By Russell Sandberg, Cardiff University
Tradition is often just an excuse for not thinking. It is the means by which habits are perpetuated without questioning them and harden into unquestionable customs which future generations are then socialised into. This even happens in legal education. While the critical might of legal educators is applied to all sorts of substantive questions, dilemmas and debates, our main traditions and habits – the foundations of the law degree –are rarely subject to such critical thought. The canon of the various legal subjects is seldom disturbed with its contents fixed by the tyranny of the textbook tradition. There are exceptions to this, of course, but as lecturers up and down the country tell their students: exceptions to the rule also prove that rule.
In my new book, Subversive Legal History: A Manifesto for the Future of Legal Education, I argue that we need to place legal history at the beating heart of the law curriculum in order to ensure that law students question the traditions and habits in which they become socialised. This may appear as an odd or even contradictory argument. Overthrowing the weight of tradition surely requires less emphasis upon history not more. It may be questioned what is to be gained by teaching twenty-first century law students about (say) the medieval forms of action. Indeed, legal history as a field can be seen as epitomising the very culture that needs to be questioned. It is often seen as the most traditional, conservative and, to be blunt, dull of all legal areas. It is a subject to which the word ‘academic’ in the most pejorative meaning of that word could easily be attached.
Yet, I argue that a historical understanding can be anarchic rather than archaic. It is a form of comparative law, focusing on similarities and contrasts across time rather than space. It reveals that other ways of thinking and other solutions are possible by showing that other ways of thinking and other solutions were adopted or considered previously. A historical approach can show how every dividing line drawn in the law and everything the current legal system considers sacred have not always existed. They are instead the product of a choice taken, a usually pragmatic response to social needs. They are authored, imbued with the values, expectations and biases of particular people. They can be questioned.
This argument is not new. Frederic Maitland – seen as the founder of the modern study of English legal history – once made a similar point in a letter he wrote to Dicey. He opined that:
‘The only direct utility of legal history … lies in the lesson that each generation has an enormous power of shaping its own law. I don’t think that the study of legal history would make men fatalists; I doubt that it would make them conservatives. I am sure that it would free them from superstitions and teach them that they have free hands.’
Yet, this subversive understanding of legal history does not correspond with the perception of history held by most legal scholars and legal students. This is because history is paradoxically both everywhere and nowhere in the Law School. It is everywhere in that every discussion of how a case law developed over time seems to be historical. Yet, history is also nowhere in that, although Law students are constantly looking at cases and statutes from previous centuries, they are seldom understanding these materials within their historical context. Rather, these materials are typically only relevant in so far as they help explain the current law. And more often than not, they are situated in a prevailing narrative of progress whereby the law is seen to be constantly improving itself over time. The previous practices, alternative arguments and the roads not taken are ignored and as a result the options for the future are severely reduced.
Placing history at the heart of the law curriculum would entail exploring the intellectual and social histories of areas of law. Rather than just focusing on the substantive rules that operate in a given field today with discussion of the current social context, a subversive legal history would explore how those rules – and the wider discourse of which they are part – developed over time, paying attention to the persons who shaped the law and the sociological context in which they found themselves. Rather than just saying that a change in the law happened and explaining this by reference to the judicial or parliamentary primary materials, such an approach would explore why the change occurred, writing back in the stories of activism and the alternatives paths that were not taken. Rather than just citing scholars, there is a need to look at how textbook writers and other commentators interpreted and therefore shaped our understanding of the law and how this reflected their own values. They need to become persons rather than just names.
Again, this is not to deny that there are already examples of legal scholars who already ask such questions and embed this in their teaching. However, reference to the bookshelves of textbooks on any frequently taught area of law would underline that such an approach is not the norm and the rise of the SQE and its multiple choice assessments of legal knowledge is likely to discourage such approaches. The contents of textbooks also underscore that legal history is not commonly seen as a leading way of contextualising and critiquing the law. Even when the focus is on interdisciplinary approaches to law, history tends to be neglected. It is striking how many legal scholars who are carrying out research which has a significant historical component hesitate to call themselves legal historians. It appears that legal history has an image problem and, as I discuss in the book, this results in part from ultimately misguided divisions in the field.
Subversive Legal History: A Manifesto for the Future of Legal Education is intended to begin and to further conversations about how historical approaches to law can be used to enrich legal education and to develop in our students the skills that they need to be successful professionals and citizens. Graduates of the twenty-first century need to be critical thinkers who question the mass of information (including opinions presenting themselves as fact) that is now at our fingertips and who are comfortable and confident exploring a range of radical solutions, being able to think the unthinkable. Knowing the past does not mean being bound by it –a rigorous historical approach should actually be liberating.
The book is being published at a time of renewed interest in historical approaches of law. For instance, the legal historians of Bristol, Exeter and Cardiff Law Schools, led by Professor Gwen Seabourne, have just established an online legal history seminar series which it is hoped will further demystify the world of legal history. The first session on 4th October includes a talk from Gwen and a discussion on the teaching of legal history. The event is open to all – just register here. And later on in the year, I’ll be recording a new YouTube series featuring conversations with legal historians about their work and discussing with them the themes of my book. Do keep an eye on my Twitter profile and website for more information on that. I hope that you will be able to join in the discussion about using the past to de-construct and re-reconstruct what we think we know about law.