Jurisprudence and (Its) History

It is not obvious that philosophers and historians of law should take much interest in the scholarly enterprises of the other. Many legal philosophers understand their task as one of clarifying the meaning of familiar legal concepts, such as “right,” “duty,” “authority,” and, of course, “law” itself. For such an inquiry, history—either of law itself or of philosophical thinking about law—seems irrelevant.  Meanwhile, historians, ever on guard against speculative claims ungrounded in fact, often prefer sticking to the fine-grained details of actual legal regimes.  Whereas legal philosophers offer “analyses” that aim to be general, abstract, and timeless, legal historians offer “thick descriptions” of what is particular, concrete, and time-bound.

But surface appearances can deceive. Perhaps unlike other areas of philosophy, the subject matter of jurisprudence is at least partially (if not entirely)  a social phenomenon. Courts, legislatures, judicial orders, and statutes are the products of human efforts, both collective and individual, and they only exist as legislatures, courts, and the like insofar as they possess the meaning they do in the eyes of at least some social group.  For this reason, legal philosophers since at least H.L.A. Hart have recognized their task to be a “hermeneutic” one—one which aims to discern or make explicit the “self-understanding” of legal actors.  At the same time, legal historians aim not simply to record legal rules that existed at some given point in history, but to unearth the meaning that actual people—judges, lawyers, politicians, and ordinary citizens—have attached to law.  When they do so, they might be seen as uncovering evidence of those same “self-understandings” that philosophers claim constitute law.

Perhaps, then, philosophical and historical inquiries about law do not differ so radically from each other after all.  They share the same ultimate scholarly goal and subject matter—to study legal phenomena with the hope of gaining a clearer and deeper view of them —and differ primarily in the tools they use to reach that goal, as well as in the relative abstractness of the conclusions they offer. True, legal historians focus on the attitudes of people in the past, whereas legal philosophers remain more interested in the attitudes of those in the present; but that only means the objects of their attention differ, not the nature of their projects. And, to the extent that contemporary self-understandings re-quire interpretation of past ones, the distinction between the two enterprises becomes fuzzier still. If that is right, then the mutual disregard of the two fields suggested at the outset may not be justified. Instead, there may be reason to think that turning to history could broaden the boundaries, and raise the ambitions, of a field that many lawyers, judges, and even legal scholars have written off as esoteric and dominated by concerns remote from their own.