Legal History, the Common Lawand “Englishness” struction and transmission of the “meta-narratives” of evolution, liberty and progress.*^ Both privilege description and experience. From this perspective, history and laware “found” rather than “made”. Both embrace an uneasy mixture of explanatory, descriptive, political and normative concerns. The legal community employ history in diverse ways that are crucial to their common identity, work, status and power. The quest for previous decisions binding on the courts (precedent) and the process of legislative and constitutional interpretation have been shaped by particular conceptions of history, custom and tradition.'^ Moreover, the courts of laware in a unique position. They are the only institutions that have “... the power to declare history; that is, to articulate some understandingof the past and then compel the rest of society to conformits behaviour to that understanding ... While history and law were inter-dependent and close cousins, they were also rivals and adversaries. Thus Coke asserted that the common lawwas “existent outside history and beyond memory as the intimate knowledge of a chosen profession.The on-going battle to ensure that historians and lawyers had something to keep to themselves can only be understood in relation to the jurisdictional warfare that each waged against the other and with those other competitors who sought to control their work. For example, the first generation of full-time university teachers of history and law in late nineteenth century England were concerned to create a distinctive professional identity. They selectively invoked the conventions of their respective communities, of liberal223 ” 19 Burrow, J. W., Evolution andSociety: A Study of VictorianSocial Theory, (Cambridge: Cambridge University Press, 1966) and A Liberal Descent: Victorian Historians and the English Past, (Cambridge: Cambridge University Press, 1981); Blaas, P. B. M., Continuity and Anachronism: Parliamentary and Constitutional Development in Whig Historiography andin the Anti-Whig Reaction between 1890 and 1930, (The Hague: Martinus Nijhoff, 1978); Collini, Stefan, Donald Winch, and John Burrow, That Nobel Science of Politics: A Study in Nineteenth-Century Intellectual History, (Cambridge: Cambridge University Press, 1983); Collini, Stefan, Public Moralists: Political Thought and Intellectual Life in Britain 1830—1930, (Oxford: Clarendon Press, 1991); Novick, Peter, That Nobel Dream: The ‘Objectivity Question’ and the American Historical Profession, (Cambridge: Cambridge University Press, 1988); Ross, Dorothy, The Origins ofAmerican Social Science, (Cambridge: Cambridge University Press, 1991); Bann, Stephen, The Inventions of History: Essays on the Representation of the Past, (Manchester: Manchester University Press, 1990); Soffer, Reba, Discipline and Power: The University and the Making of an English Elite, 1870-1930, (Stanford: Stanford University Press, 1994). Gordon, R. W., “Historicism in Legal Scholarship,” Yale Law Journal 90 (1981): 1017; Finkelman, Paul, “The Constitution and the Intentions of the Framers: The Limits of Historical Analysis,” University ofPittsburgh LawReview50 (1989): 349; Kammen, Michael. A Machine the Would Go Itself: The Constitution in American Culture. NewYork: Alfred A. Knopf, Inc., 1986; Siegel, Stephen, “Historicism in Late Nineteenth-Century Constitutional Thought,” Wisconsin LawReview(1990): 1431. Wiecek, WilliamM., “Clio As Hostage: The United States Supreme Court and the Uses of History,” California Western LawReview 24 (1988): 227, 227—278. 2° See, further, Goodrich, Peter, Languages ofLaw(London: Weidenfeld, 1990) 84-86.
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