Legal history is an indispensable key to understanding how governments, societies and even private groups have formally solved their problems over time. Nevertheless, legal history is today misunderstood, mischaracterized and consequently ignored by most of the legal profession and much of legal academia. This has occurred largely because of:
The first error, overemphasis on legal training, is the most serious because it greatly promotes the other three errors. Legal instruction today, particularly in U.S. law schools, is overly focused on preparing students to work in law firms or other branches of legal practice. While it is of course necessary and proper to prepare students for practice, the overwhelmingly technocratic character of much legal instruction minimizes historical background information that would give students a broader understanding of their field, its proper role, and their true duties. Such a program's end product is the legal technician, a lawyer more or less able to perform mechanical legal tasks but almost wholly unaware of the profession's intellectual and cultural traditions. For a school to leave such talented people ignorant of their profession's history is a disservice to them and to society, and can only undermine the legal system into which they are ultimately hurled.
The second error, a belief in legal history's irrelevance, often springs from this modern legal training and is augmented by the crush of modern practice. As pressure mounts on lawyers to perform tasks faster and faster over increasingly long workdays, they tend to see only the law to be applied each instant. This telescoping often couples with a proper avoidance of outdated law to produce a blanket dismissal of the legal past as irrelevant. Such a view is regrettable among practitioners, but downright shameful when found in law schools. In the crush to churn out "ready-to-practice" recruits, many law courses, particularly upper-level ones, stuff pupils' heads with the latest regulatory ephemera and case decisions instead of walking students through the dry and difficult classics of the legal past. This immersion in legal pop culture is intended to help pupils "market" themselves as novice specialists, but actually does them a disservice. Instead of providing them with a solid knowledge of the law as an ancient and powerful tradition, it transmits a set of quickly dated talking points. This is no substitute for a lastingly useful and valuable legal education founded on an understanding of history.
The third error, "presentism," often occurs where some effort is actually made to teach the legal past. Since all legal pedagogy involves the study of past decisions, it is all too easy to conclude that history is being taught in every legal subject. In most cases, however, "history" is not being taught at all. Instead, the legal past is in many lessons presented as a primitive state of error now inevitably corrected by the more enlightened present. This approach is often found in constitutional law, but can be noticed also in more "practical" courses such as contract, tort and property. At a minimum, the failure to present the past sympathetically in its own context prunes away inconvenient facts and details, thereby obfuscating the past law's reasons and purposes. Even worse, it can lead to irrelevant judgments about the past's "rightness" or "morality" that interfere with the true purpose of historical study, namely to understand how and why the law has developed in different times and in different circumstances. Instead of providing such insights, presentist study results in a skewed picture of the legal past that may be worse than no inkling at all.
This fourth error, simple ignorance of the legal past, is the result of a poor or missing education in legal history such as described above. It is a problem which builds on itself as legal technicians pervade legal academia and fill the younger ranks with those as ignorant as themselves. Since lawyers are the living bastions of the law, their unawareness of the law's past and traditions is a dangerous weakness in the social structure. Without a broad and well-grounded perspective on the law, a lawyer is more susceptible to selfishness, mistaken notions and flights of fancy. When such a person makes use of the law's great powers to further legally immature ideas, he or she can tear the social fabric asunder. The examples of such arrogance are common and plain to the eye: arbitrary and personal rule by judges and officials; misguided and intemperate legislation; overturning of tradition for ill-defined, often revolutionary social goals; vexatious and outrageous litigation; and, behind all of these, a disdain for civil and political rights and processes that endangers everyone.
The Legal History Project shall strive to correct these errors and to restore a proper appreciation for the legal past on the part of lawyers and by society as a whole. It will do so by promoting legal history's study and teaching, by amplifying the best voices in the field, and by helping to educate those seeking knowledge. As part of its work, the Legal History Project will generate and support initiatives to increase the number and quality of legal history courses available in law schools and other humanities programs. It will promote the diffusion and elucidation of legal history texts. It will praise examples of respect for the past, and criticize instances of disrespect. In these and all its other endeavors, the Legal History Project will be guided by a love of the law and its traditions which stretches back, from mind to mind, to society's earliest millennia.
© Peter C. Hansen, The Legal History Project. Issued Easter Day, March 27, 2005.