The Legal Historian and the Text

Steven Wilf, University of Connecticut School of Law, has published Law/Text/Past at 1 Irvine Law Review 543 (2011). Here is the abstract.

How might legal historians read text? What is particular about their modes of reading as opposed to those employed by readers in other disciplines? This essay will analyze the distinctive features of legal texts such as those stemming from the pervasive reliance upon conventions or boilerplate as part of a bricolage construction, the focus upon legitimizing gestures to official authority, and the normative, almost instrumental nature of many legal texts. While other sorts of texts might be more expressive, statutes, for example, always include a sanction. Drawing upon numerous examples, the paper identifies an expansive array of texts, including extra-official legalism; rituals, procedure, and nonverbal texts; and imagined law. While seeking to provide sharp, analytic definitions of what is a legal text, it will forge a path somewhere between establishing a new dichotomy of text/context and, alternatively, proclaiming that everything is text (il n’y a pas de hors-texte). Without making a fetish of the problem of reading, I underscore the ways text might be chimerical, indeterminate, multivocal, slippery, and generally untrustworthy. Text has come to mean too much and too little.
Let me make clear what this paper is not about — it is not a guide to literary techniques for reading, a meandering meditation on the craft of history, or a manifesto for the importance of close readings. But I will situate the problem of text reading in our own historiographic milieu as legal historians. It is not simply the breakdown of the binary construct of law/society that leads to a more self-conscious understanding of how to read a legal historical text.
Legal history is particularly subject to a postmodern sensibility, which erodes interdisciplinary borders, jurisdictional boundaries, and divisions between official and extra-official justice, and which contributes to disintermediation and the loss of the interpretive monopolies of professional elites.
What is the role of the legal historian in this new world?

Download the full text from SSRN at the link.