Kunal Parker's book is a sophisticated, many-layered, history of nineteenth-century American legal thought. The most obvious layer, the one that directly connects with the book's title, addresses the question of why the common law survived and grew more influential throughout the nineteenth century despite the claim that America was a democracy governed by the will of the people expressed by popularly elected legislatures. Parker's answer is that throughout the nineteenth century democracy was a newly arisen norm of political life that coexisted with competing theories of good politics and legitimate lawmaking. These competing theories, the most prevalent of which were grounded in understandings of history, constrained the belief that legislation should be the primary means of community governance. For many nineteenth century social, political, and legal theorists, history's connection with societal norm formation, and the common law's connection with history, supported the valorization of the common law as the dominant source of society's law.

This is an important insight, but Parker's study is more than “a book about the relationships among law, history, and democracy” (23) in the nineteenth century. It is also a book about changes in the “historical imagination” (24) that compelled common law theorists to continually refashion the articulation of their claim that the common law was a more preferable source of law than legislative enactments. Parker sees history as a ceaselessly changing construct. His project requires him to lay hold of this moving target. His solution is to turn to periodization, to identify a variety of historical imaginations that were “unarguably influential” (24) in the nineteenth century and to show how they were successively “shared, appropriated, and transformed by legal thinkers” (24).

At the core of Parker's book are four chapters that describe four successive images of history, the contrasting historical imaginations of the late-eighteenth century, and the early, middle, and late nineteenth century. In each of these periods, Parker discusses how the regnant notion of history was deployed in important politicolegal controversies, shows its connection to changing images of the common law, and analyzes its ability to support a preference for common law over statutory law.

All the layers of Parker's book are elaborated in service of the most general layer, the layer pointed to by the book's subtitle: Legal Thought before Modernism. Essentially, Parker's book is about a premodernist intellectual universe in which the claims of majoritarianism are constrained by “foundational” thinking in general, and “teleological histories” in particular (21). It is a universe with a moral reality, an external standard for measuring what laws should be and what laws should not be, and for identifying laws that have passed their expiration date. For some jurists, this external measure might be religion, or a more secular concept such as the laws “of nature,” which were “engraved in our hearts” (75). But Parker asserts that for most nineteenth-century jurists, the appropriate external measure was to be winnowed from the study of history. It was ensconcing history as the primary means to determine what law should or could be that made history, and its scion—the common law—both the dominant source of law and a significant constraint on the claims of democratic enactments.

Therefore, in tandem with other factors, it was the fall of foundational thinking in the early twentieth century that liberated legislatively made law from the constraints of history and finally turned American legal culture into one in which, as a means of lawmaking, legislative enactments are conceived as superior to judicial declarations of common law.

Although addressing the impact of modernism on legal thought, Parker's book is a postmodern analysis. In reconstructing a series of images of the historical process, and showing how each one was deployed by legal thinkers on opposite sides of the subject under discussion, Parker frequently deconstructs the arguments to show that what a theorist denied was actually embedded in and necessary to what he claimed. In each era that Parker studies, the products of the historical imagination seem opportunistically malleable.

This raises the question of whether the ideas that Parker studied had any power to influence real-world events or whether they simply were rhetorical constructs deployed in the service of other causes. That familiar chestnut, however, is not the focus of Parker's interest. Rather, Parker explores the common law's engagement with history to shed light on the nature of historical thought. Parker's study shows legal theorists, from the seventeenth century to the present day, grappling with societal and legal change by constantly “returning” (22) to the same concepts, the “nonhistorical temporalities of ‘immemorality’ and ‘insensibility’” (65). These concepts provided premodern legal theorists with a “language for reconciling law's claim to identity over time with its need to accommodate difference over time” (280). Modern theorists still use them, albeit “to slow the pace of change or to perfect law's correspondence to society or to give disenchanted lawyers a sense of rootedness” (284).

In fine, Parker's fascinating discussion of history in common law thought tells a dual tale. It elucidates the centrality of history in common law thought and analyzes certain constancies in the Anglo-American historical imagination. Common Law, History, and Democracy in America explores “history” from “a perspective on the common law” while exploring “the common law” for “a perspective on history” (21).