American disputes over history in law

Abstract

The United States is widely viewed as a country where legal education is all but completely focused on preparing students for the practice of law. Such a view, however, is incomplete. The aim of this article is to present a perspective which shows that humanities, including history, are not only present in the process of educating lawyers in the US but appear much more than they used to. References to history, political philosophy, and philosophy of law are, therefore, increasingly noticeable both in terms of the doctrine and the functioning of law in the US. This article traces the relatively young development of legal history in the US – that is, history studied by lawyers with an eye to the law – since the 1950s, showing its growing popularity, both in US law schools and in terms of publications appearing in the US. Numerous disputes between the many schools of legal history and of legal thought are discussed, including the views of proponents of, among others, the so-called case method, legal realism, sociological jurisprudence, the Wisconsin school (of legal history) of the 1950s and 1960s, and the critical school (of legal history) of the 1970s and 1980s. The author argues that these disputes have translated into the growing importance of historical references in current political and legal disputes, especially in the field of constitutional law, beginning with the differences between the originalists and advocates of the so-called republican revival in the 1980s.