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The traditional insignificance of the distinction between public and private law in England is particularly evident in the intertwined history of public and private law liability, and the non-exclusivity of the original prerogative remedies in administrative disputes. This chapter describes the significance recently given to the English distinction as an outcome of transplantation, principally through the judicial determinations in O'Reilly v Mackman on the exclusivity of the reformed judicial review procedure in public law. The hazards of legal transplantation identified by Montesquieu and later debated by Kahn–Freund and Watson are illustrated in Montesquieu's own adoption of the English separation of powers, Dicey's rejection of droit administratif, and the judicial transplantation in O'Reilly v Mackman. The chapter attributes those hazards to neglect of historical and political context, and therefore advocates a comparative historical jurisprudence that addresses the various criticisms of its now-discredited theories of legal evolution, principally by explaining the methodological advantages of using a Weberian model or ideal type to require careful and self-critical consideration of context.

Carter is the chief American representative of the historical school of jurisprudence. Carter pioneers an anthropological and sociological approach to law, by arguing that men are ruled in fact by custom, whatever the law books may claim. Carter argues that rule by custom is much more compatible with liberty than rule by legislation and that custom, like common law, works itself pure over time.

Thomas R. R. Cobb, a Georgia lawyer and law professor, published his proslavery legal treatise in 1858. Cobb’s book surveyed slavery in human society from the ancient world to the modern West Indies and American South. He made the case for an empirical basis for his proslavery world view. He saw slavery as nearly ubiquitous in human history, as necessary for economic and demographic development, and as beneficial to the enslaved and the enslavers as well. Cobb’s treatise argued for the extension of slavery and for slavery’s consistency with natural law. Cobb argued that slavery was the natural state of humans and that the common law should preference slavery, not freedom. His treatise was used in years between its publication and the Civil War to justify proslavery positions when enslaved people challenged the legitimacy of their bondage in court.

This chapter offers a fresh perspective on some familiar aspects of the legal thought of the late 19th and early 20th centuries, by connecting them to the decline of natural law. Much of what we now call classical legal thought can be understood as the profession’s attempt to find a substitute for natural law, either by replicating the method of natural law with principles found elsewhere than in nature or by bringing natural law into the courtroom indirectly through positive law. At the same time, the decline of natural law led to the emergence of the view that judges are makers, not finders, of law.

Beginning with Nathan Beverley Tucker, a professor at William and Mary, this chapter introduces the key themes of the book: that southern academics developed lengthy defenses of slavery based on political theory of hierarchy, the economic utility of slavery, and the centrality of slavery to human history. Those arguments help us understand how southern politicians and judges reasoned about slavery and help us view the motives of Southerners as they became increasingly aggressive in promoting slavery and, ultimately, moved toward Civil War.