What role can/should grand theory play in the teaching of legal history? In the foundational course on historiography at Duke, History Professor Malachi Hacohen assigned Braudel, Weber, and Marx; pushing us to analyze historic events through the analytics of each. While it is certainly possible to teach and write legal history without mentioning any of the above, I’ve found that they can provide helpful organizing principles, useful pedagogical counterpoints, not to mention discussion starters. Take Marx. In 1848, Marx posited that all history is the story of class struggle. In lecture, I argue that this made him Madisonian. After all, James Madison also argued that class, or what he termed the “unequal distribution of property,” posed the primary source of societal struggle, or “faction” (see Federalist 10). Of course, Madison and Marx disagreed on the prescription, one lobbying for a society without property and the other for a property-based society, but this is precisely where things get pedagogically interesting. For the remainder of the course, I can employ Marx as a type of Greek chorus, constantly reminding students that American law’s Whiggish expansion of rights and liberties may in fact be a grand tragedy, little more than a series of crabbed “bourgeois” concessions to preserve economic inequality – and capitalism (note: even though Marx underscores American law’s deep commitment to inequality, I try to keep the normative commentary to a minimum, leaving students to decide who is more accurate/sympathetic). To keep the theoretical thread alive, I weave in actual events, including Engels’ study of Kentucky Shakers in 1844 (which convinced him that communism could actually work), Marx’s letter to Lincoln immediately following the Civil War (celebrating it as a proletariat victory), the role of socialists in the Strike of 1877, the role of anarchists at Haymarket in 1886, Christopher J. Tiedemann’s fear of communist insurgency in his canonical work on the police power, the trials (literally) of Eugene V. Debs, the Red Scare of 1919, and so on, culminating in the life and death struggle between the U.S. and the U.S.S.R. during the Cold War. It’s not exactly Marxist history, to be sure, but a nod to grand theory nevertheless. Any Braudelians out there?
Photo credit: International Institute Social History
