The Strait Gate: The Past, History, and Legal Scholarship

Abstract

For many years, history has furnished a conceptual and methodological standpoint, historicism, which scholars have employed to enter into engagements with law. But how do the exponents of historicism — whether conventional or critical — define that standpoint, and what is the nature of the object (the past) that their definitions isolate for contemplation? This essay seeks illumination through counterpoint — an exposition of Walter Benjamin's philosophy of history and its key components: recollection, actualization and constellation. I propose that history can and should be a dangerous form of knowledge, and that Benjamin worked hard to show us how. To make it so, however, requires that one abandon what most forms of contemporary historical inquiry take for granted, history-as-science. To show why, I develop an examination and critique of historicist sense-making in the domain of law, both conventional and critical. I also engage with two recent scholarly attempts to move beyond historicism: how they succeed, where they fail, and what we learn from them.