Foreword to W. Wesley Pue, Lawyers' Empire: Legal Professions and Cultural Authority, 1780–1950 (Vancouver: UBC Press, 2016) (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.
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.
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,...
Southern California Quarterly, 2018
This article juxtaposes the history of Japanese immigrants in Canada—which parallels that of Japanese immigrants to the United States in significant ways—with that of Canada’s Indigenous people, who were also marginalized, to explore larger issues related to the way in which history is deployed in court actions. Although it uses a Canadian case—the 2008 decision of Canada’s Supreme Court in R. v. Kapp (which upheld an exclusive 24-hour communal sales fishery established on behalf of three First Nations)—to frame this discussion, the questions raised are relevant on both sides of the U.S.-Canada border. The article speaks, for example, to ways in which efforts to meet the elements of a given legal test can lead to the distortion of historical evidence, also a danger for U.S. courts. In reviewing the historical arguments made by the Japanese Canadian Fishermen’s Association in R. v. Kapp, which invoked two earlier cases from the 1920s in which Japanese immigrants challenged their excl...
THE HISTORICAL LAWYER AND THE GOALS OF LEGAL EDUCATION
Zbornik Pravnog fakulteta u Zagrebu, 2022
Sloppy education results in misdirected graduates. We need to see legal education as a matter of shaping in adepts something that can be called caliber of intellect. It is referring to the university formation of a way of thinking and of perceiving the world that distinguishes legal studies from any other intellectual or scientific preparation. The author argues that legal education in the main must ensure that graduates are historical lawyers. There are two occupational paths open to law graduates, that of practitioners and that of scholars. The vast majority choose to be practitioners. Law adopts not only a dogmatic or comparative legal perspective, but also a historical perspective of discourse and argumentation. The users of this argumentation—and, one might say, everyone who appreciates it—are, on the strength of this fact, historical lawyers. Law is in a constant process of historical development, therefore a historical lawyer is a realist lawyer. The historical lawyer, with his awareness of the inevitable successive changes in the law, has no illusions as to the immutability of specific regulations, and is consequently more able to estimate the spectrum of such changes and what future amendments might entail. He is aware of the mistakes of the past and can thus take care to avoid them in the future—and, hopefully, help others to avoid them, too.
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.