Critical Legal Histories

Abstract

Critical legal writers pay a lot of attention to history. In fact, they have probably devoted more pages to historical descriptionparticularly the intellectual history of legal doctrine-than to anything else, even law and economics. Such a preoccupation within a radical movement is at first glance surprising. After all, lawyers have, by notorious custom, used history conservatively, appealing to continuity and tradition.' And in the less common situations in which lawyers have used history to criticize the status quo, they have usually resorted to social and economic history, to show that the original social context of a legal rule reveals it was adopted for wicked or obsolete reasons, rather than to the history of legal doctrine.2 What could conceivably be radical-or, as some unkindly ask, even interesting-about rewriting the history of doctrine? I will attempt, in this article, to give a brief account of the impulses that have prompted the Critical scholars to their chosen ways of writing history (or rather histories, since the movement has actually spawned several different historiographical practices). I'll start by trying to describe a vision of law-in-history that has tended, as I'll