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"Historical jurisprudence"
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Gone and forgotten: Vinogradoff's historical jurisprudence
Sir Paul Vinogradoff was once well known for his historically contextualised approach to legal theory which held that legal ideas were the contingent products of social factors. Law was necessarily engaged with other subjects, and ‘historical jurisprudence’ could produce real insight into the nature of law – in part by placing theories such as analytical jurisprudence in context, evaluating and modifying theoretical models by reference to the contingent social facts of an era. This was part of the nineteenth-century turn to ‘science’ in history and a focus on methodology. Sir Henry Maine argued that legal history proved the insufficiency of analytic theories, but his method met with many criticisms, some of which Vinogradoff sought to address. However, Vinogradoff's insights have rarely been pursued or developed, with legal history favouring Maitland's more doctrinal approach, and legal theory rejecting historical jurisprudence – at least explicitly. Despite its imperfections, historical jurisprudence offers a rich and valuable way to understand law, including to evaluate analytical models such of those of HLA Hart, and as a methodology for dialogue between comparative and historical legal scholarship. It has, in fact, continued to do so without explicit recognition in the 100 years since Vinogradoff's death.
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INTELLECTUAL HISTORY AS CONSTITUTIONAL THEORY
What role, if any, should intellectual history play in constitutional theory? This is a complex question, because there are many ways in which the history of ideas and the theory of constitutional law could interact. Two of the most important possibilities are captured by the distinction between \"intellectual history of constitutional theory\" and \"intellectual history as constitutional theory.\"
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THE CONSTITUTION AND THE PHILOSOPHY OF LANGUAGE: ENTAILMENT, IMPLICATURE, AND IMPLIED POWERS
H.L.A. Hart's predecessor in the Oxford Chair of Jurisprudence, Arthur L. Goodhart, once described the U.S. Constitution as \"the most important single legal document in the history of the world.\" Goodhart was an American by birth and upbringing, so naturally one might detect a bit of chauvinism in this remark, and smile at the hyperbole. If \"legal document\" is not interpreted too narrowly, one might think, then surely there are many texts that would give the Constitution a run for its money. Is the U.S. Constitution more important historically than the Bible, Upanishads, Analects, or Koran? How about Magna Carta or the Corpus Juris Civilis? In light of examples like these, Goodhart's remark may seem parochial or rather foolish.
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JURISPRUDENCE, HISTORY, AND THE INSTITUTIONAL QUALITY OF LAW
As Charles Barzun and Dan Priel note in their prospectus for this symposium, the question of how jurisprudence and history relate to one another arises in a number of distinctive forms, and raises a range of interesting and consequential questions. And yet the parallel lines between jurisprudence and the history of legal ideas, which they lament in particular, are reproduced across several of these questions—notably between philosophical theories of law and historical analyses of the development of laws and legal institutions, as well as of the other social institutions and circumstances which provide the environment and framework for that development. Moreover, the historical jurisprudence to which Vinogradoff aspired—a discipline which would bring history, psychology and the social sciences into dialogue with philosophical analysis of law—stands, a century after its conception, as little more than a footnote in contemporary study of the history of jurisprudential ideas (and as yet less than that in conventional jurisprudential study).
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Jurisdictional Competition and the Evolution of the Common Law
This Article explores the role that jurisdictional competition played in the development of the common law. For most of English legal history, there were several courts with overlapping jurisdiction. In addition, judges received fees for each case. As a result, judges had an incentive to hear more cases. The central argument of this Article is that, since plaintiffs chose the forum, judges and their courts competed by making the law more favorable to plaintiffs. Courts expanded their jurisdictions to give plaintiffs more choices; they made their procedures cheaper, swifter, and more effective; and they developed legal doctrines that made it difficult for defendants to prevail. Of course, jurisdictional competition was not without constraints, most importantly Parliament and Chancery. This Article tries to show how important features of the common law, including the structure of contract law, can be explained as the result of competition among courts and the constraints on that competition. [PUBLICATION ABSTRACT]
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Law in Many Pieces
After decades of being specialist territory, Roman law has recently begun to reemerge as a lively field of historical study: an increasing number of monographs and edited volumes concerned with socio-legal history are being produced, and at least one new monograph series is devoted to ancient legal history exclusively; large-scale handbooks and comparative works are underway; specialized panels and conferences devoted to socio-legal matters have been held; a research group has been founded that devotes itself exclusively to legal documents. Interests in Roman law extend even to the classroom, graduate as well as undergraduate: new textbooks-written from various perspectives-have recently been published, and a survey of undergraduate Roman law courses is underway. Here, Bryen provides an overview of the field of Roman legal studies as a whole and highlight some important shifts in the conceptual and theoretical underpinnings of the main subgenres of ancient legal history.
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THE PATH-DEPENDENCE OF LEGAL POSITIVISM
One advantage of not being a professional (or even amateur) historian is that such non-professional status allows one to be unashamedly instrumental about history. Although genuine historians bridle at the thought that we should investigate history because it makes us better people or better decision makers, as opposed simply to providing knowledge for its own sake, the rest of us have the freedom to use history for a wider range of other and more instrumental purposes.
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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.1 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.
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