The use of history in law: avoiding the pitfalls

There are very few legal theses nowadays which concentrate solely on legal history. However, most legal theses will have aspects of history in them. It is often the first response of a lawyer to trace the history of a particular provision or principle, in order to find its roots or its authority. Often, when beginning a dissertation, the law student will decide that the first (or easiest) task will be to look back over the history of the chosen aspect of the law, from its foundations to its status in the law today. However, while lawyers sometimes feel that history comes naturally to them – judges routinely trace the development of legal principles in their judgments, it is how we teach aspects of the law and often how we write about law – as Reid has warned, it only comes naturally in a certain way.1 In criticising Chief Justice Earl Warren’s comment that ‘All lawyers are, of course, in some sense students of legal history’, Reid points out that lawyers are interested only in ‘the latest interpretation of the rule’ and are not worried about the rule in its original context, only ‘the net result of [its] evolution, the latest judicial, non-historical appraisal or interpretation of the rule.’2 Thus, while we may think that a legal historical approach is natural in legal writing, we have to consider the purpose of the approach. There are certain pitfalls and dangers in using a legal history approach and so we must be careful not to be complacent and use history for our own ends. As long as we are aware of the dangers, however, it will be easier to avoid them. In order to illustrate these dangers, we will first take a brief look at the use of history in legal thought.