Academic journal article Journal of Politics and Law

Authority and Compulsion in Legal-Historical Method 1

Academic journal article Journal of Politics and Law

Authority and Compulsion in Legal-Historical Method 1

Article excerpt


Case law is often used as evidence of a political action, similar to a pamphlet or speech. Yet, legal decisions are different from other sources in that when they function as precedent they have authority not only in the case at hand, but also in similar future cases. Recovering and using case law in the process of doing qualitative research is then inherently normative in the sense that researchers' actions may influence the outcome of future legal cases. This article argues that case law in the common law world is a unique type of source presenting normative entanglements and challenges not found in other historical documents, and that these normative issues have been overlooked because the concept of authority has received little attention in qualitative methodology. Consideration of the authority of our source material helps us to understand not only the context of the original source, but also to anticipate and appreciate the future uses to which others may put our work.

Keywords: methodology, legal history, textual interpretation, text and context

1. Introduction

Conventional training in qualitative methodology implores researchers to approach their subjects without bias, preconceived notions, or normative agendas. Such training asks the researcher to disclaim authority about the subject, and let the sources speak authoritatively on their own terms instead. Yet, this convention of attempting to put authority in the source rather than the researcher is especially problematic when working with common law legal decisions that have the capacity to function as legal precedent both now and in the future. The recovery and use of common law precedents that are often long forgotten has the potential to change our notions of what the law is and ought to be. Common law precedents upset our visions of both chronology and authority of source material as they act as a form of authority across large spans of time and may be powerfully marshaled by a variety of interpreters, including researchers. The conventional idea that researchers are able to disclaim authority when dealing with historical documents may be impossible in the case of legal texts. Instead, our only option may be to accept the form of authority we practice and make the best use of it we can.

The special normative power of common law precedents is beginning to be noticed. In a recent essay laying out a methodology of comparative legal history, David Ibbetson brought the question of authority to the fore. He divides law into two levels - legal doctrine and legal outcomes - and in argues that in understanding doctrinal sources, "The crucial distinction is [...] the degree of authority they possess" (Ibbetson, 2012, 135-136). Yet, there is no similar mention of the authority of outcomes. Instead, Ibbetson notes that sometimes there is a "feedback loop" in which legal outcomes influence legal doctrine so that "judicial decisions can be treated as themselves generating legal rules" (Ibid, 140).

In furtherance of Ibbetson's turn to authority, but in contrast to his limitation of that authority to doctrine, this article argues that the question of authority permeates all levels of common law legal history because the unique role of precedent makes judicial decisions into potential legal rules. Ibbetson's distinction between doctrine and outcomes may work in civil systems, but it artificially divides the common law in a way that covers over the authority of legal outcomes in the common law world. The recovery and assembly of these powerful outcomes into an account of legal practices with the potential to bind the present, I conclude, makes common law history a uniquely normative-proscriptive endeavor. In order to produce a method of dealing responsibly with common law sources, we must account for the unique and powerful role played by precedent in the common law world.

There are two types of authority that I work to describe in this article so that we can understand the fraught relationship between them. …

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