Russell Sandberg, Cardiff University 

In a previous blog post entitled ‘Why the Past is the Future’, I argued that the study of legal history ought to be at the beating heart of what Law Schools do.  Summarising the arguments of my book Subversive Legal History: A Manifesto for the Future of Legal Education, I contended that understanding the history of law not only contextualises the current law but it also transforms our understanding of legal change. It shows how the law and legal institutions are not fixed but are constructed and that every line drawn in the law and everything the law holds as sacred is arbitrary.

A historical approach to law reveals the constructed and authored nature of the law. Legal ideas are not natural or universal. Rather, each generation can shape the law to meet its needs. This opens up the potential for legal change. Different ways of doing law are possible now because they were taken or contemplated in the past.

Legal history therefore provides a corrective to the institutional socialisation – some might say indoctrination – that occurs as a result of doctrinal legal education.

Making the argument that law students should study legal history is one thing; exploring how this can be achieved is quite another matter.   This blog post is designed as a follow-up to ‘Why the Past is the Future’.  While the earlier blog post and my Subversive Legal History book explored why students should study law from a historical perspective, I now want to focus on the how and how this is facilitated by latest book A Historical Introduction to English Law: Genesis of the Common Law.

In Subversive Legal History, I suggested that legal history needs to be infused throughout the law curriculum. It needs to be seen not as a specialist area but as one of the methods that are used by all legal scholars and students where it is relevant to answer the research questions they are tackling.

One way this could be achieved is by de-constructing and re-constructing the whole law curriculum. There are many reasons, however, why this is unlikely to be feasible.  This blog post will therefore examine what can be done at a grass roots level. It is addressed to those who run individual modules rather than those who run Law Schools.

Every area of law has a historical dimension and this can to be unlocked to provide a supplement to – or even a correction to – the dominant doctrinal method that underpins most legal areas.

In Subversive Legal History I suggested that we need to introduce students to both the social and intellectual histories of the areas of law that the Law School curriculum packages up for them.

Studying the social history of areas of law requires examining legal developments in the social, political, economic and cultural contexts in which they occurred rather than understanding them and their significance solely in terms of what they reveal about the current law. This entails exploring non-legal actors and voices, especially those that have been marginalised. This approach abandons any firm distinction between law and society and rejects the legal-centric nature of much legal scholarship; especially that found in the doctrinal textbook tradition.

Studying the intellectual history of areas of law requires seeing the names on the reading list as people rather than mere citations; exploring how fields of study were formed and what was included and excluded; examining how the canon of each area was formed and the role of authors in constructing the way in which the area is understood and even the articulation of its general principles.

This requires paying more attention to the people who have shaped the law- not only the legislators and judges but other legal actors including the law reformers. There is a need to question the values and assumptions of those who have shaped the law as well as those groups and individuals who were not listened to.

The role of legal scholarship in shaping the law is often larger than we credit.  As A V Dicey noted in his inaugural lecture on ‘Can English Law be Taught at the Universities?’: ‘by teaching and by literature [we] can influence far more than is generally believed not the form only but the substance of the law’. In addition to noting the ‘ease by which judicial legislation is swayed by the pressure of authoritative opinion’, Dicey also noted the importance of the textbook tradition in shaping areas of law. As he put it:

‘Particular authors have notoriously, even in recent times, modelled, one might almost say brought into existence, whole departments of law’.

In Subversive Legal History, I referred to such contributions by textbook writers and others as the ‘common lore’.  In the mid-twentieth century, a generation of scholars (mostly male and Oxbridge based) wrote what would become the definitive textbook accounts of many areas of law. Many of these books remain in print today, now curated and updated by modern scholars, and are seen as the leading academic works in their fields. They are now supplemented and sometimes superseded by a significant number of student textbooks in each legal area reflecting various pedagogical styles but all which mirror – or in a few cases, consciously reject – the decisions as to content made by the original leading work. Their classifications and distinctions have become entrenched.

Much of what is taught in many Law Schools either repeats or, much less often, challenges the common lore.

A subversive approach uses history to supplement and correct this. It is not a question of discarding the doctrinal legal materials but enhancing and challenging these orthodoxies by revealing their histories.

Of course, this raises seemingly mundane but actually important issues concerning time and space. How are teachers to find the time and space to include history in their courses?

Historical supplements need not be comprehensive. For instance, an undergraduate module on criminal law need not include – and almost certainly would not have the time or space to include – a detailed chronological history of the criminal law. However, it could include historical elements.

For instance, this year I redesigned the Criminal Law course I lead so that it began with a lecture introducing the Anglo-Saxon blood feud which relied on personal vengeance before contrasting this with the present-day public prosecution system. This contrast highlighted how historically recent public prosecution and the civil-criminal law distinction is.  The second lecture then leapt to the nineteenth century to explore the intellectual history of criminal law as an area of study culminating in discussion of the contributions of today’s leading criminal law writers.

The problem with such selective treatment, however, is that is students are likely to lack an understanding of the larger picture.  This is why there is a need to ensure that all law students are introduced to the conventional histories of the common law.  In Subversive Legal History, I argued that there was a need for texts that introduce the conventional stories and authors of those stories, enabling students to understand these before they question them.

This is the aim of my latest book –A Historical Introduction to English Law: Genesis of the Common Law.  The book retells stories surrounding the origins and early development of the common law. It introduces but also questions the conventional accounts of the early development of the common law.

The book is designed to be read before or at the start of student’s legal studies and then can be consulted by them throughout their course. It not only introduces them to the history of the common law but also to the legal-historical literature.  It examines the types of legal history exploring the focus and characteristics of feminist and critical race theories with the intention that students can explore these and other critical approaches further and then draw on them throughout their studies.

‘A Historical Introduction to English Law: Genesis of the Common Law’ (Cambridge UP, 2023) – YouTube

A Historical Introduction to English Law also debunks many of the assumptions that people have of law (and which doctrinal legal study tends to perpetuate).  It underscores how the origins of the common law was mostly concerned with the maintenance of order not law and  how the history of the common law is inherently chaotic: it is not a story of progress but rather one of accidents showing how law is used pragmatically at a time of crisis.

Its purpose is not only to help students understand and contextualise their study of the current law but also to show them that the options they have to change the law are greater than they might assume from just studying the current law.

A subversive legal education would ensure that law students are not only trained to think like lawyers but also how to question like citizens. A Historical Introduction to English Law is intended to help with this.

  • I am grateful to Dr Sharon Thompson for her comments on an earlier version of this post.