Legal History As Historical Jurisprudence

Markus D. Dubber, University of Toronto Faculty of Law, has published New Historical Jurisprudence: Legal History as Critical Analysis of Law at 2 Critical Analysis of Law 1 (2015). Here is the abstract.

This modest manifesto — or minifesto — portrays legal history as a mode of critical analysis of law, using the historical analysis of American penality as an illustration and the full-fledged manifestos by Piketty and Guldi & Armitage as points of reference. Historical analysis of law, in this light, appears as one mode of critical analysis among others, including, notably, comparative analysis of law, along with economic, philosophical, sociological, or ethical analysis of law, and so on. Historical analysis of law, in other words, is itself a mode of legal scholarship, not a subspecies of law or history. It is a comprehensive view of law from a particular critical vantage point: a way of doing law, rather than of doing things with law. Historical analysis of law in this sense is less “law and history” than “law as history,” less legal history than historical jurisprudence.

 Download the article from SSRN at the link.