WHY LEGAL HISTORY MATTERS
Content
WHY LEGAL HISTORY MATTERS
This is a brief statement of the main points of Professor Phillips’ Salmond te t at the !i"toria #ni$ersit% of Wellin&ton La' (a")lt%* The st)d% tries to anal%+e the reason 'h% le&al histor% matters, b% )sin& both histori"al and le&al remar-s, based on some of .ohn Salmond ideas* Histor% is an important part of le&al ed)"ation this is be"a)se the le&al histor% introd)"es the st)dent to the deep )nderstandin& of the nat)re of la' not the merel% anal%ti"al s-ills and s)bstanti$e -no'led&e, this tends to hi&hli&ht the limitation of la'* Le&al histor% matters as histor% of an% -ind, and this is be"a)se, /la' is imbri"ated and inter"onne"ted to e$er%thin& else0 1E*P Thompson2* 3% )nderstandin& the ans'er to 'h% le&al histor% matter, %o) 'ill be able to )nderstand not 4)st ho' the 'orld 'as shaped to the present b)t also ho' it &ot that 'a%, as William (a)l-ner on"e said 5The past is ne$er dead* It’s not e$en past*’ 3e"a)se it is in$ariabl% still 'ith )s, aspe"t of it remain embedded in e$er% part of o)r so"iet%, This 'or- does not onl% dis")sses the importan"e of histor% b)t it poses ans'ers to the t'o "ontro$ersial 6)estions, first, 'h% parti")lar le&al histor% matters and se"ond, 'h% it is important to ha$e an histori"al approa"h to la'* This t'o 6)estions are the "entral part of this dis")ssion, the ans'er to both t'o 6)estions are ans'ered in fo)r prin"ipals, 'hi"h in short are, it tea"hes )s abo)t the "ontin&en"% of la', se"ond it sho's the relati$e a)tonom% of la', third le&al histor% is liberatin& and lastl% it e poses the presen"e of man% $ariants of le&al pl)ralism in both the past and the present, altho)&h this fo)r prin"iple o$erlaps ea"h other b)t the% 'ill ma-e sense 'hen dis")ssed at len&th as follo's,
The absen"e of "ertaint% of la' "an be simpl% referred as "ontin&en"% of la', b)t )nfort)natel% in this dis")ssion it does not mean that, it does not mean that le&al de$elopment is befallin&, "as)s, or arbitrar% somethin& happenin& random, b)t it means the opposite, as le&al de$elopment are rational and lo&i"all% "onne"ted to other de$elopment, in 'hi"h, those la' does not e ist in isolation from the normal "onte t 1the so"iet%2, it is not too theoreti"al b)t it re"o&ni+es the realit% of the material time, Ri"hard Posner and the 7o%en of "onser$ati$e la' both ar&)ed that tort and "ontra"t la' do"trines "han&ed 'ith "han&in& e"onomies* 3)t one ma% as- ho' "an the "ontin&en"% of la' appl% to the "ommon la' 'hi"h is a"t)all% histori"al8 The s%stem 'hi"h is based on pre"edent and "ase la'8 3)t this "an be ans'ered b% Ri"hard 7an+i&’s "lassi"al arti"le 'ith his assertion that /"ases are )sed as do"trinal fr)its on a "on"ept)al tree0 in short 'e )se "ases for 4)stifi"ation and not for n)isan"e* The se"ond reason of 'h% le&al histor% matters is the 6)estion of a)tonomo)s of la', b% learnin& le&al histor% %o) )nderstand and re"o&ni+e the importan"e of la' itself* the le&al s%stem ha$e its standard and r)les 'hi"h ma-es them to be in s)"h a 'a% it is, therefore b% learnin& le&al histor% one introd)"es himself to the notorio)s feat)res of the la' from time to time, pla"e to pla"e and s)b4e"t to s)b4e"t* The la' manifested a life and lo&i" of its o'n, it does not 'or- to assist an%one 'hether ha$in& e"onomi" or politi"al po'er, as it sometimes 'or-s a&ainst the r)lers Altho)&h this mi&ht seem as "ontradi"tor% to the first point, b)t b% opposite it is a 4)stifi"ation in order to ma-e it more pre"ise in the le&al paradi&m, so as to ma-e a balan"e, as La'ren"e (riedman 'arned abo)t the dan&er of ta-in& the idea of "ontin&en"% to far, 'hi"h mi&ht ma-e a le&al s%stem as blind ma"hine &)ided b% those 'ho are in "ontrol of it*
The third reason is that the st)d% of le&al histor% liberates )s, it frees )s from the past, in 'hi"h it allo's )s to ma-e o)r o'n de"ision, in other 'a% one ma% )se this as the 4)stifi"ation of the first point of "ontin&en"%* 5the past is a forei&n "o)ntr%9 the% do thin&s different there’ b% .erem% Webber, this brin&s )s to the ar&)ment that, there is a different bet'een the past and the present, hen"e there is no need of treatin& this t'o in a similar 'a%, as the past no lon&er spea-s 'ith the a)thoritati$e $oi"e, it "an no lon&er ser$e as the safe harbor* 'e ha$e to appre"iate the past b)t not to "erebrate them, the le&al histor% enables professionals to )nderstand and )se the insi&ht of the past to infl)en"e the present in a 'a% 'hi"h mat"hes the period in 6)estion* The "ommon la' in :;<=’s 1for example the postal rule in contract law vis-a-vis the use of electronic transaction2, therefore 'e m)st a""ept the Maitland assertion that /> the onl% dire"t )tilit% of le&al histor%> lies on the lesson that ea"h &eneration has an enormo)s po'er of shapin& its o'n la'0 The last reason of 'h% le&al histor% matters, is 'hat is "alled le&al pl)ralism 'hi"h re"o&ni+es more than one )ltimate prin"iple 1past and the present2* The le&al pl)ralism brin&s alternati$e $isions, 'hi"h at man% times 'ill help professional not to repeat the same mista-e o$er and o$er a&ain, as those 'ho "annot remember the past are "ondemned to repeat it,1Geor&e Santa%ana2* Therefore le&al histor% sho's )s that 'e "annot resol$e the 6)estion 'ith simple appeal to an inade6)atel% )nderstood of past* In "on"l)sion the la' has al'a%s and al'a%s 'ill be shaped b% "ir")mstan"es and "onte t, has ne$er e isted alone as independent for"e, therefore this is important and needs to be appre"iated so as to prepare st)dents to a proper )nderstandin& of the la' and to impro$e the st)dent abilit% to thin- "onte t)all%*
This is a brief statement of the main points of Professor Phillips’ Salmond te t at the !i"toria #ni$ersit% of Wellin&ton La' (a")lt%* The st)d% tries to anal%+e the reason 'h% le&al histor% matters, b% )sin& both histori"al and le&al remar-s, based on some of .ohn Salmond ideas* Histor% is an important part of le&al ed)"ation this is be"a)se the le&al histor% introd)"es the st)dent to the deep )nderstandin& of the nat)re of la' not the merel% anal%ti"al s-ills and s)bstanti$e -no'led&e, this tends to hi&hli&ht the limitation of la'* Le&al histor% matters as histor% of an% -ind, and this is be"a)se, /la' is imbri"ated and inter"onne"ted to e$er%thin& else0 1E*P Thompson2* 3% )nderstandin& the ans'er to 'h% le&al histor% matter, %o) 'ill be able to )nderstand not 4)st ho' the 'orld 'as shaped to the present b)t also ho' it &ot that 'a%, as William (a)l-ner on"e said 5The past is ne$er dead* It’s not e$en past*’ 3e"a)se it is in$ariabl% still 'ith )s, aspe"t of it remain embedded in e$er% part of o)r so"iet%, This 'or- does not onl% dis")sses the importan"e of histor% b)t it poses ans'ers to the t'o "ontro$ersial 6)estions, first, 'h% parti")lar le&al histor% matters and se"ond, 'h% it is important to ha$e an histori"al approa"h to la'* This t'o 6)estions are the "entral part of this dis")ssion, the ans'er to both t'o 6)estions are ans'ered in fo)r prin"ipals, 'hi"h in short are, it tea"hes )s abo)t the "ontin&en"% of la', se"ond it sho's the relati$e a)tonom% of la', third le&al histor% is liberatin& and lastl% it e poses the presen"e of man% $ariants of le&al pl)ralism in both the past and the present, altho)&h this fo)r prin"iple o$erlaps ea"h other b)t the% 'ill ma-e sense 'hen dis")ssed at len&th as follo's,
The absen"e of "ertaint% of la' "an be simpl% referred as "ontin&en"% of la', b)t )nfort)natel% in this dis")ssion it does not mean that, it does not mean that le&al de$elopment is befallin&, "as)s, or arbitrar% somethin& happenin& random, b)t it means the opposite, as le&al de$elopment are rational and lo&i"all% "onne"ted to other de$elopment, in 'hi"h, those la' does not e ist in isolation from the normal "onte t 1the so"iet%2, it is not too theoreti"al b)t it re"o&ni+es the realit% of the material time, Ri"hard Posner and the 7o%en of "onser$ati$e la' both ar&)ed that tort and "ontra"t la' do"trines "han&ed 'ith "han&in& e"onomies* 3)t one ma% as- ho' "an the "ontin&en"% of la' appl% to the "ommon la' 'hi"h is a"t)all% histori"al8 The s%stem 'hi"h is based on pre"edent and "ase la'8 3)t this "an be ans'ered b% Ri"hard 7an+i&’s "lassi"al arti"le 'ith his assertion that /"ases are )sed as do"trinal fr)its on a "on"ept)al tree0 in short 'e )se "ases for 4)stifi"ation and not for n)isan"e* The se"ond reason of 'h% le&al histor% matters is the 6)estion of a)tonomo)s of la', b% learnin& le&al histor% %o) )nderstand and re"o&ni+e the importan"e of la' itself* the le&al s%stem ha$e its standard and r)les 'hi"h ma-es them to be in s)"h a 'a% it is, therefore b% learnin& le&al histor% one introd)"es himself to the notorio)s feat)res of the la' from time to time, pla"e to pla"e and s)b4e"t to s)b4e"t* The la' manifested a life and lo&i" of its o'n, it does not 'or- to assist an%one 'hether ha$in& e"onomi" or politi"al po'er, as it sometimes 'or-s a&ainst the r)lers Altho)&h this mi&ht seem as "ontradi"tor% to the first point, b)t b% opposite it is a 4)stifi"ation in order to ma-e it more pre"ise in the le&al paradi&m, so as to ma-e a balan"e, as La'ren"e (riedman 'arned abo)t the dan&er of ta-in& the idea of "ontin&en"% to far, 'hi"h mi&ht ma-e a le&al s%stem as blind ma"hine &)ided b% those 'ho are in "ontrol of it*
The third reason is that the st)d% of le&al histor% liberates )s, it frees )s from the past, in 'hi"h it allo's )s to ma-e o)r o'n de"ision, in other 'a% one ma% )se this as the 4)stifi"ation of the first point of "ontin&en"%* 5the past is a forei&n "o)ntr%9 the% do thin&s different there’ b% .erem% Webber, this brin&s )s to the ar&)ment that, there is a different bet'een the past and the present, hen"e there is no need of treatin& this t'o in a similar 'a%, as the past no lon&er spea-s 'ith the a)thoritati$e $oi"e, it "an no lon&er ser$e as the safe harbor* 'e ha$e to appre"iate the past b)t not to "erebrate them, the le&al histor% enables professionals to )nderstand and )se the insi&ht of the past to infl)en"e the present in a 'a% 'hi"h mat"hes the period in 6)estion* The "ommon la' in :;<=’s 1for example the postal rule in contract law vis-a-vis the use of electronic transaction2, therefore 'e m)st a""ept the Maitland assertion that /> the onl% dire"t )tilit% of le&al histor%> lies on the lesson that ea"h &eneration has an enormo)s po'er of shapin& its o'n la'0 The last reason of 'h% le&al histor% matters, is 'hat is "alled le&al pl)ralism 'hi"h re"o&ni+es more than one )ltimate prin"iple 1past and the present2* The le&al pl)ralism brin&s alternati$e $isions, 'hi"h at man% times 'ill help professional not to repeat the same mista-e o$er and o$er a&ain, as those 'ho "annot remember the past are "ondemned to repeat it,1Geor&e Santa%ana2* Therefore le&al histor% sho's )s that 'e "annot resol$e the 6)estion 'ith simple appeal to an inade6)atel% )nderstood of past* In "on"l)sion the la' has al'a%s and al'a%s 'ill be shaped b% "ir")mstan"es and "onte t, has ne$er e isted alone as independent for"e, therefore this is important and needs to be appre"iated so as to prepare st)dents to a proper )nderstandin& of the la' and to impro$e the st)dent abilit% to thin- "onte t)all%*
