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Law and Society: Structuring Legal Revolutions, 1870–19201
by Christopher Waldrep, San Francisco State University
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In the 1970s and 1980s some of the most exciting work in legal history challenged late-nineteenth-century law as following a false formalism, only pretending to reason from abstract principles isolated from life's realities.2 Others took a different view,3 but these scholars insisted that law should be seen as political or economically determined rather than emerging from principle. Law was no more than a system of argumentative exchange. "Of dialectics there is no end," one observed.4 In this view, principled law served only as a cover for economic avarice and political strength. If law merely reflects power, then there is really little reason for historians to study law or constitutionalism, and the recent migration of the historical study of constitutionalism, away from history departments and into law schools is well placed. |
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There are, however, good reasons for historians based outside law schools to study the law and constitutionalism. More recent scholarship argues that Gilded Age and Progressive Era lawyers may have sincerely believed in constitutionalism and legal principle. Nothing documents sincerity better than real religious faith, and in the Gilded Age and Progressive Era some judges and lawyers connected their belief in God with constitutional faith. In that special secret space deep in their souls where values drive decision making, judges may not have separated church and state.5 |
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For historians, the new scholarship helpfully links particular styles of thinking to historical epochs. The attack on formalism proclaimed universal truth, a paradigm: law always reflected political power.6 This is an insight—a sweeping generalization—about law that seems to abstract jurisprudence right out of the historical stream. If the nature of law never changes, always reflecting elite thinking, then there is little reason for its study to attract historians. It would make more sense to study the forces controlling law. The new scholarship restores historical contingency. Elite judges, according to this view, sometimes live in historical moments when law is controlled by fundamental principles. In this view, historical forces can sometimes, at particular junctures, make law into an independent variable. This becomes clear when looking at studies of particular persons and particular places. |
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Particular People: Biography
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Biography can sometimes seem a blunt instrument for understanding our past. Hayden White certainly included biography when he described the kind of history where a hero transcends "the world of experience" as a primitive narrative form. Examining context or using the historical method to question the enterprise of history itself provided better historical explanations. |
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Beyond White's objections, biography will also cause trouble for positivists, challenging, as it does, the scientific method. Scientists study the aggregate: the behavior of schools of fish and flocks of birds is predictable because there is no awareness of the self. Social scientists also study the aggregate, collections of people. Biographers, understanding that a single individual can redefine what is appropriate behavior for millions of other individuals, challenge conclusions drawn from the study of aggregated data.7 |
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