presence of mind and the future of legal history Beneath the surface, what the comparatist and the legal historian seek to achieve is often the same: to chart and explain the law without being limited by one view of it.13 It is this broader perspective that lawyers in every field need and which a properly designed curriculum should provide. Legal history should not seek dominance, but to make sure its contribution is valued properly in teaching and research, and not just as a resource, whether in the form of colleagues or books, to be utilized when a historical question simply cannot be avoided. And here is a challenging thought. When we try to step outside the present, to look back into the past, there are some things we find more difficult than others. For instance, we rarely understand what it is like to live and make decisions in the past, lacking the objectivity which would allow us to set aside our present decision-making and value-weighting. It is something our minds do not easily let go of – for now. Will the same be true in the future? Will legal historians judge us by their standards of knowledge, values, and reasoning? Even if they were to, how will we fare? And finally, why not, what do we think legal historians in the future will think of what legal historians today thought of what legal historians in the future would think of legal historians today? Not even the greatest minds can answer that. But if there is one possibility, if we are particularly prescient, it is that we dreamt of too little. There was so much more we could have achieved, if we had realised how much our scions could do, working together and taking a longer view. We had the presence of mind to do our work today, but did not see what future generations would become. By trying ever to push back the frontiers of understanding, we can at least enshrine a fundamental method for legal historical work. Legal historians regularly delve into the minds of legal actors in the past to understand legal phenomena from centuries ago, but that objective distance might also benefit us when applied to today’s toils. If the 13 Ironically, this view has a pedigree in a number of different jurisdictions. See, for example, Frederick Pollock, ‘The History of Comparative Jurisprudence’, Journal of the Society of Comparative LegislationNS 5/1 (1903), 74, 75 (citing Maine on the historical and comparative methods not being distinguishable from each other in at least some of their applications) & 76–9. 53
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