Time for federalist speculation: chapter 9: giving law to the world – England, 1635–1830

Poole, Thomas ORCID: 0000-0001-9721-7502 (2021) Time for federalist speculation: chapter 9: giving law to the world – England, 1635–1830. European Journal of International Law, 32 (3). 1009 - 1016. ISSN 0938-5428

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Abstract

Sometimes I envy historians. Not that theirs is a simple task, giving shape to the detritus of past epochs, knitting meaning into the mess of everything. But those searching after lost legal time face an even sterner test. The jurist who deploys genealogy needs to fold an ‘external’ analysis of the evolution of the conditions that frame their field into a normative account that explains its conceptual formation, preferably in a way that yields something novel or at least not wholly predictable about it. They say that productions of The Ring are best assessed not in terms of whether they fail, since that is a given, but on how they fail. Perhaps the same is true of history-inflected legal scholarship. Those who know the genre will be familiar with the undertow of disquiet, anatomized by Benjamin, about the extent to which historical inquiry involves celebration of, or at least complicity with, the most successful destructive and oppressive forces of the past.2 Subduing that thought exposes more specific concerns, the first of which is to avoid the past being deafened by the echo of the future. This can be especially tricky for lawyers who, as Maitland observed, often turn to history for help with present concerns.3 More than most, we must suppress the instinct to raid the past for argumentative plunder rather than to read it for its own sake.4 If that is the sort of jibe the professional throws an amateur, a second objection goes the other way. Immersion in the past risks getting lost within it. Failing to find a thread out of the labyrinth, the inquirer becomes unable to make the concerns of an earlier age speak to our own, the path of geeky insularity legal historians too often stumble down. A third difficulty, more germane here, is how to prevent the external or ‘in context’ part of a study from swamping the legal story. It is in the nature of big-picture narratives to dominate. Watching the grinding tectonic plates of social and political time and the flows of philosophical speculation that attend them can be mesmerizing, making it hard for law to emerge as anything other than pure epiphenomenon. But the more the jurisprudential collapses into the general, the less justification for legal scholars as opposed to historians to undertake this sort of work, and the less likely that the work will have value as distinctively juridical inquiry. Perhaps the key is not so much to rescue the legal from, but to identify its special qualities within, the political.

Item Type:	Article
Official URL:	https://academic.oup.com/ejil
Additional Information:	© 2021 The Author
Divisions:	Law
Subjects:	K Law > K Law (General)
Date Deposited:	10 Jan 2022 11:27
Last Modified:	12 Oct 2024 04:06
URI:	http://eprints.lse.ac.uk/id/eprint/113371

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