History's living legacy: an outline of ‘modern’ historiography of the common law

Abstract

This essay offers a survey and analysis of the principal methodologies adopted and the aims pursued by ‘modern’ historians of the common law in England, Canada, and America, from Blackstone's time to the opening of the twenty-first century. From the beginning of this period through to the 1950s, the analysis reveals a steady current of contention amongst legal historians in respect of what legal history could do and just how these aims might be realised. The post-1950s era is characterised by the accelerating influence of the methodologies and objectives of extra-legal disciplines. These include, most especially, the work and techniques of social and political historians, and, eventually, the various manifestations of the postmodernist challenge to the segregation of ‘objective’ historical interpretation from the polemical and creative reconstruction of the past. It is argued that the infusion of this methodological new blood has been largely beneficial, enhancing the reach and subtlety of legal historiography, and boosting its overall capacity to act as an intellectually enriching discipline.