Vol. 2 No. 11 (November, 1992) pp. 174-175

LAW AND PEOPLE IN COLONIAL AMERICA by Peter Charles Hoffer. Baltimore: The Johns Hopkins University Press, 1992. 156pp. Paper $14.95.

Reviewed by Lawrence M. Friedman, Law School, Stanford University.

There is quite a large literature on the history of law in the colonial period, but there are surprisingly few attempts to sum it all up within the covers of a single book. Prof. Hoffer's book is just such an attempt. It is very concise, probably a bit too concise -- the text is really only about 120 pages long -- but quite successful, I think, at what it is trying to do.

The decision to speed over so much ground in so few pages is dangerous, but it does concentrate the mind wonderfully. Hoffer sums up, for example, the Puritan attitudes and practices on criminal justice with great economy. The only way to succeed in a book like this is to be willing to make bold generalizations; and so what Hoffer lacks in detail, he makes up for in broad strokes of theory and insight. Terseness also forces you to adapt an approach, a point of view, and stick to it; and Hoffer's approach, basically, is the "externalist, law-and-society position," a decision I heartily approve of.

In other words, his approach to colonial law is not technical, not legalistic. It is not geared to the development of legal concepts and institutions from the inside; but an exploration of how concrete social conditions (and ideologies) molded the distinctive character of colonial law. Of course, he is not the first historian to take this approach -- all of the best ones do, if I may be permitted to say so -- but he does it well, and thoroughly.

In the preface, Hoffer singles out two major themes of the book as particularly important. The first is the "reformist impulse" of American law. The colonists were opposed, from the outset, to the "severity and bias" of English criminal law, and to the "feudal relics of its civil law." They insisted instead on "a more humane and forgiving criminal law and a more egalitarian civil law." These reform impulses were one ultimate source of the "revolutionary crisis of 1763-76."

This is an important point. As we look backwards, we tend to see colonial law as a pretty primitive, theocratic, and narrow- minded affair; and of course it was. But many of the early settlers, and their leaders, were dissenters of one sort or another; and this is a crucial point in understanding what they were about, and why. The conditions of life in the colonies, too, made the colonists "reformists," almost despite themselves.

"Reform" of course is a word of praise; perhaps Hoffer should have hedged a bit and said "innovation" instead. Not all innovations were "humane." Slavery -- to remind ourselves of something unpleasant -- was unknown to English law; it was a new world invention.

A second theme is that "the energy pulsating through the first American legal systems blurred distinctions between public and private law," that is, between constitutional and community-wide rules, and the private disputes "over rights, duties, and property among individuals." To put it another way, perhaps a bit too crudely, the colonists did not buy the theory that legislatures make laws, while courts settle disputes, and never the twain shall meet.

Hoffer also stresses a theme which perhaps includes these and overrides them. This is the increasing use of law, the increasing "legalism" of the colonists, the increasing resort to litigation and to other forms of legal behavior. In particular, there was a "surge" of litigation in the 1720's and 1730's. Hoffer sees the source of this "surge" in a sense of "wronged dignity" and "damaged personal self-worth." People stop disputing and negotiating when they think that their opponent has "broken the rules," that is, the rules of the game, the norms of the community. Such a person "must be chastised publicly. The

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lawsuit is thus an exchange of visible signs -- words, gestures, pieces of paper -- a public conversation among the parties carried out in front of the community; trials are "dramatic dialogues," in which the neighbors "act as chorus and audience" (p. 54).

I am intrigued by this idea, but not entirely convinced. In one sense, it is similar to a theme we find in Bruce H. Mann's 1987 book, NEIGHBORS AND STRANGERS: LAW AND COMMUNITY IN EARLY CONNECTICUT. The idea is that "community" declined in the 18th century; in the 17th century, everybody in the tight little towns knew everybody else, and personal relations dominated impersonal, "legal" relationships. It was, in other words, a walk from Gemeinschaft to Gesellschaft.

Hoffer's thesis, however, has quite a different flavor. The description of trials as "dramatic dialogues," the reference to "wronged dignity" and the like, suggest a kind of intermediate stage in the passage from face-to-face communities to the full- blown impersonal, market-oriented world of the 19th century. As I say, I am not entirely persuaded; but the theme is well worth exploring.

Hoffer also tries to connect the "litigation explosion" with the political upheavals that ended up in the war for independence. Americans, he says, "began to believe that complex social problems had, or ought to have, legal solutions" (p. 96). Law became politicized; and politics legalized. Politics and law merged "at the highest levels of theory and practice" (p. 97). The central revolutionary idea was that government ought to be accountable to the people, accountable, however, in terms of law, rights, and fundamental principle.

It was not entirely clear to me how Hoffer connected all of this to his general reformist theme; nor whether he had tried hard enough to specify exactly what aspects of American society brought about these massive changes. Far more important, I think, is the fact that (in my judgment) he has got the story right, and has told it in an interesting and coherent way, and in a theoretically challenging way. He has packed a lot of substance into a small space, and generated a lot of ideas to chew on.

There were some spots here and there where extreme compression results in a certain distortion of the historical record. But these are quibbles. This is a valuable book, and a thoughtful one.