“Critical Legal Histories Revisited”: A Response
Article first published online: 23 FEB 2012
© 2012 American Bar Foundation.
Law & Social Inquiry
Volume 37, Issue 1, pages 200–215, Winter 2012
How to Cite
Gordon, R. W. (2012), “Critical Legal Histories Revisited”: A Response. Law & Social Inquiry, 37: 200–215. doi: 10.1111/j.1747-4469.2012.01302.x
- Issue published online: 23 FEB 2012
- Article first published online: 23 FEB 2012
The author responds to comments reappraising “Critical Legal Histories” (CLH) (1984). CLH critiqued “evolutionary functionalism,” the idea that law is a functional response to a typical modernizing process. CLH argued that “society” was partly constituted of legal elements and that law was too indeterminate to have reliably regular functional effects. CLH has been misinterpreted as calling for a return to internal histories of “mandarin” doctrine: all it said was that some doctrinal histories were valuable, without privileging them. This response clarifies that the relations of law to society and social change, and of high-level official law to everyday local law are distinct issues. CLH is mostly moot today, since social-legal historians have incorporated its insight that legal concepts are embedded in everyday social practice. But other fields have revived deterministic Whiggish accounts of progressive development and of law functional to it—to which CLH's critique still seems relevant.