Legal History and the Decolonial Approach: Thoughts and Questions

I have researched and taught in the area of Legal History for more than two decades. In teaching, coming straight from a taught postgraduate degree in the 1990s, I took over a unit formerly run by Andrew Borkowski, and changed it little by little. It has evolved in various ways (more crime and family, less court in-fighting), but has, until recently, remained firmly anchored in the framework of the Maitland-Milsom-Baker school of ‘classical’ legal history. In the last 5 years or so, first on my own, and then with the input of new colleagues, the ‘socio-legal’ content has been expanded, and, in particular, gender perspectives have come to the fore. What has not really been prominent, however, has been race/colonialism. We are now thinking about that for next academic year – had in fact been doing so even before ‘everything kicked off’ in Bristol this summer, with the Colston statue toppling etc., though that has given a new urgency to this. We will certainly be including more relevant reading and subject matter on this, but the whole exercise, and the initiatives of colleagues in the Law School, has made me begin to think more deeply about things which should undoubtedly have occurred to me before, in particular, asking:

What does the classical framework of English Legal History owe to racialised, colonial mindsets?

I can’t pretend to have a very good answer to this yet, but it seems important at least to pose the question. The ‘classical school’ – and the Selden Society which is one of its most respected manifestations – arose at much the same time as the peak of imperial self-satisfaction, and the popularisation of eugenic theories. What connections should be brought out, in terms of personnel and ideas? There is certainly a feel of ‘linear tunnels’ about the sort of causal connections, and teleology which is evident in some nineteenth century legal historical writing. There is a fair bit of connecting English legal traditions to conveniently monolithic ‘Germanic’ lines of development, and fighting off the suggestion of Roman inspiration. There is very little consideration of other possible influences, or comparators beyond the ‘Western civilisation’ mainstream. There is much ignorance of the legal traditions even of the nearest ‘subject lands’, Wales and Ireland. This has fed through to much modern English legal history, which tends to marginalise the colonial aspects of the common law’s historical realm. The British Legal History Conference is probably the whitest conference I know: recent organisers have clearly made some effort to diversify the content, but the centre of gravity is still England before 1700.

This leads me to question my own research choices, which lie firmly within this comfortable centre. My choice of period of special interest was due to a combination of factors, ranging from childhood fascination with knights (and monks, up to a point, but not ladies and definitely not the ‘lower orders’…) to a bloody-minded determination not to be shut out of something because I did not go to the sort of school which taught Latin, and wasn’t going to be talked down to by a load of posh boys, to the supervision available to me for Ph.D., and, probably, an eager-to-impress desire to take on something well-regarded by lawyers and historians alike. From a beginning in law and economic regulation – a little bit political, but nothing to scare the legal historical horses – I moved into the study of women (definitely regarded as eccentric and ‘trendy’ in some quarters) and, to a certain extent, Wales (quaint but unthreatening?). Although of course there is scope to venture beyond the British Isles whilst sticking to the medieval period, I have never done so, and the state of the discipline during my academic life has not encouraged me to do so. I am not likely to change focus entirely, but, even within medieval legal history, I think there is the prospect of considering with a critical perspective the portrayals of the past which have been allowed to predominate, how they arose and what is missing from them.

History is so important to an understanding of Law’s colonial legacies, and yet Legal History has not really been engaged. Much to ponder – which is as it should be.

GS 29/6/2020

Recommended on the Decolonial Approach: Foluke Adebisi  ‘Decolonising the University of Bristol’ Foluke’s African Skies (28.10.19) https://folukeafrica.com/decolonising-the-university-of-bristol/

 

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