Historical Analysis of Law

Abstract

Kenneth Ledford's and Michael Meranze's insightful comments raise important questions about the nature of legal history in general, and of the history of punishment in particular. According to Ledford and Meranze, modern legal history is social history, to be distinguished from “old-style intellectual history.” A product of the latter “historical method no longer in favor,” “The Right to Be Punished” draws Ledford's and Meranze's criticism for its insufficient “root[s]… in the soil of social history” and for its inadequate “account of the … social basis of the modern will to punish” and “the social embeddedness of punishment.”

Innovative Legal Modeling for Interdisciplinary Studies on Law and Economic Behavior

“…As explained earlier, the historical approach makes use of multidimensional and holistic models to reconceptualize economic and legal paradigms. Weber's theory of social action (economic psychology) can be applied to legal normativity or vice versa, by detailing the subjective meaning of individual social actions born from various motives such as rational-instrumental, rational value, zone of life, and traditional [27]. The integration of this concept becomes clearer when we engage Wardiono's scientific-critical view and man's "aurea aetas" from Kelsen's pure legal theory [28].…”

Evolution of Indigenous Rights Under International Law: Analysis from TWAIL Perspective

“…The present article aims to provide a historical analysis of internationalization of indigenous rights. The purpose is not to record non-partisan legal history of indigenous people but to describe it from a particular point of view (Dubber, 1998). It tends to focus on the derivative character and role of international law in relation to the structures of empire and conquest that engulfed indigenous people (Anghie, 2007; Bowden, 2005; Robertson, 2005).…”

Critical Analysis of Law: Interdisciplinarity, Contextuality, and the Future of Legal Studies

“…In the past, comparative law all too often has served as an opportunity for the dissemination of one legal system's norms or processes to another; the traditional world of comparative law was clearly divided into producers and consumers. By contrast, the new comparative law, like the new model of interdisciplinarity, is horizontal not vertical, egalitarian not hierarchical, bilateral not unilateral (Dubber 2006).…”

“…Historical analysis of law, regarded as an intradisciplinary enterprise, may place law within a historical context to perform some function or other-perhaps to test the legitimacy of a given legal norm in light of the principles said to underpin it or to construct its genealogy as a technique of governance-without regarding itself as the result of an interplay between the study of history and the study of law (Bechor 2007;Lindseth 2010;Dubber 1998). Historical analysis of law, in this internal sense, is often disparagingly compared to so-called "lawyers' history," in the sense of a tendentious account of legal developments that advocates for a certain norm or interpretation of a norm, as if the argument were addressed to a court.…”