Changing images of the legal past. An essay on the history of legal history
To understand legal history we should look at what legal theorists have to say about “law”
How does legal history move in time and what determines the broad shifts in purposes, methods and objects? Our premise is that legal historiography cannot operate without a philosophical idea of “law” which summarises how law should be created, by whom and how.
Beginning from this premise, legal history should be better explained looking not at historians but at philosophers. We find in fact major philosophical figures at its main turning points: the 19th c. opened with Savigny who believed to be the Kant of the discipline; the 20th c. saw Hermann Kantorowicz who reversed the earlier premises starting from a deep concern with language which he shared with Kelsen, Hart up to the Nouvelle Rhétorique which are at the heart of contextualism, judicial and comparative legal history and other major approaches in the writing of legal history.
And today, the current reorientation of methods and objectives should be explained, according to this approach, by a vast reformulation of its theoretical premises and in particular by a growing concern with the informational framework whereby the law operates, from the philosophy of information.
Table of contents
Introduction: Changing images of the legal past
I. The age of Savigny
II. The age of language
Kantorowicz and the linguistic turn
Ius commune europaeum and the crisis of legal science, 1930-60
The post-WWII defence of legal humanism
The Western Legal Tradition and Soviet Russia
III. The age of information
Law as information
What is information?
Legal history as the study of tradition, information and normativity