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A Not-so-full-throated Defense of Doctrine
Cynthia Nicoletti
Doctrine, it seems, is a dirty word these days in legal history circles. A recent exchange between Risa Goluboff and Kenneth Mack in the Harvard Law Review on the topic of his new book focused, at least in part, on the centrality of doctrine to the enterprise of legal history. Mack suggested that decentering “appellate legal doctrine” distinguishes the “new” civil rights history from the “old” traditional approach that seeks to explore how lawyers (and regular people) interacted with
“formal law.” And Mack is clearly not alone – many new monographs highlight how people experience law without exhibiting much concern about the nuts and bolts – the boring multi-pronged doctrine contained in ponderous tomes – that most law students think of as “the Law.” A more than passing concern with doctrine might well serve to mark someone as “old fashioned” these days, and there is a poignant but delicious irony in reflecting on the idea that historians, above all else, do not want to be behind the curve.
So where does this leave the study of doctrine? How important is it for a legal historian to engage with doctrine – and in what ways should we do this?
I might begin to answer this question with a navel-gazing look at my own work. I write about the legal history of the American Civil War. And who is more navel gazing than an American who writes about the American Civil War? Given that I write about such a volatile period in American history, it would be hard to say that the internal logic of legal doctrine drove the massive legal changes of the 1860s.
Indeed, my interest in the Civil War stems from the fact that events outpaced the regularized processes of the law, which led Americans to contemplate (in their contemplative moments) their attachment to the rule of law in the midst of a crisis.
If there were ever an example one could point to about the relative unimportance of legal doctrine in explaining legal change, the Civil War would be it.
But I think doctrine does matter, in ways that constantly surprise me. A lot of the writing in my field looks the same: we’re all worried about whether Lincoln was a tyrant or not. Lincoln may have suppressed civil liberties, but he did it for the greater good. It’s understandable that Lincoln just ignored or transgressed the limits of legal doctrine as he understood them. In other words, Lincoln chucked the doctrine out the window and we love him for it because he saved the Union and ended slavery and we tear up when we read the Second Inaugural Address. Civil
War legal history is not about doctrine. Not really. But I think it should be, or that it should be to a greater extent than it is. It’s too mushy without doctrine to ground us and too easy to write vaguely. And this is why all the books look remarkably similar.
I worry about doctrine pretty constantly in my own research, although I don’t think that doctrine is nearly as prominent in what I end up writing. It’s – as Woodward and Bernstein put it – “deep background.” Figuring out the doctrine is always part of the work process. It’s often the hardest part; I go in to the project expecting my

2 historical actors to be thinking about a particular legal issue, but I end up discovering that the way they see that issue is always slightly (or vastly) different from the way I imagined them to be thinking about it. And that difference is often at the heart of what I discover my story to be. I suppose I’m bothered when I read something by a historian who doesn’t bother to parse the doctrine closely and ends up making an untenable argument as a result. But I don’t write doctrinal history – and I don’t think understanding doctrinal changes helps explain very much on its own. Maybe I’m worried that we’ve overcorrected.
Legal doctrine mattered immensely to lawyers of the Civil War era. Some people thought doctrine mattered less than others, but all lawyers worried about it. Here’s an example drawn from something I’ve been working on recently. William Whiting was the Solicitor of the War Department during the Civil War and in that capacity, wrote a treatise laying out a theory of essentially boundless federal power in time of war. He was no shrinking violet when it came to turning established legal doctrine on its head. But last year, I spent a few weeks reading through several letterbooks of his correspondence with potential claimants who demanded compensation from the government for property that the army had taken, borrowed, or destroyed during the war. It was not the most scintillating research I’ve ever done. There were a lot of angry petitions for someone’s 27 bushels of corn and lost cow. In reading the responses that Whiting sent back to the claimants, I noticed a couple of patterns. First and foremost, he denied nearly every claim. His denials sometimes cited legal reasons, but more often than not, he told potential claimants nothing about the merits of their claims, but instead denied payment because Congress had appropriated no money to pay any such debts. The few claims he did find compensable were almost all those made by foreign nationals -- Frenchmen and women in Louisiana, for instance. Whiting finally explained what was going on in a letter; he was worried that the claims had legal merit and although he gave doctrinal reasons, based on the Second Confiscation Act, for the invalidity of some of the claims, he clearly feared legal liability for the government. In his words, “I look upon the army of claimants as really quite as formidable to the government as the army of rebels.” Now, I don’t count Whiting as particularly concerned about doctrine – he was clearly someone who was willing to shape the rules to fit the situation. Yet he worried about it. It seemed to him as though clever attorneys on the other side of his position could press the courts to do things that would be detrimental –even fatal—to the Union cause. I suppose that many lawyers worried that judges were more formalistic than they themselves were and that judges might be constrained by doctrine in ways that they (as advocates) were not.
And Whiting was on the far end of the spectrum in terms of his willingness to acknowledge that the exigencies of the war completely overtook his willingness to follow the letter of the law. This gap between the formal deliberative processes of legal and constitutional development and the war’s chaotic tendency to produce social change that required the law to catch up was profoundly disquieting for many
Americans. We might refer to this latter method of legal change by the laudatory term “popular constitutionalism.” Although academics seem enamored with the

3 concept of legal change outside the formal legal process, I’m skeptical that this idea is really so celebrated outside of these circles. In the 1860s, many Americans expressed profound discomfort with the idea that “law” was made through the instrumentality of war. Popular constitutionalism was perhaps understood as a method of legal change, but it was a frightening one, because it unmoored
Americans from their foundations. The irregularity of the Civil War and the
Reconstruction process shook them. This is because they conceived of legal doctrine as something real, and legal change outside of regular institutions didn’t look very much like law as they understood it. I think if we ignore lawyers’ and laypeople’s attachment to doctrine and their understanding of law’s complicated relationship with doctrine, we do so at our peril.
So I think that understanding the doctrine as existed in the past is crucial to legal history writing, or at least to my own legal history writing. Thinking about historical actors’ relationship with the doctrine is also critical. We have to think about the ways in which people in the past felt constrained by the doctrine. I teamtaught a legal history class last spring and I found myself always to be consistently arguing for the importance of “getting it right,” or depicting a reality in a work of legal history that corresponds to the one that historical actors themselves understood. It’s not enough to me to have a clever argument – to be, as my coteacher put it, “brilliant but wrong.” As a historian and as a former little girl who loved history, I feel like my job is, in part, to reconstruct how people understood the time in which they lived. So if they took doctrine seriously, I have to take doctrine seriously and try to understand how they thought about it. Anything else feels vaguely disrespectful. In the end, I suppose I’d make the choice of right but pedantic over brilliant but wrong, although I secretly (or not so secretly) long for brilliant
AND right.
Maybe I am arguing for a social history of doctrine. How we understand law is dependent on doctrine. Even the realest of legal realists would say this, I think.
Even if we can say that doctrine is essentially meaningless and manipulable, most of us teach it to our students and we certainly think that law commands social power because the majority of Americans think that legal rules have meaning. I suppose I also think that in writing legal history, as a historian who possesses a law degree, one of the tools in my toolbox is an ability to understand, albeit imperfectly, esoteric and obsolete legal doctrine. The historical actors I study thought about the world differently, and they also thought about legal doctrine differently. They parsed categories and saw legal distinctions in different ways than we do and understanding their distinctions is a way of understanding their world.