“It is cool to be a legal historian.”
That’s a sentence I never expected to write (or to hear) when I began my doctoral training in
1973, immediately after finishing law school. Implicitly, sometimes explicitly, most of my cohort of graduate students assumed that law was some kind of superstructure, to use the marxist or marxisante label of the time. It was derivative of and secondary to what was “real” and what was really important to study and to write about. Fundamentally, law was both boring and trivial. Why would I want to waste my time on legal doctrine or on the study of legal institutions, on the derivative and the boring and the trivial? The skepticism of my classmates and teachers got into my head. I spent much time thinking about how “law” might be “important.” What was it that drew me to the study of those legal texts and those legal processes and institutions? Could I justify such explorations as the life work of someone who lived in this world and had some ambitions of making a difference in that world?
That skepticism about the significance of law, and about studying its history, was related to a
parallel skepticism that I had found in the law schools, particularly among the lefty and
progressive law students who were my friends. Why explore the past when the present made such demands, and also contained such possibilities?
And the history of law? What was it, as I found it in the law schools of that time? For many who had gone to law school in those postwar years, legal history was at most a force fed diet of archaic medieval forms of action and Latin and law French phrases, to be memorized in order to get through courses infamously labelled “The Development of Legal Institutions.” (Some few of us actually loved learning that stuff, but to be the sort of person who loved that stuff meant understanding oneself as involved with the recondite and the archaic, knowing oneself as marginal, definitely not “cool.”). There were exceptions among those who taught legal history then. I was lucky to have found John Phillip Reid at NYU Law School, who was pioneering a legal history that took seriously culture and consciousness. And Willard Hurst at Wisconsin was creating a kind of legal history that grew out of legal realism and that tried to explain legally the course of American political economy. But the experience of legal education was intimately tied to an assertion of the marginality of historical scholarship. So much so that when I first went on to the law school job market, there were several interviews at several law schools where something like the following was said to me: You seem like a bright guy (and it was mostly all guys then). Why do you want to devote yourself to something like legal history, when you could be doing something more important?
All that changed suddenly and dramatically in the late 1970s and 1980s. In U.S. law schools, the success of Morton Horwitz’s first Transformation book marked much of the change. And then came cls and the linguistic turn, and more, including the breakdown of the “legal process” orthodoxy. In history departments, the search for sources, and the realization that quantitative sources would never be enough, that there were few ways aside from law to make “subalterns” speak out of historical records, that trials were an unexpectedly rich source of evidence, and the modeling effects of a few pioneering historians (mostly French and British early modern historians) who made “cultural history” fashionable using or reading trials, worked together to create a desire to read and to work with legal sources. For more than a few historians, that led on to an engagement with law and in legal history, and, even better, to a willingness to talk with those of us who were fully absorbed in doing legal history. In the United States, women’s historians and historians of slavery and race led the way . But over the course of a short period, many became interested in law, wanted to do historical work that drew on legal sources.
The last paragraph is nothing but a placeholder for a much longer and richer history, one that is full of unexpected twists and turns and the opening up of new worlds of scholarship.
My goal here is different. I mean only to mark the curious fact that over a very short period of time doing legal history had become “cool,” in history departments as well as in law schools. Suddenly, doing it was not something to be apologized for, not something that required explanation.
Many of the readers of this blog have never lived any other way. They may think that doing legal history has always been cool (within the confines of a nerdiness pervasive among scholars).
I’m here to challenge that faith in our relative coolness.
It is not just that we study history. We are also historically made. That is to say, we too are
inevitable products of history. Being engaged in a cool scholarly life work is not a metahistorical fact. Our present “happy” situation belongs to an odd historical conjuncture, rather than being a natural product of our gifts and our efforts.
Being cool is our present. Doing legal history is a cool thing to do. But once upon a time, in my early years as a scholar, that was not the case. I sometimes think it was healthy for me that I had a long period where I would have to explain (in my head and in the seminar room) why law was important. (And it is important to add that I actually liked being absorbed in a life project that no one, or very very few, thought was “cool.”)
Whatever. That was then. This is now. No one asks such questions today.
--Dirk Hartog
That’s a sentence I never expected to write (or to hear) when I began my doctoral training in
1973, immediately after finishing law school. Implicitly, sometimes explicitly, most of my cohort of graduate students assumed that law was some kind of superstructure, to use the marxist or marxisante label of the time. It was derivative of and secondary to what was “real” and what was really important to study and to write about. Fundamentally, law was both boring and trivial. Why would I want to waste my time on legal doctrine or on the study of legal institutions, on the derivative and the boring and the trivial? The skepticism of my classmates and teachers got into my head. I spent much time thinking about how “law” might be “important.” What was it that drew me to the study of those legal texts and those legal processes and institutions? Could I justify such explorations as the life work of someone who lived in this world and had some ambitions of making a difference in that world?
That skepticism about the significance of law, and about studying its history, was related to a
parallel skepticism that I had found in the law schools, particularly among the lefty and
progressive law students who were my friends. Why explore the past when the present made such demands, and also contained such possibilities?
And the history of law? What was it, as I found it in the law schools of that time? For many who had gone to law school in those postwar years, legal history was at most a force fed diet of archaic medieval forms of action and Latin and law French phrases, to be memorized in order to get through courses infamously labelled “The Development of Legal Institutions.” (Some few of us actually loved learning that stuff, but to be the sort of person who loved that stuff meant understanding oneself as involved with the recondite and the archaic, knowing oneself as marginal, definitely not “cool.”). There were exceptions among those who taught legal history then. I was lucky to have found John Phillip Reid at NYU Law School, who was pioneering a legal history that took seriously culture and consciousness. And Willard Hurst at Wisconsin was creating a kind of legal history that grew out of legal realism and that tried to explain legally the course of American political economy. But the experience of legal education was intimately tied to an assertion of the marginality of historical scholarship. So much so that when I first went on to the law school job market, there were several interviews at several law schools where something like the following was said to me: You seem like a bright guy (and it was mostly all guys then). Why do you want to devote yourself to something like legal history, when you could be doing something more important?
All that changed suddenly and dramatically in the late 1970s and 1980s. In U.S. law schools, the success of Morton Horwitz’s first Transformation book marked much of the change. And then came cls and the linguistic turn, and more, including the breakdown of the “legal process” orthodoxy. In history departments, the search for sources, and the realization that quantitative sources would never be enough, that there were few ways aside from law to make “subalterns” speak out of historical records, that trials were an unexpectedly rich source of evidence, and the modeling effects of a few pioneering historians (mostly French and British early modern historians) who made “cultural history” fashionable using or reading trials, worked together to create a desire to read and to work with legal sources. For more than a few historians, that led on to an engagement with law and in legal history, and, even better, to a willingness to talk with those of us who were fully absorbed in doing legal history. In the United States, women’s historians and historians of slavery and race led the way . But over the course of a short period, many became interested in law, wanted to do historical work that drew on legal sources.
The last paragraph is nothing but a placeholder for a much longer and richer history, one that is full of unexpected twists and turns and the opening up of new worlds of scholarship.
My goal here is different. I mean only to mark the curious fact that over a very short period of time doing legal history had become “cool,” in history departments as well as in law schools. Suddenly, doing it was not something to be apologized for, not something that required explanation.
Many of the readers of this blog have never lived any other way. They may think that doing legal history has always been cool (within the confines of a nerdiness pervasive among scholars).
I’m here to challenge that faith in our relative coolness.
It is not just that we study history. We are also historically made. That is to say, we too are
inevitable products of history. Being engaged in a cool scholarly life work is not a metahistorical fact. Our present “happy” situation belongs to an odd historical conjuncture, rather than being a natural product of our gifts and our efforts.
Being cool is our present. Doing legal history is a cool thing to do. But once upon a time, in my early years as a scholar, that was not the case. I sometimes think it was healthy for me that I had a long period where I would have to explain (in my head and in the seminar room) why law was important. (And it is important to add that I actually liked being absorbed in a life project that no one, or very very few, thought was “cool.”)
Whatever. That was then. This is now. No one asks such questions today.
--Dirk Hartog
