Legal History, Inside and Out

Abstract

MANY of us would have recognized Freedom Bound as a Christopher Tomlins production even if his name were not on the cover. One reason is that he is characteristically explicit and self-conscious about the role of law in the stories he tells. Law, when Tomlins writes about it, is as much of an actor as the people he writes about. Law “supplied the institutional means by which . . . new commonwealths . . . were organized.” Law “established the conditions of migrants’ departure and of transit.” Law “was the conceptual structure, the organizational discourse, by which their moves were enabled” (69). And those are just a few examples from a single page. Law in this book is always doing things, but it is not doing them in a fuzzy half-metaphorical sense, as it is in some legal scholarship. Here law is doing specific things, and it is doing them in a specific way, a way that we see more often in the work of lawyers than in the work of historians. This may not sound like a compliment, but I mean it as one. Tomlins is taking a view of law from the inside as well as from the outside. I am using the terms “inside” and “outside” differently from the way those terms are often used in this context. One of the oldest divides in legal scholarship is the one between law in books and law in action. A person who is working inside a legal system, either as a decision maker or as someone trying to persuade a decision maker, necessarily has to give priority to the formal surface of the law, to the words written in the books. Of course we know that the formal law is not always a good reflection of social practice, so a person working outside the legal system, trying to understand the behavior of the people governed by it, will see the law in books as just one of several factors producing the law in action. As applied to legal history, this division translates into what is often expressed as a distinction between “internal” and “external” legal history. Internal legal history describes legal change as unfolding by a logical process within the law itself, without any cause external to the legal system. No actual human being believes that this is how legal change takes place, but the norms of legal discourse require lawyers and judges to write as if they do, and sometimes they find it hard to