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Sunday, March 17, 2013

A question on Law and History

Dear all,
can you explain the meaning of the title of James Whitman's article "Bring back the glory!"? What does prof. Whitman think about the role and development of legal historical studies?
I remind you that you can post comments about the different topics discussed using the post in which the topic is presented.


  1. The development of legal historical studies found in XIX a moment of 'great splendor', until the succession of a number of reasons that lead to a complete change of perspective. The nineteenth century in fact, gave birth to historic triumphs in the field of law and legal science. The methodological approach used by scholars will gives birth important scientific achievements that will make the law: 'the map of the society'. This 'golden age', which has seen the rise of the German historical school and after the Pandectists, found a period of great change in the field of social science. The important role played by the study of law, especially within the ‘academic world’, understood as fundamental to society, will be stricken by the process of specialization that involved social science, leading to affirm the autonomy of sociology, political economy and political science. But, it is really important to comprehend that the change of the methodological and scientific approach to law is the key to understand the change that we have witnessed over the XIX and XX century, conceiving the laws no longer as ‘map of the society’, but as a simple empty tool, conditioned by the system and by the procedures. In order to this, Withman note the importance in the nineteenth, of the figure of Puchta and its scientific methodology inspired to an ‘genealogy of concepts', from which will see the light the 'Begriffsjurisprudenz'. What can be done to recover the glorious past, abandoning the current situation towards a return to the 'old glory'? First of all, should abandon the notion that the history of the law is nothing more than a study of a reality detached and unattractive. ‘The first way of vindicating the importance of legal history is to return, in a critical spirit, to the ambitious intellectual programs of the nineteenth century’ and in this I agree fully with Whitman. No doubt we need to keep in high regard, the important scientific research conducted by the scholars of the nineteenth century. Legal Historian, today, must regain the public role that set him apart in the nineteenth century because his figure is extremely important to give a correct answer to all the key issues affecting the Western law. In a sense, social science needs of its historians. Withman then speaks of legal histories; Initially I didn’t understand the what W. meant, until I realized that you should not forget how those legal histories reflect fundamental principles, that influenced the law and its moral and then the society, despite these stories are not ‘literally’, law. W. mentions the name of Fogen and the story of the suicide of Lucretia and the killing of Verginia; in them of course there is a deeper meaning that brings us straight to a historical view of society at the time and is extremely important as designate certain moral principles of Roman law. Why therefore W. focuses on this area of legal history? Literally I would share what Withman says in his article: ‘They do not tell us what a society is, but they do tell us what is at stake, what a society finds it worth fighting over’. And it is here that we rediscover, under a different perspective, as the figure of the historian of law is required. In short, we need these histories to make sense of the law

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  3. In the nineteenth century, legal history was a very important science. Many of the most interesting work of the century was produced by legal historians, and the scholars of all fields assiduously followed developments of legal historical literature.
    In this century law was considered as the map of the society: if anyone wanted to detect the nature of human society, he was required to understand the law.
    This was the age of Puctha: as the law was a system with basic principles, so the society had to be.
    Whitman says that now things have changed: law isn't more the map of society, now it is an empty container, "it has become the technical execution of the unsystematic, and indeed unprincipled, decisions made by the person at the real centers of social power".
    But why? Why the legal history lost the importance it had during the nineteenth century?
    First of all because during the ninteenth century the law hadn't valid competitors among the academic disciplines. Another reason is because the legal source, at present, compete with a variety of other sources (differently from the 19th century). The tragedy of nazism has contributed too.
    This age of specialization wiped out the supremacy of the legal history.
    This is the reason why Whitman speaks about "bring back the glory!": he wants to re-evaluate the rule of the legal history.
    To do this he proposes two ways, and the first "is to return, in a critical spirit, to the ambitious intellectual programs of the nineteenth century". The legal scholars must prove that the generalizations of the nineteenth century wrong; the excessive overgeneralizations about alleged "basic principles" of the legal system must be avoided, but "middle-range generalizations, generalizations about particular developments within particular legal traditions, remain both possible and immensely significant for our social self-understanding".
    Then Withman cites some fables (those of Lucretia and Virginia) and history (the defeat of the nazism, traditional chinese law). He wants to explain that this old fables and history carry a moral message. We can take as example the nazism: after a senseless slaughter of millions of people, was inaugurated an era based on "human dignity" and "human rights". So this stories serves to put the moral foundations of the law, "to give it its morally imperative character. The force of the law rests on a moral obligation, created by terrible crimes".
    Whitman concludes saying that law is not the map of the society, or the expression of basic principles, "but it is, as it were, the text for debate in the pubblic sphere".
    We analyze these histories to make a sense of the law, because history is a large part of what gives law its sense.

  4. Ylenia Coronas, Roberta Di Lorenzo, Diana Oro Nobili, Edoardo Merlini

    “Bring back the Glory!” is a resuming expression that Professor Whitman uses to highlight a great idea about the role of Historical Legal Studies.
    During the nineteenth century, legal history was the nursery of the social sciences, but today it’s only an ancilla of the law faculty. Behind the reasons of this change there is the meaning of the Whitman exhortation. In fact one of the main causes of this mutation is represented by the reductive role of actual law, rather than the role that it has had in the past. The Law has been shift from a map of society to technical execution of the unsystematic decisions made by the persons at the real centres of social power. From this point law matters less, and so legal history matters less!
    So the Whitman “Bring back the Glory!”’s aim is, according to our way of thinking, a purpose to considered with the same importance, as in the past, the role of law. Consequentially the study of legal history would also have an important role too. For instance, we could not deny the strict relationship between Law and History: this relation between them exists because Law is rooted in History, in particular not in historical mere events, but in the critical approach that humanity has to them. We can face an example in the greatest slaughters of history, as Whitman quotes the tragedy of the Nazi period. With the critical approach, arose in the mankind of the second post-war period, the ruling class have tried to make laws against any behaviour which could remind the Nazi one.
    To bring back this Glory, Whitman proposes two such ways: one involving a return to some of the great intellectual programs of the nineteenth century, and one involving the so called Rechtsgeschichten. Recalling the second way, History which the Yale professor is referring isn’t a mere study of law basic principles ( otherwise the law would be static in time), but as a study of changing values born as moral obligations from the chronological events.

    Ylenia Coronas, Roberta Di Lorenzo, Diana Oro Nobili, Edoardo Merlini

  5. James Q. Whitman wants, with his treatise, explain to us the importance of history linked to the law.
    History is the memory socket of the progress of each age. Without history there would be no progress, discoveries, we realize what is really interesting to be stato.Oltre we avoid repeating mistakes scary humanity (Hunt streghe , Olocausto.) Is not true that we move away from the progress, only helps us to live completely.
    history is the heritage of man ... if there were, no one would take note of what happens.
    Entrance to the concentration camp at Auschwitz: "those who ignore history, will be forced to relive it." And that,in my opinion, already says a lot.
    So yes, the story is equivalent to a ‘Magistrae Vitae’, because through that we can improve our society.
    the story is like a book in a library that can read and understand in order to avoid mistakes that others have done in the past.
    Whitman wants to tell us what, in my opinion, is this:
    is extremely detrimental to omit the story does not qualify it in a natural way to the law.
    without this connection we can not understand the various nature trails that led to our law to what it is today.
    for example:In order to address the study of the History of Italian Law is essential to remember well the compilation of Justinian,or to understand why we have a civil law rather than a common law.

  6. I think that we find the meaning of the title of Whitman's article "bring back the story" in this definition:law matters less, and so legal history matters less. Nineteenth-century societies were conscious of themselves as the product of a number of historic legal triumphs: ex. the triumph of private property, the triumph of policing over crime. In this atmosphere, legal historians seemed to have a natural public role. All of that is now definitively past.
    Nobody really believes any longer that the laws are the map of society.
    W. thinks that the law has became the tecnical execution of the unsystematic decision made by the persons at the real centers of social power.
    The core problem is indeed that legal history matters less than it did in the nineteenth century, because law itself matters less.
    W. explains that we must begin by insisting on the importance of law itself. in particular, we must transcend the view of law as the banal labor entrusted to Richter und Henker (Judge and executioner ).
    To bring back this Glory, Whitman proposes two such ways:
    the first involving a return to some of the great intellectual programs of the nineteenth century,
    the second involving the so called Rechtsgeschicht, history is referring isn’t a mere study of law basic principles ( otherwise the law would be static in time), but as a study of changing values born as moral obligations from the chronological events.
    "Law reflects, in an unsystematic but telling way, some of the basic value commitments of society-commitments such as the contemporary American commitment to the free market, or contemporary European commitment to human dignity. Law also reflects stylized histories of a given society's past history like that of the American triumph over race slavery, or the European triumph over Nazism. These are value commitments and stylized histories are the natural territory of legal historians, who can best claim a role for themselves in public debate if they think of themselves as historians of value, rather than as historians of social realities.”

  7. The title "Bring back the Glory!" expresses Whitman's desire to live again the grandiose aspirations of important personalities like Marx, Weber and Jhering(who worked as legal historians)but also like Durkheim and Mauss (who began working on problems of legal history). While during the 19th century legal history was "the nursery" of the social science,where its most important propositions were all produced by legal historians, today instead legal history is only an "ancilla" of the law faculty. Whitman explains which are the factors that have diminished the importance of law, because if law is less important,legal history is less important too. First of all, the intellectual world changed: in 19th century we can find new disciplines(economics,sociology departments,etc.) while when Marx and Weber were young students, there were only 2 choices:philosophy and law(where law seemed more promissing!).
    Secondly, the Nazi period destroied German culture : in particular legal historians became engaged collaborators of the regime (only if they weren't driven away of Germany).
    Whitman thinks that if we want to give a larger place to legal history in the intellectual world, we have to underline first of all the importance of law itself, and we have in particular to transcend Kraus' view of law (with law reduced to such a role).

  8. James Whitman,in his article "Bring back to glory",explains that the glory years of legal history lie in the past;infact, during 19th century,social sciences were based on legal history.
    In this century there was few people who chose studying academic disciplines;they have to choose between philosophy and law.
    Now instead,in many law faculties history is a compulsory exam.
    In the 19th century studying legal science offered privileged access to tha highest workings.
    In this period societes were conscious of being the products of historic legal triumphs;so legal historians became the chronicles of the society transformations;they had a public role as well-informed critics.
    Legal sources of the 19th century are still used,but today they compete with many other sources.
    During the Nazi period so much of German culture was destroyed.
    Then there was the age of specialization,that obscured,in some way,the prestige of legal history.
    Studying law in Europe is different than in U.S.:in Europe studying law is more intellectual;in U.S. the study of law is much more practice.
    Whitman thinks that we shouldn't accept the restricted role that has been assigned to the legal historians.
    He says that the other sciences have seen "the return of Grand Theory" and we should do the same.
    He justifies it because law itself(since 19th century) matters less than other sciences.
    We must give the right importance to law itself.
    The expression"bring back to glory" means that we have to vindicate the fundamental role of legal history and return to the intellectuals works of the past,in a critical spirit,proving the generalizations of that century is wrong..
    Whitman infact proposes not only to attack the great generalizations of the past,but also offer important new generalizations of our own.
    The history without a critical approach to the past, is just a series of "events".
    History is what gives law its sense;we uses history for justifying what we have done .
    Therefore back to the past serves to give a sense to history itself.
    There is the necessity to make emerging new basic principles!
    Whitman says that we can't be the historians of basic principles,but we can be of these basic value commitments.
    Two examples of basic value commitments are:1)the principle of free market in American law;2)the principle of human dignity in Continental Europe.
    In other words,Whitman considers useful to give a look at the works of the past with a constructive point of view,because you learn only after recognizing the mistakes of the past.
    Law,according to Whitman,is not the map of society(it is not the expression of a society's indefeasible basic principles),but only the text for public debates.

  9. The 19th century gave birth to great results dealing with law and legal science field.Whitman emphasizes the return to the ambitious intellectual programs of the 19th century,keeping in high regard the importance of scientific researches conducted by the scholars of the 19th century.Law was considered as the compass of society.Whitman notices that now law isn't more the map of society because now other disciplines have an important key role and law hasn't the supremacy and the leadership anymore.Whitman wants to revaluate the role of legal history,because he thinks that the glory years of legal history lie in the past.Whitman says that in the past a vivid intellectual child had only few choices,especially if he was not talented for other disciplines as theology and classical philology.So if he wanted to understand the nature of human society he only had to choose between philosophy and law.Many scholars gravitated to the law applying juristic methodology to the understanding of history and society.The force of the law rests on a moral obligation,created by terrible crimes,binding on the generations.Whitman compares the idea of triumph in the 19th century and the present.In America many people consider a triumph the free market over the evils of state socialism.In the 19th century triumph was considered the defeat of feudalism by revolution.So the approach seems totally different.I deduce that Whitman wants to underline the importance of history linked to the law because in history law finds itself.Without this fundamental link and connection it's almost impossible to understand what led to our nowadays law system.

  10. Nineteenth century: to the most it is the age of Victoria, a period of contrasts and compromise ,of the great reforms in favour of the poor people, but also the cradle of new scientific approaches. The past was seen as the source of inspiration for the many intellectuals of the time , we have to thank for the great amount of works and new ideas. Rediscovering “the glory” of past meant give new impulse to ancient glorious legal system. We Italians have based in Rome the center of imperial authority and its laws, that has fundamentals on natural legality. But the first Modern countries, England, Spain and France claimed the importance of maintaining peace and order, with the creation of rules and laws: a predominant role was assigned to people, with the birth of groups of people who controlled the social life and elaborated laws: in Spain the <Cortes” in France the General States and in England the Parliament. Is that the glory of the past we should revive ?

    What we know is the principle of the nineteenth century legal system was” the exercise of the free will”, in contrast with the role of law

  11. This article was born in response to the specific question "Wozu Rechtsgeschichte?". Before we explain the title, we also have to understand what the answer "Bring back the glory!" means.

    Of course the glory of the nineteenth century was lost and can't be recovered. If times change, roles change as well.
    If Marx and Weber were educated as legal historians, the same thing cannot happen today. But certainly we can't ignore the fact that the fundamental postulates of the nineteenth century were all formulated by the legal historians which later were questioned.
    The world, the society, and the legal order (with his primary sources) have change. And also "The whole intellectual world changed".
    Starting from the Römisches Staatsrecht of Mommsen, passing through methodology of Puchta, and finally reaching us with the new current situation: the concept of law is changed, and the role of the legal historian also.
    And this is how the unhappy fate of the legal history was fulfilled.

    Whitman, however, is pleading not to completely bend to this unfair downsizing of legal historians. He feels the possibility, the need, the duty to believe in the Return of the Grand Theory.

    This happens insisting on the importance of law itself, through two ways: first of all, recovering "great intellectual programs of the nineteenth century" starting from status of contract, but avoiding generalizations, or useless attacks to our predecessors. The methodologies of Puchta and Mommsen remain basic value commitments. Now we have to apply a different kind of task like "historians of shifting Values".
    This also considering the "Rechtsgeschichten" of Fögen (like a legal histories) or the story of the defeat of Qin Legalism by Confucianism. Remaining faithful to the truth with a proper assessment of the evidence and a sincere and careful interpretation we can give them the sense that they need and the deserved role of the legal historians to bring back that glory!

  12. Whitman believes that the height of legal history occurred in the nineteenth century as identified by prominent historians such as Marx and Weber. Law was used to understand society, and thus law became a reflection of that very same society. Whitman notes that “Law was a system, with basic principles – and that suggested that society too might be a system with basic principles” (74). He explains that it was thrilling for individuals to define the basic principles of society, connecting emotions with establishing legislation (which is why it was used to understand history, etc…)—and furthermore this is what Whitman understands to be lost in current day society. With the abolition of feudalism and other historical victories, the nineteenth century possessed individuals who were captivated by their history, and used that drive to pursue legislation. Whitman contrasts this with attitudes of present day, believing that a component of the glory of law has been lost, devalued even. This shift is due to 1) competition with various primary sources, in which individuals are more so looking at works of art and literature rather than legal texts, and 2) Nazism, in which German culture was shattered. This decline in value and attitude of legal historical studies is one that Whitman greatly condemns. Furthermore, he provides two possible solutions to reclaim this lost glory: 1) bring back to some of the great intellectual programs of the nineteenth century, and 2) Rechtsgeschichten. In addition to being a method of education, intelluctual programs of the past instilled a sense of passion in individuals, a vital component necessary to resurge legal history. We must critically analyze why values are shifting and what they are shifting into, as a part of a new intellectual process. One example he uses is Europe’s increasing commitment to this notion of human dignity—and he wants us to explore the question “why is this occuring?” The second point Whitman mentions, Rechtsgeschichten, explain that there is this moral component deeply tied to human nature and furthermore law, and the Nazi era can best exemplify this. Although not directly legal texts, these fables and histories help identify “what is at stake, [and] what a society finds it worth fighting over” (79). Whitman believes that histories give law meaning, and in turn mankind must rely on history to further promote intellectual growth.

    Maya Shair

  13. When James Whitman titled his article: "Bring Back the Glory!" he was making a statement about how he feels the present day legal history movement has changed, in comparison to the 19th century. "Glory Days" is a common expression used to describe a feeling of nostalgia for the past, and Whitman's title signifies to the reader that Whitman believes the 19th century was the "Glory Days" for legal history. Whitman refers to the "Glory" as the time period when legal and historical studies were at their peak, and when legal scholars and historians such as Weber and Marx were researching and spreading legal history as the most prominent social science. Whitman explains how since then, the legal history academic movement has declined; he attributes this change in value to the Nazi movement of the 1930's and 40's, that destroyed German culture, as well as the growth and expansion of academia, including new fields such as sociology and economics. In Whitman's eyes, one cannot understand present day legal studies without understanding what the law is created and built off of, and that is its history. Whitman discusses how in this day in age, it is just as important to study legal history in conjunction with present day law in order to recognize the meaning behind present day law. He cites many examples, including the idea of the importance of "human dignity" as it stems from the Nazi era, an era where the idea of human dignity was suspended, which resulted in the tragic death of millions.

  14. Alice Borsacchi

    I learned through this course and through personal research that during the nineteenth century, the history of law has shone more than in any other era.
    In fact, at that time, the story also served as a source from which they drew all the social sciences. Very large characters have been educated according to the precepts of the history of law, for example, Marx and Weber. The same Jhering has created works of mold scientific and social ingenuity memorable. And we can also mention the work of Henry Maine that has been taken as a model by intellectuals from all over the English-speaking world. Just as Durkheim and Mauss began their path by analyzing problems of the history of law. And the thoughts of Tönnies of which are the result of the debate between the German legal scholar and the Roman historians. In summary we can say that the role and the development of studies of the history of law have played a key role in the development of all other social disciplines. It is therefore essential to follow the developments and innovations in the history of law. But over time this role has disappeared, so much so that today we can say that the history of law today is a mere appendage of the Faculty of Law. How was this possible?
    It almost seems that the law itself has lost importance in recent years. As if the other academic disciplines had been competing with the history of law. And this is partly true, because in the nineteenth century there were so many of the materials that are now easily accessible by am university student. First, to understand all the disciplines you had to go to the law. The law still remained, since the time of Montesquieu, a mirror of society. The nineteenth century was the golden age of Puchta, an age in which scholars from all over the Western world thought it was possible to identify the fundamental principles that were the basis of any legal system. As if the legal system was a set of ingredients easily understood and identifiable.And all was then brought back to the company, so how James Whitman says in his article Bring back the glory, << ... if the basic principle of the European legal system of the nineteenth century was the exercise of free will, it seemed perfectly fair to conclude that the same basic principle of the European society of the nineteenth century was the exercise free will >>.

    So many have simply carried the principles governing the legal systems of the company, trying to figure out how the company would develop. Hence, the role and development of the history of law equivalent to the role and development of the society. The example cites James Whitman is the book that covers legal issues in general, the "Römisches Staatsrecht Mommsen."
    It was as if the companies were aware of the nineteenth century to be the product of a series of legal triumphs historians of the era: the triumph of Rechtssprüche over Machtsprüche, the triumph of private property in feudalism, the triumph of the contract in the state, the triumph of the police in crime. And as a result the role of legal historians was almost like a public role of intellectuals.
    Today all this property has been wiped out and no longer exists.
    All this is now definitely past. Historians today are very more likely to do research on the sociology or on 'economics or philosophy. The laws are no longer a mirror of society because the mirror is shattered. The principles of the legal system are now independent of the principles that govern society. The company is now divided by subject, as my university curriculum. To understand the society then we rely to economists, political scientists and sociologists.

  15. ( ... continue ... )

    Not only that, the law is not a transaction between systematic elements, but an exercise technique in which the activity of the interpreter becomes discriminatory. The rule of law is simplified and this is less attractive for those embarking on new studies.
    Maybe today would take Jhering political studies and not legal. If nineteenth-century historians were attracted legal sources, today the archives are full of sources never consulted.
    If we add to this situation the historical events that have razed and company archives, everything becomes bleak. We think that the Nazis destroyed the German society and culture, critical source for historians of law.
    The study of law has lost prestige and allure in Europe, no doubt.
    So it is impossible to return to the golden age of the nineteenth century, history lovers motivation and incentives are just doing research among old books and records, trying to relive the great path of Max Weber, Marcel Mauss or Karl Marx.
    Historians today are not resigned to the decline of industry in the history of law and fact are trying to bring it back to its former glory.
    The only solution in my opinion would be to bring law to the levels of the nineteenth century. Only by increasing the importance of the law, the role of the historian of law acquire the prestige it once was. Then it is necessary assert the importance of legal history, going back to the ambitious programs intellectuals of the nineteenth century and even improving them. We have to think of the evolution of law and legal history as the evolution of human society. The analysis, research, motivation and creativity must once again become fundamental. We need to get back to having great ambitions and make big plans and even refute the broad generalizations of the nineteenth century.
    The key would be to take a cue from the historians of the nineteenth century and interpret them in today's society, avoiding to reduce everything to the simple theory of evolution. Letting Go generalizations and focus on specific theories: this is the solution.
    The truth is that, for how hard they legal historians today, it is difficult to revive the former glory. However, there are positive situations, such as the American law, which identified in the free market one of the basic elements of society.
    So we can safely say that the principle of the free market is a founding principle of all disciplines of the American society , including the American law. And then the role of legal historians is to explain how the principle of the free market has also influenced the legal system.
    A further example we find in European law, because even in our system a founding principle has been developing for years: that of human dignity. Then the role of lawyers today is to explain how human dignity is entry into the legal and through which passes. The same task of those who had to explain the role of Lucretia in the history of the Roman Republic and those who had to explain the role of Verginia in the history of the right to commissioning of the Twelve Tables. These tales have influenced the contemporary moral. Just as the Nazi experience has created the principle of human dignity. All these stories and these situations ("Rechtsgeschichten" says Forgen). And here is that the law and its strength are based on a moral obligation, created by terrible crimes, vividly remembered, binding the generations. The law and her strength are in relations with something very ancient in the human world, that is, with morality understood as a memory of the sacrifice, as is also the basis of Chinese law and the history of defeat Legalism from the Qin Confucianism. Every legal system begins from a particular event depending on the country concerned, such as the principle of the free market that Americans go back to the establishment of R. Reagan. These values are shared by most members of society, but not all. Values creating those "Rechtsgeschichten" that represent history.

  16. ( ... continue ... )

    So we should not look to the past as an accumulation of facts of record, but as a series of facts that have deep meaning for the present that we live.
    And what is even stronger for the history of law.
    Every legal historian has had the role of leaving something to the developments of later generations.
    The stories of the past historians to indicate now the mistakes to avoid. As American society with slavery. We need the history and teachings.
    Therefore, in my opinion, we need to learn from history and what it has to say. Avoid the mistakes of the past and gather evidence right will be the perfect method to get to the truth and the sense of the past as a function of the present and of the future ...