When Thomas Jefferson assessed the pros and cons of legalizing divorce before the American Revolution, he came out firmly on the side of divorce. “No partnership,” he declared, in a rationale that prefigured the Declaration of Independence, “can oblige continuance in contradiction to its end and design.” Among the few misgivings he had, however, was the problem of dividing marital assets, and while he was convinced a man could get a wife at any age, he was concerned that a woman beyond a certain age would be unable to find a new partner. Yet he envisioned divorce as a remedy for women. A husband, he noted, had “many ways of rendering his domestic affairs agreeable, by Command or desertion,” whereas a wife was “confined & subject.” That he assessed divorce as a woman's remedy while representing a client intent on blocking a wife's separate maintenance is not without irony. Still, in a world where the repudiation of a spouse was a husband's prerogative, he believed that the freedom to divorce would restore “to women their natural right of equality.”

As early as 1848, in the first public meeting on woman's rights, feminists raised the touchy issues of women's marital subjugation and divorce. They complained that the laws of marriage and divorce were framed for the benefit of men and to entrap women within the oppressive institution of marriage. Another controversial claim made at Seneca Falls—that to the ballot—went on to become the great organizing principle for women's campaigns for legal and political reform. But despite the bold beginning, divorce remained a complex and divisive issue for feminists throughout the century. Although legislatures in most states in the mid-nineteenth century were systematically liberalizing divorce laws, they could not lift the social stigma attached to it. Fearful of being branded as anti-marriage or anti-family, or believing in the permanency of marriage, many feminists spoke of divorce reluctantly, and never used their formidable organizing skills to launch a full-scale assault on laws restricting the dissolution of marriage.

At the December, 1945, annual meeting of the Association of American Law Schools, William Draper Lewis, who had directed the American Law Institute since its founding, made a startling confession about the founding of the ALI. Everett Fraser, then president of the AALS, had enticed Lewis to speak by complimenting the former University of Pennsylvania Law School dean: “People [at the AALS] talked of a Juristic Center. In the American Law Institute you made it a reality.” There was some truth to this—Lewis was the driving force behind the creation of the ALI. Fraser nevertheless mischaracterized Lewis's achievement. According to an unpublished, recently discovered typescript of Lewis's informal remarks, Lewis chided Fraser, “you know that there is not a word of truth in what [you] said… [because in] doing what I could to establish the American Law Institute, I did not create but rather for the time being killed any attempt to establish a legal center.” Lewis conceded many members of the AALS in the early 1920s “desired to start a Judicial Center conceived of as a place where law professors could meet, usually in the summer, discuss law, carry on legal researches and write legal books.” Lewis claimed he had torpedoed that plan; he had something very different in mind for the ALI “Elihu Root and [I] used this [AALS Committee on a Juristic Center] to summon a group of prominent lawyers to meet with the members of the Committee, and that by the work of that larger group grew the American Law Institute and its Restatement of the Law… it is not true that the American Law Institute is a Juristic Center. It is what Mr. Root and I intended it to be: an organization to carry out specific legal projects for the constructive improvement of the law and its administration.”

The legal treatise called Glanvill is proof that by the end of Henry II's reign men capable of shaping the custom of the English curia regis into a systematic law book were present at Westminster. Glanvill is “the first textbook of the English common law.” This treatise was written near the end of Henry II's reign and since the thirteenth century, it has borne the name of his justiciar, Ranulf de Glanvill, although not many scholars today accept his authorship. Why, then, should we raise once more the question: Who was the author of Glanvill? It remains a valid question because it affords an opportunity for reflection on questions concerning schools, learning, and twelfth-century English society. It forces us to consider the connections among the emerging English common law, the schools, the Scholastic method, and the study of Roman and canon law. It requires us to consider the contributions of Roman and eccesiastical law to Henry II's legal reforms.

Giambattista Vico was an eighteenth-century philosopher of history who provided a new and provocative account of the development of human institutions. His influence has been and continues to be significant. Yet, sadly, his work has been largely neglected by legal scholars. This neglect might be explained by the lack in Vico's principal work, Nuova Scienza, of any systematic account of the invention—or discovery—of the idea of justice. Given the scope of Vico's concern with human institutions, this failure is surprising. To be sure there are hints—more than hints—to be found throughout The New Science; nevertheless, his account of this important concept is fragmentary and scattered. This essay intends to demonstrate the value of Vico's work to the study of jurisprudence by tracing the roots and later development of the idea of justice as Vico might have elaborated them. [Bracketed references are to paragraph numbers in T. Bergin and M. Fisch (tr.), The New Science of Giambattista Vico (Cornell Univ. Press, 1968)].