The Historical Argument in American Legal Culture history as a specialized academic subfield is flourishing in the American academy. Every law school with aspirations to academic distinction nowbelieves it must have at least one legal historian; and the elite schools like Harvard, Yale, Stanford, Chicago, Columbia, Virginia, Berkeley, Michigan and New York University all have several - usually one or more in American legal history and another in English or European. The Directory of Law Teachers in the past three years has listed almost 400 lawteachers who regularly offer some course m legal history. Legal history is also a more academic and professional enterprise than it used to be, as evidenced by the fact that a small but growing number (at an estimate, about 25) of such law teachers have a Ph.D. in History as well as the basic degree (J.D.) in Law. The annual meeting of the American Society for Legal History usually attracts about 200 legal historians, drawn half from faculties of History and Political Science, and half fromschools of Law. Twojournals, the LawandHistory Reviewand theAmericanJournal of Legal History specialize in legal history, mostly American and European, but occasionally including articles on other legal cultures as well; and the law reviews published by the leading schools each dedicate about 10 per cent of their annual volume to articles on legal history. Much of this historical work is not connected in any obvious way to active legalpolitical controversies or easily identified as Right or Left. Inevitably, however, a good deal of the historical work produced by lawyers is — as it has always been - forensic in character, oriented towards the judges who use history inwriting opinions and the lawyers who argue cases before them; towards the legislators who use history in arguing for and justifyingpositions in policy debates and the policy intellectuals who try to influence public opinion. The salience of historical arguments in our public legal and political culture has enlisted many legal intellectuals in the cause of struggling over the meaning of the past for the present. 183 Uses of History in Legal Argument - ABrief Taxonomy It will help to put the current debates in perspective if we can see themas variations on some of the standard modes in which lawyers make use of history. For simplicity. Til classify the basic modes as static, dynamic, and critical. In the static modes, lawyers argue that a legal norm or rule or practice has a fixed meaning that has been established by past usage. This may be an anti-historical argument for following a rule that is unchanging because it is timeless and universal, such as a natural-law norm. It also may be simply an argument for following precedent, for maintaining continuity, for doing things the way they have been done before: amplified, this becomes the argument fromtradition or long-established custom, or time immemorial. Perhaps most often.
RkJQdWJsaXNoZXIy MjYyNDk=