A Review of "Rethinking Modern European Intellectual History" (OUP, 2014)

Katharina Isabel Schmidt, Yale Law School, has published a review of Rethinking Modern European Intellectual History (Darrin McMahon & Samuel Moyn, eds; Oxford University Press, 2014), in Comparative Legal History (subscription may be required).   Below is an excerpt.

All too frequently, legal historians balk at projects crossing conventional geographic and/or temporary boundaries, at projects requiring minute attention to circumstantial historical detail as well as at projects flaunting disciplinary (self-)criticism. Explanations for this can be found in law’s image as an expert discipline, its association with the nation-state and its identification with at least a “modicum of metaphysicality.” Ever since the invention of writing, law has been associated with the practices of social and cultural elites. As such, it emerged as an increasingly specialized discipline, from which outsiders were excluded for their ignorance of the relevant jargon. In line with this, legal historians today frequently consider themselves to be engaged in a kind of singular, and essentially mono-disciplinary, enterprise. Historically, this trend towards scholarly autonomy was exacerbated by the fact that law came to be seen as inextricably intertwined with the nation-state. Starting with the promulgation of comprehensive codes in early modern Europe, legal rules thus began to be associated with the direct command of absolute sovereign rulers whose powers were curtailed only by the geographic and temporal boundaries of their political authority. Notably, this command-theory-based approach left little room for boundary-crossing of any kind. Finally, attempts at reproducing Maine’s intellectual legacy have traditionally run up against law’s popular association with moral truth. Though one would be hard-pressed to deny the cultural contingency of any kind of “justice-talk,” lawyers and lay-people alike often take solace and comfort in the belief that a particular rule has “absolute” or “universal” value, thus defying any sort of critical analysis.  

I now suggest that it would be distracting, if not downright dangerous, to continue to be constrained by law’s traditional association with academic expertise, the nation-state, and culturally contingent notions of what is “right.” For one, law itself is in the process of becoming more “international,” “transnational” and “global,” thus begging for a temporally and geographically more encompassing approach. Similarly, normativity in modern societies is no longer strictly and straightforwardly “legal” but, increasingly, non-positive, unofficial, relational, heterarchical, pluralistic, and informal. As a consequence, the question as to whether, and if so how, law should reflect processes of sense- and order-creation occurring naturally in society begs for answers. Finally, the simultaneous appearance and disappearance of law calls on legal scholars to adopt an altogether more critical perspective. Modern society is witnessing a bewildering tension between juridification and de-juridification. Areas that were previously subject to state regulation are gradually becoming de-regulated. Simultaneously, areas that were previously governed by people’s private-autonomous decisions are gradually being absorbed by bureaucratic, multi-level regulatory agencies. How exactly does the emergence of categories like “the international,” “the transnational,” and “the global” modify our concept(ion)s of law? And should we resist or welcome this development?"

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As previously stated, law has traditionally been associated with expert knowledge, the nation state and justice. As a consequence, people both inside and outside the discipline perceive it as somewhat of a singular and essentially mono-disciplinary enterprise. That said, a true commitment to the methodological principles explicated by the various authors of Rethinking Modern European Intellectual History would have mandated the inclusion of law as a source of scholarly inspiration and exploration in its own right. I agree with Breckman’s view that successful interdisciplinary conversations require both sides to have learned some of the other side’s language. The question now is to what extent lawyers and historians are able and willing to do just that. I have already called on legal historians to take intellectual history seriously. This, after all, is what this review is about. I would now turn matters around and call on intellectual historians to do their part, too, which is to take law and legal ideas seriously. As detailed above, law is encroaching upon ever-new aspects of people’s day-to-day lives in an attempt to facilitate social cohesion in times of normative pluralism and fragmentation. At the same time changing conceptions of the relationship between authority and autonomy as well as growing recognition of the self-legislating abilities of economy and society have led the state to withdraw its jurisgenerative force from spheres in which it had previously played a leading role. Nevertheless, it would be naïve to assume that those very spheres are not still influenced by the remnants of law’s historically grown power and further research into the vestiges of “the legal” in supposedly law-free zones is necessary.

What follows from these considerations is that law is and has always been part of the relevant context and that, as a consequence, intellectual historians would be well-advised to take account of it. To this extent, this review preludes and makes the case for a much-needed “legal turn” in modern intellectual history. Not only does history provide a standard by which to talk critically about the law. Law provides a standard by which to talk critically about history. As such, it is time for both lawyers and historians to take one step towards each other and to aspire to disciplinary eclecticism–a kind of eclecticism, to be sure, that stays clear of the pitfalls of academic quietism.”