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Law in Theory and History: New Essays on a Neglected Dialogue

Edited by: Maksymilian Del Mar, Michael Lobban

ISBN13: 9781509927975
Published: March 2019
Publisher: Hart Publishing
Country of Publication: UK
Format: Paperback (Hardback in 2016)
Price: £43.99
Hardback edition , ISBN13 9781849467995

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This collection of original essays bringing together leading legal historians and theorists to explore the oft-neglected but important relationship between these two discplines. Legal historians have often been sceptical of theory.

The methodology which informs their own work is often said to be an empirical one, of gathering information from the archives and presenting it in a narrative form. The narrative produced by history is often said to be provisional, insofar as further research in the archives might falsify present understandings and demand revisions.

On the other side, legal theorists are often dismissive of historical works. History itself seems to many theorists not to offer any jurisprudential insights of use for their projects: at best, history is a repository of data and examples, which may be drawn on by the theorist for her own purposes.

The aim of this collection is to invite participants from both sides to ask what lessons legal history can bring to legal theory, and what legal theory can bring to history. What is the theorist to do with the empirical data generated by archival research? What theories should drive the historical enterprise, and what wider lessons can be learned from it? This collection brings together a number of major theorists and legal historians to debate these ideas.

Legal History, Jurisprudence
Introduction Maksymilian Del Mar and Michael Lobban

I. History's Neglect: Attitudes to History in Legal Theory
The Problematic Role of History in English Legal Scholarship and Culture David Sugarman
The Use and Abuse of History in Legal Theory David Rabban
Can Legal Theoreticians and Historians Agree About a Definition (or Characterisation) of the State? Pierre Brunet and Jean-Louis Halperin

II. History's Context: Situating Legal Theory
Reading Juristic Theories In and Beyond Historical Context: An Illustration from Swedish Realism Roger Cotterrell
Legal Realism and Natural Law Dan Priel and Charles Barzun

III.History's Platform: Legal Theory as Part of the History of Law
The Role of Rules: Legal Maxims in Early-Modern Common Law Principle and Practice Ian Williams
Law and Self-Interest Joshua Getzler Corrective Justice: An Idea Whose Time Has Gone? Stephen Hedley

IV. History's Promise: Reforming Legal Theory
The Theoretical Lessons of History Michael Lobban
Historicism and Materiality in Legal Theory Chris Tomlins
Is Comparative Law Necessary for Legal Theory? John Bell
Comparative Legal History as Legal Theory Maks Del Mar

V. History's Tools: Change, Temporality and Practice
Seven Types of Indeterminacy David Ibbetson
Legal Consciousness: A Metahistory Jonathan Gorman
History, Theory, and the Practical Dimension of Legal Reasoning Stephen Waddams
Concluding Reflections Maksymilian Del Mar and Michael Lobban