THE IMPORTANCE OF LEGAL HISTORY
FOR MODERN LAWYERING
CHIEF JUSTICE RANDALL T. SHEPARD*
INTRODUCTION
For a profession that owes much to history, we American lawyers move all
too easily through our daily work without much reference to the judgment,
wisdom, and experience of those who went before us as leaders in the system of
justice. This symposium is designed to record and examine some of the most
interesting people and events in the history of Indiana’s courts, its lawyers and
its judges.
I. IGNORANCE OF LEGAL HISTORY HAS FEW EXCUSES
Our inattention to legal history is curious in many ways. First, lawyers as a
group more often than not are people who studied social science as
undergraduates. Indeed, the profession is full of people who majored in history
during college. In the course of earning their degrees, they likely learned a great
deal about the history of governments and wars, the history of social movements,
and the history of commerce. They probably did not learn much, however, about
the role of the legal profession or even the courts.1
Law schools give their
students a fair instruction in various substantive legal fields, but usually not a
great deal about the history of legal institutions. There are precious few
opportunities to learn it later.
Aside from what we picked up on our way to becoming lawyers, the whole
profession operates in substantial part, one might say, on the basis of history. We
use our basic legal education, which bears unmistakable resemblance to the
common law catalogued by Sir William Blackstone, by acting like common law
lawyers. “What have the courts said about the law in this field? Is there a case
on the question my client has brought to me?” These are questions natural to a
legal system based on the rule of precedent. It is very much a rule of history.
Of course, there are a few circles in which legal history thrives and produces
regular writings. These subjects range from those of wide interest, like the
evolution of tort doctrine, to true esoterica, like a piece concerning the evolution
of Russian secured transaction law before 1917.2
On a broader front, bar
associations publish pieces about famous milestones3
and about associations of