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Historical Analysis of Law

Published online by Cambridge University Press:  28 October 2011

Markus Dirk Dubber
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Extract

Kenneth Ledford's and Michael Meranze's insightful comments raise important questions about the nature of legal history in general, and of the history of punishment in particular. According to Ledford and Meranze, modern legal history is social history, to be distinguished from “old-style intellectual history.” A product of the latter “historical method no longer in favor,” “The Right to Be Punished” draws Ledford's and Meranze's criticism for its insufficient “root[s]… in the soil of social history” and for its inadequate “account of the … social basis of the modern will to punish” and “the social embeddedness of punishment.”

Type
Forum: Response
Information
Law and History Review , Volume 16 , Issue 1 , Spring 1998 , pp. 159 - 162
Copyright
Copyright © the American Society for Legal History, Inc. 1998

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References

1. Ledford, Kenneth F., “Identity, Difference, and Enlightenment Heritage(s): Comment on ‘The Right to Be Punished,’” Law and History Review 16 (1998): 150.CrossRefGoogle Scholar

2. Ibid.

3. Ibid., 147.

4. Meranze, Michael, “The Denials of Justice,” Law and History Review 16 (1998): 154.CrossRefGoogle Scholar

5. Ibid., 157.

6. Recently, a growing body of work on “uses of history” and “lawyer's history” has begun to explore this question, though not always explicitly. See, e.g., “Symposium on the Critical Use of History,” Stanford Law Review 49 (1997): 1023–1221Google Scholar; Kalman, Laura, The Strange Career of Legal Liberalism (New Haven, 1996)Google Scholar; Gordon, Robert W., “The Past as Authority and as Social Critic: Stabilizing and Destabilizing Functions of History in Legal Argument,” in The Historic Turn in the Human Sciences, ed. McDonald, Terrence J. (Ann Arbor, 1996), 353–78Google Scholar; see also Cloud, Morgan, “Searching through History; Searching for History,” University of Chicago Law Review 63 (1996): 1707–47CrossRefGoogle Scholar; Reid, John Philip, “Law and History,” Loyola Los Angeles Law Review 27 (1993): 193–223.Google Scholar

7. For example, “The Right to Be Punished” traces the emergence and development of both the modern practice of punishment and the attempt to legitimize that practice through the principle of autonomy.

8. No comprehensive account of modern punishment, for instance, may ignore the role of class membership. To focus exclusively on this factor, however, obscures the more basic phenomenon of empathic identification among members of any community and the concomitant differentiation from nonmembers. To appreciate the complexity and significance of the phenomenon requires critical engagement with several disciplines, including sociology, (social and moral) psychology, and (political, moral, and social) philosophy.

9. So the legitimacy crisis of modern punishment identified in “The Right to Be Punished” may be remedied either by developing a theory of legitimacy independent of the principle of autonomy or by bringing existing practices into line with that principle.

10. Gordon, Robert W., “Foreword: The Arrival of Critical Historicism,” Stanford Law Review 49 (1997): 1023, 1024Google Scholar; see also id., “Critical Legal Histories,” Stanford Law Review 36 (1984): 57.CrossRefGoogle Scholar

11. Gordon, “Foreword,” 1024.

12. Historical analysis of law, as outlined in this reply, owes a great deal to the work of Robert Cover. Cover not only stressed the practical nature of law and legal scholarship, but also subjected past and present legal practices to searching hisorical analysis. See, e.g., Cover, Robert, Justice Accused: Antislavery and the Judicial Process (New Haven, 1975)Google Scholar and “Violence and the Word,” Yale Law Journal 95 (1986): 1601.CrossRefGoogle Scholar Moreover, Cover's historical analysis of fugitive slave law in the antebellum North has influenced the critique of several current legal practices, including South African apartheid and capital punishment in the United States. See, e.g., Dugard, John, Human Rights and the South African Legal Order (Princeton, 1978)Google Scholar; Dyzenhaus, David, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (Oxford, 1991)Google Scholar; Dubber, Markus Dirk, “The Pain of Punishment,” Buffalo Law Review 44 (1996): 545.Google Scholar