For the past hundred years, many Americans have thought of laws primarily as statutes passed by legislatures. As Andrew Forsyth demonstrates in his wonderful book, Common Law and Natural Law in America: From the Puritans to the Legal Realists, this has not always been the case. For most of this nation’s history, students and practitioners of law have been interested in the natural law and the common law, both of which were understood to be grounded in Christianity.

Forsyth’s volume provides a sweeping history of common law and natural law in America from the Puritans to the legal realists. He ably shows that until the twentieth century, most attorneys took natural law and the common law seriously, although he recognizes that the ways that each type of law is understood has shifted throughout the nation’s history.

By “common law,” Forsyth means “the system of laws in England and the United States in which laws—whatever their seeming source in a constitution, statutes, orders, or cases—are made explicit through interpretations by judges; judicial decision in individual cases expounded and develop the law… . Far from the creation of judges, in our seventeenth- through early twentieth-century story, America common law was understood as deeper rooted: the custom of the people perhaps, or even nothing less than common reason” (xi–xii).

The common law was discovered, not created, by judges, and it was intimately connected to natural law. The latter is “universal morality naturally accessible to all rational people[,]” which “is grounded in—variously—the mind or will of God, nature, or human reason” (xi, Forsyth’s emphasis). In America, this tradition was almost always understood in a Christian context.

Forsyth’s opening chapter, on Puritan natural law, is probably the volume’s most important contribution to contemporary academic debates. Far too many scholars continue to accept the caricature of the Puritans as narrow-minded, anti-intellectual religious zealots who rejected the authority of reason and natural law and who viewed all truth as emanating from the Bible. Forsyth acknowledges that the Puritans did not embrace a Scholastic version of natural law, but he argues that they accepted a Protestant version of natural law.

The Puritans believed that humans are created in the image of God, and they understood “rationality as the content of the imago Dei” (3–4, Forsyth’s emphasis). They taught about the tradition in their universities, and they thought that it must inform civil law. Indeed, according the General Court of Massachusetts Bay, “the administration of [the civil law] is according to deductions, and rules gathered from the word of God, and the clear light of nature in civil nations” (12, quoting Laws and Liberties of Massachusetts: Reprinted from the Copy of the 1648 Edition in the Henry E. Huntington Library [Cambridge, MA: Harvard University Press, 1929]; my emphasis).

The Puritans looked first and foremost to the Bible as a guide to civil law, a reality that Forsyth underemphasizes. But they understood that even laws drawn directly from the Bible (see, especially, their capital laws) may be justified by the natural law. He notes in passing that “[c]umbersome forms of English procedure were … discarded” (13), but the chapter gives little sense of the radical (and positive) nature of the Puritans’ legal reforms.

In the words of David D. Hall, one of the best students of the Puritans, they added “a cluster of rights and privileges for plaintiffs and defendants … Out went torture, high fees, and long delays … Overnight, the cruelties of the English law and the abuses of power and money it sanctioned gave way to the value of peace, ‘mutual love,’ and equity.”Footnote ¹ Similarly, Michael Winship observes that in “New England, the colonists created [legal] systems that were simple, equitable, inexpensive, speedy, transparent, and grounded in law codes crafted to protect colonists’ rights against overbearing local rulers.”Footnote ²

The Puritans’ massive legal reforms were informed by both the Bible and their understanding of the natural law. Surprisingly, Forsyth does not discuss the extent to which they purposefully embraced or rejected the English common law tradition. It is not possible for an author to address everything, but in a relatively slim volume (156 pages total), it seems reasonable to expect him to spend at least a few pages on this topic.

The Puritans were not Scholastics, but neither did they adopt a modern conception of natural laws such as that advanced by Hugo Grotius (1583–1645) and Samuel Pufendorf (1632–1694). By the Revolutionary era, in Forsyth’s account, modern natural law permeated American academic institutions. As understood by Americans, modern natural law was compatible with traditional Christianity, but they emphasized the ability of humans to know the natural law through reason “without reliance upon a theological anthropology” (25).

Forsyth is undoubtedly correct that Revolutionary (and Founding) era Americans remained committed to the natural law, but it is unfortunate that he consciously chose not to “replicate available studies … on Revolutionary era discussions of natural law and natural rights” (xiii). There is certainly no need to “replicate” existing studies, but the extent to which America’s founders embraced the Christian natural law tradition as opposed to a secular account of natural rights remains hotly contested. In his chapter focusing on this era, Forsyth favors the first over the second of these positions, but he should have engaged these debates more directly.

Disappointing as well is that James Wilson (1742–1798) receives only passing mention in this chapter. Wilson was one of the more sophisticated and systematic political and legal thinkers in the era, and his lectures on law at the College of Philadelphia (now the University of Pennsylvania) include extensive discussion of the relationship between the natural law, the common law, and American constitutional and statutory law. Moreover, a majority of scholars who have written on Wilson over the past fifty years have denied that he took natural law seriously (a position I dispute in The Political and Legal Philosophy of James Wilson Footnote ³ ).

In chapter 3, Forsyth shifts across the ocean to consider William Blackstone and his famous Commentaries on the Law of England. There is extensive debate about whether Blackstone accepted or rejected the natural law tradition, and fortunately Forsyth choses to join this debate. He argues persuasively that Blackstone embraced modern natural law and that he believed it was intimately related to the common law. Most scholars who engage this question primarily consider the second section of Blackstone’s introduction, “Of the Nature of Laws in General,” but Forsyth shows that he utilizes the tradition throughout all four volumes of his Commentaries on the Laws of England.

Blackstone’s Commentaries on the Laws of England had an important influence on American law. More than a thousand copies were sold in the colonies “prior to the publication of Robert Bell’s first American edition of 1771–72. To date, a further 139 American editions have been printed, together with 141 abridgments and extracts” (63). Americans drew selectively from Blackstone, who famously opposed American independence, but the Americanized version of his works played an important role in the development of the natural law and common law traditions in the United States.

Prior to the nineteenth century, most attorneys learned their trade through an apprenticeship. Some universities provided lectures on law, and a few propriety schools taught it—the most prominent was Tapping Reeve’s school in Litchfield, Connecticut. In 1817, Harvard created the first recognizable university law school. Although it struggled in its early years, the appointment of Associate Justice Joseph Story as Dane Professor at Harvard Law School (he held both positions simultaneously) did much to revitalize it.

Story clearly discusses the natural law, but some scholars contend that he did so merely as window dressing. Forsyth contends, successfully in my view, that Story embraced natural law, by which he meant either “the whole system of morals or just that part of morality that pertains to justice” (84). He believed that the common law is ultimately derived from the natural law, although he acknowledged that sometimes valid positive laws departed from it (most notoriously, in the case of slavery).

Forsyth concludes this chapter by observing: “As American common law was worked out in the early nineteenth century, natural law was subsumed into its details; except in rare circumstances—notably in the arena of international law—common law less frequently appealed to natural law, for judges and jurists could now turn to the developing body of principles and precedents constitutive of American common law” (103). This is not to say that American attorneys rejected the natural law tradition, but as it became less central to the study and practice of law, the door was opened for those who would do so.

Christopher Columbus Langdell was appointed dean of Harvard Law School in 1870. He disapproved of the study of legal “principles, rules, and maxims,” and thought instead that students should study cases and draw legal rules and doctrines from them (106). He believed that law could be made into a science, one “that departed from the natural-law tradition in its clear affirmation of positive law—as promulgated by judges and, secondarily, legislators—as the sole source of the law, rather than morality or even custom” (122). As such, he is regularly recognized as an American pioneer of legal positivism.

Although he rejected the natural law, Langdell maintained a “belief in the principled cohesion of the common law” (125). He was followed by Oliver Wendell Holmes and the legal realists, who rejected this formalism and instead “articulated a thoroughgoing positivism” that reduced law simply to “what courts do” (125–26). Completely rejecting the natural law tradition, Realists denied that there is anything “objective” about law. Even so, many realists were committed to using the law to bring about good ends, ends defined in terms of “useful or useless … not true or false” (137).

Legal realism as a formal movement “barely survived the 1940s,” but, as Forsyth observes, many contemporary legal academics are essentially legal realists (142). Most law professors reject the natural law tradition and believe that law is simply what legislators and jurists say it is. Because law is essentially contentless, they regularly turn to other academic fields to evaluate laws and legal proposals—witness, especially, the law and economics movement.

Common Law and Natural Law in America provides an excellent overview of how natural law and common law have been intertwined throughout American history. Although he ends the book with the legal realists, in his epilogue, Forsyth points out that “the twentieth century offers new conceptions of natural law and common law, from universal human rights discourse—so powerful after the Second World War—to the civil rights movement to ‘the new natural law’ and, more arguably, the antipositivist critiques of Lon Fuller, Ronald Dworkin, and their peers” (146). Forsyth does not engage in these contemporary debates, but anyone interested in them will benefit from his fine, well-documented, and well-argued book.