Future(s) of American Legal History

Abstract

Critical Legal History (CLH) is currently being subjected to sustained critique and re-examination by some legal historians. This review essay looks at this debate in the context of two recent books on American legal history: Christopher Tomlins’s Freedom Bound: Law, Labor, and Civic Identity in Colonizing English America, 1580–1865 (2010) and Laura Edwards’s The People and Their Peace: Legal Culture and the Transformation of Inequality in the Post-Revolutionary South (2009). In keeping with the thrust of CLH scholarship, both books problematize the connection between law and narratives of freedom and equality in American history, and both show law as a significant force for non-freedom and inequality. Yet, in a recent symposium on Robert Gordon’s classic article ‘Critical Legal Histories’ (1984), both authors chose to distance themselves from CLH. After explaining what is significant and important about each book, this review essay describes the debate in that symposium. Notwithstanding the extensive disagreement between the contributors over the use of so-called ‘mandarin’ legal materials in historical research (sources like legal treatises that reflect elite perspectives), the review essay makes the point that this disagreement is much less important than the challenge raised about the long-term tendencies and preoccupations of CLH and asks what difference it might make to take the postmodern turn advocated by these authors.