Response: The Politeness of History

2015 ◽  
Vol 40 (01) ◽  
pp. 264-269
Author(s):  
Kunal M. Parker
Keyword(s):  
Common Law ◽  
Historical Knowledge ◽  
Knowledge Practices ◽  
Legal Thought ◽  
The Common ◽  
Democracy In America

In my response to the reviews of my book by Marianne Constable, Shai Lavi, and Renisa Mawani, I situate the argument of Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism within a concern with contemporary forms of historical knowledge. Where contemporary historical knowledge practices subsume their objects of investigation, I adopt the temporality of the object of investigation—namely, the common law—as the structure my book. In different registers, Constable, Lavi, and Mawani urge me to take up more explicitly the foundational questioning about which they care. I welcome their readings. However, given the distinct problematic from which I start, I argue, the book is not in the first instance an argument about the ontology of history or law.

The Predicament of Modern Law: Parker's History of a Law Without a History that Matters

2015 ◽  
Vol 40 (01) ◽  
pp. 238-244
Author(s):  
Marianne Constable
Keyword(s):  
Nineteenth Century ◽  
Common Law ◽  
Legal Thought ◽  
History Of ◽  
The Common ◽  
Democracy In America ◽  
The Way

Kunal Parker's Common Law, History, and Democracy in America, 1790–1900: Legal Thought Before Modernism shows how nineteenth‐century thinkers thought about law and history differently than do post‐Holmesian modernist sociolegal scholars, whose ahistorical law appears contingent on politics, power, or will. Understanding time and history to be essential to law, nineteenth‐century jurists conceived of a common law that was able to work with and to shape democracy, Parker argues. Contra modernist histories then, Parker claims that the common law was not a reactionary force that stood in the way of democracy and economy. His history of legal thought before modernism suggests, further, the predicament of antifoundationalist modern law and modernist scholars: stripped of time and without its own history, how can law be anything other than politics, power, or will?

scholarly journals INFIDELS IN ENGLISH LEGAL THOUGHT: CONQUEST, COMMERCE AND SLAVERY IN THE COMMON LAW FROM COKE TO MANSFIELD, 1603–1793

2017 ◽  
Vol 16 (02) ◽  
pp. 375-409
Author(s):  
EDWARD CAVANAGH
Keyword(s):  
Intellectual History ◽  
Political Change ◽  
Common Law ◽  
Legal Thought ◽  
Starting Point ◽  
The Common ◽  
Law Reports ◽  
To Receive

English common law reports are dense with ideas. Yet they remain mostly untapped by intellectual historians. This article reveals how intellectual history can engage with law and jurisprudence by following the notion that “infidels” (specifically non-Christian individuals) deserved to receive exceptional treatment within England and across the globe. The starting point is Sir Edward Coke: he suggested that infidels could be conquered and constitutionally nullified, that they could be traded with only at the discretion of the monarch, and he confirmed their incapacity to enjoy full access to the common law. This article uncovers how each of these assertions influenced the development of the imperial constitution in the seventeenth and eighteenth centuries, when it came to war, trade and slavery. Identifying each of the major moves away from Coke's prejudices, this article argues that sometimes common lawyers responded to political change, but at other times anticipated it.

Some Proposed Legislation of Henry VIII

1936 ◽  
Vol 19 ◽  
pp. 119-144 ◽  
Author(s):  
T. F. T. Plucknett
Keyword(s):  
Legal History ◽  
Common Law ◽  
Henry Viii ◽  
Legal Thought ◽  
Human Material ◽  
History Of ◽  
The Common ◽  
Law Reports

One of the most fascinating features in the study of the history of the common law as revealed in six centuries of law reports is the possibility of tracing the growth of legal thought over long periods of time; hints, suggestions, unsuccessful attempts to establish a rule or a doctrine often appear in such sources long before the innovation has received the final approbation of the courts, and so we are privileged to watch the progress of legal speculation, to overhear the debates upon new departures, and to estimate the forces which produced or obstructed some projected innovation. It is this possibility which gives such life and vividness to legal history. In many fields of thought we are mainly confined to those considered statements of results which have been deliberately left to us by philosophers, theologians, or politaical theorists, but the historian of the common law has more intimate and more human material at his disposal.

The Times of Law

2015 ◽  
Vol 40 (01) ◽  
pp. 253-263 ◽  
Author(s):  
Renisa Mawani
Keyword(s):  
Critical Theory ◽  
Common Law ◽  
Henri Bergson ◽  
Temporal Relations ◽  
The Common ◽  
Democracy In America ◽  
The Times

In this essay, I situate Kunal Parker's Common Law, History, and Democracy in America, 1790–1900, within a broader set of intellectual currents engaged with questions of time and temporality. Although Parker's book centers on the common law and history and develops specific conceptions of time, in so doing, he invites legal historians and legal scholars to ruminate on the times of law, particularly the temporal relations that law has with itself. Placing Parker in conversation with Henri Bergson and the recent Bergsonian revival in critical theory, I suggest that law has a duration, a formulation that opens other itineraries to consider the dynamic times of law.

scholarly journals Taking Legal Realism Offshore: The Contributions of Joseph Walter Bingham to American Jurisprudence and to the Reform of Modern Ocean Law

2008 ◽  
Vol 26 (3) ◽  
pp. 649-678 ◽  
Author(s):  
Harry N. Scheiber
Keyword(s):  
International Law ◽  
Constitutional Law ◽  
Common Law ◽  
Legal Process ◽  
Legal Realism ◽  
Legal Thought ◽  
Historical Literature ◽  
The Common ◽  
The Rich ◽  
Ocean Law

A conscientious reading of the rich historical literature on the American Legal Realist movement would provide no suggestion that any of the academic writers and other commentators in that movement ever gave the slightest attention to international law.1 It is entirely understandable that the Realists should be remembered as having been concerned exclusively with the analysis and reform of domestic jurisprudence and legal process; for there was only one exception, in this regard, and this was the Stanford law professor Joseph Walter Bingham. Bingham (1878-1973) is a figure who has been almost entirely neglected by historians of legal thought.2 And yet he was one of the earliest American legal commentators to promote an iconoclastic, reformist approach to the common law and American constitutional law. His writings in the 1910s and 1920s, as will be discussed further here, were important early-day contributions to the development of what would become the central canon of Legal Realism. His uniqueness among the Realists rests in the fact that he would go on to play a prominent part in contending for a basic reform in international law during the decades that followed.

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