Syed on Morty's Two Testaments @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Morty's Two Testaments. Here is the abstract.

Almost a half century after it was first launched, Morton Horwitz’s diptych on The Transformation of American Law remains a colossus on the landscape of American legal historiography. The reason lies not with any universal assent the books commanded, either then or now. Indeed, upon its publication, Book 1 was the target of more vociferous attacks than any work of American legal history since Charles Beard and today is often taken to have been decisively “refuted.” Book 2, meanwhile, although more respectfully received, has also had less of an impact, so muffled as to be muted. No, the reason for the Mt. Rushmore status of the two volumes lies in the virtuoso manner in which Horwitz combined in a single person two talents rarely brought together: the historian’s eye for deep context and the telling detail, and the theorist’s eye for large, even sweeping, themes. Yet three puzzles persist about the two volumes: First, has Book 1 really been refuted? Two, why has Book 2’s impact been so much more muted? Finally, can the two testaments be reconciled or must one choose between the Old and the New? The stakes of these questions are not limited to the reception and interpretation of Transformations. Rather, they go to some of the largest substantive and methodological issues in American legal history today: (1) the relation of legal doctrine to socioeconomic developments; (2) the relation of legal theory to social ideology; and (3) the relation of each to the other. The present Essay offers a revisionary account of Transformations that seeks to answer the three interpretive puzzles in a way shedding new light on the three substantive issues. It argues, first, that in contrast to commonly received wisdom, Book 1 was in fact less an exercise in Marxian than Beardian analysis, albeit one strongly inflected by Polanyi. So reconceived, its fundamental substantive and methodological lessons—regarding the relation of legal doctrine to socioeconomic transformations—still stand up quite well today, despite the dual onslaught of internalist legal scholars and externalists from law-and-economics. Second, and again in contrast to prevailing wisdom, Book 2 is in fact more, not less, Marxian than its predecessor, although here too with a Polanyian inflection. And so reconceived, its central substantive and methodological lessons—regarding the relation of legal thought to social ideology—now subject to the dual onslaught of critical legal scholars and those from law-and-society, also hold up well. Finally, not only can the central lessons of each book be integrated with the other, but such a synthesis is precisely what is needed to rejuvenate a critical legal historiography that, in the mode of law and political economy, seeks simultaneously to investigate law’s institutional with its ideological dimensions.

The article is not available for download from SSRN.

Rohde and Parra-Herrara on Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography @DanEricRohde @nicolasparrah @harvard_law @TheJLPE

Dan Rohde and Nicolas Parra-Herrara, both of Harvard Law School, are publishing Law as Architecture: Mapping Contingency and Autonomy in Twentieth-Century Legal Historiography in volume 3 of the Journal of Law and Political Economy. Here is the abstract.

This article addresses the power of law to make historical change. We begin by charting a rich debate on law’s autonomy held over the course of the twentieth century, overviewing contributions by Classical Legal Thought, Law and Society, Marxism, the New Left, Critical Legal History, and what we term the “Millennial Consensus.” We then sketch an alternative view that we feel is implicit in much legal history, where the law is seen as an “architecture”—a set of tools with which we build our society. On this view, law’s autonomy lies in the way that it facilitates specific forms of societal ordering at the expense of others. We emphasize that it also has an existential dimension in that we can never foresee all the future uses particular legal institutions may be put to.

Download the article from SSRN at the link.

Stern on Proximate Causation in Legal Historiography @ArsScripta

Simon Stern, University of Toronto Faculty of Law, is publishing Proximate Causation in Legal Historiography in History and Theory (2020). Here is the abstract.

The variety of legal history published in general-interest law journals tends to differ from the variety published in history journals. This study compares the two varieties by examining footnote references in five general-interest law journals, and footnote references in two journals of legal history. In the law journals, cases and statutes accounted for the single largest group of footnotes (approximately 35%), followed by references to other law journal articles (nearly 25%). In the legal history journals, these two categories accounted for less than 20% of all references; primary and secondary historical materials predominated in the footnotes. To be sure, legal decisions and law journal articles can also be historical sources: rather than being used as evidence of what the law is, they might be studied for what they reveal about legal reasoning or rhetoric in an earlier age. However, in most legal historical research that attends primarily to cases and statutes, these materials figure as evidence of the state of the law at that time. When the analysis relies on legal sources to trace the development of a certain doctrine, and treats them as sufficient to account for that development, the result is the distinctive style of research that I seek to contrast against approaches that cast the net of historical inquiry more widely. To account for these different approaches, I suggest that law professors rely on a notion of proximate causation as a historiographic method. According to this approach, legal developments are proximately caused by other developments in the legal sphere, and other social and cultural developments play a more attenuated role, such that their influence is less significant. By proposing this explanation, I hope to draw more attention to assumptions about causation in legal historiography, and to question their persuasive force.

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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.

Tomlins on A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjmin

Christopher Tomlins, University of California, Berkeley, Jurisprudence and Social Policy Program, is publishing A Poetics for Spatial Justice: Materialism and Legal Historiography, from Bachelard to Benjamin in the Oxford Handbook of Law and Humanities (forthcoming). Here is the abstract.

As the linguistic/cultural turn of the last forty years has begun to ebb, socio-legal and legal-humanist scholarship has seen an accelerating return to materiality. This paper asks what relationship may be forthcoming between the “new materialisms” and “vibrant matter” of recent years, and older materialisms – both historical and literary, both Marxist and non-Marxist – that held sway prior to post-structuralism? What impact might such a relationship have on the forms, notably “spatial justice,” that materiality is assuming in current legal studies? To attempt answers, the paper turns to two figures from more than half a century ago: Gaston Bachelard – once famous, now mostly forgotten; and Walter Benjamin – once largely forgotten, now famous. A prolific and much-admired writer between 1930 and 1960, Bachelard pursued two trajectories of inquiry: a dialectical and materialist and historical (but non-Marxist) philosophy of science; and a poetics of the material imagination based on inquiry into the literary reception and representation of the prime elements – earth, water, fire, and air. Between the late 1920s and 1940, meanwhile, Benjamin developed an idiosyncratic but potent form of historical materialism dedicated to “arousing [the world] from its dream of itself.” The paper argues that by mobilizing Bachelard and Benjamin for scholarship at the intersection of law and the humanities, old and new materialisms can be brought into a satisfying conjunction that simultaneously offers a poetics for spatial justice and lays a foundation for a materialist legal historiography for the twenty-first century.

Download the essay from SSRN at the link.

Desautels-Stein on the Structural Approach to Legal Historiography

Justin Desautels-Stein, University of Colorado Law School, has published A Context for Legal History, or, This Is Not Your Father's Contextualism at 56 American Journal of Legal History 29 (2016). Here is the abstract.

This short essay attempts a systematic rehearsal of the structuralist approach to legal historiography.

Download the essay from SSRN at the link.