Why Legal History Matters - Jim Philips
There are 4 principal reasons why legal history matters:
1. It teaches us about the contingency of law.
2. It shows us the relative autonomy of law.
3. It frees us from the past.
4. It exposes the presence of many variants of legal pluralism.
1. The Contingency of Law
Main Argument: Law is not just a set of abstract and ahistorical principles, it does not
exist in a vacuum. It exists in accordance with certain base factors which are
sociocultural, economic, and political in nature. The intersectionality of law is linked
with these base factors. Law and legal development are interactive with society. Today’s
base factors may not remain the same tomorrow, so the law needs to keep expanding.
Horwitz and Hay were the main jurists who advocated this.
Legal history prior to the 1970s had two main critiques:
● Critique 1: David Sugarman said that legal history prior to the 1970s was narrow
and parochial. It was preoccupied with the origins of legal institutions and
doctrines, emphasising continuity and de-emphasising change. Though it
emphasised continuity with the past, the ‘past’ usually ended with the 1535
Statute of Uses or sometimes the Glorious Revolution of 1688.
● Critique 2: What was understood as legal history was not indigenous to the
country at all. Countries were oriental in the sense that they followed the
construct of the binary and believed that everything - for example, the legal
system and history - was given to them through imperialism.
Post-1970s, however, scholars began to understand that the law’s past cannot be
separated from the host of other pasts. Legal history was revolutionised in 2 ways:
● Morton Horwitz studied the law from a largely economic context. He argued that
the changing economy and new political ideas of the late 18th and 19th centuries
(The Industrial Revolution) were responsible for alterations in common law
doctrines. These alterations favoured the industrial classes at the expense of
farmers and artisans. This occurred through what he termed an instrumentalist
style of judicial reasoning.
● Douglas Hay showed how the extensive presence of capital punishment was made
up of two pillars - terror and mercy. These two were the foreground of the state as
the primary lawgiver. Terror was a necessary component of enforcing the law
because the English feared a state police which they equated with the absolute
monarchies of Europe, and mercy was necessary because it maintained the
system’s legitimacy by limiting executions.
In the early 1980s, the first two volumes of the Osgoode Society’s Essays in the History
of Canadian Law were published and committed to a contextual, nationalistic, history of
the law. Also, Dick Risk, a Canadian historian, argued that legislatures were more
important than courts in altering the law, and that judges were only mild
instrumentalists, not radical innovators. Different countries have different histories, so
the same framework can’t be applied. The contextual national narrative becomes
relevant. [relevant??]
There is a politics to the new legal history because it is influenced by social (contingent)
factors. It is possible to write legal history from a variety of political stances. One
illustration is the similarity of the development of private law in the 19th century offered
by Horwitz and Richard Posner:
● Horwitz disapproves of the process of law being influenced and ‘captured’ by the
market and being worked to its advantage. This is a liberal approach.
● Posner approves of the same process, seeing it as sensible and inevitable. This is a
conservative approach.
Conclusion: Because law is contingent, the law this was yesterday cannot be the law that
is today. The social factors have changed, and so the law must too.
2. The Relative Autonomy of Law
This point is not expressed in a positive lens. It is to explain that the autonomy of the
law is being lost. The three principles of law are neutrality, impartiality, and non-bias.
However, these principles are not always followed due to changes in time, space, and
powerholders. It is because of these changes that the autonomy of law is being lost.
Main Argument: If the law is completely dependent on social factors, it loses its stand
and is reduced to mere superstructure. Law should not be completely subservient to the
base factors of law. It has its own logic, symbolic power, and ideology. It is not fully
autonomous because it symbolises regularity, ideology, and dignity of the state and its
people.
Relative autonomy is critical as law changes when there is power interference and
change of mindsets of legality and illegality. Something that is legal in one space can
become illegal in another space because the State wants to control certainty in society -
so the law becomes more stringent.
The law becomes very subjective in some cases, so the idea that the law is autonomous
or neutral keeps changing from time to time and from government to government.
An example of the relative autonomy of law is an article by Carolyn Strange [refer
reading]. The autonomy of law in rape cases is biased because the question of the
victims’ character keeps coming up. Thus, the law is not completely autonomous
because different mindsets view situations differently.
Also, the law has become fundamentally flexible with certain communities (women,
children, etc.) and legal history helps us examine if the law was equitable in different
periods.
The author uses these examples to show that the law becomes relatively autonomous
from time to time. When the power of the law rules the State there is oppression.
Sometimes, the ideology of law can get lost in power tactics or influenced by multilinear
ideologies.
A more fundamental aspect of the relative autonomy of law has been the argument that
the ideology of law has given the legal system of actual autonomy. Douglas Hay argues
that the apparent inefficiencies of the criminal law resulted in a manifestation of the
law;s on life and logic. To be effective as ideology, the law had to at times be
autonomous and work against the apparent interests of rulers. This made it a powerful
ideological weapon in asserting the very class interest the law formally denied it was
assisting. [eg: Morant Bay Rebellion, refer to reading]
Conclusion: There is a logic to why law is brought in and the question arises as to
whether the law can actually be completely autonomous. The question remains as to
whether the law actually considers everyone to be of the same class or is it differently
applicable according to the powerholders.
3. Legal History is Liberating
Main Argument: Interlinkage with base factors demystifies the authority of law. It
comes from the contingency and relative autonomy of law and helps free us from the
pitfalls of antiquarianism and look at the law in context. We learn to read the law
logically and scientifically. Law has to be applied differently in different communities to
create a level playing field. The interdisciplinary character of law helps us to have a
broader outlook. Legal history helps with the demystification of the notion of law as
some sort of blind, insensate machine. Legal history makes you look at and revisit every
instance in an analytical manner.
Maitland believed that legal history brought out all the political, social, economic, and
moral aspects of legal developments. He said that every generation has the enormous
power of shaping their own laws, and legal history frees them from superstitions and
teaches them that they have free hands.
There is a certainty of the equity that the law provides. People are confident in this
certainty and thus obey the law. Hence, law needs to have principles that come from
dialogue (thesis + synthesis) and scientific argumentation. This is the science of law
(equal footing results in equal law).
Principle of legitimate expectation: A legitimate expectation that the law is applied in
the same manner to all those with the same circumstances. Law has to change with the
changing social context.
Mere study of history does not provide us with a correct answer to contemporary
questions. It may, at most, admonish us against repeating the mistakes of the past. We
must exert our own modes of interpretation and analysis. Moreover, judges cannot
make good historians because when the judicial process turns to history, it usually does
so to find justification, not nuanced analysis.
An example of trying to use history to find an answer is the originalist argument in
American constitutional adjudication - the constitution must mean in 2010 exactly and
only what it meant in the late 18th century. Originalism means only the original
interpretation of the law without looking at its disadvantages.
Late Chief Justice of Canada, Brian Dickson, though an originalist in some areas,
praised and insisted that juries should be trusted to make the right decisions. However,
juries followed the English practice and until the introduction of verdicts at the end of
each case, juries did not sit together; they scattered themselves around the courtroom.
Before the late 17th century, English juries gave their verdict on all cases at the end of
the day.
In addition, all this was taking place in a small community with the inevitable result that
jurymen often knew prosecutors and the accused. Though they had a fair understanding
of the local problems, they were biased, there was systematic corruption, and there was
limited representation as the jurors were all from elite classes.
There are good and not so good arguments for keeping the jury, history is not one of
them.
A critique of this apparently limited view of the utility of legal history is that history is
simply much less useful than other disciplines, other disciplines can provide normative
answers to difficult questions - something history cannot do.
● One answer to this critique is that history and other disciplines can be
complementary, the one going to our understanding of how we got where we are
and the other arguing for a future path.
● Another answer is that formalism (law as a formal, positivist system) had it right
and law is separate from the world in which it operates. Or, the law is entirely
determined by the natural laws of the market. Legal history cannot be
complementary because it is a challenge.
4. Legal History, Legal Pluralism, and Alternative Visions
Legal history allows us to see what we think of as the law today, and then assume to
have always been the case, has in fact not always predominated. Like all history, legal
history produces ‘winners’ and ‘losers’. Losers are those whose vision of society and
belief systems lost out in the struggle with other visions.
Legal history allows us to excavate the past for such phenomena, to show that there have
been, and thus are, arguably legitimately different ways to think about many things,
including legal orders.
An illustration of legal pluralism are ‘alternative visions'. The author begins with an
example of alternatives that have actually become the norm after a period of being lost
[refer reading about aboriginal rights in Canada].
Case files or similar legal evidence are not simply a repository of information about the
past, such source material has context, was produced by a legal, not some other, system.
A lack of attention to the ways in which legal ideologies and legal processes affected
events distorts the story.
Conclusion
If the law has always been shaped by circumstances and context, and has never been a
wholly independent force, then an appreciation of this is required to give students a
proper understanding of the law. The number of legal history courses available in most
jurisdictions’ law schools has declined in the last couple of decades, even though the
subject gained more popularity during the same time period. This is perhaps not a bad
thing as some of these courses were simply adjuncts to a neutral and ahistorical view of
law.
The author has 3 answers to the suggestion that judges respond to social context, risks,
in our system:
● Legal history is actually about much more than doctrine and high courts. It is a
complex mix of law and statute, of high law (tested laws, exist in the present) and
low law (small laws made by local institutions), or formal and informal law.
● We should not be ostriches. Make an argument that the formalistic view of legal
history is correct, but don't say you shou;d not say something because people
might lose faith.
● To talk about the broad ways in which legal change reflects social change is not to
suggest that lawyers cannot go about their everyday business without faith that
the law is generally stable in their time, that we cannot trust judges not to make
good faith efforts to decide the vast majority of cases according to what they see
as established law.
