Why do legal history? First remarks on Kermit Hall’s The Magic Mirror

Please note that this post is from 2011. Evaluate with care and in light of later events.

The question of why we should do legal history at all is one that has occurred to me a number of times over the last few years. I have advocated–as I mentioned in previous remarks–the point of view that legal history provides access to more than just changes in statute or changes in judicial viewpoints. Legal history reflects broader and deeper social forces and social contexts. Each case reflects individual concerns of particular people at particular moments in time–but the judicial decisions (especially the appellate opinions) express larger social concerns beyond the specific case or controversy .

In The Magic Mirror: Law in American History, Kermit Hall quotes former Supreme Court Justice Oliver Wendell Holmes, Jr. (1902-1932) to support his version of my point:

This abstraction called the Law is a magic mirror, [wherein] we see reflected, not only our own lives, but the lives of all men that have been!

Hall sums up his perspective on what the law is by saying that “law is a system of social choice, one in which government provides for the allocation of resources, the legitimate use of violence, and the structuring of social relationships” (Hall 1). Law is part of a social context: “Without society we need no law; without law we would have no society” (Hall 1).

Hall is points out two different approaches to legal history, one internalist and one externalist (a distinction science studies scholars also make). Internalist legal history looked at the “black-box” development of legal rules in a straightforwardly–if complex–chronological fashion. Externalist legal histories address larger questions of casual relationships: “We want to know the law by what it has done, or failed to do, or by what has been done to it, rather than simply by what it was” (Hall 2).

Law, then, is individual and personal, but “its meaning reaches to the values of society” as well (Hall 2). We must, says Hall–and I find myself in agreement–pursue both an internalist understanding of the rules and processes of law as well as an externalist understanding of the laws connection to society as a whole.