Last semester, I took
a fascinating class entitled “Historical Perspectives on Law,
Constitutionalism, and Culture.”
Every other week or so, a different legal historian would present his or
her current research or a forthcoming paper, and the students would provide
constructive feedback. In most
cases, faculty members from BU would join the discussion. It was a unique experience and a
definite change from the standard law school curriculum.
At the end of the
course, in lieu of a final examination, we had a dinner party. Amazing. We were supposed to discuss the use of legal history in
constitutional litigation, but it never really came up in the course of the
evening. Still, the readings
assigned for that night never really left my mind, and I ended up writing my
final paper on some assorted musings on the infamous “historians’ amicus brief”
in Webster v. Reproductive Health Services. 492 U.S. 490 (1989).
I have since revisited
that paper and spent some more time thinking about legal history, its methodology (as I understand it), and some philosophical implications. Over the course of a few blog posts, I want to share these thoughts. Hopefully, they'll be presented in a logical and organized way . . . but one can only hope.
A note of warning: while
I did study history as an undergraduate, I am not a historian. Consequently, I
beg the reader’s forgiveness for how I grapple with the philosophical
implications of the field’s methodology — at least as I understand it is
conceived within the legal academe.
If anything, my failings may inspire some feedback in the comments, and thereby
be fruitful nonetheless!
* * *
Legal historians are
frequently concerned with avoiding the charge of “presentism,” that is, the use
of historical facts, or descriptions of the past, in advancing political, or
more generally normative claims about how we ought to behave in today’s world. In another sense, presentism in historical analysis can refer
to the use of contemporary terminology, conceptions, and knowledge in
interpreting historical situations.
While the former definition suggests an underlying teleological conceptualization of history qua academic science, the latter represents a sort of
methodological anachronism. The two
admittedly go hand and hand quite frequently, but they are not necessarily related to one another.
An
illustration of the two meanings that I have proposed may prove beneficial. Consider the concept of popular democracy. Modern notions of freedom — or more
precisely, positive freedom (as
Isaiah Berlin might specify) or individual autonomy — require that any given
community allow its constituent members to participate in the political process
vis-à-vis democratic means.
Indeed, it has become self-contradictory to speak of individual liberty
under an absolute monarchy, for example, let alone some other form of
authoritarianism. Consequently, a
“presentist” historian may attempt to interpret history through the lens of
this modern understanding of “freedom.”
In so doing, he would likely use the condemnatory language reserved for
modern dictatorships in describing, say, the mediaeval feudal system, or
imperial mercantilism as practiced in the American colonies, even though
contemporaries of either period might not have understood these political
systems to be “repressive” in the same way. In the legal context, the presentist would
see laws that may never have been understood by their creators to be opposed to
“freedom,” as achieving just such opposition. Finally, the “presentist” historian might suggest that the
progress evidenced by history, which has lead to today’s acceptance of popular
democracy as a sort of politico-moral imperative, is somehow good and determinative. In other
words, that history has “show” democracy to be something that “ought” to be
practiced.
This may seem like an
extreme illustration, and in some sense, it is. True instances of presentism are few and far between. And even when there are traces of presentism
in the legal literature, they are often masked, or difficult to discern. At the same time, some level of presentism
is expected. Because law is typically understood as
a normative system, it makes
sense to look to past practices to glean information that can inform contemporary decision-making. In some sense,
this is exactly the project of constitutional originalism, which looks to the original public meaning of constitutional provisions at the time of the Founding, or their ratification. On this approach to constitutional interpretation, history is very much authoritative.
What I have referred
to as teleological presentism, then,
is not unknown and may even be ubiquitous. Yet, presentism can also be witnessed in another sense, and,
once again, more so in the context of the law. I recently read a forthcoming paper from a young professor
down South. His name is
unimportant — his paper was only a draft, and I do not want to “cite” him — but
his project was fascinating. In
short, he attempted to argue that “federalism” was a concept as amenable to
modern liberalism as it is to conservatism and classical liberalism. I was skeptical when I first read the
paper, and remain unconvinced, but that is not so important. What is important is just how much presentism pervaded his work. It seemed to me that his whole project
was a methodological anachronism, insofar as it adopted modern progressive conceptions of federalism in
place of the thicker political understanding that had been adopted by the
Founders.
But I digress. The point is that presentism abounds in
legal thinking. Yet, presentism
and deterministic historical accounts are also proliferate in the non-legal historical
literature. Francis Fukuyama and
Samuel Huntington are two prime examples from the realm of popular history and
political theory. Fukuyama is
infamous for his pseudo-Hegelian theory of the convergence of history in an
ultimate “end,” namely, the success of liberal democracy, which he details in The End of History and the Last Man. In rather Whiggish fashion, Fukuyama generally
understands history — whether legal, political, or economic, etc. — as progressing toward the
emergence and supremacy of liberal democracy. All history, then, should be read in light of this evolutionary
development, much like Marxian theory understands all history as class warfare
moving toward the ultimate victory of communism. Samuel Huntington, on the other hand, in his rejoinder The Clash of Civilizations, takes a view of
history as being marked by the continually volatile relations between different
cultures. In either case, both
Huntington and Fukuyama “do” their history with certain philosophical
presuppositions as to the nature of their subject of inquiry.
Lawyers, jurists, and
legal historians tend to incorporate similar normative criticisms into their academic
work as a matter of habit. And they
similarly come to the table with certain philosophical presuppositions, even if
they deny this to be the case. The
law is concerned at some level, no matter one’s personal jurisprudential views,
with the regulation of human behavior.
One need not be an Austinian to recognize that the law serves an important role as the class of rules enforced by the political
community under the guise of a sovereign — even if, like the Natural Lawyer or
the Realist argues, there might be “more to the story.” Insofar as law itself is normative, even if only in a
phenomenological or experiential sense, lawyers et al, will be concerned with how it ought to be designed and implemented, and how justice ought to be met.
Obviously, I will be unable to provide an exhaustive account of my views on these matters. But I hope, nevertheless, to undertake
a cursory explanation for how and why history can (and should) be used to
inform (and influence) judicial decision-making and legislation. In short, I do not see history as some purely analytical science that is immune from
biases, prejudices, and other such presuppositions. And I do see history as being a useful tool, especially in
conjunction with other sciences such as philosophy, political theory, and
economics, in ordering society and our legal order.
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