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date: 21 February 2020

(p. v) Editors’ Preface

(p. v) Editors’ Preface

For much of its editorial gestation period, this Handbook of Legal History went by the name Handbook of Historical Legal Research. Although the title eventually changed, the content did not. The handbook is not, in other words, an encyclopedic guide to ‘topics’ in legal history. It is not a collection of essays in chronological order, perhaps divided into geographic or systemic (common law vs. civil law?) clusters, and further subdivided into legal subjects (criminal law? landlord-tenant?), perhaps travelling from East to West, or North to South, or from centre to periphery, from what matters to what is marginal, or even the other way around. If you are looking for ‘The History of Contract Law: Germany, 1900-1914’ or for ‘American Tort Law: The Age of the Restatement Masters’, you will be disappointed.

Our goal was never a handbook of law across time and space. What we were after instead was a volume that would capture the glorious variety of research on legal history going on around the world today. What we are proud to offer is a general methodological handbook on legal history as a mode of legal scholarship (i.e., on the enterprise of historical analysis of law in all its multifaceted breadth and depth).

Some of the most exciting and innovative legal scholarship of the past fifty years has been driven by historical curiosity. Legal history today comes in a wonderful spectrum of shapes and sizes, flavors and tones. Legal historical inquiry extends from short-range, micro social history to global intellectual history over the longue durée. Legal historical discourse has expanded beyond traditional national/parochial boundaries to become international and comparative in scope and orientation, and in ambition.

Legal history—like law and like history—is in the midst of a ‘methodological moment’. Several ongoing projects are currently devoted to exploring varieties of legal historiography and legal history’s relationship to other approaches to legal scholarship. Here, we investigate the current state of the art in legal history around the world. We examine the variety of modes of historical analysis of law, past, present, and future. Our ambition for this book has been to bottle the ambition of legal history as historical analysis of law.

Projects as big as this one tend to experience quite a bit of mission creep, as the weeks stretch into months and months into years, tens of chapters turn into dozens, (p. vi) then scores, and authors come and authors go, as life goes on outside the two covers of the growing book, across disciplines and countries and through academic seasons and professional—and personal—developments. And yet, comparing the list of chapters and contributors now to our initial wish list of subjects and authors then, we’re delighted that the book in your hands bears a close resemblance to the book we envisioned. We are grateful that so many admirable scholars were willing to devote their scarce time to a wide-ranging and flexibly-conceived project that (quite a few must have expected) had a decent chance of petering out before seeing the light of publication day.

The book is not exactly the book we had in mind when we started this project. We think that is a good thing. A handbook that doesn’t deviate from its original plan is a handbook not worth making. It is a collection of chapters written on spec that may impart (soon-to-be-outdated) information rather than inspiration. Inspiration is precisely what drew us to legal historical scholarship, and the ever-curious people who produce it, in the first place. Inspiration is what we believe this Handbook successfully conveys.

The handbook takes a broad and inclusive approach to its subject matter. Its list of contributors includes scholars from several countries and legal systems, ranging from current to future research leaders and representing a variety of methodological approaches, areas of expertise, and research agendas. Its content is similarly wide and diverse in scope and substance, covering a broad range of perspectives and topics. The handbook’s fifty-seven chapters are divided into five parts: I. Contexts: Locating Legal History, II. Approaches: Conceptualizing Legal History, III. Perspectives: Legal History in Modern Legal Thought, IV. Traditions: Tracing Legal History, and V. Illustrations: Doing Things with Legal History.

Part I explores the relationship between legal history as historical analysis of law and other scholarly projects, including history unmodified and legal history as a subspecies of historical—rather than of legal—scholarship, as well as other modes of critical analysis of law, such as philosophical, economic, comparative, literary, and rhetorical approaches.

Part II considers various approaches to legal history as a scholarly enterprise, ranging from legal history as social and political history to archival and quantitative legal history.

Part III homes in on the interrelation between legal history and jurisprudence by investigating the role and conception of historical inquiry in various models, schools and movements of legal thought, from Historical Jurisprudence to Critical Legal Studies to Queer Legal History.

Part IV traces the place and pursuit of historical analysis in various legal systems and traditions across time, culture, and space, including, among others, Roman Law, Jewish Law, and Imperial Law.

(p. vii) Finally, Part V narrows the handbook’s focus to explore several illustrations of legal history in action, including its use in various legal doctrinal contexts (e.g., constitutional law), during times of national, and supranational, community building (e.g., ‘Europe’), and in various modes of legal intervention in specific disputes (e.g., Indigenous title claims).

Enjoy!

Markus D. Dubber and Christopher Tomlins (p. viii)