What's the problem with law in history? An introduction

2012

Continuity and Change, 2001

Professional jurists are often inquisitive about the subject matter of their calling and in the course of their careers may well develop fascinating insights into the law and those who interpret it. Their employers, however, be they governments, corporations, firms, or private clients, rarely show similar enthusiasm for such insights unless the hours spent pondering the social or historical significance of this or that legal view have a contemporary value that justifies the lawyer's fee.Thankfully, other members of society are rewarded for mining the legal records of the past. For legal historians, the search often focuses on the changing legal ideas and how legal doctrine develops over time to meet the changing needs of societies. Yet because the law generally deals with concrete matters – again, because jurists are paid by people who are unlikely to remunerate those who simply while away their hours making up legal cases – it offers a reservoir of information that can be used,...

Professional jurists are often inquisitive about the subject matter of their calling and in the course of their careers may well develop fascinating insights into the law and those who interpret it. Their employers, however, be they governments, corporations, firms, or private clients, rarely show similar enthusiasm for such insights unless the hours spent pondering the social or historical significance of this or that legal view have a contemporary value that justifies the lawyer's fee.

SSRN Electronic Journal, 2000

2011] AFTERWORD 1041 influence of "law and" in their resort to synchronic analyses of relational conjunction and disjunction, to which they add diachrony in order to reveal the effect of law, or to explain its reality, by assessing change in its relation to other phenomena over time. Unsurprisingly, the animating hypotheses of twentiethcentury legal history embrace the same broad relational problematics that have preoccupied twentieth century "law and" theory: instrumentalism, relative autonomy, mutual constitutiveness, legal construction, autopoiesis, and indeterminacy. 10 The shift to "law as. . ." suggests something else, something distinctive. Concretely, it suggests that explanations of law are not to be found, either necessarily or sufficiently, in its relations to other things. As Shai Lavi notes, with justification, the shift affords an opportunity to think beyond long-familiar Weberian categories and trajectories. 11 It is not determinedly programmatic, a route to the next big concept, but open-ended (hence the ellipsis). Yet it would be idle to pretend that "law as. . ." takes no position, that it is not historically situated. Blithely unaware of it at the outset, the conveners of the conference where the essays here were first presented have discovered that we are on a path that others are also following. We find ourselves riding a wave, one reverberating in both legal 12 and historical 13 scholarship. The wave owes its existence to developments in both history and law. As to the latter, it has never been more of a "hypostatized construct" than at present. 14 We return to this observation below. 15 But what of the former? It, too, hypostatizes itself, though in a more limited sense, being a professional practice with less instrumental reach. Still, as a professional practice, contemporary history, like law, is full of talk of itself. History's talk is of what history has to offer the present. 16 One offering is the narrative history that has become something of a staple of literary nonfiction. Narrative history represents history as edifying stories of the past. As Gordon 10.

Modern Law Review, 1992

Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this chapter I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of " interdisciplinary " analysis (economical, philosophical, sociological, literary, etc.) and " doctrinal " analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between " modern " and " traditional " legal scholarship, and that between " common law " and " civil law " scholarship besides.

Critical Analysis of Law, 2015

This modest manifesto-or minifesto-portrays legal history as a mode of critical analysis of law, using the historical analysis of American penality as an illustration and the fullfledged manifestos by Piketty and Guldi & Armitage as points of reference. Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic, philosophical, sociological, or ethical analysis of law, and so on. Historical analysis of law, in other words, is itself a mode of legal scholarship, not a subspecies of law or history. It is a comprehensive view of law from a particular critical vantage point: a way of doing law, rather than of doing things with law. Historical analysis of law in this sense is less "law and history" than "law as history," less legal history than historical jurisprudence.

UC Irvine Law Review 5 (2015): 413–62, 2015

This Article draws on Wittgenstein’s Philosophical Investigations, Ulpian’s definition of law, and Aristotle’s definition of the polis in order to improve our understanding of the relationship between history, law, and justice. It makes three points. First, real progress can be made by taking one’s instruction from Wittgenstein’s lifelong attempt to banish meaninglessness from thought and speech. He has far more to offer than has been recognized to date. Second, historians of law deceive themselves if they believe that they can write the history of law without writing the history of justice at one and the same time. Law and justice are thoroughly intertwined. Their intertwinement constitutes their meaning. Treating one of them in isolation from the other impairs the meaning of both. Third, writing the history of law means making a commitment to a political community by settling disagreements with the dead. It furnishes a kind of knowledge that is essential for maintaining justice because it gives a meaning to “law,” “justice,” and “politics” without which law, justice, and politics fall to the judgment of the dead or that of arbitrary rulers. It does not consist of writing about justice, but of making judgments in writing about the history of law. It is neither to be confused with expressions of opinion nor with statements ofpure fact: not expressions ofopinion, because it requires statements offact; not statements of pure fact, because there are no facts to state without agreement in the judgments that make a political community.

Journal of Law and Society, 2017

Although history, legal history, and socio-legal studies significantly overlap in concerns, methods, values and history, and a common tradition, these commonalities are frequently overlooked. In seeking to promote greater dialogue between these disciplines, this article examines their complex interaction, arguing that the work of socio-legal scholars, historians, and legal historians would benefit from greater cross-fertilization. It focuses on the 'legal turn' in recent history writing on early modern England, particularly Christopher W. Brooks's groundbreaking analysis of the nature and extent of legal consciousness throughout society, and the central role of law and legal institutions in the constitution of society. It then outlines some areas of common interest and, having highlighted the increasing convergence between history, legal history, and socio-legal studies, concludes that greater dialogue would enhance our understanding of the role of law in society, and of society, and would be of more than mere historical interest. I. Socio-legal studies is embedded in a cluster of social practices and relations sustained by many disciplines. Within this broad church, history has always been an important strand, although the linkages between history and socio-legal studies are complex and paradoxical. Socio-legal studies was constituted against the dominant tradition of legal education and scholarship, with its focus on the principles of law, and that vein of legal history preoccupied with the genealogy of legal doctrine. Doctrinal legal history, and the use of the past by lawyers (who are, among other things, historians), attracted the suspicion of socio-legal scholars in that it underpinned and legitimated a preoccupation with the narrow technicalities of the law and the treatment of law as largely divorced from the society, politics, and economy in which it operated. Given the implicit hope that socio-legal scholarship would identify, and therefore bolster, movements that might 'change society through law', and that the past was replete with things that we should be leaving behind with the march of progress, the moral was clear: the less history the better. Hence, some 'law in context', and other legal scholarship, explicitly set their sights on the present, and against the