Calvin Woodard Notes.

Introduction 1

Outline 2

Why does Legal History have such a low status? (Arguments) 3

Status of LE cannot be altered 3
Status of LE Need not be altered 3
Status of LE Should not be altered 4

Why Woodard thinks the status of Legal History should be altered (Counters) 4
Counter 1 4
Counter 2 5
Counter 3 8

Introduction

Legal History as a discipline has always been ascribed a lowly status in the system of Legal
Education. In many American schools, it is not even a part of the legal curriculum. It is seen as a
monotonous, unengaging subject which is, furthermore, bereft of any practical value in the legal
profession.

In his article, Woodard, a firm advocate of the subject, tries to analyze why Legal History has
such a low status. He explores the common arguments advanced against the discipline, and offers
counters to these arguments. He aims to show why the field deserves a much higher standing
than what it currently has, and calls for a modification of the legal curriculum to include this
subject.

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Outline

● Introduction
Reasons for low status of LE - Boring, No relevant practical knowledge, Not taught in schools

● Why does Legal History have such a low status? (Arguments)

1)Cannot be Altered:
● Opp logic causes Inherent Contradiction

2) Need not be Altered

● Main Justification - Cultural attribute
● But
○ Students already undergoing cultural studies in USA
○ Why LE> Other cultural subjects

3)Should Not be altered

● Otherwise susceptible to pitfalls of Antiquarianism

● Why Woodard thinks the status of Legal History should be altered (Counters)

1)Possible for LE to be dynamic in nature

● Persuasive Ideas
● Scientific History

2)Needs to be altered
● Inculcates Extra Legal element
● Avoid Ahistoricalness, caused by
○ Decline of ​stare decesis
○ Entrapment within Maine Maitland Mold
○ Tool Conception of Law

3) People today not susceptible to antiquarianism

● Legal Pragmatism

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Why does Legal History have such a low status? (Arguments)

1) Status of LE cannot be altered

Legal History is an amalgamation of 2 subjects - history and law. Both history and law have
inherently antithetical methodologies and strands of logic. Legal Knowledge is utilitarian in
nature, while History is an academic, seemingly impractical, discipline. Law subscribes to the
logic of authority, the newer the better, while the historian engages with the logic of evidence,
the older the better.
With such dichotomy in the subjects, it is bound to have a low status.

2) Status of LE Need not be altered

The main raison d’etre accrued to Legal history is its humanizing attributes, which transforms
legal technicians into wise lawgivers. As Plucknett argues, the cultural aspect of legal education
is necessary for a liberal legal education

However, in the first place, students in the US already undergo some form of cultural training in
the form of a BA degree before entering law school (This is in contrast to UK where students
join law school right after high school). Thus they do not need additional cultural training in the
form of LE.

Secondly, even if cultural training is required, why can’t this be acquired via other subjects like
sociology, psychology and the like? Why is it necessary to integrate LE in their course?

Since a)most students already undergo cultural Knowledge, and

b) cultural knowledge can be attained through other subjects. It doesn’t matter even if LE has a
low status, and it can continue with current status.

3) Status of LE Should not be altered

As of now, the status of LE is low, which is beneficial as it helps us evade antiquarianism and
the pitfalls associated with it.

Antiquarianism is an inescapable fixation on the past, such that there is a glorification of

particular period of the past. This means that one tends to devote oneself to the historic study of
a particular period, often ignoring the manner in which law has evolved. For example,
Blackstone was preoccupied with the medieval period.

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 This is harmful as it results in stagnation of the discipline. The less deference that is paid to the
past by engaging in Legal History, the less likely we are to glorify it blindly. This way, we
develop a more mature and sophisticated approach towards law, in which we are able to sieve
out those learnings from the past that can be applied in the present, thereby cultivating forward
thinking. Hence, it is a boon that we are not accruing as much importance to the field of LE.

Why Woodard thinks the status of Legal History should be altered (Counters)

1)​Counter 1
The first argument was that the contradicting methodologies of its constituents subjects, Law and
History, binds it to a low status that cannot be altered.

This argument assumes that Legal History is borrowing the methodologies of 2 distinct subjects.
However, it is to be noted that Legal History is a subject of its own and has a methodology of its
own.

● Legal History as the study of Persuasive Ideas

Legal History is that part of the past which is important to understanding the present. It traces the
journey of a law - how a law has evolved over time, the advantages and drawbacks of certain
laws, how the relevance of certain legal ideas has increased/decreased over time. Persuasive
ideas are those ideas which have gained widespread acceptance in the society. They are specific
to a certain time and context. Legal History is the study of these persuasive ideas.

● Scientific History
Around 1850, an interdisciplinary notion of history developed, called scientific history.It started
with a gradual awareness of the multifarious forces that affect man, including social,
environmental, political, hereditary and the like. Social scientists began to identify these factors,
and study them in isolation, and the histories of these areas were studied in distinction.
Economics begot economic history, Politics begot Political history - and law begot Legal
History.

2)​Counter 2
The second argument is that the low status of LE need not be altered, since a)most students
already undergo cultural Knowledge, and

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b) cultural knowledge can be attained through other subjects. However, it’s important to note
that, more than culture, it is the extra legal element that needs to be focused on.

● Extra Legal Element

Extra legal element refers to a broad understanding and appreciation of the past as a factor in
present day law making practises. Despite its capital significance in the profession of law, many
students are devoid of this aspect. This can be best be nurtured by the study of LE.

Furthermore, not being taught LE also engenders a sense of ​ahistoricalness​ in students.

● Ahistoricalness
Ahistoricalness​ refers to the reliance of the legal systems solely on the present to define and seek
remedies for legal issues, without any reference to the past. Dean Rostow argues that this results
in confining one’s perspective such that one emerges as a limited technician.
Furthermore, disattaching law from precedent could suscept law to the circumstances in the
given time, which could be undesirable. For example, decisions of lawmakers could be affected
by populist comments of journalists, since the law has to no longer take precedent into account.

Ahistoricalness in contemporary law can be attributed to 3 main developments - the decline of

stare decesis,​ entrapment within the Maine Maitland Mold and Legal Pragmatism.

a) Decline of Stare Decesis

The most important link between the current law and the past was stare decesis, or the doctrine
of precedent. However, with the advent of Legal Realism, stare decesis began to be seen as the
undesirable tethering of the present to the past. The doctrine was severely undermined and
discredited, as people wanted he current law to be free from entanglements of the pasts.

b) Entrapment within the Maine Maitland Mold

The 2 most prominent scholars in the field of Legal History were 2 scholars- Maine and
Maitland.

Maine’s ideas were very influential. He was the Father of Anthropology and Comparitive Law.
He had also conducted various transnational studies. He convinced his contemporaries that
merely relying on common law technicalities was inadequate,. He emphasized that Legal history
was about the ​development of Legal institutions​. It was he, who first popularized the idea of
development. H propounded 3 main agencies of law -
1) Fiction, or the use of imagination as a basis to create a law
2) Equity, which refers to a universally accessible characteristic of law,

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 3) Legislation, which refers to law making as a public process

Similarly, Maitland was another brilliant academician in the discipline of LE. He had a
predisposition towards the institutions of English Common law during the medieval period, and
his research mainly focused on this.

Such was the prominence and influence of the two academicians in the discipline, that people
considered their work to be synonymous with Legal History itself. This enkindled the deleterious
notion that LE was limited to the ideas established by Maine and Maitland. Consequently, any
academic inquiry in this field didn’t transcend the study of medieval English law institutions.
This meant that people remained nonchalant to/ignorant of the changes that took place in the
established relationship between the past and the present. This is pernicious as it constricts the
scope of the study and impedes the dynamic nature of the discipline.

c) Legal Pragmatism
Legal Pragmatism, or Sociological Jurisprudence, was a reform movement that wanted to alter
the the traditional conceptualization of law. They propounded the ​tool conception of law,​ in
which law was a tool that was meant to fulfill a particular purpose, to help lawyers win their
cases, or administrative authorities formulate policies. According to Dean Pound, law is an
instrument to be used for ​social engineering.

Since history cannot tangibly help law achieve its instrumental purpose, it is seen as irrelevant in
the legal world, thus breeding ahistoricalness, and its undesirable ramifications.

It is to be noted that ahistorical is distinct from anti-historical, or active hostility towards history.
Ahistorical conception is receptive to the pasts - it merely does not prioritize the role of the pasts
in the legal system.

3)​Counter 3
The third argument is that the low status of LE should not be modified, as otherwise it would risk
opening the Pandora’s box of Antiquarianism and its concomitant problems. However this need
not be a concern at all. Given the increasing proclivity towards Legal Pragmatism, there is no
danger of modern law students being blindly subservient to precedent. Conversely, the actual
worry needs to be of students not adequately assimilating history in law.

JOURNALISM ARGUMENT

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