JOURNAL: Forum on "Historiography, Ideology, and Law" (History & Theory, LX (2021), Issue 2, 185-405

 

(image source: Wiley)

Historiography, Ideology and Law: an Introduction (Justin Desautels-Stein & Samuel Moyn) (DOI 10.1111/hith.12207)

Abstract:

This is an introduction to a forum on historiography, ideology, and law. The basic question weaving this forum together concerns the meaning of the term “critical” in the domain of critical legal history, a question that is deeply familiar to historians of all stripes. Ultimately, whether you are a lawyer doing historical work, a historian interested in law, or a historian of a different sort altogether, there is no hiding from the question of context and, critically, the ideological stakes in choosing an answer to that question.

 On the domestication of Critical Legal History (Justin Desautels-Stein & Samuel Moyn) (DOI 10.1111/hith.12208)

Abstract:

Among many of today's legal historians, there is a relatively new and generally unreflective understanding of the relationship between history and method. The landscape is everywhere marked by a tendency to eschew big thinking, grand theory, and programmatic approaches to historical explanation and social transformation. In the place of the grand theory approach to law and history, there is a preference for the minimalist, the pragmatic, the particularistic, and the quotidian. What this normal science of today's legal historiography makes obvious is a kind of attachment to particular kinds of problems with particular sorts of built-in solutions. The result for today is intellectual stagnation, a routinized and thoroughly domesticated mode of revealing contingency. Oddly, the fascination with contingency, and its deadening affair with a minimalist pragmatism, is itself a result of the triumph of what continues to be called “critical legal history.” Ostensibly due to an interface between critical legal studies and the historical discipline, the rise and triumph of critical legal history hides a secret: the whole idea of a reigning critical appreciation for contingency seems to be a misnomer. Sure, some may say that “things might have been otherwise.” But what this intellectual settlement demands is obedience to its qualification: “things might have been otherwise, but they weren't, and so let's get on with doing what works.” Although so-called critical legal history seduces adherents with promises of edgy progressivism, the actual malaise of our minimalism seems in fact to suggest just the opposite. It is a quiescent and even quietistic method in practice, counseling in its conservatism against higher-order proposals that might ever make good on the discovery that nothing is natural. In the end, either we must accept that critical legal history in the United States is a lot less politically explosive than we once thought—given its deradicalization and domestication today—or that people have been mistaken about what critical legal history was, is, and ought to be.

Law and the Time of Angels: International Law's Method Wars and the Affective Lives of Disciplines (Natasha Wheatley) (DOI 10.1111/hith.12209)

Abstract:

Recent method wars in international legal scholarship turn on the problem of law in time. Rejecting historians' focus on context and their “policing of anachronism,” prominent legal scholars like Anne Orford and Martti Koskenniemi have argued that the workings of modern law are not governed by the narrow strictures of sequential chronology and that legal scholars require alternate methods that reflect law's transfer of meaning through time. Contextualism, in this reckoning, represents a misguided methodological straightjacket that stifles critique by quarantining meaning and power in discrete historical silos; the embrace of anachronism, conversely, would foster a revitalized history of international law intimately connected with the political imperatives of the present. This essay uses the debate as an opening into a fuller exploration of law in history and in time. In considering the idiosyncratic way law frames time, sequence, and duration, it explores the connection between law's transtemporal transfers and its very mode of reproduction. To speak of law's capacity to escape context and travel through time is another way of describing its normativity: the laws of the past that survive to exert a normative force in the present are not, in their law-ness, past—they are simply present law. The essay suggests some ways to make that temporality itself the object of analysis (rather than naturalizing and affirming it, as Orford has, or, conversely, dismissing it as bad history, as some historians have). It draws on the history of science to generate an account of law's temporal habitus as a disciplinary knowledge tool, a kind of epistemic virtue that is intimately involved in law's internal criteria for truth and falsity.

Theorizing Constitutional History (Maeve Glass) (DOI 10.1111/hith.12210)

Abstract:

The historical study of American constitutional law has long rested on a conceptual framework that divides the past into linear units of analysis. Constitutional time unfolds according to discrete eras defined by changes in political leadership and governance, whereas constitutional space typically appears divided into bordered jurisdictions and regional sections. Despite the prominence of this conceptual framework, scholars have yet to ask how, why, and to what effect it became the paradigmatic mode of study. In the absence of close study, the framework instead appears as a neutral embodiment of the constitutional order. This essay offers a preliminary sketch of how theories of knowledge production, and particularly Louis Althusser's theory of law as an ideological apparatus, can help to move beyond this facile assumption. By returning to a selection of landmark judicial opinions and legal treatises from the long nineteenth century and analyzing their discursive practices in relation to the dominant modes of production, this exploratory essay suggests a striking possibility: that the paradigm that we have assumed to be a primordial part of the constitutional order only emerged in its current iteration in the late nineteenth-century shift from a plantation mode of production rooted in enslaved labor to an industrial mode of production rooted in wage labor. As these sources indicate, leading jurists in America's age of conquest and enslavement regularly analyzed questions of state power and rights by organizing time according to chains of title rooted in dispossession based on race and space according to the geographic circuits of capital. Effective in naturalizing the strict racialized hierarchy integral to the production and circulation of export commodities, this discourse of tethering institutions to the history of property acquisition and the movement of commodities began to shift with the formal abolition of slavery and rise of intensive industrialization, as a new generation of legal academics created a paradigm of institutional time and space that, by erasing material histories of structural inequality, made it possible to reconstitute an old social order predicated on racial classifications of whiteness.

Family Law Matters (Judith Surkis) (DOI 10.1111/hith.12211)

Abstract:

This essay analyzes how new histories of family law help to dismantle developmentalist accounts of legal, economic, and political modernity. Far from being backwaters, they have recently emerged as sites of theoretical and practical innovation. Recombining methodologies from genealogy to social reproduction theory and psychoanalysis, they do more than denaturalize categories, destabilize familiar narratives, and demonstrate ideological contradictions (although they do that too). Motivated by a sense of what is lost theoretically and politically by the family's historical and juridical marginalization, they reinvigorate legal history by locating the problem of the family at the center of broader critical projects.

 Proximate Causation in Legal Historiography (Simon Stern) (DOI 10.1111/hith.12212)

Abstract:

The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play more attenuated roles, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography and to question their persuasive force.

(source: Wiley)