Changing images of the legal past

Legal philosophy’s influence on the writing of legal history

A research project on the history of legal history

Above is a session of the conference held in Todi (Italy) in 1962 to celebrate the sixth centenary of Bartolus. The event was opened by the leading legal historian Francesco Calasso with a prolusion on “Bartolism”.

At the next celebration, half a century later (2013), I presented a paper on “Bartolus without Bartolism“. I wanted to respond to the former master by arguing for the need to look at the legal past with fresh eyes unencumbered by 19th and 20th century categories (Bartolism, humanism, ius commune, Western legal tradition and others) and, more importantly, to clarify the position of a legal historian writing in the 21st century.

The research project described below grew out of that seminal paper.

 

 

Synopsis

What a change. Until a few decades ago legal historians thought in terms of the ius commune Europaeum, the rise of the Golden Age of Legal Humanism, the demise of obscurantist Bartolism, the Western legal tradition and its unstoppable expansion of rationality. Today they think of normativity, plurinormativity, legality, hybridity, legal traditions, normative regimes, legal information, data mining, production of normative knowledge, translation of legal information and other categories rich in epistemic connotations. What happened?

This book tries to answer this question. The premise is that legal historiography cannot operate without a philosophical idea of “law” that summarises how law should be created, by whom and how. As a consequence, legal history should be better explained looking not at historians but at what philosophers have to say about “law”.  The main turns in the writing of legal history are in fact the reflection of changing images of law.

To understand legal history we should look at what legal theorists have to say about “law”

Methodologically, this research views the history of law evolving within a broader history of knowledge, which has been moving from epistemology (Kant and Savigny: “how do we know reality?”) to language (Kantorowicz, Wittgenstein, Kelsen, Hart: “what is the appropriate language to know reality?”) to information (“what is the cognitive material that connects humans in their interactions?”). In this perspective, the history of law can be seen as a chapter in the history of knowledge.

The research is divided in three parts. Part I begins from the age of Savigny, namely, the legacy that the early-20th century (free law, legal sociology, jurisprudence of interests, logical empiricism, Nordic realism) wanted to overturn. Part 2 focuses on the main categories produced during the 20th century: European ius commune, legal humanism, judicial history, and the Western legal tradition. Part 3 ends with the present time, whose distance from the 20th c. is apparent from the fading grip of those conceptions. 

 

 

 

Table of contents

 

Introduction: What is legal history a history of? Legal philosophy guiding the hand of legal historians

I. 19th century: the age of Savigny and Kant

Formalism

Purity

Historicism

II. 20th century: linguistic philosophy

Kantorowicz and the linguistic turn

Ius commune europaeum and the crisis of legal science, 1930-60

The rise of comparative legal history

The post-WWII defence of legal humanism

The Western Legal Tradition and Soviet Russia

III. 21st century: the philosophy of information

Law as information

What is information?

Legal historians as conceptual designers

Legal history as the study of tradition, information and normativity

 

This project has received funding from the European Research Council (ERC) under the Marie Skłodowska-Curie research and innovation programme (grant agreement No 753427 ).