facts of the past, and using them involves selecting, interpreting, and recontextualizing themin consideration of current problems.7AsAdam Croon has noted, this act of reconstruction always involves time: lawyers justify a certain use of past materials in present arguments.8 In this way, doctrinal approaches and history are difficult to disentangle. A recognizable form of modern dogmatics, understood as reasoning within positive law,9 is in fact predicated on organizing the past to justify action in the present. “Applicable law” is thus not timeless but a contingent reconstruction of past materials, sometimes mobilized for future-oriented decisions. In what follows, I explore how this temporal aspect of legal reasoning has been developed in recent Swedish legal scholarship. I focus on two dissertations, by Tormod Otter Johansen (published in 2019) and Maria Nääv (published in 2023) respectively,10 that have adopted Anne Orford’s notion of “the archive” as a methodological lens. Their work does not treat legal history as external to law but rather reveals how legal practice constructs its own past in the service of present reasoning. This offers a timely opportunity to reconsider how legal knowledge is structured around and through time – not only retrospectively, but as a condition of legal meaning and authority in the present. In so doing, they offer valuable tools for doing legal history in a nondoctrinal way while staying close to the same materials that doctrinal methods take for granted. In my view, Swedish lawyers rarely appeal to the essential or timeless nature of abstract concepts like property, contract, or liberty. Instead, much as Joseph William Singer argues is a general condition of modern law, and as the American legal realists in a sense foresaw, they distinguish among legal concepts by drawing lines through past ma105 constructing the past: legal archives and critique 7 Anne Orford, International Law and the Politics of History, Cambridge 2021, p. 310 ff. 8 Croon, Jura Novit Curia – En rättsgenetisk undersökning av den juridiska metodlärans utveckling under 1800-talet (above, note 4), p. 14–15. 9 Here, I understand “modern law” as human law, and thus positive law. See, e.g., Kaarlo Tuori, Critical Legal Positivism, Ashgate 2002 p. 6: “In the era of modern law, the idea of natural law, of eternal principles derived from subjective or objective nature and independent of time and place, has lost its credibility. In ‘mature’ modern law, there is no place for natural law; all law is human law.” 10 Tormod Otter Johansen, Förvaltning som verksamhet: bidrag till offentligrättens allmänna läror, Göteborg universitet 2019; Maria Nääv, (O)likabehandling. Likabehandling och jämlikhetsförbättrande åtgärder i den svenska diskrimineringslagstiftningens genealogi, Stockholm 2023.
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