Seong-Hak Kim on Legal Pluralism That Wasn't: State and the Plurality of Law in Late Medieval and Early Modern Europe

Marie Seong-Hak Kim, Käte Hamburger Kolleg "Einheit und Vielfalt im Recht", has published Legal Pluralism That Wasn't: State and the Plurality of Law in Late Medieval and Early Modern Europe. Legaal Hre is the abstract,

Legal pluralism has seemingly become a new orthodoxy. Its core proposition is that law has no privileged relationship with the state. Students of legal history have reason for paying attention, as legal pluralism, a corollary of colonialism, has come to project back onto European history its cultural and social-scientific paradigm and arrogate to itself the role of explaining the evolution of normative orders in the continent's past. This article argues that applying to European history a theory premised on a contest between legal monism and pluralism brings more confusion than clarity. The difference between historically grounded legal pluralism and the contemporary theory of legal pluralism revolves around the question of whether multiple legal orders existed as part of state law or state law was merely one among many legal orders. In late medieval and early modern Europe, law was foremost equated with jurisdictional power, that is, authority to rule. Various kinds of laws, including custom, Roman law, church law, and legislation, operated in a plurality of practices within the state-centered hierarchy, and it was on this framework of state law pluralism that the European countries, while remaining under the doctrinal unity of the jus commune, each followed a discrete path of legal development shaped by political and institutional changes. The history of Europe provides little support for the theory that an imposed Romanitas or state sovereignty displaced and distorted good old customary law. Modern legal pluralist views may be in need of reconsideration not just in light of what was happening in late medieval and early modern Europe but also in terms of how Europe's ideas of legal order spread to the colonies in the late nineteenth century. Recent debates on legal pluralism serve as a reminder that history is distinct from an anemic version of the more theoretical social sciences. Still, the binary of unity and plurality in law can offer an unaccustomed yet useful direction in approaching the legal past.

Download the article from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournal

Andrew Willinger, Duke University School of Law; Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the Essay from SSRN at the link.

Willinger on Missing Pieces: Gaps in the Record of Early American Decisional Law @AndrewWillinger @DukeFirearmsLaw @DukeLawJournalw

Andrew Willinger, Duke University School of Law, Center for Firearms Law, is publishing Missing Pieces: Gaps in the Record of Early American Decisional Law in the Duke Law Journal Online. Here is the abstract.

In its most recent major Second Amendment decision, NYSRPA v. Bruen, the Supreme Court suggested that historical laws “rarely subject to judicial scrutiny” are not especially illuminating because “we do not know the basis of their perceived legality.” Legal scholars have defended Bruen’s approach to historical evidence in part by arguing that the decision requires merely an artificially-limited historical inquiry into internal legal sources to discern overarching principles accepted across the country in the Founding Era. But modern-day lawyers and judges actually know far less than they might believe about whether certain laws were subject to judicial scrutiny during crucial eras of American history because many court decisions—especially from the Founding Era—were simply never recorded for posterity. Those omissions were not random and they do not represent merely what we today would consider insignificant holdings. Rather, omissions from the surviving record of decisional law are the product of curation by early court reporters, newspaper editors, and other actors often motivated by profit or partisan bias. Therefore, it is often perilous to extrapolate “the general law” from the extant, unrepresentative caselaw that happens to be preserved today. This Essay examines how the non-legal choices and preferences of those who recorded early American decisional law prior to the gradual emergence of more consistent reporting of judicial decisions in the late 19th century shaped the historical record of early decisional law that exists today. Part I chronicles the largely inconsistent and at times chaotic practice of court reporting at and after the Founding and explores how judicial decisions were preserved and published during that time. Part II addresses how modern originalist theories should approach and appreciate the “curated” nature of legal history from that time. I argue that the record of early American decisional law has been profoundly influenced by various actors (legal and non-legal) according to considerations other than preserving an accurate, comprehensive snapshot of “general law” at the time—namely, based on motives including profit and partisanship. This reality, I suggest, means that it is crucial to expand the universe of historical sources when possible to capture what may be missing from the universe of preserved decisional law.

Download the essay from SSRN at the link.

Newly Published: Pierre Schlag, Twilight of the American State (University of Michigan Press, 2023) @ColoLaw @UofMPress

Pierre Schlag, University of Colorado Law, has published Twilight of the American State (University of Michigan Press, 2023). Here from the publisher's website, is a description of the book's contents.

The sudden emergence of the Trump nation surprised nearly everyone, including journalists, pundits, political consultants, and academics. When Trump won in 2016, his ascendancy was widely viewed as a fluke. Yet time showed it was instead the rise of a movement—angry, militant, revanchist, and unabashedly authoritarian.

How did this happen? Twilight of the American State offers a sweeping exploration of how law and legal institutions helped prepare the grounds for this rebellious movement. The controversial argument is that, viewed as a legal matter, the American state is not just a liberal democracy, as most Americans believe. Rather, the American state is composed of an uneasy and unstable combination of different versions of the state—liberal democratic, administered, neoliberal, and dissociative. Each of these versions arose through its own law and legal institutions. Each emerged at different times historically. Each was prompted by deficits in the prior versions. Each has survived displacement by succeeding versions. All remain active in the contemporary moment—creating the political-legal dysfunction America confronts today.

Pierre Schlag maps out a big picture view of the tribulations of the American state. The book abjures conventional academic frameworks, sets aside prescriptions for quick fixes, dispenses with lamentations about polarization, and bypasses historical celebrations of the American Spirit.

 

UM Press has made the book available for reading online or downloading here. Excellent!

 

New Initiative at the University of Helsinki: The Helsinki Legal History Series @CoCoLawProject @HelsinkiLaw @helsinkiuni @eurostorie

 

From Professor Airton Ribeiro, University of Helsinki, an announcement of an exciting new initiative:

 

 

During 2023, the CoCoLaw Project and EuroStorie Centre of Excellence will host the Helsinki Legal History Series. The initiative gathers both established scholars and younger researchers who all work at the intersection of law, society and history. The aim is to promote legal historical research and to illustrate the merits of historical approach in analyzing fundamental questions regarding law's embeddedness in society and the mechanisms of legal change. The seminar series consists of 9 lectures taking place at the University of Helsinki (and streamed online), according to the following program:

January 31st

National Styles beyond Boarders. A Travelogue of Migrating Legal Stories in the Nineteenth Century

Cristina Vano (Università degli Studi di Napoli Federico II)

 

February 28th

European Union and its founding values – a legal history autopsy

Tuuli Talvinko (University of Helsinki)

 

March 28th

From the university-based ius commune to a potentially universal law. A lecture in honour of Mireille Delmas-Marty (1941-2022)

Alain Wijffels (KU Leuven)

 

April 25th

Homesteading and the American Dream

K-Sue Park (Georgetown University)

 

May 30th

The English ‘Law of Succession’ as an expression of European Legal Culture: The Story of its Development

Reinhard Zimmermann (Max Planck Institute for Comparative and International Private Law)

 

September 26^th 

Transnational Legal Transfers: the extraordinary life of JP Benjamin QC (1811-1884)

Catharine MacMillan (Kings College London)

 

October 31^st  

The History of Cultural Heritage in International Law

Pauno Soirila (University of Helsinki)

 

November 28^th

Usus Theologicus Pandectarum: The Civilian Tradition in a Theological Context

Wim Decock (UCLouvain)

 

December 12^th 

Tombos: How registering the Past became Normative and Why it Faltered in the Nineteenth Century

Tamar Herzog (Harvard University)

 

 

CoCoLaw Project

https://www.helsinki.fi/en/researchgroups/comparing-early-modern-colonial-laws

EuroStorie Centre of Excellence

https://www2.helsinki.fi/en/researchgroups/law-identity-and-the-european-narratives)

 

Ban and Belavusau on Memory Laws @BloomsburyBooks

Marina Bán, University of Copenhagen, and Uladzislau Belavusau, T.M.C. Asser Institute - University of Amsterdam; University of California, Berkeley - Berkeley Center on Comparative Equality & Anti-Discrimination Law, have published Memory Laws in Bloomsbury History: Theory and Method (2022). Here is the abstract.

This entry provides an ample and detailed analysis on the emerging phenomenon of memory laws. It outlines how these legal measures, the symbols of interaction between history and law, have developed in the last two centuries and how their scope have drastically expanded. It further reflects of the consequences of states’ growing reliance on the legal governance of historical memory. First, by tying memory laws to their impact on different fundamental rights, then by demonstrating how the increasing breadth and potential misuse of these provisions appears in debates around constitutionalism, citizenship and the rule of law. Finally, the contribution highlights how this initially European phenomenon have captured increasing attention around the world and what its future may hold.

Download the essay from SSRN at the link.

Ruipérez on Monuments As Signals: The Political Effect of Confederate Commemorations

Ana Ruipérez, European University Institute, has published Monuments As Signals: The Political Effect of Confederate Commemorations. Here is the abstract.

What information do observers infer from contested symbolic heritage and how does that information change their political attitudes? Using a survey experiment, I explore the case of Confederate commemorations. After visualizing a video of the same town with and without Confederate commemorations, subjects report their beliefs and attitudes about the locality and its citizens. I find that Confederate commemorations signal a conflictive history, Southern pride and secessionist and Republican leanings. Importantly, they signal less support for Black Lives Matter and less care about racial equality. Respondents exposed to Confederate commemorations report more negative emotions and external political efficacy, trust the citizens in the town less, and think they would be less valued in the community with such symbols. They are less willing to make donations to schools in the town and, overall, find it a worse place to live. I find greater effects for Democrats and Black respondents.

The full text is not available from SSRN.

Leeming on Lawyers' Use of History, from Entick v. Carrington to Smethurst v. Commissioner of Police @SydneyLawSchool

Mark Leeming, University of Sydney Law School, has published Lawyers' Uses of History, from Entick v Carrington to Smethurst v Commissioner of Police at 49 Australian Bar Review 199 (2020). Here is the abstract.

Lawyers use history in different ways. This is partly because judges are directed to decide consistently with what has been decided before, such that continuity with the past is a matter of legal duty. But, as Maitland said, historical research serves the purpose of explaining and therefore lightening the pressure that the past exercises on the present, and the present upon the future. This article considers – including by reference to images of original documents – the multiplicity of ways in which lawyers use history, including the need for a contextual understanding of judgments, the deployment of expert evidence by legal historians, and the haphazard and imperfect reporting of judgments. It considers three quite different sources of Entick v Carrington, including one manuscript only recently published, and how that decision has been used to address modern disputes.

Download the article from SSRN at the link.

Serban and Ciobanu on Law, History, and Justice in Romania: New Directions in Law and Society Research

Michaela Serban, Ramapo College of New Jersey, and Monica Ciobanu have published Law, History, and Justice in Romania: New Directions in Law and Society Research at 2 Journal of Romanian Studies 9 (2020). Here is the abstract.

This special issue of the Journal of Romanian Studies examines law as a social institution and the ways in which it intersects with the larger social, historical, political and economic world. The articles included here mostly explore the intersections between law, history, and justice, reject positivist and doctrinal analyses of law, and focus on “living law” and the complex interactions between law and social issues, including how law is created, interpreted and implemented, and how individuals and organizations live, shape and evade it in everyday interactions within and outside of the state. We bring together scholars from several disciplines in humanities and social sciences, including anthropology, comparative literature, history, political science, socio-legal studies, and sociology. Regardless of their academic field, the contributors engage in interdisciplinary studies of “law in action” located in various historical settings and different types of political regimes.

Download the article from SSRN at the link.

Balkin on How Lawyers and Historians Argue About the Constitution @jackbalkin @YaleLawSch

Jack M. Balkin, Yale Law School, is publishing Lawyers and Historians Argue About the Constitution in volume 35 of Constitutional Commentary. Here is the abstract.

Lawyers and historians often quarrel about how to use history in constitutional interpretation. Although originalists are often involved in these disputes today, the disagreements predate the rise of conservative originalism. Lawyers attempt to escape the criticism of historians through two standard stories that explain the differences between what lawyers and historians do. According to the first story, lawyers employ specialized skills of legal exegesis that historians lack. According to the second, lawyers require a usable past that historians will not provide. These stories paint a false picture of how historical work is relevant to constitutional argument. And by emphasizing lawyers’ professional differences from historians, they disguise disagreements within the class of lawyers and legal advocates about how to use (and how not to use) history. When lawyers try to stiff-arm professional historians, often they are actually engaged in long-running disputes with other lawyers who disagree with their interpretive theories, their methods, and their conclusions. To explain how lawyers and historians actually join issue, this article uses a familiar idea in constitutional theory—the modalities of constitutional argument. With respect to most of the modalities, historians are as well-equipped as lawyers. Indeed, many disputes between lawyers and historians do not concern the distinctive skills of lawyers at all, but rather controversial theories of interpretation that many lawyers do not accept either. The more that lawyers try to assert the methodological autonomy of law from history, the more they will fail, ironically, because of law's distinctively adversarial culture. In order to win arguments, lawyers will search for ever new historical sources and approaches, and they will insist on bringing historians back in to undercut the claims of their opponents. Similarly, the claim that lawyers need a usable past fails because it employs history for too limited a purpose and treats too much of history as unusable. Rather, the best way for lawyers to obtain a usable past is to recognize the many modalities of historical argument, and the many different ways to use history in legal argument.

Download the article from SSRN at the link.

Partlett on Constitutional Historiography @WPartlett @MelbLawSchool

William Partlett, Melbourne Law School, has published Constitutional Historiography as University of Melbourne Legal Studies Research Paper No. 896. Here is the abstract.

This paper will argue that the insights of professional historians can and should be used to better understand the use of history in constitutional argument. Historiography—the methodology of professional historians—demonstrates that history is frequently used selectively to advance a favored outcome. Judges and constitutional scholars should therefore be highly critical of claims that history provides objective answers to constitutional questions. At the same time, historiography shows that non-selective accounts of history can and should play an important role in finding answers to contemporary constitutional questions. In this role, history is under-determined and best used to support or shed new light on a constitutional argument. Historiography therefore demonstrates not just the perils of historical argument but also its possibilities for constitutional argument.

Download the article from SSRN at the link.

Baude and Sachs on Originalism and the Law of the Past @WilliamBaude @StephenESachs

William Baude, University of Chicago Law School, and Stephen E. Sachs, Duke University School of Law, are publishing Originalism and the Law of the Past in volume 37 of the Law and History Review (2019). Here is the abstract.

Originalism has long been criticized for its “law office history” and other historical sins. But a recent “positive turn” in originalist thought may help make peace between history and law. On this theory, originalism is best understood as a claim about our modern law—which borrows many of its rules, constitutional or otherwise, from the law of the past. Our law happens to be the Founders’ law, unless lawfully changed. This theory has three important implications for the role of history in law. First, whether and how past law matters today is a question of current law, not of history. Second, applying that current law may often require deference to historical expertise, but for a more limited inquiry: one that looks specifically at legal doctrines and instruments, interprets those instruments in artificial ways, and makes use of evidentiary principles and default rules when the history is obscure. Third, ordinary legal reasoning already involves the application of old law to new facts, an inquiry that might other-wise seem daunting or anachronistic. Applying yesterday’s “no vehicles in the park” ordinance is no less fraught—and no more so—than applying Founding-era legal doctrines.

Download the article from SSRN at the link.

Call For Nominations: Peter Gonville Stein Book Award in Legal History

From the mailbox: The American Society for Legal History announces a call for nominations for the Peter Gonville Stein Book Award. The ASLH awards this prize for the best book in legal history written in English. Below is the call for nominations.

The Peter Gonville Stein Book Award is awarded annually for the best book in legal history written in English. This award is designed to recognize and encourage the further growth of fine work in legal history that focuses on all non-US regions, as well as global and international history. To be eligible, a book must sit outside of the field of US legal history and be published during the previous calendar year. Announced at the annual meeting of the ASLH, this honor includes a citation on the contributions of the work to the broader field of legal history. A book may only be considered for the Stein Award, the Reid Award, or the Cromwell Book Prize. It may not be nominated for more than one of these three prizes.

The Stein Award is named in memory of Peter Gonville Stein, BA, LLB (Cantab); PhD (Aberdeen); QC; FBA; Honorary Fellow, ASLH, and eminent scholar of Roman law at the University of Cambridge, and made possible by a generous contribution from an anonymous donor. Read more about Dr. Stein here.

For the 2019 prize, the Stein Award Committee will accept nominations of any book (not including textbooks, critical editions, and collections of essays) that bears a copyright date of 2018 as it appears on the printed version of the book. Translations into English may be nominated, provided they are published within two years of the publication date of the original version.

Nominations for the Stein Award (including self-nominations) should be submitted by March 15, 2019. Please send an e-mail to the Committee at steinaward@aslh.net and include: (1) a curriculum vitae of the author (including the author’s e-mail address); and (2) the name, mailing address, e-mail address, and phone number of the contact person at the press who will provide the committee with two copies of the book. This person will be contacted shortly after the deadline. (If a title is short-listed, four further copies will be requested from the publisher.)

Please contact the committee chair, Matthew Mirow, with any questions at mirowm@fiu.edu

Stern on The Legal Imagination in Historical Perspective @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing The Legal Imagination in Historical Perspective in Virtue, Emotion, and Imagination in Legal Reasoning (Amalia Amaya and Maksymilian Del Mar, eds., Hart, 2019). Here is the abstract.

After considering the different meanings that commentators have assigned to "the legal imagination," this chapter asks what is specifically legal about these imaginative uses: what distinctively imaginative traits do we find in law, by contrast with other intellectual domains? In the law, the imagination operates under constraint, whereas in many fields, imaginative activity is associated with free play. Exploring this idea with respect to the introduction of "the reasonable man" in 19th-century law, the chapter takes up an overlooked episode in the history of figure: its unsuccessful use in the law of negotiable instruments, in the 1820s and 30s. By asking what accounts for the move to adopt this figure and to reject it ten years later, and then to find it taken up shortly afterwards in the law of torts, I seek to demonstrate how lawyers' and judges' lateral-looking, analogy-seeking efforts exhibit the legal imagination, operating under constraint, and how the example of an unsuccessful effort can help to reveal the limits that govern this enterprise.

Download the essay from SSRN at the link.

New From Hart Publishing: Sedley on Law and the Whirligig of Time @hartpublishing

New from Hart Publishing: Stephen Sedley, Law and the Whirligig of Time (Hart Publishing, 2018).

For over 30 years, first as a QC, then as a judge, and latterly as a visiting professor of law at Oxford, Stephen Sedley has written and lectured about aspects of the law that do not always get the attention they deserve. His first anthology of essays, Ashes and Sparks, was praised in the New York Times by Ian McEwan for its 'exquisite, finely balanced prose, the prickly humour, the knack of artful quotation and an astonishing historical grasp'. 'You could have no interest in the law,' McEwan wrote, 'and read his book for pure intellectual delight.' The present volume contains more recent articles by Stephen Sedley on the law, many of them from the London Review of Books, and lectures given to a variety of audiences. The first part is concerned with law as part of history - Feste's 'whirligig of time'; the second part with law and rights. The third part is a group of biographical and critical pieces on a number of figures from the legal and musical worlds. The final part is more personal, going back to the author's days at the bar, and then forward to some parting reflections.

 

Nijman on Seeking Change By Doing History

Janne Elisabeth Nijman, T. M. C. Asser Institut, Amsterdam Center for International Law, University of Amsterdam, has published Seeking Change by Doing History (2018). Here is the abstract.

In her Inaugural Lecture Janne E. Nijman explores the so-called ‘Turn to History’ in international legal scholarship. Interest in the intellectual history or ‘history of ideas’ of international law has surged around the last turn of the century. A new sub-field has thus emerged: ‘History and Theory of International Law’. Nijman contextualises this development and stages three possible approaches of why and how to study ideas and theories of the past. A central proposition is that the field of ‘History and Theory of international Law’ ultimately aims to establish a dialogue between international legal thought then and now. In this way (and by employment of e.g. the Cambridge School method) a critical distance emerges with respect to our own international legal thinking and its underlying political and moral ideas. The meaning of international law ideas changes through time – in the study thereof lies the critical potential and value for our own thinking. International law is often presented as an emancipatory, progressive project in which human dignity has come to be increasingly well-protected. With the ‘turn to history’ however the dark sides of international law, including the influence of European – also Dutch – colonial expansion on the development of international law (and vice versa), come to the fore. Studying for example the thought of Hugo de Groot uncovers this ambivalence. Nonetheless Grotius’ humanist thinking about humankind, society, and (international) law also opens up space for a perspective alternative to the ‘Hobbesian’ international order. Fundamental issues then are: who counts within the international legal order, and on which moral and political presuppositions is this order built? This Lecture makes a connection to the work of the French philosopher Paul Ricoeur and points to a possible alternative line of reasoning in which the concept of international legal personality functions as a starting point for questions about just international institutions and law. These are urgent questions at a time of globalisation, interdependency and hyperconnectivity, in which citizens are highly critical towards European and international/global institutions.

Download the lecture from SSRN at the link.

CFP: Workshop on Cultural Expertise and Litigation in the History of Law, Oxford, July 4, 2018 @thomgiddens @OxfordCSLS

Call for papers:  Workshop on Cultural Expertise and Litigation in the History of Law, to be held at the Centre for Socio-Legal Studies, University of Oxford, July 4th, 2018.

Abstracts between 500 and 1000 words plus a short bio (indicating current affiliation and main publications) should be sent to Livia Holden at livia.holden@csls.ox.ac.uk. Accommodation and some meals will be provided. Subject to availability of funds and exhaustion of the participant’s institutional resources, funds may also cover some travel expenses. 

More here: 

Conference on Philosophy of Customary Law, May 14-16, 2018, Nice, France

From the mailbox:

The Centre de recherche en histoire des idées is organizing a conference on the philosophy of customary law, to take place in Nice (France) from May 14 to 16th, 2018.

The conference It aims to gather a wide range of competencies that are crucial to properly analyze the many facets of customary law, from John Austin to contemporary applications and issues such as de-colonization: not only history of law and sociology, but also history of art and anthropology.

The conference has a few grants to cover travel expenses, especially for early career researchers. At this link, you will find the complete call and details. Deadline for abstracts submission is November 15th, 2017.

The description of the Call for Papers provided by Edoardo from AIR (Atelier Ideas & Research).

Sugarman on Promoting Dialogue Between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and "Legal Turn" in Early Modern English History @LancasterUni

David Sugarman, Lancaster University Law School, has published Promoting Dialogue between History and Socio-Legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History at 44 Journal of Law & Society 37 (October 2017) (Special Issue: Main Currents in Contemporary Sociology of Law). Here is the abstract.

This paper argues that the work of socio-legal scholars and historians would benefit from greater dialogue, and from taking the social history of law itself more seriously. It points up the benefits and the difficulties that might arise from greater cross-fertilization. By way of a case study, it focuses on the ‘legal turn’ in recent history writing on early modern England, particularly, Christopher W. Brooks’s ground-breaking analysis of the nature and extent of legal consciousness throughout society, and the central role of law and legal institutions in the constitution of society. The paper critically reviews Brooks’s principal ideas and findings, the contexts within which they arose, their theoretical underpinnings, and their larger significance. It highlights Brooks’s engagement with diverse scholars, including John Baker, Marc Galanter, Jürgen Habermas, Robert W. Gordon, J.G.A. Pocock and E.P. Thompson. It is proposed that Brooks investigated both elite and popular legal consciousness on an almost unparalleled scale, adopting top-down and bottom-up approaches that revealed the trickle-up, as well as trickle-down, diffusion of legal ideas, transcending the boundaries of social, political, and legal history. More generally, the paper seeks to demonstrate that the turn to law in early modern English history has enlarged the field in terms of subject-matter, methodologies and the range of sources utilised, deepening understanding of the workings of law and its wider importance. Indicative subject areas and topics enhanced by the legal turn are outlined including: law, gender, agency and social hierarchy; legal consciousness; trust, contractual thinking, and capitalism; governance and the growth of state power; and the decline in the participation of ordinary people in the legal system, and the so-called ’vanishing trial’. The paper concludes that a convergence between history, legal history and socio-legal studies has been underway in recent decades, that it provides opportunities for greater cross-fertilization, and that this would enhance our understanding of the role of law in society, and of society. For that greater dialogue to happen there would need to be better institutional support, changes in the cultures and mind-sets of history, socio-legal studies and legal history, and greater self-reflexivity. It would also generate difficult questions and controversy as to what sort of rapport might be appropriate, when, how and to what effect.

Download the article from SSRN at the link.

A Realistic Theory of Law: A New Book From Brian Z. Tamanaha

Brian Z. Tamanaha, Washington University, St. Louis, has published A Realistic Theory of Law (Cambridge University Press, 2017). Here from the publisher's website is a description of the book's contents.

This book articulates an empirically grounded theory of law applicable throughout history and across different societies. Unlike natural law theory or analytical jurisprudence, which are narrow, abstract, ahistorical, and detached from society, Tamanaha's theory presents a holistic vision of law within society, evolving in connection with social, cultural, economic, political, ecological, and technological factors. He revives a largely forgotten theoretical perspective on law that runs from Montesquieu through the legal realists to the present. This book explains why the classic question 'what is law?' has never been resolved, and casts doubt on theorists' claims about necessary and universal truths about law. This book develops a theory of law as a social institution with varying forms and functions, tracing law from hunter-gatherer societies to the modern state and beyond. Tamanaha's theory accounts for social influences on law, legal influences on society, law and domination, multifunctional governmental uses of law, legal pluralism, international law, and other legal aspects largely overlooked in jurisprudence.

Presents the only contemporary version of a holistic theory of law within society

An excellent resource to learn a great deal about legal theory from a social scientific perspective

Traces the development of law and society, providing an account of the transformation of modern law.