Friday, July 21, 2017

Dubber on Legal History as Legal Scholarship

Markus D. Dubber, University of Toronto, has posted Legal History As Legal Scholarship: Doctrinalism, Interdisciplinarity, and Critical Analysis of Law, which is forthcoming in the Oxford Handbook of Historical Legal Research:
Legal history is having a methodological moment. So is law (and, as it turns out, history as well). And not just in one country or legal system but across the common law/civil law divide. In this essay I try to capture some aspects of this methodological moment—or moments— and then to add some reflections of my own that locate legal history within the enterprise of legal scholarship. More specifically, I will outline an approach to legal history that regards historical analysis as one mode of critical analysis of law, along with other modes of “interdisciplinary” analysis (economical, philosophical, sociological, literary, etc.) and “doctrinal” analysis. In this way, legal history plays a key role in the general effort to move beyond the long-standing and rhetorically useful, but ultimately unproductive, distinction between “modern” and “traditional” legal scholarship, and that between “common law” and “civil law” scholarship besides. According to this view of legal history, it is a mode of jurisprudence (in fact, we might call it New Historical Jurisprudence) rather than a sub-specialty of law or a form of applied history.

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