Foreword: ‘Law As …’: Theory and Method in Legal History

Catherine L. Fisk, UC Irvine School of Law
Robert W. Gordon


Legal historians have long taken their intellectual cues from the problematic of the “law and” theory. The “law and” theory has been influential both intellectually and institutionally because of the capaciousness of the conjunctive metaphor. “Law and” allows all manner of claims about the natures of law and history, and about the insights one might gain from studying law as part of other domains of human activity. The pragmatic usefulness of the conjunction papers over abiding doubts about the continuing intellectual coherence of the framework that encompasses so much sociolegal historical work. The sixteen papers in this symposium issue of the UC Irvine Law Review responded to an invitation to consider legal history through a lens other than that provided by the “law and society” framework. Instead of parsing relations between distinct domains of activity, between law and what lies “outside” of it, the objective of historical research about law might be to imagine them as the same domain: “law as . . . .” The ellipses began as a hopeful invitation to consider what law is if it is not half of a conjunction. The ellipses became statement of principle: law can and should be imagined in many ways, including as the five themes reflected in these papers: law as the language of social relations, law as consciousness, law as enchanted ritual and spectacle, law as sovereignty, and law as economic/cultural activity.