Review of Legal History
| Author | Sarah E Hamill |
| DOI | 10.1177/0964663918819189 |
| Published date | 01 August 2019 |
| Date | 01 August 2019 |
| Subject Matter | Review of the Field |
Review of the Field
Review of Legal History
Sarah E Hamill
Trinity College Dublin, Ireland
Introduction
It seems almost customary for state of the fields to reference, if not start with, a claimed
sense of malaise in the field (Leckey, 2017: 6; Valverde, 2017: 325). For legal history,
however, the neuroses are different. At present, there are two main, interconnected
anxieties besetting the field or, perhaps more accurately, those who are writing about
the field. The first anxiety is best illustrated by the fact that within a space of 10 years,
two articles both called ‘Why Legal History Matters’ appeared (Holloway and Buck,
2003; Phillips, 2010). Granted, one was more of an introductory piece to a special issue,
but the underlying message has a lengthy provenance (Parker, 1974), and has been seen
in the United States, Canada, the United Kingdom and Australia all of which is enough to
suggest a discipline-specific anxiety (Fisk and Gordon, 2011; Holloway and Buck, 2003;
Phillips, 2010; Sugarman, 2017). The focus of this anxiety is not so much on other legal
historians and where they are going wrong but on whether anyone else cares about what
we are doing and, if not, why they should (Fisk and Gordon, 2011; Sugarman, 2017).
The second anxiety is internal to legal history itself and centres on the interlinked
questions of theory and methodology. There is no widespread sense of malaise but there
is an increasing concern about paralysis. The issue is that the analysis legal history offers
is ‘ever more contextual, more contingent’ (Desautels-Stein, 2015: 39–40) and that legal
history can offer only ‘contingency, complex relationality, constitutiveness, indetermi-
nancy’ (Tomlins, 2012a: 34–35). It is not that anyone wishes a return to grand narratives
– which are associatedwith a now out-of-fashion approachto legal history – but that there
is a yearning forsomething more than ‘a never-endingseries of social contexts’ (Desautels-
Stein,2015: 42; see also, Kennedy,2017). These concernsare not just about thehow of legal
history– what should legal historiansexamine andwhy, and what conclusionscan they draw
Corresponding author:
Sarah E Hamill, School of Law, Trinity College Dublin, Leinster Dublin 2, Ireland.
Email: sarah.hamill@tcd.ie
Social & Legal Studies
2019, Vol. 28(4) 538–559
ªThe Author(s) 2019
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DOI: 10.1177/0964663918819189
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and why – but are also, in tandem with the first anxiety, about the relationships that legal
history has with other disciplines including history, legal theory and sociolegal studies.
These anxieties offer a useful framing device for what is a disparate and often
jurisdictionally divided field. By jurisdictionally divided, I mean simply that most legal
historians focus on one jurisdiction, typically a national or subnational jurisdiction –
think Scotland rather than the United Kingdom, or Ontario rather than Canada. Although
there is an increasing push for comparative legal history (Ibbetson, 2012), including a
journal devoted to it, the practicalities of actually doing such research absent collabora-
tive links may well limit such possibilities. By disparate, I mean that even within their
jurisdictions, most legal historians specialize and focus on discrete topics such as crime,
or the legal profession, or gender, or race, or combinations thereof. Even other reviews of
the field have tended to focus in on particular subfields simply as a way of keeping the
material manageable and within the area of expertise of the author(s) (see e.g. Cosgrove,
2002; Petrow, 2000; Smith and McLaren, 200 1; Tucker, 2017). It would simply be
impossible to offer an overview of the field that could cover it in its entirety. My focus
will primarily be on the Anglo-common law jurisdictions, although some references to
the Civilian jurisdictions of Western Europe will be made. As disparate as these jurisdic-
tions may seem, they are related and have been, at various times, bound together by a
common history, common institutions, common language, whether Latin or English, and
common legal systems.
1
So too is the focus on works published in, or translated into,
English. Like most history then, this overview is incomplete and riddled with gaps. I
begin with a discussion of what legal history is before moving on to examine the
methodologies of legal history, the theories which underpin the various approaches to
legal history and the conclusions which legal historians can draw based on the foregoing.
Separating out these topics is somewhat arbitrary as they feed into and overlap with each
other. Having set out some of these foundational questions, I turn to examining some
works which might deserve closer attention or which might suggest fruitful approaches
for legal historians to take. The issue of why legal history matters and the concerns about
the conclusions it can comfortably draw run throughout this review and, hopefully, will
speak to the concerns of sociolegal scholars as well.
What is Legal History?
There is a duality of meaning in the term ‘legal history’. It can mean both the history
recounted by the courts in their decisions and the history of law or law and history to use
the ‘law and’ phrasing which has come under some attack (Baron, 1999: 1059–1061;
Fisk and Gordon, 2011: 520–524; Weinrib, 2007: 429–430; Wilf, 2011). The first mean-
ing is arguably more of a play on words but the point is to illustrate that sometimes
judges do rely on history. Such reliance is arguably more common in the settler states of
Canada, Australia and New Zealand, especially in cases involving Indigenous rights
claims. Generally, such ‘history’ is not what we mean when we talk about legal history.
It is the second meaning, the history of law, or law and history, or law in history that we
mean when we talk about legal history. As Leckey pointed out in his review of com-
parative law, there are many comparative laws (Leckey, 2017: 4–6), so too are there
many types of legal history but not all are what we mean when we say ‘legal history’.
Hamill 539
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