Legal history and intellectual history 55 Textualism- at least to the extent we can fairly extrapolate fromthe few instances in which legal historians have thus far tried to harness it - is less promising as a source of plausible explanations of historical events. The deliberate injection of presentist concerns, the sometimes aggressive interpretations of historical texts for the purpose of making them worthy participants in contemporary conversations on contemporary problems, does little to enhance and may do much to weaken the credibility of the causal arguments made in textualist legal histories. In one respect, however, the methodology does have potential: analyses like Dalton’s designed to corrode conventional interpretations of canonical texts may be extremely valuable in disrupting misleadingly whiggish orthodox causal accounts. Interpretations that “brush history against the grain” in this fashion may not themselves provide more compelling explanations, but they can identify the need for them. So little legal history has been written to date in the style of New Historicismthat it is difficult to generalize concerning the power of that methodology to facilitate projects of causal explanation. Its potential seems great. Its sensitivity to the variety of discourses available at any given time to participants in (legal) culture and its attention to the degrees of freedomenjoyed by individual actors in fashioning ideas and arguments fromthose discursive materials may well enable New Historicism even better than Contextualism to churn up promising explanations of legal events. The offsetting danger of New Historicismis anecdotalism. Howis the historian (or her reader) to have confidence in the representativeness of the “historemes” she seizes upon? The serendipitous research methods that the New Historicists celebrate may produce eccentric rather than illuminating explanations of legal events. (2) Formulate general laics of social development. It is necessary but insufficient, Carl Hempel believed, to trace the causal connections that gave rise to particular events; one must strive to extract from such explanations general laws - laws that transcend the particularities of time and place. The ultimate objective of history is thus to produce testable statements of the form: whenever conditions A, B, and Ccoincide, event Doccurs.Fromthis perspective, the purposes of history (and legal history in particular) arc the same as those of physics: (a) to provide us a deeper understanding of the laws that govern the universe; and (b) to enable us to predict future events (whether they be eclipses, earthquakes, revolutions, or doctrinal reforms). Relatively few historians were persuaded by Hempcl’s argument when it first appeared a half century ago, and the number has diminished over time. But one effect of the continued grip of logical positivism on American law Sec Carl G. Hcnipcl, “The Function of General Laws in History,” in Patrick 1.. Gardiner, ed.. Theories oj History (Glencoe, 111.: Free Press, 1959): 344. See Mcgill, supra n. 23, 633-34. See Kloppcnberg, supra n. 92, 1022. 103 104 10.1
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