Causation, Legal History, and Legal Doctrine

Abstract

This short essay is my contribution to a conference on “opportunities for law’s intellectual history,” which took place at SUNY Buffalo Law School in the fall of 2014. The essay offers a friendly criticism of what I perceive to be a trend in legal history. In particular, it criticizes legal historians’ seemingly increasing reluctance to offer causal explanations of past events or current practices. While recognizing the empirical and conceptual difficulties that beset any effort to identify “causes” of historical events, I argue that legal history cannot effectively serve the critical function many historians hope for it without making controversial judgments about historical causation in particular cases. The bulk of the essay is devoted to identifying and analyzing four potentially critical types of history: Impeaching Accounts, Genealogies, Stories, and Restorative Projects. My aim in discussing each type is to show that critical histories that purport to remain agnostic as to the driving causal factors at work in the historical phenomena under examination are either insufficiently critical, insufficiently historical, or both.