Wednesday, December 17, 2008

Lesaffer on the nature of legal history

Randall C.H. Lesaffer, Dean of Tilburg Law School, The Netherlands, has posted an essay about the nature of legal history, Law between Past and Present. His distinctions between the kinds of legal history done in law schools and in history departments doesn't hold in the United States, so it may be most interesting in illustrating differences between the way legal history is done in Europe and the U.S. In the U.S., most scholars who call themselves "legal historians" engage in research that falls in Lesaffer's second category, which in his experience is the kind of research done by legal historians in history departments. His first and third categories consist of the sort of historically oriented research sometimes done by lawyers and legal scholars who are not principally historians, and often who do not have historical training.
It would be so helpful to hear from legal historians outside the U.S. on their sense of the field. Here's an excerpt from Lesaffer:
First, there is the study of ‘history in law’. Lawyers, in whatever capacity, often need to refer to the past in order to argue the existence or the interpretation of a certain rule. Whether the formal source of the rule is customary, legislative, judicial or jurisprudential, the rule roots in a more or less remote past. A rule’s history is an inherent as well as constitutive part of it....
Second, there is ‘law in history’. This refers to the study of law within its broad social, economic, cultural and political context. The object of study is the mutual interaction between law and society at a certain time and certain place in history. This kind of historical research into the law is more often conducted by historians working in history departments rather than law schools and is, in terms of methodology, the most ‘historical’ of all three. What this entails will be explained in the final pages of this chapter.
Third, there is ‘history of law’. This type of legal historical literature holds a middle position in the continuum between the former two. This type of legal history is first and foremost the preserve of legal historians who hold law degrees and are attached to law schools or legal research institutes. Under this denominator falls research which considers law as a self-contained historical phenomenon. The purpose of this type of legal history is to understand what the ‘law’ was at a certain time and place in history. It only differs from the study of contemporary law in that it concerns law from the past. The object of study may be either the law system as a whole, or just a particular branch, institution, principle, rule or concept. While often one refers to the study of the law as a whole as external legal history and of particular parts of its as internal legal history, it would be more correct to speak of macro- and micro-legal history. The term external legal history could better be applied to ‘law in history’ and internal legal history to ‘history of law’.