Speaking Imperfectly: Law, Language, and History (original) (raw)
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Law as . . .': Theory and Practice in Legal History
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.
Introduction: Some ponderings on the use of the law in the writing of histories
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,...
Socio-legal studies and the humanities – law, interdisciplinarity and integrity
International Journal of Law in Context, 2009
This paper was delivered as a plenary lecture, designed to respond to the one-day special conference focus upon links between socio-legal studies and the humanities.1 The paper focuses in particular upon the relationship between law and the humanities. It may be argued that the role of empirically sourced socio-legal research is well accepted, given its tangible utility in terms of producing hard data which can inform and transform policy perspectives. However, scholarly speculation about the relationship between law and the humanities ranges from the indulgent to the hostile. In particular, legal scholars aligning themselves as ‘black letter’ commentators express strong opinions about such links, suggesting that scholarship purporting to establish links between the two fields is essentially spurious, bearing in mind the purposive role of law as a problem-solving mechanism. The paper sets out to challenge such assertions, indicating the natural connections between the two fields and...
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.
History of law and other humanities: views of the legal world across the time
2019
The collection of thirty-five essays presented here examines the links forged through the ages between the realm of law and the expressions of the humanistic culture. The essays are organized into sections of ten chapters based around ten different themes. Two main perspectives emerged: in some articles the topic relates to the conventional approach of ‘law and/in humanities’ (iconography, literature, architecture, cinema, music), other articles are about more traditional connections between fields of knowledge (in particular, philosophy, political experiences, didactics). The variety of authorial nationalities gives the collection a multicultural character and the historiographical interpretation is the element that unites the collection, with a breadth of the chronological period goes from antiquity to the contemporary age. This project is the result of discussions that took place during the XXIII Forum of the Association of Young Legal Historians held in Naples in the spring of 2017
Four Fragments on Doing Legal History, or Thinking with and against Willard Hurst
2021
What does it mean to know law-to understand legal sources-as existing in historical time? That is the question, or rather, my question. Not how to mine a legal archive to make social or cultural or political or economic generalizations about a historical moment or an era. Not how to find the origins of the legal present, the power or failure of a regulation, or any number of other questions that historians and others today pose about law. Here my concerns are epistemological and jurisprudential. When I as a historian identify something as law, and when I find myself seduced by a legal source-by a trial transcript, a lawyer's brief, a judicial opinion, a passage in a treatise, a letter or memoir of a litigant, a justification for a statute, or an interpretation of that statute-what is it that I am seduced by? I have only glimmers of answers for the questions that consume me.