why legal history matters In truth, the significance of legal history is not diminishing but growing. According to scholars such as Reinhard Koselleck, Odo Marquard, and Hartmut Rosa, the rhythm of social change has constantly accelerated, and new historical periods follow one another ever faster. From this, the legal historian Mathias Schmoeckel concludes that past periods are drawn all the quicker into the domain of history. One might continue that as historical change accelerates, legal changes requiring historical understanding will multiply. The 1980s and 1990s already seem to belong to another age – one of increasing internationalization and European integration – not to mention the 1960s and 1970s. Liberal democracies thus need legal history, and more legal history, but in what way can it contribute to combating totalitarianism, authoritarianism, ultranationalism? Legal history’s critical potential lies in two essential characteristics that much of today’s research in the field shares. First, legal history refuses to act as handmaiden to positive law. Legal history will not, as it once did, explain how legislative development led to the present blessed state. Instead, legal history shares the methods of other social sciences in explaining why law has sometimes changed while at other times it has not. Legal history helps in understanding how law reflects changes in politics, religion, and economics, but also how law itself changes these other spheres. Second, legal history does not respect national boundaries, which are often imperative for totalitarians. Not by coincidence, in the ex-socialist countries legal history often continues to be coupled with the ‘state’, thus ‘the history of state and law’. The frameworks of nation and state are possible, but they are by no means automatic starting points. All legal history is comparative legal history in that national legal histories can never be fully understood detached from their larger contexts – European or Asian, Western or Eastern, or global. From the viewpoint of educating future lawyers, one of the main tasks of legal history is to foster critical thinking. To accomplish this, legal history needs to be detached from normative legal thinking and nationstates. Profoundly comparative legal history understands the law as a product of conflicting historical forces and cultural influences, which easily and unavoidably cross national boundaries. 353
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