Legal history and intellectual history the successes and avoid the failures of their predecessors. Like the preceding objective, this goal is unpopular among historians in general, but somewhat more popular among legal historians.None of the four variants of the new intellectual historv will be of much use in advancing this goal - for much the same reasons none was helpful in advancing goal #2. (4) “[L]iberate the political imagination by revealing suppressed alternatives. Acommon aspiration among politically progressive or radical historians is to write about the past in a fashion that undermines the naturalness of contemporary institutions and thereby encourages people today to imagine and to strive to achieve dramatically different social arrangements. History can have this effect in two ways — which are usually thought to be connected but are in fact separable. First, it can e.xpand readers’ awareness of alternatives simply by revealing that people in the past lived and thought in fundamentally different ways.'** So, for example, the careful demonstration by recent historians of family law that, in the early nineteenth century, Americans did not conceive of a fetus (at least before “quickening”) as a person and consequently did not criminalize abortion in the early stages of a pregnancy”- corrodes the contention of the contemporary “right-to-life” movement that abortion is self-evidently immoral. That corrosion, in turn, might facilitate reconfiguration of the currently stalemated debate in the United States concerning the morality of 57 A good recent example of legal history written in this spirit is David J. Langum, Crossing Over the Line: Legislating Morality and the Mann Act (Chicago; Univ. of Chicago Press, 1994). As Langum presents it, the history of the White Slave Traffic Act of 1910 is a cautionary tale, revealing the futility and senselessness of governmental regulation of consensual adult sexual relations - and, more broadly, of all efforts to use the law to force a minority of the population to accept the moral code of the majority. In his concluding paragraph, Langumcrisply summari/.es the lesson of the book: “In legislative reaction to panic, rigidity of judicial interpretation, and oppressive moralismof enforcement, the Mann Act serves as a model of the sort of statute that ill-serves the country. In future incarnations, not necessarily concerning onlv interstate sexual activity, any such statute laden with presumpturous moralism will once again ill-serve the nation.” Ibid.. 259. For another example of legal history in this vein, see Paul Chevigny, Gigs: Jazz and the Caharet Laws in New York City (NewYork: Routledge, 1991), 20 (seeking to extract fromthe history of the establishment and dismantling of restrictions on the performance of jazz some insights into “a classic problemin the politics of law: under what circumstances are assertions of rights through litigation successful?”). Robert W. Gordon, Exchange with William Nelson on Critical Legal Studies, Law' and History Review6 (Spring 1988): 178. Marianne Constable’s fine recent book on the history of the mixed jury is written partly in this spirit. The aimof the book, she tells us, “is paradoxically twofold; on the one hand, indeed, to point to the ascendance of positivism- in which lawappears as propositional knowledge of official acts of social policy that are validated by a sociological understanding of facts which, ignoring social justice, confirms the coerciveness of the legal system; and, on the other, by showing the extensiveness and the limitations of that positivism, to hold open the possibility of another law.” The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge (Chicago: University of Chicago Press, 1994): 6. 109 no
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