CHARLES REMBAR's first book related his legal defense of Lady Chatterley's Lover, The Tropic of Cancer and Fanny Hill, and was fittingly entitled The End of Obscenity, That book was a splendid example of a familiar genre -- the eminent lawyer explaining how he won some famous cases in defense of a worthy cause. Rembar's new book departs from this pattern, however, and purports to describe the growth of the Anglo-American legal system. The dust jacket contains fulsome praise for the book from a bevy of well-known authors, whose tributes seem more likely to derive from the fact that most are Rembar's clients than from any virtue inherent in the book.
Rembar is to be congratulated for trying his hand at a very difficult task. Had he succeeded, he would have served us well, for there are very few succinct accounts of our legal history. Alternatively, had he written a book describing how our current legal system actually operates, he would also have written a fascinating book. Indeed, those portions of The Low of the Land which deal with the contemporary legal system are insightful and consistently interesting. It is clear that Rembar has worked very hard on this book, and he has certainly learned a great deal in the course of his research, but a thousand years of legal history are hard to sum up, and in any case the history of law is difficult and relatively new field, even for a professional.
Rembar is aware of the difficulty, and stresses the fact that he is not a trained historian, but the stricture he applies to an historian writing about law is equally applicable to him --"a fine example of amateur seduced by professional arcana."
There are some advantages to being an amateur. Rembar does not accept all of the positions maintained by "leading" scholars, and sometimes his relatively untutored approach pays off. For instance, when he analyzes the legal procedures allegedly originated at the Assize of Clarendon in 1166, he has some new and persuasive things to say about the origins of the jury. He is also correct, as most historians have not been, in arguing that the famous Zenger case of 1735 is an example of jury nullification rather than law reform.
More often, however, Rembar simply gets the story wrong. He argues, for instance, that the action for libel originated in 17th-century England, whereras it actually originated much earlier, though he is correct in saying that libel came into existence long before slander. He has probably confused Sir Edward Coke's report of the Star Chamber case de Libellis Famosis (1606) as the common law origin of libel, whereas it actually refers to the rapidly developing law of seditious libel. Much more important, he is the victim of old-fashioned and platitudinous accounts of early American history. He thinks that Blackstone's Commentaries flourished in 19th-century America "where the law was part of a frontier culture starved of reading matter," and he argues that in "the flood of writing which prepared the way [for the American Revolution], there is scarcely any urging that something new be tried, any call to progress. Most of agitators are ostentatiously conservative."
It would be unfair for a professional legal historian to pick on an amateur, even one as capable as Rembar. My point is that the book is not a reliable guide to the history of our law, for two reasons. The first is that Rembar's real interest is in the medieval period of English history. It is here (as it has always been for the Anglophilic American lawyer) that he sees the origins of our legal tradition, and it is the Middle Ages and the early modern period that Rembar has obviously done his homework best. The book tends to jump from 17th-century England to contemporary America, however, neglecting the fact that much of our present law in fact was worked out on this side of the Atlantic. With a few exceptions (such as the codification movement, about which he is quite inaccurate) it is as though 200 years of American history did not exist. An entire field of scholarship in American legal history has developed over the last 20 years or so, and it is to this literature that readers will have to return to find out what Rembar does not tell them.
The second problem is that Rembar writes too well. He is seduced by words, and he strives for something fresh, cute or different to say. The results are disastrous.
"It is free enterprise, not government control that has homogenized the nation."
"The short order cooks who graced the bench whipped up tradition in an instant."
"The sexual element was quite plain in the witchcraft trials. . . . The witches of early fantasy were not ugly, nor, in all likelihood, were the women accused of witchcraft. Often, it is safe to say, the accusor was a bested rival, or a rejected suitor or discarded lover. The accused was likely to have an allure not supernatural at all."
All of this is misleading nonsense. It is compounded by a grammatical affectation which drives me, at least, crazy; had Rembar's publisher limited him to two parenthetical expressions per page, the book would have been easier to read.
Rembar concludes by arguing that the task of the law "is to draw generally sensible lines within the infinite shades of circumstances that constitute our world." This is also an excellent description of the task of the historian, but in The Law of the Land, "the infinite shades" of historical meaning disappear into a rhetorical void.