H. Timothy Lovelace Jr.
In 1976, Derrick Bell, a former lawyer for the NAACP Legal Defense and Educational Fund, wrote about the inability of modern civil rights litigation to advance real racial justice. His willingness to dissent from civil rights orthodoxy would radically reshape the study of race, law, and history. The result would lead to the creation of critical race theory. This chapter begins by examining the role of historical analysis in the development of critical race theory. It then explores how legal historians of the civil rights movement imported insights from critical race theory to develop three decades of movement scholarship. Next, it charts new scholarly directions for both critical race theorists and legal historians. The chapter concludes with reflections on how legal history and critical race theory have influenced contemporary struggles for racial justice.
The rise of royal power coincided with the emergence of supreme courts throughout Europe from the thirteenth century onwards. The differentiation of legal business and the institutionalization of a judicial section concerned the interface of jurisdiction, political authority, and territory. The commitment to streamline the administration of justice and to provide access to courts was the major catalyst for pre-state unification, and legal theorists advocated limits on the extent of a legal purview. These limits resolved themselves into ordinary competences and jurisdictions or, in other words, what constitutes a court as a court of law. The attempts to resolve these issues had a common forebear in the canon law of the Church, exemplified by the legal discourses of the Roman-canonical process, the so-called ordines iudiciarii. However, European court systems developed along divergent paths concerning jurisdiction, political authority, and territory, as each sought to balance sovereignty and the legal order.
This chapter takes the phrase ‘legal history as political history’ as gesturing at two existing, perhaps by now classic debates. One is the question of political history’s meaning, or its differentiation from social or cultural history. The other is the relationship between law and politics, especially regarding the Critical Legal Studies view of that relationship. The chapter begins by briefly considering these preliminary questions. It then advances a suggestion about what to look for when trying to understand legal history as political history. It suggests that there is a body of legal history being written and published today, not generally considered as a group or in any way related, that would be considered profitably as political history. The common feature for this work is that it shows change over time in the way law functions.