Tuesday, December 26, 2017

Methodological Divergence Between Legal History Subfields

As someone who has done some work on the legal history of at least three or four geographical regions (China, England, the United States, and, to a much lesser extent, Japan), I have often been struck by how dramatically these fields are diverging from each other in terms of methodology.  Increasingly, new studies in European and American legal history seem willing, even eager, to engage the social sciences and political theory (two of my colleagues, Sam Moyn and Nick Parrillo, are leading examples of this).  Correspondingly, they have sometimes taken on a distinctly institutionalist bent that was often absent in the 80s and 90s, when contextualization, deconstruction, and the emphasis of contingency were the dominant methodological keywords--in many ways, they still are, but it's hard to escape the impression that a moderate countermovement is emerging.  In comparison, East Asian legal history seems ever more committed to the old methodological mainstream, and has, if anything, been moving away from a brief moment in the 1990s when social scientific debates over moral economy and socioeconomic causation captured the imagination of the field.  Ironically, this comes at a moment when social scientists are turning their attention to legal history as a core explanatory factor of East Asian economic development.

But why?  The most obvious and perhaps best answer is that these fields simply develop in different ways, and at different speeds.  If one has to go a bit deeper than that general truism, then it is worth remembering that East Asian history as a whole was somewhat slower than European and American history to embrace things like "the linguistic turn" and socio-cultural history in the first place, so perhaps it shouldn't be surprising that it has also been slower to move beyond them.  Insofar as non-Western historiography (lamentably) still takes its theoretical and methodological cues from Western historiography, there is usually a lag of several years, sometimes decades, between the two sides.

Nonetheless, there are at least two other institutional factors that are worth considering.  The first is the role of law schools in shaping methodology: critical legal studies has, in general, been on the decline in American legal academia since the 1980s, whereas the social sciences, and especially economics, have become dominant.  There continue to be, of course, many challenges to the hegemony of law and economics, but those challenges are now far more likely to be rooted in some other branch of social science, or in philosophy and political theory, than in some sort of critical method.  Insofar as American law schools continue to exert significant intellectual influence on the study of American and, to a lesser extent, European legal history, this has likely pushed those fields towards more engagement with theory and modeling.  In comparison, Asian legal history has virtually no representation in American legal academia, and is therefore largely immune from its methodological trends.  East Asian, and especially Chinese, law schools do employ a large number of legal historians who study local institutions, but are much less theoretically minded in general, and correspondingly exert relatively little methodological influence over historical research.

The second factor is the nature of the job market.  Compared to American and European history, the overall job market for Chinese history, including legal history, has been very robust over the past decade and a half, especially if we count academic jobs in Asia (many of which encourage teaching and writing in English).  The overall decline of societal interest in American and European history has quite possibly placed greater pressure on those fields to, essentially, justify their own existence, and therefore to engage more aggressively with broader questions of socioeconomic and political causation.  In comparison, Chinese historians have enjoyed a mini-hiring bubble, and have therefore faced significantly less existential pressure of this sort.  However, with the gradual saturation of both American and Chinese universities with a critical mass of such scholars, this could be coming to an end, in which case we may very well see the emergence of more interdisciplinary research on Chinese legal history.

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