User's Guide to History

Abstract

Historical knowledge is necessary to make informed policy choices, but history’s methods are unsuited for determining what, exactly, those policies should be. This chapter examines how historians have been contributing to the New Legal Realist project, identifies obstacles in translating historical conclusions into policy arguments, and explores specific ways that the past can inform the present. Although the discipline of history may not produce concrete policy proposals, it can help us to think more critically about present-day issues by envisioning alternative solutions inspired by the past, identifying problems that become more apparent in historical context, reframing questions that need asking, and exploring causation. By explaining how our laws and legal practices came to be, historians can identify problems and their origins, which is a crucial first step to figuring out what to do next.

Keywords: legal realism, legal history