為完整深入的美國法律史。本書出版以來，影響力不侷限於法學界，在歷史學、社會學與文化研究等領域都受到高度重視，讀者群不僅涵蓋學術界的多種學門，書中的典故、案例也因傅利曼引人入勝的生動文筆而突破學術閱讀的界線，引起社會上廣泛一般讀者的閱讀興趣。

傅利曼在本書中強調，「法律是人為的產物，也是社會需求下的產物」，因此法律的研究和討論都需放在社經文化與政治情勢的脈絡中考量。他認為法律是社會現實生活的一面鏡子，所以一部完整的美國法律史，其實就是一部美國社會生活的歷史。本書以豐富的史料和案例帶領讀者實際了解法律條文判決產生的時代背景及社會脈絡，進而認識美國兩百多年來的歷史變化、社會巨變，以及受美國法律制度影響的當代世界。閱讀這本書，讀者們所體驗到的不僅只是美國的法律，更多的是美國社會在不同時空環境下的政經發展脈動與社會文化氛圍，可說是了解美國歷史文化及觀察美國精神的最佳途徑。

本書獲獎紀錄

美國年度最優秀法學著作獎（Scribes Award）1974年得主
崔尼爾書獎（The Order of the Coif Triennial Book Award）1976年得主
美國國家書卷獎（American National Book Award）1974年歷史類決選

Genres: Law, History, Nonfiction, American History, Legal, Politics, American

904 pages, Paperback

First published March 1, 1973

About the author

Professor of law.

Also author of mystery novels, The Frank May Chronicles.

Reviews

[Michael K. · Rating 5 out of 5]

I have had this book on my shelf no less than 12 years (perhaps longer), at a point which I was studying the law and the constitution. It was a well written and excellently researched history of American law. However, only the aspect of American law, it did not trace all our laws back to English Common Law or Roman or Anglo-Saxon law, per se. But it did mention the basis of common law in our country. If you are into understanding the basis of law, this was a relatively good book. There are other books that are much older that are more in detail, it is just a matter of how much detail you desire. Also, you have to read a lot of case law to truly understand our laws and their applications. Very good for historical understanding, but I would also suggest you read SIR WILLIAM BLACKSTONES COMMENTARY ON THE ENGLISH COMMON LAW.

[Benjamin Birney · Rating 5 out of 5]

This should be required reading for every law student before he or she starts his 1L year, and strongly recommended for anyone who wants to participate in public life in this country. Friedman does a fabulous job of presenting the history of American law up to the twentieth century. It's readable, accessible, well-researched, and colored with amusing anecdotes. It provides the critical background and social context that is so sorely lacking both in modern political discourse and in grade-school civics instruction.

It's a page-turner, and worth your time. Loved it, will read it again one day.

[Frank Stein · Rating 5 out of 5]

An amazing piece of work that is not just a history of the American legal system, but a history of America as seen through its laws. It manages to cover everything from the development of equity law to the explosion of torts to the history of commerce and contracts, all without being pedantic or overly general.

Friedman relies on odd laws, great cases, and telling quotes to explain his story. In discussing the battle between civil and common law in California, he quotes an early California legislature which waxed poetic on the wonders of the caveat emptor rule (it apparently caused commerce to "whiten every sea, woo every breeze"). He discusses an early law in Virginia that classified slaves as real estate instead of chattel, highlighting their novel nature in English legal history. He discusses the 1878 case of Hall v. DeCuir, where the Supreme Court overturned a Louisiana state law forbidding racial discrimination on common carriers as an unconstitutional burden on interstate commerce, showing how the Court not only blocked federal anti-discrimination laws, it blocked any state attempts to staunch racial animosity, the Fourteenth Amendment notwithstanding.

Friedman also wades into such complicated debates as the one surrounding the "Field Code," first passed in New York in 1848, which began the "codification" of American law yet could only get as far as clarifying civil procedure. Codes on penal and public law would sometimes have to wait a century for passage, at least outside the so-called Wild West (which he shows was overrun by more lawyers per capita than even the developed East. In this story, the West was filled with litigators, not cowboys.)

I thought that this book might simply recapitulate some of Friedman's work in "Crime and Punishment in American History," but the sections on criminal law are brief, and usually deal with oddities and legal development. Overall, the books compliment each other nicely. Also, despite its broad title, the book focuses overwhelmingly on the nineteenth century (the colonial period is too sketchy and the 20th century is big enough that he deals with it in-depth in another book). Still, this is a great work that gave me a new appreciation for the world of the law.

[Annette · Rating 5 out of 5]

So good! A big honker of a socio-legal history of the US from British colonization to now. Friedman is great at pointing to the drivers of legal changes - who actually benefited, what benefit (usually economic) was behind the political rhetoric of the time - which helped keep this long timeframe history on the rails. I learned so much about how the legal profession has developed and about the cultural developments of the US throughout the past ~400 years. He also just has clear, concise, humorous writing that reads so smoothly and was able to keep me interested for all 800 pages! This was our family quarantine book club read and always provided interesting tidbits for discussion every week.

[Stephie Williams · Rating 3 out of 5]

Lawrence M. Friedman takes the reader on a tour of American Law. He starts with the colonial period and moves on to the beginnings of the United States in the eighteenth century. A large part of the book is devoted to the nineteenth century with the rear of the book covering the twentieth. He presents the history of the judicial branch, the legislature, and the bar. He covers the development of the law in the realm of both civil and criminal law. He also covers the dance of legal codes versus common law.

As it was a long book, and I thought it ebbed and flowed. Though, I did not think it was repetitive. It was enjoyable enough.

If you are interested in how the law developed in America, you should like the book.

[Ann McReynolds · Rating 5 out of 5]

This brilliantly written history, which covers the development of our nation’a legal system from colonial times, was my guide throughout the five years in which I wrote my biography of Associate Justice James McReynolds.

[Alicia · Rating 4 out of 5]

Up to page 500, Friedman is brilliant: illuminating, often witty, scholarly but rarely dry and thoroughly fascinating. As he does not end the book until page 640, he lost a star.

Many of the other reviewers in Goodreads appear to be lawyers or law students, which is the obvious audience for this book. The audiences I recommend for the book are historians, sociologists and even philosophers. In the prologue, Friedman makes the point that the study of the history of law is a sociological one, and he stays with that point throughout (well, until he falls off the rails a bit). It is a rare law that can be considered outside of its time, as it reflects the demands and needs of that time. For every twisted bit of reasoning in a judicial opinion, there is a Greek Chorus of approval somewhere. There is always a constituency for the final product. And that constituency is the sociology-- the reflection of thoughts and demands at that point in time.

Of course I read the book in the echo of the current presidential electioneering, where arguments of 'legislating from the bench' and endless references to the 'intent of the founders' are as common as fleas--and utterly specious. Those arguments have been used since the Revolution. Jefferson thought John Marshall legislated and ranted endlessly against the Court that both found against his wishes and set the standard for judicial review. Taney unquestionably legislated in the Dred Scott decision, finding a free man to be forever un-free, and the Missouri Compromise invalid. The howling politicians laud decisions they like and condemn the judicial process when the finding comes against their unspoken and usually economic interests. The intellectual dishonesty of the marchers for Values [which ever values you prefer] never ceases to appall me. There is nearly always a [not always] hidden agenda when the public pronouncements are high-minded and lofty. I am way too old to be a disappointed idealist, but there it is.

The foregoing is not Friedman's purpose, by the way. The anomalies are not the core of the book, but the overall thrust of the development of our laws and their reflection of the world of commerce and less often local and national view of morality. There are the making of many more books for nearly every chapter-- The shift from a Puritan insistence on a single right way to worship to the Founder's practical determination that allowing all religions avoided endless battles over determining a state religion. The rise of corporations and the intellectual leap it took to determine a contract was a legal 'person'. The shift in view of land rights and inheritance as the supply of available 'free' land disappeared under the plow. The original adoration of railroads collapsed after their abuses of contracts and astonishing loss of life --and gave rise to the idea of workers' compensation (once workman's compensation) and corporate liability. The occasional uprisings of humanism -- anti-slavery (a complicated and well covered elsewhere topic), Prohibition, the Warren court -- that asked that people be better than they really are, and the watering down of these ideals in actual practice. His discussions of the training of lawyers is fascinating -- our original lawyers were comparatively uneducated in the law -- a fact I 'knew' from reading elsewhere but didn't strike me until this book. If lawyers and judges are less disciplined in the law, surely their arguments and findings reflect their personal experience and sense of society more clearly. Modern lawyers have to work much harder, one imagines, to come up with new theories to subvert the existing canon.

The book was originally copyrighted in 1973, and I would guess the original book ended more or less at 1900. The additional chapters for the 20th and 21st centuries, seem quickly written, less researched (with more self-referential footnotes)and highly editorial, even snarky, and are much the weakest part of the tome. If the entire book had been to that level, this History would not be lauded anywhere. There were other topics that seemed surprisingly lightly covered (the Civil War and habeas corpus, and our habit of suspending rights in time of perceived national crises). If the book were dismissed on the basis of those last chapters or possible oversights, though, it would be a terrible shame. Most of this book is fascinating, interesting, revealing and thoroughly readable.

But if I could take a course or two in the History of Law, Friedman is my guy.

[Tyler Dorr · Rating 5 out of 5]

Excellent - there’s a reason people talk about this one. Well researched, epic in scope, but fluid and alive in a way that legal treatises aren’t often

[Deb · Rating 4 out of 5]

Read the first edition of this tome serveral times back in 75-77. Winthrop v. Lechmere, The Charles River Bridge Case, land is not fungible, riparian rights. Those were great days!

[Jeremy Gutner · Rating 5 out of 5]

This book was excellent, and I would recommend it to other law students. I read it during the winter break of my first year in law school and I recognized many concepts from my Torts, Property, and Civil Procedure courses that I took last semester. I am sure that I also read plenty of pages covering topics that will come up in my next semester. The book is thorough and well-written. People who saw me reading it assumed that from the name and topic that it would be dry, but this was actually an extremely engaging book.
On the subject matter, the book goes chronologically through American history, starting in colonial times. But it flies quickly through the twentieth century. The main focus is definitely pre-20th century, especially the post-revolutionary period through the nineteenth century. All in all, this was an excellent read.

[James G. Fedorka · Rating 4 out of 5]

It would be a distinct pleasure to sit down with Lawrence Friedman and have a beer or two. He writes with a succinct, illustrative style that flows nicely. Sometimes I feel that at times the sentences are cut short, but his well chosen words smoothly glide along regardless. The content is fascinating and it was a topic that I have completely ignored until now and I want more. The final chapter of the book consists of his reading recommendations, which induced me to buy "Original Meanings: Politics and Ideas in the Making of the Constitution" by Jack N. Rakove.

The book travels with the reader from colonial America to the early 21st century America touching on the history of the Supreme Court and a wide range of legal subject matter. I hope to read more of his books.

[Ethan · Rating 4 out of 5]

A digestible general-audience book that gives an overview of American legal history. I read it for a class, but nonetheless enjoyed it, and will probably keep it on my bookshelf in the future. I feel like the information in this book has helped me become a more informed citizen, which I suppose is a great outcome.

[Hunter Johnson · Rating 4 out of 5]

Overall, a great overview of the history of American law. The sections covering the colonial period through the end of the 19th century are excellent. These chapters are fairly comprehensive and well-supported with references. However, the sections covering the 20th century to present seem thrown together and at times very editorial.

[Percival · Rating 5 out of 5]

Friedman's survey of American legal history from the colonial period up until the twentieth century is surprisingly light reading. He follows a very chronological method which entails frequently dropping a certain topic just to pick it up later in the book. This tends to keep things fresh and engaging.

[Vania Chaker · Rating 5 out of 5]

One of my favorite professors wrote this. Lawrence Friedman is an icon at Stanford Law School! This is a must read for anyone interested in the law. No prior knowledge of law is required to make this an very interesting read!

[Catherine · Rating 3 out of 5]

Oh, so dry. I mean, the topic is most interesting, but the treatment is dry as dust, so dull that it sat on my desk for 7 years before I finally gave up half way through. It doesn't work well as a reference book, either.

[Jeany Lin · Rating 5 out of 5]

殖民地時期都是去年讀的了，今年三月慫恿書友一起，橫跨大半年終於在讀書會的幫助下讀完了！2024年年度鉅獻啊！！！

這本書我真的超級超級推薦，讀完了之後覺得美國之所以變成現在的美國，有了更深刻的認識。

中譯導讀本身我覺得也蠻值得讀的。其中講到法學教育從案例本身邏輯推理與抽象思考、到結合社會科學和時空環境結合探討的實用主義，我覺得也是一個蠻有趣的。

法學院應該讀什麼？

以前是判例，以及其中法理的原理原則。後來則加上了時空環境、成文法，相關的經濟學、社會學、心理學、行為科學等等。

總之，法律史其實就是一個社會的演進史！

[Calvin · Rating 4 out of 5]

Very long, but very interesting. It was not a drag to read. His objectivity suffered at times, particularly near the end as he reached more modern controversies. But all in all very interesting and informative.

[Matthew Mendenhall · Rating 4 out of 5]

Exhaustive history. Details just about everything you’d want or ever need to know about American law.

[William Thompson · Rating 3 out of 5]

A post-modern (that is not a dirty word), overview more of the sociological trends and features of the American Legal System than of the nuts and bolts.

[Ben Eggleston · Rating 4 out of 5]

Before starting this book I imagined it might be a chronological survey of important major national laws and Supreme Court decisions, or something along those lines. That might have been interesting enough, but in fact the book goes much deeper by providing an overview of the general legal regimes that pertained to various aspects of life at various times in American history. For example, although there is somewhat of a stereotype that a doctrine of laissez faire prevailed before the twentieth century, governments in America were actually active players in the economy: many colonial governments prohibited farmers from selling staple crops (e.g., maybe tobacco in Virginia, maybe cotton in Georgia) unless they had the government’s “seal of approval”; and later, many state governments were major investors in railroads that they thought would enhance their economies. On these and other topics the main ideas are not one-time events such as legislative votes and Supreme Court decisions, but economic and social needs, and the way the law was shaped to serve those needs.

The book is divided into parts corresponding to four periods: colonial times, revolutionary times to the middle of the nineteenth century, the second half of the nineteenth century, and the twentieth century. Within each part, there are chapters on various topics: land law, business law, criminal law, the way the practice of law was organized, judges and court systems, etc. Each chapter reads as a more-or-less self-contained essay on a particular aspect of law during a particular era, and the author skillfully combines general overviews with illuminating anecdotes and summaries of major events in law (such as influential laws and court decisions). Although the book is very long (nearly 600 pages of pretty small print), it is very readable; the author has a very conversational style and a good sense of when enough detail has been provided to illustrate a general theme or trend. Running throughout the book, as suggested above, is the idea that American law has changed over time in response to the economic and social trends of American society generally. Consequently, the book is in many ways a work of economic and social history as well as legal history, and much the stronger for it.

[Süësëttä Advöcäätä]

My first reaction after finishing the book, was to ask myself how anyone could have enough time to put so much information together. As the cover states, this "book touches every conceivable aspect of law...it is a stupendous achievement." The author takes an insurmountable task and first breaks it up into four sections, Part 1: American Law in the colonial Period, Part 2: Revolution to the Middle of the 19th century, Part 3: Close of the 19th century, Part 4: The 20th century. Within each part he segments chapters into readable legal topics. (i.e. Corporations, Crime and Punishment, etc). In that way, the reader gets an understanding of the period and how it effects all sorts of law, before going onto another time period and seeing how other areas of the law grew and affected other areas.

Although the republic split from England, the author reviews how attached the our legal system continued to be and all the reasons why this was so. (All the legal treatises and cases were only printed about English law for quite some time). He also discusses why certain areas of the law, nonetheless, quickly grew away. (i.e. the are lots of navigable seaways in America, not so many in England). This is just a small sampling of a tremendous source of information.,

The study of law present a tremendous number of apparent inconsistencies, non-sequitors, and just beyond the reasonable conundrums. The author tremendous dedication to this work really sorts out these issues buy showing the development and goals through the history of the Union. (And why the Socratic method is everywhere, much to the consternations of L1s everywhere)..

Of course such a treaties requires a good effort to read, assimilate, and remember. Should you decide to read it in a bar on say, a lunch break, you get lots of curious questions, puzzled looks, and few invitations to dates, so be warned. Nonetheless, highly recommended for the all the people in this country that are interested in US history and legal history; yes, I recommend it to both of us.

[Jared Cook · Rating 3 out of 5]

Law is a storytelling profession. Lawyers tell stories to judges about how a particular rule of law developed in order to convince them that it does or doesn't apply in their case. Judges tell stories about the same thing in order to convince other judges that their view of the law is right. This book, then, is kind of a meta-history because it tells the story of how American law, legal education, and the legal profession became what it is.

As an amateur history buff and a newly graduated law student, I enjoyed this book. The book's real value is that it gives detailed vignettes of certain issues or problems in distinct periods. The result is that you get a detailed look without getting bogged down in the detail. Of course, much is left out, and much is done in broad strokes, but even so the book is still probably about a close to comprehensive as you can get withotu sacrificing readability.

Friedman isn't shy about his own views, but he keeps them pretty muted and for the most part just sticks with the history. What I found interesting was the way he takes care to explain the relationship between social, economic, and political forces and the law. The result is that you see the development of law as a tool to solve problems or maintain the status quo. This feels more realistic and more persuasive than an account of judges and lawyers slowly becoming enlightened on how to harmonize abstract doctrinal propositions. In particular, the account of the interplay between land law and the settlement of the territories in the 19th century was interesting. What is most fascinating is how the judges and lawyers dressed up their social and political propositions as legal abstractions (and believed it, too).

[Mariel · Rating 5 out of 5]

Finally. I started this book just before I began law school. I read a chunk of it during 1L and largely left it alone until this summer. It's long and dense, but also brilliant. It's easy to read and written in a story-telling manner most history books miss. As a law student, I've found a lot in here I wish was taught in school. I've always thought history provides a much needed perspective on current endeavors. This book covers every area of law and the development of law schools and legal practice. A good read and something I'll keep as a reference book.

[Kevin Christiansen · Rating 2 out of 5]

The book includes a lot of information. Reducing over 236 years of legal history into a 580 page volume is a challenging task, to say the least. The book had its high points. For example, I enjoyed the discussion concerning the development of the American legal tradition in the west. The book also provided some interesting information about how legal education has evolved. Unfortunately, the book glosses over a number of time periods, not the least of which is the 20th century. It also has a tendency to plod along. Overall, a slightly disappointing read.

[Tommy Powell · Rating 5 out of 5]

I have gained a much more realistic understanding of how law comes into being. For a long time the phrase "law on the ground" simply made me skeptical of the author. My understanding has come a long way (I'm on p. 179 Boom & Bust: the Law of Mortgages after 2 years of reading) but I'm not retaining as much as I should. This book may yet be a bit more than I can handle.

[Peter Norman · Rating 4 out of 5]

Less social sciency than I had hoped, but still more so than some other lawyers would probably want. Still, some very interesting insights into, inter alia, how the rise of the American middle class impacted the nature of law. Also very interesting for the treatment of "limited" government and regulation during the 19th century and the professionalization of criminal justice. Recommended.

[London Steverson · Rating 5 out of 5]

This is the best, and most comprehensive account of every aspect of the history of the American legal system. I learned everything I ever wanted to know about the history of American law but was afraid to ask.

[Bryan · Rating 4 out of 5]

I majored in history and I'm a lawyer-in-training. I was contractually obligated to buy this. Thankfully, it's well-written and interesting.

[Nicolas Garcia · Rating 4 out of 5]

what falls under " the history of how things got so fracked up". also, frack those politicians who use the term "legislating from the bench" it is a legal tradition.