Truth in Context: Sketching a (New) Historicist Legal Pedagogy

TLDR: In this article, the authors show that law can be studied through a historical lens that reveals it as an artifact existing alongside other artifacts, many of them non-textual, such as painting and illustration, to understand the moral imagination that must inform all just laws.

Abstract: Although law is sometimes considered as (and taught as if it were) an autonomous discipline, it and other cultural artifacts are historically situated — they “grow out of a particular place and time.” One way to examine this intersection is with the tools of historicism, whether traditional (e.g., the historical determinism of Hippolyte Taine) or “New” (e.g., the cultural poetics of Stephen Greenblatt). Historicism teaches that any artifact bobs in a causal stream. It is both producing and produced. Through reverse engineering of artifacts, then, we can learn something about how they issued and what they may have in turn influenced. So just as we can study a fossil to form some idea of the animal that formed it, so may we study any artifact to comprehend its author and to draw what Taine calls a “moral history” from it. My piece will elaborate on this notion and show that law (as found in statutes and cases, for example) can be studied through a historical lens that reveals it as an artifact existing alongside other artifacts, many of them non-textual. And these non-textual artifacts provide a pedagogical shortcut to the law’s larger cultural context. Ultimately, I will argue that non-textual artifacts like painting and illustration illuminate a path to understanding the moral imagination that must inform all just laws.