Legal historians have been slow to address some of the more pressing problems of the discipline. As such, scholars continue to neglect macrohistorical approaches in favor of temporally more constrained projects. Consequently, the long-term trajectory of law and legal thought has remained elusive. Moreover, legal historians have tended to shy away from analyzing the historical path that their own intellectual endeavor has taken. As a result, the cultural and institutional features of legal knowledge production continue to be obscure. Finally, scholars remain hesitant to use critical history for the purpose of examining the direction in which law and the legal profession are headed. Given these problems, James Gordley's latest book—promisingly titled The Jurists: A Critical History—constitutes a welcome change of course.

Gordley departs from the assumption that “[i]ntellectual traditions have beginnings in time” (1). He then invites his readers to look no further than the Roman Empire for the beginnings of the particular intellectual tradition that has captured his imagination. As Gordley argues, it was during this classical period that jurists first began to constitute themselves as a “cadre of experts” (5). By formulating concepts based on experience rather than logic, classical Roman jurists thus founded an approach to law and legal science, about which Gordley says that he would be surprised “if it were to disappear” (312). Gordley goes on to examine how, after the rediscovery of the Digest of Justinian, medieval civil lawyers sought to order classic Roman materials by reconciling every authoritative text available to them with every other. Although their commitment to textual authority marks them as predecessors of contemporary approaches, Gordley shows that it was not until the work of the late scholastics that law received its idiosyncratically doctrinal structure. Driven by a desire to base late medieval society on principles of commutative justice, the late scholastics synthesized Roman legal materials with the philosophy of Aristotle and Aquinas. In so doing, they began to distinguish more clearly than their antecedents among the law of contract, tort, unjust enrichment, and property.

Against this background, then, Gordley turns to the humanists and their contribution to the intellectual tradition founded by the classic Roman jurists. What the humanists had in common with the late scholastics, Gordley argues, is that they, too, wanted to explain law “as a systematically organized whole” (116). Instead of bringing existing legal materials into compliance with certain metaphysical principles, however, they focused on reinventing law as an ars, that is, a systematic course of study designed to equip students with the virtue and wisdom necessary to succeed in public life. Although the humanist ideal of law as ars has had little direct influence on contemporary jurisprudence, Gordley argues that it served as a stepping stone for the work of the iusnaturalists, who applied it to natural law, as well as for the work of eighteenth century French civil lawyers, who applied it to Roman law. In doing so, the latter were particularly interested in providing a more scientific approach to legal education through the compilation of comprehensive treatises. Gordley then turns to eighteenth century German and Dutch jurists who, like their French colleagues, were concerned with the question of how law could be made more accessible to legal practitioners. Instead of compiling treatises on the basis of original Roman texts, however, they attempted to structure legal education around the Roman texts themselves. In particular, they sought to harmonize existing materials in order to apply them to situations their Roman predecessors had not anticipated. Gordley then contrasts this commitment to “texts unsupported by principles” with the rationalists' commitment to “principles unsupported by texts” (164).

This dichotomy sets up Gordley's penultimate chapter. As such, he describes how nineteenth century jurists, frustrated by the rationalists' failed attempt to deduce law from human nature, sought to deduce law from the various private law codifications in existence by that point. Because legal conclusions were supposed to be logically deducible from these authoritative texts, the idea was that there had to be fixed concepts and categories underlying them. In view of this, Gordley points to a striking similarity between the ideas of nineteenth century jurists and the ideas of the rationalists. Like the rationalists, nineteenth century jurists seemed to presuppose the existence of certain absolute principles that allowed for one right answer for every legal question. Against this background, Gordley then portrays the rise of early twentieth century critical approaches to law as a revolt against the conceptualism that nineteenth century jurists had inadvertently taken over from the rationalists. Here, Gordley's impressively rich and comprehensive narrative begins to thin out. He broadly distinguishes between movements that sought to vanquish conceptualism by appeal to intuition, empiricism, and/or social purpose. However, he makes no real attempt at surveying the full smorgasbord of twentieth century jurisprudential theories. Although the book's final section is captioned “Whither?” Gordley concludes—somewhat anticlimactically—that “the question of where we will go is unanswerable” (312).

Throughout the book, Gordley reminds his readers that “[t]here is no reason why there had to be rationalists, humanists, late scholastics, medieval civilians, or, for that matter, Roman jurists” and that, “[t]he entire tradition might not have been” (312). Although caveats of this kind are certainly most prudent, there is a discordance between Gordley's contention that it is possible to pinpoint the beginning in time of a particular intellectual tradition, and his contention that it is “a mystery” why a particular project ever got started (312). Certainly the contingency of events and ideas constitutes a pervasive challenge for historians, legal or otherwise. At the same time, Gordley could have said more about the relationship between the “when” and the “why.” For one, he could have achieved this through a more clear-cut definition of “the jurists” whose sole “defining characteristic” he takes to be a commitment to understanding and explaining law (x). Delving more deeply into the institutional and professional culture of the various actors Gordley surveys might thus have helped him flesh out the reasons why a particular intellectual event took place when it did. In addition, the relationship between the “when” and the “why” could have been explored through a more general historicization of the various jurisprudential approaches surveyed in the book. Gordley argues that jurists' goals and methods are sufficient to explain “why they wrote what they did” (x); and, moreover, that we cannot be sure whether they were inspired by “whatever else was going on at the same time” (x). These observations point to a fourth problem of contemporary legal-historical scholarship: its liminal status as a discipline trapped between law schools and history departments. As such, it is perhaps the Herculean task of satisfying both jurisprudential and historiographical expectations that ultimately prevents Gordley from more critically examining the direction in which law and the legal profession are headed.

Certainly this in no way diminishes the intellectual achievement of The Jurists, which—like any work of its caliber—raises a panoply of important questions that legal historians will in the future gratefully take as a starting point for their own scholarly expeditions.