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Law in Theory and History: New Essays on a Neglected Dialogue, 1st edition

Published by Hart Publishing (November 17th 2016) - Copyright © 2016

1st edition

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Overview

This collection of original essays brings together leading legal historians and theorists to explore the oft-neglected but important relationship between these two disciplines. Legal historians have often been sceptical of theory. The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the archives might falsify present understandings and demand revisions. On the other side, legal theorists are often dismissive of historical works. History itself seems to many theorists not to offer any jurisprudential insights of use for their projects: at best, history is a repository of data and examples, which may be drawn on by the theorist for her own purposes. The aim of this collection is to invite participants from both sides to ask what lessons legal history can bring to legal theory, and what legal theory can bring to history. What is the theorist to do with the empirical data generated by archival research? What theories should drive the historical enterprise, and what wider lessons can be learned from it? This collection brings together a number of major theorists and legal historians to debate these ideas.

Table of contents

Part I: Introducing the Dialogue Between Legal Theory and Legal History 1. Legal Theory and Legal History: Prospects for Dialogue Michael Lobban 2. Beyond Universality and Particularity, Necessity and Contingency: On Collaboration Between Legal Theory and Legal History Maks Del Mar 3. Legal Theory and Legal History: A View from Anthropology Fernanda Pirie 4. Legal Theory and Legal History: Which Legal Theory? Sionaidh Douglas-Scott Part II: Methodology and Historiography 5. Historicism and Materiality in Legal Theory Christopher Tomlins 6. Legal Consciousness: A Metahistory Jonathan Gorman 7. Modelling Law Diachronically: Temporal Variability in Legal Theory Maks Del Mar 8. Is Comparative Law Necessary for Legal Theory? John Bell Part III: The History of Theory 9. Reading Juristic Theories In and Beyond Historical Context: The Case of Lundstedt's Swedish Legal Realism Roger Cotterrell 10. Legal Realism and Natural Law Dan Priel and Charles Barzun 11. The Role of Rules: Legal Maxims in Early-modern Common Law Principle and Practice Ian Williams 12. Theory in History: Positivism, Natural Law and Conjectural History in Seventeenth- and Eighteenth-century English Legal Thought Michael Lobban Part IV: Uses and Limits of Theory in History 13. Legal History and Legal Theory Shaking Hands: Towards a Gentleman's Agreement About a Definition of the State Jean-Louis Halp┬┐rin and Pierre Brunet 14. Law, Self-interest, and the Smithian Conscience Joshua Getzler 15. The Practical Dimension of Legal Reasoning Stephen Waddams 16. Corrective Justice-An Idea Whose Time Has Gone? Steve Hedley Afterword 17. How History Bears on Jurisprudence Brian Z Tamanaha

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