After Critical Legal History: Scope, Scale, Structure
Posted: 31 Oct 2012
Date Written: December 2012
This review outlines a course for US legal historical writing distinct from the ascendant mode of the past 30 years, generally known as critical legal history or critical historicism. Critical legal history (CLH) is premised on the conventional historical strategy of exploring the nature of an object by situating it in an appropriate context and examining the conjunction between object and context. In CLH's case, the object is law and the context is polity, economy, or society, or more usually a realm of action that is a mixture of all three. CLH is also premised on the further, theoretical, contention that whatever the realm of action in relation to which law is situated, the outcome is the same: indeterminacy marked by contingency, alternative possibilities, paths not taken. In this regard, CLH shares in the general turn in the qualitative social sciences and humanities toward complexity. The results of this contextualizing or relational approach have been empirically rich but are inevitably marked by an abandonment of authoritative causal explanation (metatheory) for thick description. This review lays out an alternative to CLH's parsing of relations between law and what is extrinsic to it, by exploring the explanatory potential of allegory, by which what are imagined as distinct become the same. Allegory is strikingly visual in conception - figurative, emblematic. John Wycliffe called it “ghostly understanding.” I explore the potential of allegory along three optical dimensions - scope (appearance), scale (perspective), and structure (constellation) - that together produce what Walter Benjamin called “the dialectical image,” a nonrelational theory of representation with striking historical applications.
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