Historicism in Legal Scholarship

Abstract

In this Article I want to discuss some of the familiar ways in which legal scholarship deals with the fact that law exists in and must to some extent always be understood by reference to particular contexts of space and time. I shall be making and trying to support an argument that historicism, the recognition of the historical and cultural contingency of law, is a perpetual threat to the aims of our legal scholarship as conventionally practiced; that to defend against the threat (or to protect themselves from becoming aware of it) legal scholars have regularly and recurrently resorted to certain strategies of response and evasion; and finally, that these strategies have so influenced the practice of legal scholarship as severely to limit its intellectual options and imaginative range. In concluding, I will attempt to suggest some ways in which legal scholarship might break free of these limiting modes of response.