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February 2, 2006

Book Recommendations: Private, International, and Common Law; Legal Theory

Stephan Kinsella

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...
  • 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, in particular: the sections on Law: Miscellaneous; Law; Civil, Roman, Common, Louisiana Law; and Law: International Law. some very interesting ones are:

Anyone have any different perspective on this or recommended readings? Any good or obvious introductory, background, etc. works on law I am omitting?

February 2, 2006 11:38 AM | comment | Digg | contact Stephan Kinsella | other posts


Posted by: Josh Stokka at February 2, 2006 12:57 PM

What does that Sowell book have to do w/ the topic at hand?

Posted by: Stephan Kinsella at February 2, 2006 1:52 PM

I think you are missing a pretty big one:

Judge Posner. Although he's definitely Chicago School, he is one of the founders of the law and econ movement and his writings are very influential (and thoughtful). There a many books/articles he has written but the best are probably Economic Analysis of Law, and Sex and Reason.

I would also add Guido Calabrese (2d cir judge). He wrote a decent book on logic and the law.

Posted by: homeimprovementninja at February 2, 2006 3:23 PM

From the Federalist Society website:

"If we had to recommend only one book to a student seeking to understand the nature of legal and political debate in this country, we would unhesitatingly name A Conflict of Visions, by economist Thomas Sowell. Sowell makes the case that there are two perspectives on human nature: one that it is essentially "unconstrained" (and thus subject to manipulation via various schemes of social engineering) and one that it is "constrained" (and thus resistant to the perfecting efforts of the government). Sowell writes very clearly, and introduces the reader to the pantheon of classical liberal thinkers, as well as the lot on the other side of his divide.

Put that in your pipe and smoke it Kinsella. Clearly you havent read the book if you ask how the book relates to legal theory.

Posted by: Josh Stokka at February 2, 2006 3:45 PM

I don't think Stephan was claiming he had read it. It's not obvious based on the title what the book has to do with the subject, and so Stephan asked a reasonable question in a courteous tone. In no way was your snide reply called for. Calm down.

Posted by: Tom Woods at February 2, 2006 4:15 PM

Actually, I did read the book, many years back. It's probably my favorite Sowell writing--in fact, probably the only thing I've read by him that I really liked (admittedly, I have not read a lot, other than this book). However, the book, while provocative, I found to be non-rigorous in its attempts to classify and distinguish left from right; as I recall, it borrows heavily on the conservative view of how liberals and conservatives differently view human nature.

That is why I think it has nothing to do with the topic at hand, which was books that explain or discuss the history of law, in particular private law, international law, and common law; and the philosophy of law. The Fed Society comment does not seem to contradict this; it merely praises the book as helping to understand "the nature of legal and political debate in this country". I don't think that implies that the book is helpful with legal theory or understanding the origin of private or common law systems; and from my memory, the book has nothing whatsoever to do with such topics. If anything, I would guess that this Josh Stokka character is the one who has not read Sowell's book.

Posted by: Stephan Kinsella at February 2, 2006 4:57 PM

Some other guy recommended Posner and Calabresi. I think these are relatively narrow and modernist, or technical; I don't think they belong on a list like I am conceiving. As for the high praise heaped on Posner's Economic Analysis of Law--the book is nothing but Coasian utilitarian wealth-maximization run amok.

Posted by: Stephan Kinsella at February 2, 2006 4:59 PM

What about Berman's "Law and Revolution" or maybe even Zane's "The Story of Law"?

Posted by: Dirk Friedrich at February 3, 2006 3:07 AM

I recommend Bruce Benson's The Enterprise of Law.

Posted by: Ron Brown at February 3, 2006 9:09 AM

I'd include works from Lon Fuller, who picked up and elaborated on the idea of polycentric order from Polanyi. Important works include The Principles of Social Order (a collection of papers and extracts) and his rather misleadingly titled The Morality of Law. The latter, in particular, elaborates on his vision of the principles underlying legality, and fits in well with the work of F A Hayek, among others.

Posted by: John Touchie at March 2, 2006 4:36 AM

Post an intelligent and civil comment.