English Legal History and Interdisciplinary Legal Studies in Anthony Musson, ed, Boundaries of the law Geography, Gender and urisdiction in Medieval and early Modern Europe(Ashgate, forthcoming) Jonathan Rose L. Introduc This paper will focus on two issues the nature of medieval and early modem English legal history and its place in interdisciplinary legal studies and the possible opportunities for expanding the interface etween English legal history and other additional disciplines. Before turning to these issues, an overview of interdisciplinary activities seems necessary since many of them may be unfamiliar to English legal historians II. Interdisciplinary Legal Studies: An Overview Interdisciplinary intellectual pursuits in the legal academy have increased significantly in the last several decades, particularly in the United States. Some interest in the relationship between law and other disciplines existed previously ofcourse. Jurisprudence has always been part of modern legaleducationand a traditional subject of scholarship. The Law and Society movement is a longstanding multi-disciplinary effort that has produced a richand substantial body of scholarship. The University of Chicago Law School has harbored economists in its midst long enough for the phrase " Chicago School to become an academic household word. The Yale Law School faculty has had an assortment of social scientists for decades. Nor should legal history be omitted from this catalogue of early interdisciplinary efforts The broadened law and economics movement that began in the 60s was perhaps the catalyst for Willard H. Pedrick Distinguished and Professor of li of Law. Arizona State Ur B.A. 1960, University of Pennsylvani ity of minnes thor wishes to express appl to Paul Brand, Richard helmholz, n, Daniel Klerman Jeffrie Murphy, Anthony M Michael Saks, and George Schatzki comments. As usua hor bears full responsibility Article's analysis and conclusions 1. See G. Edward White, Reflections on the "Republican Revival". Interdisciplinary Scholarship in the Legal Academy, 6 Yale J. Law& Humanities 1, 23 n54(1994) and case law e anthrop J ugisprodence (at9 3 se N. Llewllyn E. Adamson Hoebel, The Cheyenne Way: Conlicr 3. Some scholars have included history within Law and Society. See Marc Galanter Mark Alan Edwards, Introduction The Path of Law Ands, 1997 Wis L Rev. 375, 379
* Willard H. Pedrick Distinguished Research Scholar and Professor of Law, College of Law, Arizona State University. B.A. 1960, University of Pennsylvania; LL.B. 1963, University of Minnesota. The author wishes to express appreciation to Paul Brand, Richard Helmholz, David Lieberman, Daniel Klerman, Owen Jones, Jeffrie Murphy, Anthony Musson, Michael Saks, and George Schatzki for their helpful comments. As usual, the author bears full responsibility for the Article’s analysis and conclusions. 1. See G. Edward White, Reflections on the “Republican Revival”: Interdisciplinary Scholarship in the Legal Academ y, 6 Yale J. Law & Humanities 1, 23 n.54 (1994). 2. For a lawyer-anthropologist collaboration, see K.N. Llewellyn & E. Adamson Hoebel, The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence (1953, 1941). 3. Some scholars have included history within Law and Society. See Marc Galanter & Mark Alan Edwards, Introduction: The Path of Law Ands, 1997 Wis L. Rev. 375, 379. 1 English Legal History and Interdisciplinary Legal Studies in Anthony Musson, ed., Boundaries of the Law: Geography, Gender and Jurisdiction in Medieval and Early Modern Europe (Ashgate,forthcoming). Jonathan Rose* I. Introduction This paper will focus on two issues:the nature ofmedievaland early modern English legal history and its place in interdisciplinary legal studies and the possible opportunities for expanding the interface between English legal history and other additionaldisciplines.Before turning to these issues, an overview of interdisciplinary activities seems necessary since many of them may be unfamiliar to English legal historians. II. Interdisciplinary Legal Studies: An Overview Interdisciplinary intellectual pursuits in the legal academy have increased significantly in the last several decades, particularly inthe United States. Some interest in the relationship between law and other disciplines existed previously ofcourse.1 Jurisprudencehasalways beenpart ofmodernlegaleducationand a traditional subject of scholarship. The Law and Society movement is a longstanding multi-disciplinary effort that has produced a richand substantialbodyofscholarship. The University of Chicago Law School has harbored economistsinitsmidst long enough forthe phrase “Chicago School” to become anacademic household word. TheYaleLawSchoolfacultyhas had anassortment ofsocialscientistsfor decades.2 Nor should legal history be omitted from this catalogue of early interdisciplinary efforts.3 The broadened lawand economics movement that beganinthe 60's was perhaps the catalyst for
this surge in the contemporary interest in interdisciplinary activities. In the words of the movement's high priest, Richard Posner, this intensified activity was the "new economics and law, whose"hallmark was the application to the legal system across the board. To say that law and economics took the academy by storm, at least in the United States, may be an understatement. Many law schools have at least one economist on their faculty Shortly thereafter, the law and literature movement emerged with the publication of James boyd White's seminal book, The Legal imagination. Like law and economics, this field rapidly expanded with the publication of substantial scholarship in the late 70 s and 80's' and differed from its earlier manifestations. Law and literature courses became a commonplace fixture in law school curricula. H.L. A Hart was the pioneer whose work created the mutuality of interests of philosophers and lawyers in jurisprudence, which has also grown beyond its traditional role in legal academia, perhaps a result of the profound impact of the work of John Rawls. Not only did traditional philosophy oflawefforts increase with the significant influence of scholars such as Ronald dworkin, but there was a huge increase with all the new jurisprudential movements that grew out of postmodern ideas. The Critical Legal Studies movement and its progeny produced an avalanche of scholarship and controversy to Nor was this expanded interest in interdisciplinary legal studies limited to the social sciences and 4. See Richard Posner, The Economic Approach to Law, 53 Tex L Rev. 757(1974-75) 5. See Richard A. Posner, Economic Analysis of Law 23(6 ed. 2003). He specifies the various fields and includes legal history. See id at 23, 253-70 6. James Boyd White, The Legal Imagination (1973) ichard Posner has provided a useful summary of this movement. See Richard A. Posner, Law and Literature: A derstood Relation 9-14(1988) in American Culture by of law and literature century, the numerous legal theme hakespeare sparked the interest of lawyers. See c. Richard Posner joined in this interdisciplinary activity. See eg Richard A. Posner, The Problems of 10. See Mark Kelman, A Guide to Critical Legal Studies(198
4. See Richard Posner, The Economic Approach to Law, 53 Tex. L. Rev. 757 (1974-75). 5. See Richard A. Posner, Economic Analysis of Law 23 (6th ed. 2003). He specifies the various fields and includes legal history. See id. at 23, 253-70. 6. James Boyd White, The Legal Imagination (1973). 7. Richard Posner has provided a useful summary of this movement. See Richard A. Posner, Law and Literature: A Misunderstood Relation 9-14 (1988). 8. William Page dated the inception of law and literature as Wigmore’s 1907 publication of a list of legally related novels. See William H. Page, The Place of Law and Literature, 39 Vanderbilt L. Rev. 391(1986). He also noted Law and Letters in American Culture by Robert Ferguson, discussing the fusion of law and literature from 1765-1840. During the 19th century, the numerous legal themes in Shakespeare sparked the interest of lawyers. See C.K. Davis, The Law in Shakespeare (1883). 9. Again Richard Posner joined in this interdisciplinary activity. See, e.g. Richard A. Posner, The Problems of Jurisprudence (1990). 10. See Mark Kelman, A Guide to Critical Legal Studies (1987). 2 this surge in the contemporary interest in interdisciplinary activities. In the words of the movement’s high priest,Richard Posner, this intensified activity was the “new” economics and law,4 whose “hallmark”was “the application to the legal system across the board.”5 To say that law and economicstook the academy by storm, at least in the United States, may be an understatement. Many law schools have at least one economist on their faculty . Shortly thereafter, the law and literature movement emerged with the publication of James Boyd White’sseminalbook, The Legal Imagination. 6 Like law and economics, this field rapidly expanded with the publication of substantial scholarship in the late 70's and 80's7 and differed from its earlier manifestations.8 Law and literature courses became a commonplace fixture inlawschoolcurricula. H.L.A. Hart was the pioneer whose work created the mutuality of interests of philosophers and lawyers in jurisprudence, which has also grown beyond its traditional role in legal academia, perhaps a result of the profound impact ofthe work ofJohnRawls. Not only did traditionalphilosophyoflaweffortsincrease with the significant influence ofscholarssuchas Ronald Dworkin,9 but there was ahuge increase withallthe new jurisprudential movements that grew out of postmodern ideas. The Critical Legal Studies movement and its progeny produced an avalanche of scholarship and controversy.10 Nor was this expanded interest in interdisciplinary legal studies limited to the social sciences and
the humanities. Interest in subjects such as computers, genetics, and the environment generated a whole new type of interdisciplinary interest in law, science, and technology. Like the other interdisciplinary areas this new activity greatly surpassed the older manifestations in this area such as patent law and law and medicine. Following the typical interdisciplinary pattern, the curriculum of many law schools is peppered with wide array of such interdisciplinary courses and faculty In summary, when one looks now at the curricula and faculty of law schools, the interdisciplinary picture is quite different than it was several decades ago. Almost all law schools offer several"law and or other interdisciplinary courses and programs. Not only are many faculty interested in these interdisciplinary approaches to law, but many have advanced degrees in nonlaw fields. Others spend considerable time n autodidactic efforts. Some law faculty do not have law degrees. Nothing evidences this heightened interest in interdisciplinary legal studies more than the scholarship, published both in law journal and the journals of other disciplines. One commentator has suggested that at "elite" law schools all"serious scholars"are expected to do interdisciplinary work and those without such interests would have a hard time finding a job at these institutions. 2 What has caused this increased interest and activity in interdisciplinary legal studies? Although the nature of the various nonlaw disciplines and their relation to law differs,some common and interrelated themes emerge. First, the nature of legal scholarship has changed. Greater emphasis on empirical studies and legal theory have been prevalent, with a corresponding movement away from traditional doctrinal analysis. 4 The leading law journals seem to be more interested in this "new scholasticism "than they are 12. See J M. Balkin, Interdisciplinarity as Colonization, 53 Wash. Lee L Rev. 649, 650(1996) 13. Several commentators with law and literature ra note 7. at 1; Geoffrey P. Miller, A ric of Law, 52 Chi. L. Rev. 2478, 255(1985 )(book review)) and with law and society. See Lay and &e Law and Economics: Common Ground, Irreconcilable Differences, New Directions, 1997 Wis. L Rev. 375 et seq 14. Such scholarship is ha iticized as less useful to lawyers and judges. Harry Edwards, The Growing Disjunction Behveen Legal Profession, 91 Mich. L. Rev. 34(1992): Symposium: Legal Education 91 (19930 ponse to Judge Edwards criticisms). One commentator suggested vement theory of intellectual influence and onion.” See charles Collier. The d abi in Law: Reexamining the Assumptions of Interdisciplinary Le
11. My own school, the Arizona State College of Law, has faculty with graduate degrees in philosophy, psychology, physics, electrical engineering, mathematics, astronomy, political science, public policy, and genetics. 12. See J.M. Balkin, Interdisciplinarity as Colonization, 53 Wash. & Lee L. Rev. 649, 650 (1996). 13. Several commentators have compared law and economics with law and literature ( see, e.g., Posner, supra note 7, at 1; Geoffrey P. Miller, A Rhetoric of Law, 52 Chi. L. Rev. 2478, 255 (1985)(book review)) and with law and society. See Symposium, Law and Society & Law and Economics: Common Ground, Irreconcilable Differences, New Directions, 1997 Wis. L. Rev. 375 et seq. 14. Such scholarship is has been criticized as less useful to lawyers and judges. Harry Edwards, The Growing Disjunction Between Legal Education and the Legal Profession, 91 Mich. L. Rev. 34 (1992); Symposium: Legal Education, 91 Mich. L. Rev. 1921-2219 (1993)(broad response to Judge Edwards' criticisms). One commentator suggested that the best explanation for this movement was “the theory of intellectual influence and revisionism.” See Charles Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal 3 the humanities. Interest in subjects such as computers, genetics, and the environment generated a whole new type ofinterdisciplinaryinterest inlaw, science, and technology. Like the otherinterdisciplinaryareas, this new activity greatly surpassed the older manifestations in this area such as patent law and law and medicine. Following the typical interdisciplinary pattern, the curriculum of many law schools is peppered with wide array of such interdisciplinary courses and faculty. In summary, when one looks now at the curricula and faculty of law schools, the interdisciplinary picture is quite different thanit wasseveraldecades ago. Almost all law schools offer several “law and” or otherinterdisciplinarycourses and programs. Not only are many facultyinterested in these interdisciplinary approaches to law, but many have advanced degrees in nonlaw fields.11 Others spend considerable time in autodidactic efforts. Some law faculty do not have law degrees. Nothing evidences this heightened interest in interdisciplinary legal studies more than the scholarship, published both in law journal and the journals of other disciplines. One commentator has suggested that at “elite” law schools all “serious scholars”are expected to do interdisciplinarywork and those without suchinterests would have ahardtime finding a job at these institutions.12 What has caused thisincreased interest and activity in interdisciplinarylegalstudies? Although the nature of the various nonlaw disciplines and their relation to law differs,13 some common and interrelated themes emerge. First, the nature of legal scholarship has changed. Greater emphasis on empirical studies and legal theory have been prevalent, with a corresponding movement away from traditional doctrinal analysis.14 The leading law journals seem to be more interested in this “new scholasticism” than they are
in doctrinal analysis Interdisciplinary legal scholarship also may involve the desire to get"outside" of law to learn more about law with a hope that these complementary disciplines will assist in solving the social roblems with which law deals. These other disciplines may attract some scholars because they are useful in achieving desired political objectives. In addition, the internal approach reflected in doctrinal analysis may seem pedestrian whereas academics would like to be known as innovators. intellectual leaders and profound thinkers. Dissatisfaction with legal education and a desire to make it more like other graduate education may also have been a factor. 5 Some intellectual imperialism may be present. This increase in interdisciplinary activities reflects the continuing influence of legal realism and its skepticism toward traditional legal doctrine and analysis. Marc Galanter and Mark Edwards have called these developments an aspect of the displacement and disintegration of the prevailing legalist creed, and its replacement with n arena of competing programs. Richard Posner has characterized these developments as evidence of "the decline oflaw as an autonomous discipline "7 Edward White viewed this change in legal scholarship not just as one in subject matter, but the adoption of "a research design approximately that of the arts and Some scholars have voiced skepticism toward interdisciplinary legal studies. G. Edward White elieves that the notion of interdisciplinarity may be neither meaningful nor intelligible In identifying "th governing assumptions of law and scholarship, he said that"interdisciplinary scholarship 'allegedly reinvigorated the research design of the legal academy by bringing in fresh, extraprofessional perspectives but in the process. the intelligibility of a disciplinary perspective, indeed the concept of an academic Scholarship 191, 193(1991) 15. See Richard A. Posner, The Decline of la n Autonomous Discipline: 1962-1987, 100 Harv. L. Rev. 761, 778-79 (1987); George L. Priest, Social Science: Theory and Legal Education: The Law School As University, 33 J. Legal Educ 437(1983) 16. See galanter Edwards, supra note 3, at 376 17. See Posner, supra note 15 18. See White, Reflections on the "Republican Revival"supra note 1, at 13
Scholarship 191, 193 (1991). 15. See Richard A. Posner, The Decline of Law as an Autonomous Discipline: 1962-1987, 100 Harv. L. Rev. 761, 778-79 (1987); George L. Priest, Social Science: Theory and Legal Education: The Law School As University, 33 J. Legal Educ. 437 (1983) 16. See Galanter & Edwards, supra note 3, at 376. 17. See Posner, supra note 15. 18. See White, Reflections on the “Republican Revival” supra note 1, at 13. 4 in doctrinal analysis Interdisciplinary legal scholarship also may involve the desire to get “outside” of law to learn more about law with a hope that these complementary disciplines will assist in solving the social problems withwhichlawdeals. These other disciplines may attract some scholars because theyare useful in achieving desired political objectives. In addition, the internal approach reflected in doctrinal analysis may seem pedestrian whereas academics would like to be known as innovators, intellectual leaders, and profound thinkers. Dissatisfaction with legal education and a desire to make it more like other graduate education may also have been a factor.15 Some intellectual imperialism may be present.This increase in interdisciplinary activities reflects the continuing influence of legal realism and its skepticism toward traditional legal doctrine and analysis. Marc Galanter and Mark Edwards have called these developments an aspect of “the displacement and disintegration of the prevailing legalist creed, and itsreplacement with an arena of competing programs.”16 Richard Posner has characterized these developments as evidence of “the decline oflawas an autonomous discipline.”17 Edward White viewed this change in legal scholarship not just as one insubject matter, but the adoption of “a research design approximately that of the arts and sciences.”18 Some scholars have voiced skepticism toward interdisciplinary legal studies. G. Edward White believes that the notion of interdisciplinarity may be neither meaningful nor intelligible. In identifying “the governing assumptions of ‘law and’ scholarship,” he said that “‘interdisciplinary scholarship’ allegedly reinvigorated the research design of the legal academy bybringing infresh, extraprofessionalperspectives . . . but in the process . . . the intelligibility of a disciplinary perspective, indeed the concept of an academic
discipline, became elusive. J.M. Balkin questions whether interdisciplinarity is truly possible, viewing it as anattempt by one discipline to colonize another. He believes that law, a frequent target, is resilient and never conquered because it is a professional, not academic, discipline. Interdisciplinary legal scholarship is" the product of this failed assault. "In The Strange Career of legal Liberalism, Laura Kalman raised doubt about whether lawyers want to improve their use ofother disciplines and believed that there was a "current backlashagainst interdisciplinarity. 2 She suggested that cross-fertilizationhad often not occurred 22 and that effort reflected the legal academy's disillusionment, frustration, and schizophrenia. Charles Collier asserted often the legal uses ofother disciplines wasanabuse'ofthem. 4 Jane baron argued that the legal academy had not been sufficiently interdisciplinary and that the proliferation of "law and scholarship and courses actually reinforced and confirmed the disciplinary autonomy and ortho doxy of law.2On a contrary note, Kathleen Sullivan stated that"the discipline of law is itself multidisciplinary never had been an autonomous discipline, and other disciplines were implicitly embedded in law 2b and that "self-consciously interdisciplinary work? "increased the knowledge of law and legal institutions.27 Given all these views, it becomes problematic to define interdisciplinary legal studies. It certainly involves the engagement by the practitioners of one discipline of institutions of the other. But perhaps it is useful to distinguish interest in another discipline from its use in scholarship, and more particularly between 19. See white, Reflections on the"Republican Revival"supra note 1, at 28-29 0. See Balkin, supra note 12, at, 957-67 21. Laura Kalman, The Strange Career of legal Liberalism 239(1996) 23. See id. at 241-46 24. See Collier, supra note 14, at 193 25. See Jane Baron, La and the Problems of Interdisciplinarity, 108 Yale LJ. 1059(1999). Commentators frequently identify Langdell origin of laws traditional ortho oxy and Interdisciplinary Legal Scholarship as a guilty Andrew d ture 21, 23-29(1999): Posner, supra note 15, at 762-06 Pleasure, in Michael Freeman 26. See Kathleen M. Sullivan, Foreword: Interdisciplinarity, 100 Mich. L Rev. 1217, 1218-1220(2002) 7. See id at 1221-26
19. See White, Reflections on the “Republican Revival”supra note 1, at 28-29. 20. See Balkin, supra note 12, at 952, 957-67. 21. Laura Kalman, The Strange Career of Legal Liberalism 239 (1996). 22. See id. at 240. 23. See id. at 241-46. 24. See Collier, supra note 14, at 193. 25. See Jane Baron, Law, Literature, and the Problems of Interdisciplinarity, 108 Yale L.J. 1059 (1999). Commentators frequently identify Langdell’s conception of legal education at Harvard as the origin of law’s traditional orthodoxy and autonomy. See, e.g. Jane Barron, Interdisciplinary Legal Scholarship as a Guilty Pleasure, in Michael Freeman & Andrew D.E. Lewis, Law and Literature 21, 23-29 (1999); Posner, supra note 15, at 762-66. 26. See Kathleen M. Sullivan, Foreword: Interdisciplinarity, 100 Mich. L. Rev. 1217, 1218-1220 (2002). 27. See id. at 1221-26. 5 discipline, became elusive.”19 J.M. Balkin questions whether interdisciplinarity is truly possible, viewing it as anattempt byone discipline to colonize another.20 He believesthat law, a frequent target, is resilient and never conquered because it is a professional, not academic, discipline. Interdisciplinary legal scholarship is “the product of this failed assault.” In The Strange Career of Legal Liberalism, Laura Kalman raised doubt about whether lawyers want to improve their use ofother disciplines and believed that there was a “current backlashagainstinterdisciplinarity.”21She suggestedthatcross-fertilizationhad oftennot occurred” 22 and that effort reflected the legal academy’s disillusionment, frustration, and schizophrenia.23 Charles Collier asserted often the legaluses ofother disciplines was “an‘abuse’ ofthem.”24 Jane Baronargued that the legal academy had not been sufficiently interdisciplinary and that the proliferation of “law and” scholarship and courses actually reinforced and confirmed the disciplinary autonomy and orthodoxy of law.25 On a contrary note, Kathleen Sullivan stated that “the discipline of law is itself multidisciplinary,” never had beenanautonomous discipline, and other disciplines were implicitlyembedded in law26 and that “self-consciously interdisciplinary work” increased the knowledge of law and legal institutions.27 Given all these views, it becomes problematic to define interdisciplinary legal studies. It certainly involves the engagement by the practitioners of one discipline of institutions of the other. But perhaps it is usefulto distinguishinterest in another discipline from its use in scholarship, and more particularly between
the use of another discipline's knowledge and the use of its theories and methodology 28 Thus, there are multiple senses in which scholarship can be interdisciplinary III. English Legal History and Indisciplinarity While some might characterize English legal history as interdisciplinary, it seems different than the numerous"law ands that populate the intellectual landscape. There is a difference between"legal history and"law and history? First, it is not clear that there is any"boundary"(a favorite commentator word) between the two different fields, in this case law and history In thinking about legal history scholarship the use of the typical terms, "inside"and"""(of law) seems inappropriate. First, the various types of legal history and history scholarship are not totally isolated from each other. Scholars of different orientations work together and use each other's work. Second. although the focus of much of the scholarship has internal characteristics, which some consider myopic, good scholarship cannot ignore contemporary mores, customs, and context. Also the nonlaw aspects of some scholarship are not really exogenous as they are part of a broader fabric in which law is woven, sometimes in primary colors English legal history also seems dissimilar from the"law and"phenomena as the notion of the decline of laws autonomy seem irrelevant to legal history. Richard Posner identified several reasons for the decline- the dissolution of political consensus within the legal academy, a boom in disciplines complementary to law, diminished confidence in the efficacy of law as a solution to systemic problems, the restlessness of scholars, the increased prestige of science and other exact modes of inquiry, and the ncreasing importance of statutes as opposed to judge made law as a source of law. but none of these factors seems relevant to the attractions of legal history scholarship The endeavors of legal historians are not the product of any dissatisfaction or dysfunction relating to law as an independent discipline nor of its unfashionability A final reason for not characterizing English legal history as a " law and"is that most of the current criticisms of legal interdisciplinarity scholarship seem inapplicable. Such criticisms characterize the latter as 28. I am grateful to Daniel Klerman for pointing out this distinction to me 29. See. eg, Clive Holmes, Book Review, 118 Eng. Hist. Rev. 206(2003 reviewing J.H. Baker, The Laws Two Bodies)
28. I am grateful to Daniel Klerman for pointing out this distinction to me. 29. See, e.g., Clive Holmes, Book Review, 118 Eng. Hist. Rev. 206 (2003)(reviewing J.H. Baker, The Law’s Two Bodies). 6 the use of another discipline’s knowledge and the use of its theories and methodology.28 Thus, there are multiple senses in which scholarship can be interdisciplinary. III. English Legal History and Indisciplinarity While some might characterize English legal history as interdisciplinary, it seems different than the numerous “lawands”that populate the intellectual landscape. There is a difference between“legalhistory” and “law and history?” First, it is not clear that there is any “boundary” (a favorite commentator word) between the two different fields, in this case lawand history. Inthinking about legalhistoryscholarship, the use of the typical terms, “inside” and “outside” (of law) seems inappropriate. First, the various types of legal history and history scholarship are not totally isolated from each other. Scholars of different orientations work together and use each other’s work. Second, although the focus of much of the scholarship has internal characteristics, which some consider myopic,29 good scholarship cannot ignore contemporarymores, customs, and context. Also the “nonlaw” aspects of some scholarship are notreally exogenous as they are part of a broader fabric in which law is woven, sometimes in primary colors. English legal history also seems dissimilar from the “law and” phenomena as the notion of the decline of law’s autonomy seem irrelevant to legal history. Richard Posner identified several reasons for the decline - the dissolution of political consensus within the legal academy, a boom in disciplines complementaryto law, diminished confidence inthe efficacyof law as a solution to systemic problems, the restlessness of scholars, the increased prestige of science and other exact modes of inquiry, and the increasing importance of statutes as opposed to judge made law as a source of law. But none of these factors seems relevant to the attractions of legal history scholarship. The endeavors of legal historians are not the product of any dissatisfaction or dysfunction relating to law as an independent discipline nor of its unfashionability. A final reason for not characterizing English legal history as a “lawand”isthat most of the current criticisms oflegalinterdisciplinarity scholarship seem inapplicable. Suchcriticisms characterize the latter as
imperialistic, parasitic, and scavenging. 30 Brian Leiter charged that"its most striking feature is its intellectual voyeurism: superficial and ill-informed treatment of serious ideas apparently done intellectual " titillation'or to advertise, in a pretentious way, the sophistication of the writer I Nor can English legal historians be charged with the high sins of presentism232 and anachronism. 3 They have not engaged"in the artful manipulation of historical sources to serve adversarial positions in contemporary disputes roaming through history looking for [their] friends. 3) Thus, they are not practitioners of"forensic history, which has led critics to challenge its current use in American constitutional and political theory, 3o labeling it" lawyers history"and"history-in-law"7 or more pejoratively, "law office history 38 and"history lite None of these criticisms seems relevant in appraising the nature or value of the scholarly contributions to 30. See white, Reflections on the" Republican Revival supra note 1, at 3 (quoting Daniel Rodgers) 31. See Brian Leiter, Intellectual Voyeurism in Legal Scholarship 4 Yale J. Law& Humanities 79, 79-80(1992) 2加mm上mB2m0m103 33. See e.g., Linda K. Kerber, Making Republicanism Useful, 97 Yale L.J. 1663, 1672(1988) 34. See id at 16 35. See Morton Horowitz, Republican Origins of Constitutionalism, in Toward a st l Under State Constitutions 148-49(Paul Finkelman Stephan Gottlieb eds, 1991). Many historians ed the history used by these best deeply problematic and at worst, howlers. "See Martin S. Flaherty, History"Lie- assertions that are at Constitutionalism, 95 CoL. L. Rev. 523, 525(1995). But perhaps such work should be judged by criteria different from those used for evaluating the practice of history. See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case ofHistory-1n-Lamw, 71 Chicago-Kent L Rev. 917, 932-35(1996) a note 21, at 132-246: Laura Kalman, Border Patrol: Reflections on and Forgetting: Kalman's ""Strange Career"and the Marketing of Civic Republicanism, 111 Harv. L. Rev. 1025(1998); Tushnet, supra note 35, at 925-32: White, Reflections on the Republican Revival"sunra note 1, at 15-23 37. See Tushnet, supra note 35, at 917-34. Also English legal historians have not exhibited"past dependency, treating use it Is Posner, Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, 67 U. Chi L.Rev.573(2000 38. See Flaherty, supra note 35, at 554; John P. Reid, Law and History, 27 Loyola L. Rev. 193, 197-203.(1993) 39. See Flaherty, supra note 35. As John Reid has pointed"forensic history" is not new and can be observed in the polemics of 17th century English ancient constitutio ngstanding English and American contractarian constitutional theories. See reid, supra note 38, at 205-17
30. See White, Reflections on the “Republican Revival” supra note 1, at 3 (quoting Daniel Rodgers). 31. See Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 Yale J. Law & Humanities 79, 79- 80 (1992). 32. . See Kalman, Strange Career, supra note 21, at 180-90; Stolzenberg, supra note 36, at 1033-39; White, Reflections on the “Republican Revival” supra note 1, at 19-20 & n.43. 33. See, e.g., Linda K. Kerber, Making Republicanism Useful, 97 Yale L.J. 1663, 1672 (1988). 34. See id. at 16. 35. See Morton Horowitz, Republican Origins of Constitutionalism, in Toward a Usable Past: Liberty Under State Constitutions 148-49 (Paul Finkelman & Stephan Gottlieb eds., 1991). Many historians claimed the history used by these lawyers was inaccurate and unrecognizable. “Constitutional discourse is replete with historical assertions that are at best deeply problematic and at worst, howlers.” See Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95 Col. L. Rev. 523, 525 (1995). But perhaps such work should be judged by criteria different from those used for evaluating the practice of history. See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 Chicago- Kent L. Rev. 917, 932-35 (1996). 36. See Flaherty, supra note 35, at 525; Kalman, supra note 21, at 132-246; Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 Fordham L. Rev. 87, 107 (1997); Nomi M. Stolzenberg, A Book of Laughter and Forgetting: Kalman’s “Strange Career” and the Marketing of Civic Republicanism, 111 Harv. L. Rev. 1025 (1998); Tushnet, supra note 35, at 925-32; White, Reflections on the “Republican Revival” supra note 1, at 15-23. 37. See Tushnet, supra note 35, at 917-34. Also English legal historians have not exhibited “past dependency,” treating history as form of idolatry or vesting the past, simply because it is the past, with a normative quality. See Richard A. Posner, Past-Dependency, Pragmatism, and Criticque of History in Adjudication and Legal Scholarship, 67 U. Chi. L. Rev. 573 (2000). 38. See Flaherty, supra note 35, at 554; John P. Reid, Law and History, 27 Loyola L. Rev. 193, 197-203.(1993). 39. See Flaherty, supra note 35. As John Reid has pointed “forensic history” is not new and can be observed in the polemics of 17th century English ancient constitutionalism and longstanding English and American contractarian constitutional theories. See Reid, supra note 38, at 205-17. 7 imperialistic, parasitic, and scavenging.30 Brian Leiter charged that “its most striking feature is its ‘intellectual voyeurism’: superficial and ill-informed treatment of serious ideas apparently done intellectual ‘titillation’ or to advertise, in a pretentious way, the sophistication of the writer.”31 Nor can English legal historians be charged with the high sins of “presentism”32 and anachronism.33 They have not engaged “in the artful manipulation of historical sources to serve adversarial positions in contemporary disputes,”34 “roaming through historylookingfor[their]friends.”35 Thus, theyare not practitioners of “forensic history,” which has led critics to challenge its current use in American constitutional and political theory, 36 labeling it “lawyers history” and “history-in-law”37 or more pejoratively, “law office history”38 and “history lite.”39 None of these criticisms seems relevant in appraising the nature or value of the scholarly contributions to
Englishlegal history +0 Nor does one sees"turncoats"or" invaders. Thus, "legal history"is different than law and history IV Legal history and legal historian If English legal history is not interdisciplinary in the "law and"sense, then what is its nature? For over one hundred years, historians and lawyers, united in their focus on original sources, have engaged in the study English legal history. They have produced a truly successful intellectual traditionand a rich body of scholarship. Two strands have emerged, whichmight be labeled institutional and contextual. The primary trand has explored the intellectual history ofthe law, the evolution of legal institutions and legal doctrine Another strand has explored the place of law in a larger social and political context and the social history of law, perhaps blending with social history. Moreover, there is a third body of scholarship, which is historical, that is often critical in providing the context for both strands of legal history. It would seem difficult to write about the medieval era without familiarity with the work of Richard Southern or Joseph Strayer, about the late medieval period in ignorance of Bruce McFarlane, or the Tudor period without reading Geoffrey Elton, and the current counterparts of these giants. #2 Thus, English legal history is not isolated from either law or history, and, as John Baker has noted, is"an essential dimension in the social nd intellectual history of England. An inquiry into the nature of English legal history begins, not surprisingly, with Maitland. In his Downing Professor lecture, Maitland took the view that legal history was history and not law. Maitland 40. Perhaps William Nelson tripartite classification of "lawyers leg "historians gal history" is useful in capturing the differences between these currer history and English legal history. See William E. Nelson and John Phillip Reid, The Literature of American Legal 35-60(1985 41."Invaders"are members of the colonizing discipline intending to enlighten the target discipline, and"turncoats (importers"or"first wave of arbitragers")are members of the target discipline bringing in the approaches of the other discipline. See Balkin, supra note 12, at 961-62 42. Some of these historians e Foundations of the State(2002) 院:需E g. Christine Carpenter, The War of the 43. See John H. Baker, Why the History of English Law Has Not Been Finished, 59 Cambridge LJ. 62, 63(2000)(Downing Professor Inaugural Lecture) 44. See Frederic William Maitland, Why the History of English Law is not Written, reprinted in I The Collected Papers f Frederic William Maitland 480, 487-94 (H.A. L. Fisher, ed, 1911, 1981 reprint)
40. Perhaps William Nelson tripartite classification of “lawyers legal history,” “historians legal history,” and “factual legal history” is useful in capturing the differences between these current uses of history and English legal history. . See William E. Nelson and John Phillip Reid, The Literature of American Legal History 235-60 (1985). 41. “Invaders” are members of the colonizing discipline intending to enlighten the target discipline; and “turncoats” (“importers” or “first wave of arbitragers”) are members of the target discipline bringing in the approaches of the other discipline. See Balkin, supra note 12, at 961-62. 42. Some of these historians emphasize the importance of law. See, e.g. , Alan Harding, Medieval Law and the Foundations of the State (2002). Others seem to de-emphasize it. See, e.g., Christine Carpenter, The War of the Roses: Politics and the Constitution in England, c. 11437-1509 (1997). 43. See John. H. Baker, Why the History of English Law Has Not Been Finished, 59 Cambridge L.J. 62, 63 (2000) (Downing Professor Inaugural Lecture). 44. See Frederic William Maitland, Why the History of English Law is not Written, reprinted in I The Collected Papers of Frederic William Maitland 480, 487-94 (H.A.L. Fisher, ed., 1911, 1981 reprint). 8 Englishlegalhistory.40 Nor does one sees “turncoats” or “invaders.”41 Thus, “legalhistory” is different than “law and history.” IV. Legal History and Legal Historians If English legal history is not interdisciplinary in the “law and” sense, then what is its nature? For over one hundred years, historians and lawyers, united in their focus onoriginalsources, have engaged in the study English legal history. They have produced a truly successful intellectualtraditionand a richbody ofscholarship. Two strands have emerged,whichmight be labeled institutionaland contextual. The primary strand has explored the intellectualhistoryofthe law, the evolution of legal institutions and legal doctrine. Another strand has explored the place oflawin a larger social and political context and the social history of law, perhaps blending with social history. Moreover, there is a third body of scholarship, which is historical, that is often critical in providing the context for both strands of legal history. It would seem difficult to write about the medieval era without familiarity with the work of Richard Southern or Joseph Strayer, about the late medieval period in ignorance of Bruce McFarlane, or the Tudor period without reading Geoffrey Elton, and the current counterparts of these giants.42 Thus, English legal history is not isolated from either law or history, and, as John Baker has noted, is “an essential dimension in the social and intellectual history” of England.43 An inquiry into the nature of English legal history begins, not surprisingly, with Maitland. In his Downing Professor lecture, Maitland took the view that legal history was history and not law.44 Maitland
contrasted law and history and found that their material, their method, and their logic were incompatible. 4> He noted that history involved comparison, but lawyers focus only on their own system; history requires evidences and law depends on authority and thus there is the temptation to confuse the logic ofevidence and the "logic of authority, and lawyers are orthodox, which would be a contradiction in terms for a historian. 6 The Maitland legacy has persisted in this view as John Baker recently explicitly stated. 47 Plucknett said Maitland was"at heart a historian and that his mission was to separate law and lega history so that the latter not become "the handmaid of dogma. 9 Plucknett said that"once the professor of law embarks upon legal history he has become a historian, for legal history is not law, but history >0 The djectival word, "legal"reinforces this conclusion, suggesting that the enterprise is a kind of history, like political or social or economic history But to characterize the enterprise as history rather than law does not necessarily make its practitioners historians. Maitland believed that thorough training in modern law was indispensable to be a good legal historian. Although his memorial tablet in Westminster Abbey calls him a historian and 45. See T F.T. Plucknett, Maitland: Law and History, reprinted in Early English Legal Literature 13(1958). Plucknett himself said that" the completely opposite aims and methods of the lawyer and the legal historian are inherent in the very natures of history and of English law. See id at 14 46. See Maitland, Why the History of English Law is not Written, supra note 44, at 488-92 Milsom believes that Plucknett misunderstood. See S.F. C. Milsom, 'Pollock and Maitland: A Lawwyer's Retrospective, in 89 Proceedings of the British Academy, The History of English Law: Centenary Essays on ' Pollock and Maitland 252& n. 39(John Hudson ed, 1996) 47. See Baker, sunra note 43, at 66. Nor is Milsom's treatment of the legal history inconsistent although his more legal approach may confuse historians. See Hector L. McQueen, Common Law and Feudal Society in Medieval Scotland 11(1993): John Hudson, Milsom's Legal Structure: Interpreting Twelth-Century Lan, 19 Tijdschrift voor Rechtsgeschiedenis 47(1991) 48. See Plucknett, supra note 45, at 7 49. See Plucknett, supra note 45, at 17. Maitland initially expressed that fear. See maitland, supra note 44, at 492 50. See id. at 14. John Reid asserted that lawyers and historians interpretations of the past are incompatible. See reid, supra note 38. at 19 51. See id. at 493. He believed that the of legal history falls to the ground between two schools, but that there is very little room"for teaching it in law See id. at 494-95. Plucknett seemed to disagree with this. See Plucknett, supra note 45, at 13-14, 17-18. Pluckne ments prompted a harsh reaction from Milsom. See milsom, supra note 46. at 252 n 39: S F C. Milsom. Maitland. dge lj.265,267-68(2001)
45. See T.F.T. Plucknett, Maitland: Law and History, reprinted in Early English Legal Literature 13 (1958). Plucknett himself said that “the completely opposite aims and methods of the lawyer and the legal historian are inherent in the very natures of history and of English law.” See id. at 14. 46. See Maitland, Why the History of English Law is not Written, supra note 44, at 488-92. Milsom believes that Plucknett caused some of these views to be misunderstood. See S.F.C. Milsom, ‘Pollock and Maitland’: A Lawyer’s Retrospective, in 89 Proceedings of the British Academy, The History of English Law: Centenary Essays on ‘Pollock and Maitland 252 & n.39 (John Hudson ed., 1996); 47. See Baker, supra note 43, at 66. Nor is Milsom’s treatment of the legal history inconsistent although his more legal approach may confuse historians. See Hector L. McQueen, Common Law and Feudal Society in Medieval Scotland 11 (1993); John Hudson, Milsom’s Legal Structure: Interpreting Twelth-Century Law, 19 Tijdschrift voor Rechtsgeschiedenis 47(1991). 48. See Plucknett,supra note 45, at 7. 49. See Plucknett,supra note 45, at 17. Maitland initially expressed that fear. See Maitland, supra note 44, at 492. 50. See id. at 14. John Reid asserted that lawyers’ and historians’ interpretations of the past are incompatible. See Reid, supra note 38, at 195. 51. See id. at 493. He believed that the teaching of legal history “falls to the ground between two schools,” but that there is very “little room” for teaching it in law schools. See id. at 494-95. Plucknett seemed to disagree with this. See Plucknett, supra note 45, at 13-14, 17-18. Plucknett’s comments prompted a harsh reaction from Milsom. See Milsom, supra note 46, at 252 n.39; S.F.C. Milsom, Maitland, 60 Cambridge L.J. 265, 267-68 (2001). 9 contrasted lawand historyand found that “their material, theirmethod,and theirlogic were incompatible.”45 He noted that history involved comparison, but lawyers focus only on their own system; history requires evidences and lawdepends onauthorityand thus there is the temptation to confuse “the logic of evidence” and the “logic of authority;”and lawyers are orthodox, which would be a contradiction in terms for a historian.46 The Maitland legacy has persisted in this view as John Baker recently explicitly stated.47 Plucknett said Maitland was “at heart a historian”48 and that his mission was to separate law and legal history so that the latter not become “the handmaid of dogma.”49 Plucknett said that “once the professor oflawembarks uponlegalhistoryhe has become a historian, forlegalhistoryis not law, but history.”50 The adjectival word, “legal” reinforces this conclusion, suggesting that the enterprise is a kind of history, like political or social or economic history. But to characterize the enterprise as history rather than law does not necessarily make its practitioners historians. Maitland believed that thorough training in modern law wasindispensable to be a good legal historian.51 Although his memorial tablet in Westminster Abbey calls him a historian and
historians have claimed him, Milsom has on severaloccasions emphasized Maitland, the lawyer. In fact, the legal history scholar needs to know something about both fields but this assertion leaves uncertain how much knowledge ofhistory is required by those scholars who emphasize law or knowledge of law by those whose scholarship is more contextual. For example, it is doubtful whether the latter need to know about the intricacies of pleading Perhaps, it depends on the issue being explored. However, whatever the scholarly orientation, some knowledge of legal institutions and doctrine, the legal process(in Milsom's words, "how law works">), contemporary context, and the historical nature of institutions are all necessary for competent legal history scholarship. The three categories into which these scholars fall in terms oftheir training and experience confirm this blending of knowledge. Some are lawyers with no formal training in history, others have advanced degrees in history, but no legal training; and the final group has formal training in both fields. The mixed backgrounds of the contributors to the future Oxford History of Laws of England are an apt illustration. Thus, a legal historian is distinct from both a lawyer and a historian. 6 If so, some reconsideration of the nature of legal history is in order. First, it seems unlikely that it should be characterized as law although some legal historians'perspective is distinctly legal. But legal history scholarship seems quite different than the typical doctrinal scholarship and courses that have be the traditional focus of the legal academy. Despite the pedigree of Maitland and his successors, I am reluctant to call it history as it requires a significant knowledge of law and legal institutions, at both conceptual and practical levels. Moreover, it seems to be more than just another kind of history. Law is more of a formal discipline than seems to be true of the adjectival"others, social and political, although 52. See Geoffrey R. Elton, F.W. Maitland 19-55(1985). Elton made him a"patron saint. " See id. at 97-103 See e. g, S.F.C. Milsom, Maitland, supra note 51; Milsom, 'Pollock and Maitland, supra note 46: S.F.C. Milsom, y. Maitland, in Studies in the History of the Common Law 261, 267-73 (1985) 4. See Milsom, Pollock and Maitland, supra note 46, at 252 55. Of the 11 identified contributors, four have formal training only in history, six only in law, and one in both fields narrow. See Calvin Woodward, History, Legal History and Legal Education, 53 Va. L. Rev. 89, 99-113, 120-21. hinking it too 56. One rather idiosyncratic commentator bemoaned Maitlands influence on the study of legal histor
52. See Geoffrey R. Elton, F.W. Maitland 19-55 (1985). Elton made him a “patron saint.” See id. at 97-103. 53. See, e.g., S.F.C. Milsom, Maitland, supra note 51; Milsom, ‘Pollock and Maitland’, supra note 46; S.F.C. Milsom, F.W. Maitland, in Studies in the History of the Common Law 261, 267-73 (1985). 54. See Milsom, Pollock and Maitland’, supra note 46, at 252. 55. Of the 11 identified contributors, four have formal training only in history, six only in law, and one in both fields. 56. One rather idiosyncratic commentator bemoaned Maitland’s influence on the study of legal history, thinking it too narrow. See Calvin Woodward, History, Legal History and Legal Education, 53 Va. L. Rev. 89, 99-113, 120-21. 10 historians have claimed him,52 Milsomhas onseveraloccasions emphasized Maitland, the lawyer.53 Infact, the legalhistoryscholar needsto knowsomething about bothfields.But this assertionleaves uncertain how muchknowledge ofhistoryisrequired bythose scholars who emphasize lawor knowledge oflawbythose whose scholarship is more contextual. For example, it is doubtful whether the latter need to know about the intricacies of pleading. Perhaps, it depends on the issue being explored. However, whatever the scholarly orientation, some knowledge of legal institutions and doctrine, the legal process (in Milsom’s words, “howlawworks”54), contemporarycontext,and the historicalnature ofinstitutions are allnecessary for competent legalhistory scholarship. The three categories into which these scholars fall interms oftheir training and experience confirm this blending of knowledge. Some are lawyers with no formal training in history; others have advanced degrees in history, but no legal training; and the final group has formal training in both fields. The mixed backgrounds of the contributors to the future Oxford History of Laws of England are an apt illustration.55 Thus, a legal historian is distinct from both a lawyer and a historian.56 If so, some reconsideration of the nature of legal history is in order. First, it seems unlikely that it should be characterized as law although some legal historians’ perspective is distinctly legal. But legal history scholarship seems quite different than the typical doctrinal scholarship and courses that have been the traditional focus of the legal academy. Despite the pedigree of Maitland and his successors, I am reluctant to call it history as it requires a significant knowledge of law and legal institutions, at both conceptual and practical levels. Moreover, it seems to be more than just another kind of history. Law is more of a formal discipline than seems to be true of the adjectival “others,” social and political, although
