Boyden on Law and History
Bruce Boyden has good comments on my short law and history post:As a former historian-in-training, now a lawyer dabbling in legal history, I
have sympathy for both sides here. First of all, it's clearly a two-way
street. If many historians miss the significance of legal arguments, many
lawyers miss the significance of history. Justice Rehnquist once dismissed
Justice Souter's attempt to place Hans v. Louisiana in historical context as
"not befitting this Court." The enterprise Souter briefly engaged in --
analyzing an opinion in the context of both legal and non-legal thought
prevalent at the time -- is simply not a part of what lawyers do on a
regular basis. Even much of legal history traces the evolution of legal
doctrines through cases but does not often look at the impact beyond the
legal universe, or the effect of the outside world on the legal. This is
simply part of the legal training -- a sentence from an 1820 opinion, if it
says the right thing, is a perfectly appropriate citation, even if the rest
of the opinion is hopelessly outdated and the fact pattern involved in the
case a relic of its time.
On the other hand, in support of your comment and Nate's, I have seen
historical accounts of the law that appear to explain legal developments
*entirely* by reference to non-legal currents of thought. This seems
equally narrow as examining a legal argument without any awareness of
historical context. The obvious solution would seem to be that one needs to
be both a historian and a lawyer in doing legal history. But I think that
would be incredibly difficult. Focussing on legal arguments necessarily
entails entering a world where context is supposed to matter little, and
parsing out logical structure and even individual phrases has great
significance. But focussing on history means deriving some larger trend or
meaning from a series of events; plugging it into some overall narrative or
flow that transcends the opinions or cases being discussed, and explains not
only the arguments and documents, but the judges, the litigants, the case
itself, the economic and social structure that caused (and was affected by)
the events being discussed. There's a tension there, and to the extent
you're doing history, you're probably not doing law, and vice versa. I can
easily see how someone trained in one discipline would have difficulty
seeing the explanatory value of the other.
posted by Lawrence Solum 7:25 AM