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5 Law, Culture & Human. 1 (2009)

handle is hein.journals/lculh5 and id is 1 raw text is: Law, Culture and the Humanities 2009; 5: 1-2 EDITORIAL History has a special place in the humanistic study of law at least according to conventional wisdom. It helps to remind us of the contingencies of the present and of the ways time plays out in our thinking about law. More- over, we know that law responds to historical change and that it also makes history. The three pieces in our Commentary Section, Making Sense of the Past re-examine the conventional wisdom about how we as legal scholars and how legal officials can and do make sense of the past. They open up new avenues of inquiry and remind us of the complexities of law's rela- tionship to the past. Among those relationships, humanists can and should attend to law's role as an author of history.' Law writes the past, not just its own past, but the past for those over whom law seeks to exercise its dominion. Law con- structs a history which it wants to present as authoritative when as Laura Kalman argues no historian considers the past authoritative.2 And, law uses history to tell us who we are. Law looks to the past as it speaks to present needs. In the adjudication of every dispute, law traffics in the slippery terrain of memory as different versions of past events are presented for authoritative judgment. More- over, in the production of supposedly definitive statements of what the law is in the form of judicial opinions law reconstructs its own past, tracing out lines of precedent to their compelling conclusion. The relationship of law to history is thus complex and multidirectional. The most obvious example of the way law constructs and uses history is found in the doctrine of stare decisis and the practice of justifying present decisions in light of precedent.3 In the common law tradition the past is supposed to govern the present. Like cases are to be treated alike. Prece- dent tells a judge to adhere to the decision in a previous similar case. As Shauer notes, an argument from precedent ... urges that a decision 1. The following argument is adapted from Austin Sarat and Thomas R. Kearns, Writing History and Registering Memory in Legal Decisions and Legal Practices: An Introduc- tion, in Austin Sarat and Thomas R. Kearns, History, Memory and Law. Ann Arbor, University of Michigan Press, 1999, 3-6 2. Laura Kalman, The Strange Career ofLiberalLegalism, New Haven: Yale University Press, 1996, 180. 3. Alfred Kelly, Clio and the Court: An illicit Love Affair, The Supreme Court Review (1965), 122; also Frederick Shauer, Precedent, 39 Stanford Law Review (1987), 571. Peter Burke asks What is the function of social memory? He speculates that if a lawyer were asked he or she might well discuss the importance of custom and precedent, the justification or legitimation of actions in the present with reference to the past. . . . His- tory As Social Memory, in Thomas Butler, ed., Memory: History Culture and the Mind. Oxford: Blackwell, 1989, 105. © 2009Association for the Study of Law, Culture and the Humanities 10. 117 7/17438 72108096859