Legal History and/or History in Law

Center for the Study of Law and Society
Miniseries in Empirical Research Methods

Friday, January 28, 2011, 9 a.m. – 12 noon. Lunch to follow.
JSP Seminar Room, 2240 Piedmont Avenue, Berkeley

Hendrik (Dirk) Hartog
Class of 1921 Bicentennial Professor in the History of American Law and Liberty,
Professor of History, and Director, Program in American Studies, Princeton University

This workshop is framed by the notion that there are several different scholarly practices within the broad subject entitled “legal history.”  Most of us who do legal history mix and match and merge those practices without thinking much about what we do.  And I have no interest in critiquing that mixing and matching and merging (which I engage in myself).  But for one morning, at least, it might be worthwhile to try to separate and distinguish some of the varying streams of practices.  Here’s an incomplete list:

  • There is legal history in its pure or its old-fashioned Anglo-American form — focused on the long history and development of legal institutions and a few core doctrinal categories (usually with an evolutionary presupposition and with an eye to the first year law school curriculum).
  • There is the intellectual history of legal concepts, situating those concepts in religious or political or cultural streams of thought, often making those legal concepts part of religious or political or cultural thought.
  • There are various efforts (the writings of Morton Horwitz and Willard Hurst offer well known examples) to demonstrate the causal significance of law in shaping crucial aspects of the society or the polity or the economy.
  • There is the socio-legal enterprise, with roots in legal realism, understood as efforts to find the social or economic or psychological or political causes of legal phenomena. 
  • And finally there is the work by many social and cultural historians, particularly since the 1980s, to use legal sources (as archives) to uncover stories or themes or other phenomena that are not understood as legal as such, although those stories or themes or other non-legal phenomena may not be understandable without a recognition of the constitutive power of the law.  (I’d like to spend a good bit of time during this workshop on this last “practice,” because I think legal historians tend to take it for granted. )

If you’d like to get started thinking about these issues, I recommend reading Robert Gordon, “Critical Legal Histories,” 36 Stanford Law Review 57 (1984).

Workshop materials:

Click here for video.