Wednesday, July 25, 2012

More on Applied Legal History

Readers intrigued by the idea of "applied legal history," which Al Brophy introduced here and I addressed here, will want to head over to the Faculty Lounge to read the additional thoughts that Al has posted.

Here's Al on how we might define "applied legal history":
I think applied legal history is a way of describing what a number of us are already doing -- that is, it's a way of talking about what has motivated a number of legal histories of late and of also explaining what we are doing to our colleagues.  . . . [It] is scholarship that is inspired by contemporary issues or seeks to address some contemporary issue. 
Al then identifies four categories of "applied legal history" and offers examples. Much legal historical scholarship fits somewhere in here, which raises the question of what, if anything, is excluded. (To be fair, Al characterizes some of the categories as further from "the core," and he does not presume that the authors he lists would place their work under the "applied legal history" umbrella.)

Further down Al responds to my concern about the perils of "applied legal history":
. . . Karen also raises the possibility that a focus on applied legal history will make (shall we call it) "pure" legal history look descriptive rather than normative.  I'd go beyond Karen on this.  I'm worried that focus on "applied legal history" may highlight that "pure" legal history doesn't relate much to the issues that our law school colleagues care about most. . . .
. . . We should continue to write on "pure" legal history -- but I think we need to be prepared to defend why we are doing it.  Talk of applied legal history may be a relatively easy way of demonstrating to colleagues the importance of our work; there are other ways of demonstrating that as well. 
Here Al and I agree more than we disagree. As Mary has written on this blog, all legal historians -- all historians -- ought to be able to articulate the "cash out value" of their work. Perhaps tagging our work as "applied legal history" is, as Al suggests, one convenient way of establishing value.

But I think that's also why the term makes me a bit uncomfortable. When discussing my work with non-historians, I know that I can reach common ground by making a connection to a contemporary issue or current legal debate. It's like the academic version of talking about the weather, with the added hint that I might be able to predict the next drought or explain last night's big storm. And for something like a hallway conversation or a first-round AALS interview, that may not be a bad way to go. But personally, when I make my scholarship "useable" in this way, I'm not necessarily expressing why I consider my work worthwhile and important -- and that, I believe, is what most of my non-historian colleagues really want to understand. That conversation is harder -- maybe it takes a few tries -- but it seems worthwhile, both for building an intellectually diverse community and developing one's own scholarship.

My snippets of Al's post do not do it justice. Read the rest here. And, of course, please use the comments function to chime in.

The image comes from a progressive-era series of pamphlets on "Applied History" published by the State Historical Society of Iowa. (image credit)


Mike Hoeflich said...

If I may add a few thoughts as one who undoubtedly does not fit within the category of "applied legal historians" having devoted most of the past forty years to writing about Roman law and the history of law books...
When I first entered law teaching there were very few legal historians teaching in American law schools and my colleagues at Illinois regarded my research interests as amusing if not odd, but they were perfectly willing to tolerate my writing so long as I taught "relevant" subjects, i.e. tax, and that was fine with me. I had been trained at Cambridge as a classicist and as a legal historian by Peter Stein, John Crook, and Walter Ullman and felt little need to justify my research interests. My biggest problem was publication, since at that time most of what I wrote was published in German and English journals and the tenure committee did not feel that such foreign publications counted for much. The result was that I had to write something publishable in a U.S. law review. The result was an article on the history of sovereign debt. The reasons that I did not worry overly much about about whether my colleagues valued my scholarship were primarily three:

1. I was not ambitious to move "up" in the legal academy;

2. I had a readership in europe for my writing and that was sufficient to give me the intellectual community I desired [and also led to some lovely trips abroad to give lectures and to some marvelous friendships];

3. I had been taught as an undergraduate at Haverford and a graduate student at Cambridge that when one writes history one writes not only for one's colleagues but also for those who came before and those who came after. As a young man I studied a bit of Talmud and I always loved the idea that a Talmudist engages in a conversation across centuries. As an historian I felt that I was also engaged in a trans-generational conversation and that if I could contribute to that conversation that would be reward enough. I still feel that way.

Of course there will be many who think that my attitude is selfish since I have not been willing to write intentionally about issues that concern the more contemporary interests of my legal colleagues and that's probably true. It's certainly true that I have spent my career in non-elite law schools. But I have loved every minute of the research and writing I have done and I don't regret a minute of it. And I hope that there will be future legal historians who will engage with me through my writings in this trans-generational conversation that I have found so rewarding. I also hope that young legal historians who have "no-applied" research interests will not give them up--and the rewards they can realize by following their hearts and intellects--simply to be relevant.

Shag from Brookline said...

On an earlier post on this subject, I commented:

"Perhaps I, as a non-historian, first need to understand 'applied history' before I can digest 'applied legal history. Hopefully it is an improvement over 'law office history.' Perhaps understanding any differences between legal historians and other historians might be beneficial.

July 12, 2012 9:40:00 AM EDT"

Alas, no one followed up on my comment.

I have Googled in an effort to get a better understanding of "applied history," without much success, other than in a futuristic role. I sought a comparison of basic physics versus applied physics for some guidance. But history - the past - doesn't seem to fit with applications looking to either the present or the future. Is there a built-in contradiction, as the scientific method does not seem compatible with history?

Anonymous said...

I find it concerning that the implication behind much of this debate is that faculty in US law schools might not value scholarship itself (I write this from an English background and agree with all Mike Hoeflich's points). My response to questions about why what I do is of value is always the same: 'we don't know know about this yet, and this is a university'. Sofar no one has criticised that position.

I happen to think that the sort of work most legal historians do can make them extremely effective law teachers of many different subjects (I have now taught five different areas of modern law), but that is not why legal history scholarship is important - it is important because it is scholarship.