Immanence and Transcendence: History's Roles in Normative Legal Theory

Abstract

3 At least as regards legal philosophy. There is considerable literature on law and the philosophy of time (see Maks Del Mar, 'Modelling Law Diachronically' in Del Mar and Lobban, Law in History and Theory (n 1)) and there is much literature on the philosophy of history that could usefully be considered by legal historians, e.g. María

Review of Legal History

“…), 2014, Lobban and Del Mar (eds.) 2016; Kennedy, 2017: 558.). One of the more striking interventions in this relationship is Kennedy’s (2017) recent attempt to think through the reasons why theorists and historians speak past each other in legal scholarship and to suggest how they could talk to each other.…”

“…The point being that legal history appears to have descended into paralysis where everything is shown to be contingent and just one context after another (Desautels-Stein, 2015: 42). While not quite the malaise of other disciplines, there is a fault line here between ‘immanence and transcendence’ (Kennedy, 2017) and between ‘law’ and ‘society’ which, though seeming separate, speak to a similar set of concerns and which speak to not just the relation of legal history to sociolegal studies but to other legal disciplines as well.…”

“…Legal historians’ frustrations with the endless contingency seen in legal history scholarship has been seen on both sides of the Atlantic and in Australia (Desautels-Stein, 2015, 2016; Kennedy, 2017; Schultz, 2015; Tomlins, 2012a, 2012b). The bind that legal historians have seemingly found ourselves in is a tight one.…”

“…One of the more striking interventions in this relationship is Kennedy’s (2017) recent attempt to think through the reasons why theorists and historians speak past each other in legal scholarship and to suggest how they could talk to each other. She uses the ideas of ‘immanence and transcendence’, where the former is ‘a privileging of the here and now’ (and arguably the ‘there’ and ‘then’ of legal history), while the latter ‘is focused on the possibility of exceeding the here and now’, to typify the different approaches of history and theory and to propose a way of integrating them (Kennedy, 2017: 559–560). Kennedy’s concern is with the potential for legal history to aid in normative theorizing.…”

“…The issue is that the analysis legal history offers is ‘ever more contextual, more contingent’ (Desautels-Stein, 2015: 39–40) and that legal history can offer only ‘contingency, complex relationality, constitutiveness, indeterminancy’ (Tomlins, 2012a: 34–35). It is not that anyone wishes a return to grand narratives – which are associated with a now out-of-fashion approach to legal history – but that there is a yearning for something more than ‘a never-ending series of social contexts’ (DesautelsStein, 2015: 42; see also, Kennedy, 2017). These concerns are not just about the how of legal history – what should legal historians examine and why, and what conclusions can they draw and why – but are also, in tandem with the first anxiety, about the relationships that legal history has with other disciplines including history, legal theory and sociolegal studies.…”