“Critical Legal Histories Revisited”: A Response

Abstract

The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high‐level official law to everyday local law are distinct issues. CLH is mostly moot today, since social‐legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.

Promoting Dialogue Between History and Socio‐legal Studies: The Contribution of Christopher W. Brooks and the ‘Legal Turn’ in Early Modern English History

“…and that law was`constitutive of consciousness'. 42 In order to fully investigate the constitutive character of law, and to transcend the confines of those who focused exclusively on popular legal consciousness, Gordon advocated studying elite legal thought and thinkers, and their symbiotic relationship with other elite and popular discourses and actors, including lower-order officials, law makers, and practitioners. 43 Law as`constitutive of consciousness', the importance of legal doctrine, and the two-way relationship between mandarin legal thought and its vernacular forms, became significant elements in Brooks's theoretical armour.…”

Contracting COVID: Private Order and Public Good

“…162 Either way, the public-private distinction became "the dominant principle for organizing legal doctrines, from the great principles of constitutional limits on the police power to the minutiae of private-law doctrine (the difference between contracts implied "in law" and "in fact"), in the late-nineteenth century." 163 Although contracts scholars have occasionally called this dichotomy into question, that position is a small minority. 164 Rather, the dominant theoretical frameworks assume with little analysis that contract is "private," and that private ordering means something quite different from public ordering.…”

Jurisdictional Culture and Memory Digitization of the “Government of Justice.” Data Modeling and Digital Approach for the Legal History of Ibero-America

“…Essentially a historian is also a programmer when is capable of going beyond software limitations, in Turkel and MacEachern words "if you don't program, your research process will always be at the mercy of those who do" (Graham, Milligan and Weingart, 2016: 59). 4 The critical legal history in the Ibero-America tradition differs from the perspective constructed in the United States by scholars like Robert W. Gordon (1984Gordon ( , 2012. For a description of the critical legal history of Hispanic and Portuguese tradition, see Hespanha (2002: 21-26).…”