Now available online in Law and History Review and Cambridge Core: Four Fragments on Doing Legal History, or Thinking with and against Willard Hurst, by Hendrik Hartog, the Class of 1921 Bicentennial Professor in the History of American Law and Liberty, Emeritus, at Princeton University. From the introduction:
What does it mean to know law--to understand legal sources--as existing in historical time? That is the question, or rather, my question. Not how to mine a legal archive to make social or cultural or political or economic generalizations about a historical moment or an era. Not how to find the origins of the legal present, the power or failure of a regulation, or any number of other questions that historians and others today pose about law. Here my concerns are epistemological and jurisprudential. When I as a historian identify something as law, and when I find myself seduced by a legal source—by a trial transcript, a lawyer’s brief, a judicial opinion, a passage in a treatise, a letter or memoir of a litigant, a justification for a statute, or an interpretation of that statute—what is it that I am seduced by?
I have only glimmers of answers for the questions that consume me. But here are four fragments that will possibly play a part in a longer work: I begin with a sketch of what it is to do legal history today, in the wake of the enormous growth and development of the field of legal history in legal education, over the past 40 years. I continue with an extended examination of the answers that Willard Hurst, the founder of the modern discipline of legal history, gave more than 55 years ago to the question: What does legal history do? Finally, in the last two fragments, I spin off from Hurst to begin the work of suggesting an understanding of legal history less tied to legal thought and legal advocacy: How to practice a legal history that is something apart from legal scholarship.
--Dan Ernst
