Why the History of English Law Has Been Neglected
Legal historians have regularly regretted what they perceive to be the side-lining of their subject. Writing almost a decade ago, Daniel Siemens noted that “one gets the impression that legal history is slowly and inevitably dying — or that it has been in a coma for the last 30 years, at least” (“Towards a New Cultural History of Law” (2012) 2 InterDisciplines, 18, 19). And eminent legal historians have dedicated prestigious lectures to lament the fading of their discipline.
During October 1888 at Cambridge, Frederic Maitland gave his inaugural lecture entitled “Why the History of English Law has not been Written”. A self-confessed “long and dismal discourse,” the lecture explored why legal history was “not flourishing quite as it ought to flourish”. For Maitland, legal history was not being constrained “by any lack of evidence”; rather, it was “the limits of our leisure, our strength, our studiousness, our curiosity”. (See “Why the History of English Law has not been Written” in H.A.L. Fisher (ed), Collected Papers of Frederic William Maitland, Downing Professor of the Laws of England (Cambridge University Press, 1911) Vol. 1, 480).
In October 1910 at Oxford, William S. Holdsworth gave a lecture in which he lamented that, while the nineteenth century was “notable as the century of the renaissance of historical study”, the “one great exception, which the historian of our age will note with surprise, is the law of England”. He commented that “the absence of general legal history from the list of subjects in which the law student must satisfy his examiners” would be seen as “a very curious phenomenon” were we all not so familiar with these oddities. (See “The Place of English Legal History in the Education of English Lawyers: A Pleas for its Further Recognition” in A.L. Goodhart and H.G. Hanbury (eds) Sir William S. Holdsworth: Essays in Law and History (Clarendon Press, 1946) 2020).
Finally, in October 1998 at Cambridge, John Baker’s inaugural lecture expressed concern that “with so many changes taking place in the law and the legal world, legal history is becoming a less important branch of legal scholarship and less relevant to a student’s needs”. Instead, he observed, career prospects seemed to be advanced more “by flamboyant essays stating either the obvious or the absurd in fashionable jargon” with citation indexes rewarding work that is “deservedly attacked” over work that is “silently approved”. (See “Why the History of English Law has not been Finished” (2000) Cambridge Law Journal 62).
In some ways, these fears might now sound overstated. There is a rich and growing body of work produced on the history of law. The doctrinal work of Maitland subjecting historical legal sources to the same – if not greater – level of scrutiny as current law has been furthered in England through the work of the Selden Society, the achievements of Baker himself who has shed a light upon the Tudor period in particular and the stunning scholarship of Milsom which has dialogued with, developed and has occasionally superseded the work of Maitland himself. There are also many legal academics who might not call themselves legal historians but who interrogate law – and in particular the relationship between law and society – from a partly historical perspective. And there is also a significant body of research on law produced in history departments where constitutional history no longer dominates but where law has become an important aspect of the new social history that has developed.
Yet, in some respects the fears are founded. In comparison with other jurisdictions including those in the English-speaking world, legal history is neglected in law schools in England and Wales. In most there tends to be at best one or two legal historians on the faculty, and the subject tends to be an optional module, if offered at all. Legal history is not at the beating heart of legal education. Law schools continue to focus on teaching doctrinal law. They are training law students to think like High Court judges. As Lord Goff once noted:
The prime task of the jurist is to take the cases and statutes which provide the raw material of the law on any particular topic; and by a critical re-appraisal of that raw material, to build up a systematic statement of the law on the relevant topic in a coherent form, often combined with proposals of how the law can be beneficially developed in the future. (“Judge, Jurist and Legislature”  Denning Law Journal 79, 92.)
In the last thirty to forty years, law schools have become increasingly socio-legal, especially in relation to research. However, this interdisciplinary spirit rarely explicitly involves history. Most of the time, it is social, political, and social science research methods to which legal academics turn. And, although some socio-legal work happens to be historical, such work rarely draws upon wider historical theory and methodology or makes connections with the Legal History canon.
Legal history is seen as a specialization in law schools rather than as a method. The legal history canon is often regarded as being closed off and largely inaccessible to newcomers. It is sometimes caricatured as being old-fashioned, overly academic, and hardly relevant to those who wish to practice law in the twenty-first century. Rarely is legal history viewed as part of the toolkit for all those who study law.
My new book argues that this needs to change.
The Need for Subversion
In Subversive Legal History: A Manifesto for the Future of Legal Education, I argue that we need to place legal history at the center of the law curriculum. History must be seen as an integral methodology that is part of the toolkit for all those who study law. Further, history is not only desirable — it is necessary.
History provides a necessary corrective that questions and challenges the traditions and habits that law students are otherwise socialised into. The study of legal doctrine can quickly become a form of indoctrination. Students are taught that the law is objective, autonomous, and largely self-cleansing. Law degrees teach them to disregard non-legal arguments and considerations. Yet, this frustrates the development of the very skills the students need to be the professionals and citizens of tomorrow.
Legal history is necessary if it is subversive. This may appear as an odd or even contradictory argument. Surely overthrowing the weight of tradition would require less of an emphasis upon history, not more. We may ask what is to be gained by teaching twenty-first century law students about, say, the medieval forms of action. Indeed, legal history as a field can be seen as epitomizing the very culture that needs to be questioned. It is often seen as the most traditional, conservative and, to be blunt, dull of all legal areas. It is a subject to which the word “academic” in the most pejorative meaning of that word could easily be attached.
And yet, it is my contention that a historical understanding can be anarchic rather than archaic. It is a form of comparative law, focusing on similarities and contrasts across time rather than space. Historical understanding reveals that other ways of thinking and other solutions are possible because other ways of thinking and other solutions were adopted or considered previously. A historical approach makes clear that every dividing line drawn in the law and everything the current legal system considers sacred have not always existed. Instead, these are the product of a choice taken, a usually pragmatic response to social needs. They are authored, imbued with the values, expectations, and biases of particular people. They can be questioned.
Maitland once made a similar point in a letter he wrote to Dicey. He opined that:
The only direct utility of legal history … lies in the lesson that each generation has an enormous power of shaping its own law. I don’t think that the study of legal history would make men fatalists; I doubt that it would make them conservatives. I am sure that it would free them from superstitions and teach them that they have free hands.
This subversive understanding of legal history does not correspond with the perception of history held by most legal scholars and legal students. This is because history is paradoxically both everywhere and nowhere in the law school. It is everywhere in that every discussion of how a case developed over time seems to be historical. However, history is also nowhere in that, although law students are constantly looking at cases and statutes from previous centuries, they are seldom understanding these materials within the correct historical context. Rather, these materials are typically only relevant insofar as they help explain the current law. And more often than not, they are situated in a prevailing narrative of progress whereby the law is seen to be constantly improving itself over time. The previous practices, alternative arguments, and the roads not taken are ignored and, as a result, the options for the future are severely reduced.
Placing history at the heart of the law curriculum would entail exploring the intellectual and social histories of areas of law. Rather than just focusing on the substantive rules that operate in a given field today with discussion of the current social context, a subversive legal history would explore how those rules – and the wider discourse of which they are part – developed over time, paying attention to the persons who shaped the law and the sociological context in which they found themselves. Rather than just saying that a change in the law happened and explaining this by reference to the judicial or parliamentary primary materials, such an approach would explore why the change occurred, and therefore write back in the stories of activism and the alternative paths not taken. Rather than just citing scholars, we must look at how textbook writers and other commentators interpreted, and therefore shaped, our understanding of the law and how these interpretations reflected their own values. They need to become persons rather than unexamined names.
Of course, there are examples of legal scholars who already ask such questions and embed this approach in their teaching. However, reference to the bookshelves of textbooks on any frequently taught area of law would underline that such an approach is not the norm in English and Welsh law schools. It is striking how many legal scholars who are carrying out research which has a significant historical component hesitate to call themselves legal historians. It appears that legal history has an image problem and, as I discuss in the book, this results in part from ultimately misguided divisions in the field.
Subversive Legal History: A Manifesto for the Future of Legal Education is intended to begin and further conversations about how historical approaches to law can be used to enrich legal education and to develop in our students the skills they need to be successful professionals and citizens. Graduates of the twenty-first century need to be critical thinkers who question the mass of information (including opinions presenting themselves as fact) that are now at our fingertips and who are comfortable and confident exploring a range of radical solutions, being able to think the unthinkable. Knowing the past does not mean being bound by it – a rigorous historical approach should actually be liberating.
The Need for Subversion in Law and Religion Studies
A subversive legal history can be embraced by all legal scholars and students. However, it is perhaps especially valuable for those who are interested in the interaction between law and religion. In some respects, law and religion scholars devote more attention to history than is the disciplinary norm in law. Many law and religion works include discussion of history and many of the legal works on medieval canon law, the Reformation and its aftermath are written by legal historians who are also renowned law and religion scholars.
Yet, law and religion studies can benefit from the further subversive use of history in three respects.
First, a subversive use of legal history can highlight that law and religion studies must be inherently interdisciplinary. This insight is accepted in many jurisdictions. John Witte Jr. has regularly referred to understanding law and religion as a “dialectical interaction” which includes reading law religiously as well as understanding religion legally (see, e.g., “The Study of Law and Religion in the United States: An Interim Report” (2012) 14 Ecclesiastical Law Journal 327, 328). Yet in England and Wales, the study of law and religion has been a much more recent phenomenon. It has largely been limited to law schools, with legal academics generally focusing on the changing state law affecting religious groups and individuals.
As with legal history, the development of law and religion as a specialist sub-discipline within law schools with the usual ways of distinguishing itself from other sub-disciplines (the bespoke journals, book series, conferences, courses, and so on) has limited its reach. Not only has law and religion been constrained by its place within law schools; it has also been restricted by its limited interaction with other areas of law. Regarding and developing law and religion as a specialism has quickened its development in a host of ways but has come at a cost.
The cost of this confinement of law and religion is not only felt by experts in the field. Individual scholars can, of course, break out of the containment and already do, given that they need to be able to teach other topics. The larger cost, perhaps, is that the mainstream legal discourse still pays insufficient attention to religion. It is seen as a specialization rather than something that interacts with a whole host of areas of law and which all who analyse, practice, or study law need to be aware of in a multicultural and multi-creedal society.
Second, subversive legal history can question the stories of progress that are often told about the law and which side-line religion. Even Maitland, who grasped the importance of religion and religious law historically, made the error of assuming that the same was not true of the society in which he lived. In his lectures subsequently published as The Constitutional History of England, he uttered the line that “religious liberty and religious equality [was] complete”. Generations of lawyers have assumed likewise, accepting the narrative of secularization.
Robert Gordon used the label “evolutionary functionalism” to describe the background assumptions in much legal discourse. The idea of progress, including the rise of law and the decline of religion, is entrenched and taken for granted. This means that the continued public role of religion is regarded as being a throwback and usually problematic. Religious courts, involvement of churches in schools, or particular criminal provisions protecting religions are seen as historical relics.
A subversive legal history questions the progress narratives that underpin the secularization thesis. It can show how the relationship between religions and political authorities have ebbed and flowed over time. Historical analysis can reject simplistic linear accounts of legal change and show that the role of the religious groups in the public square is not an anachronistic throw-back. This complicates, nuances, and enriches our understanding of how religion and the law interact.
Third, a subversive use of legal history shows the importance of looking at the legal landscape through different lenses. As I argue in the book, law can be subverted by focusing on different perspectives, such as by bringing gender or race to the fore. Feminist legal history, for instance, highlights, challenges, and disrupts understandings and narratives about law by showing how law is gendered and through taking a grounded approach that centralizes gender.
As Joanne Conaghan puts it, the result is that “law emerges simultaneously gendered and gendering”; both “a repository of values replicating and reinforcing wider social and cultural arrangements – including gender-based attitudes, practices, and beliefs – and also actively implicated in the construction and maintenance of such arrangements”. (“Labour Law and Feminist Method” (2017) 33(1) International Journal of Comparative Labour Law 93,112).
A feminist approach to law and religion studies can disrupt the conventional narratives, values, structures, priorities, and questions by centering upon gender and the questions of power this raises. It can question, dismantle, and replace everything we thought we knew.
Legal historians lamenting the lack of attention afforded to history in law schools have a point. But the time has come to act upon this point rather than labour it. There is a need to transform our understanding of what legal history is and what it can do so that this subversive legal history can then transform what law schools do and how they socialize their students who become the professionals and citizens of tomorrow.
Subversive Legal History: A Manifesto for the Future of Legal Education focuses very much upon the experiences I have had in England and Wales. The details of legal education and the reputation of legal history differ across jurisdictions. However, the subversive potential of legal history is common. History can provide a necessary corrective within legal education and so needs to be at the beating heart of what law schools do.
Thanks to Dr. Sharon Thompson for her comments on a draft version of this post.
Russell Sandberg is Professor of Law at Cardiff University in the UK. His research interrogates the interaction between law and the humanities with a particular focus on legal history and law and religion.
Sandberg, Russell. “Why the History of English Law Has Been Neglected.” Canopy Forum, January 14, 2022. https://canopyforum.org/2022/1/14/why-the-history-of-english-law-has-been-neglected/.