the use of another discipline's knowledge and the use of its theories and methodology 28 Thus, there are multiple senses in which scholarship can be interdisciplinary III. English Legal History and Indisciplinarity While some might characterize English legal history as interdisciplinary, it seems different than the numerous"law ands that populate the intellectual landscape. There is a difference between"legal history and"law and history? First, it is not clear that there is any"boundary"(a favorite commentator word) between the two different fields, in this case law and history In thinking about legal history scholarship the use of the typical terms, "inside"and"""(of law) seems inappropriate. First, the various types of legal history and history scholarship are not totally isolated from each other. Scholars of different orientations work together and use each other's work. Second. although the focus of much of the scholarship has internal characteristics, which some consider myopic, good scholarship cannot ignore contemporary mores, customs, and context. Also the nonlaw aspects of some scholarship are not really exogenous as they are part of a broader fabric in which law is woven, sometimes in primary colors English legal history also seems dissimilar from the"law and"phenomena as the notion of the decline of laws autonomy seem irrelevant to legal history. Richard Posner identified several reasons for the decline- the dissolution of political consensus within the legal academy, a boom in disciplines complementary to law, diminished confidence in the efficacy of law as a solution to systemic problems, the restlessness of scholars, the increased prestige of science and other exact modes of inquiry, and the ncreasing importance of statutes as opposed to judge made law as a source of law. but none of these factors seems relevant to the attractions of legal history scholarship The endeavors of legal historians are not the product of any dissatisfaction or dysfunction relating to law as an independent discipline nor of its unfashionability A final reason for not characterizing English legal history as a " law and"is that most of the current criticisms of legal interdisciplinarity scholarship seem inapplicable. Such criticisms characterize the latter as 28. I am grateful to Daniel Klerman for pointing out this distinction to me 29. See. eg, Clive Holmes, Book Review, 118 Eng. Hist. Rev. 206(2003 reviewing J.H. Baker, The Laws Two Bodies)
28. I am grateful to Daniel Klerman for pointing out this distinction to me. 29. See, e.g., Clive Holmes, Book Review, 118 Eng. Hist. Rev. 206 (2003)(reviewing J.H. Baker, The Law’s Two Bodies). 6 the use of another discipline’s knowledge and the use of its theories and methodology.28 Thus, there are multiple senses in which scholarship can be interdisciplinary. III. English Legal History and Indisciplinarity While some might characterize English legal history as interdisciplinary, it seems different than the numerous “lawands”that populate the intellectual landscape. There is a difference between“legalhistory” and “law and history?” First, it is not clear that there is any “boundary” (a favorite commentator word) between the two different fields, in this case lawand history. Inthinking about legalhistoryscholarship, the use of the typical terms, “inside” and “outside” (of law) seems inappropriate. First, the various types of legal history and history scholarship are not totally isolated from each other. Scholars of different orientations work together and use each other’s work. Second, although the focus of much of the scholarship has internal characteristics, which some consider myopic,29 good scholarship cannot ignore contemporarymores, customs, and context. Also the “nonlaw” aspects of some scholarship are notreally exogenous as they are part of a broader fabric in which law is woven, sometimes in primary colors. English legal history also seems dissimilar from the “law and” phenomena as the notion of the decline of law’s autonomy seem irrelevant to legal history. Richard Posner identified several reasons for the decline - the dissolution of political consensus within the legal academy, a boom in disciplines complementaryto law, diminished confidence inthe efficacyof law as a solution to systemic problems, the restlessness of scholars, the increased prestige of science and other exact modes of inquiry, and the increasing importance of statutes as opposed to judge made law as a source of law. But none of these factors seems relevant to the attractions of legal history scholarship. The endeavors of legal historians are not the product of any dissatisfaction or dysfunction relating to law as an independent discipline nor of its unfashionability. A final reason for not characterizing English legal history as a “lawand”isthat most of the current criticisms oflegalinterdisciplinarity scholarship seem inapplicable. Suchcriticisms characterize the latter as
imperialistic, parasitic, and scavenging. 30 Brian Leiter charged that"its most striking feature is its intellectual voyeurism: superficial and ill-informed treatment of serious ideas apparently done intellectual " titillation'or to advertise, in a pretentious way, the sophistication of the writer I Nor can English legal historians be charged with the high sins of presentism232 and anachronism. 3 They have not engaged"in the artful manipulation of historical sources to serve adversarial positions in contemporary disputes roaming through history looking for [their] friends. 3) Thus, they are not practitioners of"forensic history, which has led critics to challenge its current use in American constitutional and political theory, 3o labeling it" lawyers history"and"history-in-law"7 or more pejoratively, "law office history 38 and"history lite None of these criticisms seems relevant in appraising the nature or value of the scholarly contributions to 30. See white, Reflections on the" Republican Revival supra note 1, at 3 (quoting Daniel Rodgers) 31. See Brian Leiter, Intellectual Voyeurism in Legal Scholarship 4 Yale J. Law& Humanities 79, 79-80(1992) 2加mm上mB2m0m103 33. See e.g., Linda K. Kerber, Making Republicanism Useful, 97 Yale L.J. 1663, 1672(1988) 34. See id at 16 35. See Morton Horowitz, Republican Origins of Constitutionalism, in Toward a st l Under State Constitutions 148-49(Paul Finkelman Stephan Gottlieb eds, 1991). Many historians ed the history used by these best deeply problematic and at worst, howlers. "See Martin S. Flaherty, History"Lie- assertions that are at Constitutionalism, 95 CoL. L. Rev. 523, 525(1995). But perhaps such work should be judged by criteria different from those used for evaluating the practice of history. See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case ofHistory-1n-Lamw, 71 Chicago-Kent L Rev. 917, 932-35(1996) a note 21, at 132-246: Laura Kalman, Border Patrol: Reflections on and Forgetting: Kalman's ""Strange Career"and the Marketing of Civic Republicanism, 111 Harv. L. Rev. 1025(1998); Tushnet, supra note 35, at 925-32: White, Reflections on the Republican Revival"sunra note 1, at 15-23 37. See Tushnet, supra note 35, at 917-34. Also English legal historians have not exhibited"past dependency, treating use it Is Posner, Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship, 67 U. Chi L.Rev.573(2000 38. See Flaherty, supra note 35, at 554; John P. Reid, Law and History, 27 Loyola L. Rev. 193, 197-203.(1993) 39. See Flaherty, supra note 35. As John Reid has pointed"forensic history" is not new and can be observed in the polemics of 17th century English ancient constitutio ngstanding English and American contractarian constitutional theories. See reid, supra note 38, at 205-17
30. See White, Reflections on the “Republican Revival” supra note 1, at 3 (quoting Daniel Rodgers). 31. See Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 Yale J. Law & Humanities 79, 79- 80 (1992). 32. . See Kalman, Strange Career, supra note 21, at 180-90; Stolzenberg, supra note 36, at 1033-39; White, Reflections on the “Republican Revival” supra note 1, at 19-20 & n.43. 33. See, e.g., Linda K. Kerber, Making Republicanism Useful, 97 Yale L.J. 1663, 1672 (1988). 34. See id. at 16. 35. See Morton Horowitz, Republican Origins of Constitutionalism, in Toward a Usable Past: Liberty Under State Constitutions 148-49 (Paul Finkelman & Stephan Gottlieb eds., 1991). Many historians claimed the history used by these lawyers was inaccurate and unrecognizable. “Constitutional discourse is replete with historical assertions that are at best deeply problematic and at worst, howlers.” See Martin S. Flaherty, History “Lite” in Modern American Constitutionalism, 95 Col. L. Rev. 523, 525 (1995). But perhaps such work should be judged by criteria different from those used for evaluating the practice of history. See Mark Tushnet, Interdisciplinary Legal Scholarship: The Case of History-In-Law, 71 Chicago- Kent L. Rev. 917, 932-35 (1996). 36. See Flaherty, supra note 35, at 525; Kalman, supra note 21, at 132-246; Laura Kalman, Border Patrol: Reflections on the Turn to History in Legal Scholarship, 66 Fordham L. Rev. 87, 107 (1997); Nomi M. Stolzenberg, A Book of Laughter and Forgetting: Kalman’s “Strange Career” and the Marketing of Civic Republicanism, 111 Harv. L. Rev. 1025 (1998); Tushnet, supra note 35, at 925-32; White, Reflections on the “Republican Revival” supra note 1, at 15-23. 37. See Tushnet, supra note 35, at 917-34. Also English legal historians have not exhibited “past dependency,” treating history as form of idolatry or vesting the past, simply because it is the past, with a normative quality. See Richard A. Posner, Past-Dependency, Pragmatism, and Criticque of History in Adjudication and Legal Scholarship, 67 U. Chi. L. Rev. 573 (2000). 38. See Flaherty, supra note 35, at 554; John P. Reid, Law and History, 27 Loyola L. Rev. 193, 197-203.(1993). 39. See Flaherty, supra note 35. As John Reid has pointed “forensic history” is not new and can be observed in the polemics of 17th century English ancient constitutionalism and longstanding English and American contractarian constitutional theories. See Reid, supra note 38, at 205-17. 7 imperialistic, parasitic, and scavenging.30 Brian Leiter charged that “its most striking feature is its ‘intellectual voyeurism’: superficial and ill-informed treatment of serious ideas apparently done intellectual ‘titillation’ or to advertise, in a pretentious way, the sophistication of the writer.”31 Nor can English legal historians be charged with the high sins of “presentism”32 and anachronism.33 They have not engaged “in the artful manipulation of historical sources to serve adversarial positions in contemporary disputes,”34 “roaming through historylookingfor[their]friends.”35 Thus, theyare not practitioners of “forensic history,” which has led critics to challenge its current use in American constitutional and political theory, 36 labeling it “lawyers history” and “history-in-law”37 or more pejoratively, “law office history”38 and “history lite.”39 None of these criticisms seems relevant in appraising the nature or value of the scholarly contributions to