Literature and legal history: analysing methodology

Abstract

Whilst canonical literature has been used in conjunction with legal history, there is very little direct discussion of the broader methodological issues involved in doing so. This paper seeks to redress that balance by analysing a range of inter-disciplinary approaches and studies. After consideration of Richard Posner’s critique of depictions of law in literature, it is argued that, viewed in isolation, their significance in terms of the history of legal doctrine, procedural technicalities and institutional structures is limited. More broadly, however, and notwithstanding the abstract nature of the cultural inter-relationship between law and literature, it is possible to use literary sources to illuminate legal history. First, legal historians have used literature to provide cultural comparators and points of reference in order to offer fresh perspectives on the past. Second, at a more conceptual level, law and literature studies have augmented understanding of the ways in which literature has influenced the evolution of legal history. Third, recent developments in socio-cultural history have demonstrated that when literature is used in conjunction with other non-fictional sources, it has significant potential in constructing wider social and cultural contexts and analyses, which can then provide new insights into legal history.