David Lieberman and Chris Tomlins on Being Historical
7 August, 2013
The Network for Interdisciplinary Studies of Law hosts an evening discussion with two eminent legal and intellectual historians, with distinctive approaches to ‘being historical.
David Lieberman is the Jefferson E. Peyser Professor of Law and Professor of History at the University of California, Berkeley. He teaches in Berkeley Law’s doctoral program in Jurisprudence and Social Policy. He studies the history of legal thought and is especially interested in the relationship among law and legal theory and other bodies of speculation, such as the social sciences and political theory. He is the author of The Province of Legislation Determined: Legal Theory in Eighteenth Century Britain and has produced a critical edition of Jean Louis De Lolme's 1771 The Constitution of England; or, An Account of the English Government. Other recent publications include: “Why Law? Philip Selznick and the Study of Normative Systems” (Issues in Legal Scholarship); “Bentham on Codification” (Selected Writings of Jeremy Bentham); “The Mixed Constitution and the Common Law” (The Cambridge History of Eighteenth-Century Political Thought); “Adam Smith on Justice, Rights, Law” (Cambridge Companion to Adam Smith); and “Legislation in a Common Law Context” (Zeitschrift für Neuere Rechtsgeschichte). His leading current project is a study of Jeremy Bentham’s democratic theory, provisionally entitled, The Transparent State: Bentham’s Democracy. He is a Distinguished Ressearch Visitor in the Law School, University of New Soth Wales.
ABSTRACT: My presentation is stimulated by two recently completed writing assignments: an article-entry for an encyclopedia on utilitarianism on the 19th-century English jurist, John Austin,; and a brief discussion of “Hart and Bentham” which forms part of an article on “Bentham’s Jurisprudence and Democratic Theory.” (Both items are attached; there is no need to read more than pp.1-15 of the article on Bentham.) The two items engage familiar challenges for intellectual history. My critical remarks concerning H.L.A. Hart’s treatment of Bentham on sovereignty focus on the interpretative problems created by Hart’s explicit concern to have Bentham’s jurisprudence speak to current debates in legal theory. In the case of Austin, we have an author for whom the eventual reception and influence of his jurisprudence differ significantly from the setting in which that theory was first composed. If in some sense such issues of anachronism and reception are generic (and perhaps excessively discussed) issues for the history of ideas, are there versions of these issues more specific to the history of legal thought? Taking the example of “legal positivism” – or at least that version of legal positivism in which the jurisprudence of John Austin and H.L.A. Hart loom so powerfully – I shall seek to explore how institutional contexts and organizing frameworks have served to encourage the sense of a connected and continuous intellectual tradition.
Christopher Tomlins is Chancellor’s Professor of Law at the University of California Irvine. Previous appointments include Research Professor, the American Bar Foundation, Chicago (1992-2011), and Reader in Legal Studies, La Trobe University, Melbourne, where he taught from 1980 until 1992. He is the author of Freedom Bound: Law, Labor and Civic Identity in Colonizing English America, 1580-1865 (2010); Law, Labor and Ideology in the Early American Republic (1993); and The State and the Unions: Labor Relations, Law, and the Organized Labor Movement in America, 1880-1960 (1985). He is also editor of The Cambridge History of Law in America, 3 volumes (2008), with Michael Grossberg; The Supreme Court of the United States: The Pursuit of Justice (2005); The Many Legalities of Early America (2000), with Bruce H. Mann; and Labor Law in America: Historical and Critical Essays (1992) with Andrew King. Other publications include about 170 chapters, articles, editorial essays, reviews, and working papers. Tomlins has also served as editor of the Law and History Review (1995-2004) and of Law & Social Inquiry (2005-09), and is currently the editor of Cambridge Historical Studies in American Law and Society and (with Michael Grossberg) New Histories of American Law. He is a Distinguished Visiting Scholar at the University of Technology, Sydney.
ABSTRACT: Debt, Death, and Redemption: Toward a Soterial-Legal History of the Turner Rebellion
This essay questions the explanatory capacities of the conjunction “socio-legal,” routinely used by law and society scholars, including legal historians by examining its capacity to help us understand a particular incident in antebellum U.S. history, the Turner Rebellion of August 1831. The history of the rebellion has been reconstructed from the normal array of archival sources but is dominated by one document, a 24 page pamphlet entitled The Confessions of Nat Turner written by a local attorney, Thomas Ruffin Gray, based on jailhouse conversations with Nat Turner. By the time they met, Gray had already accumulated considerable independent knowledge of the events of the rebellion, and the second half of The Confessions, a blow-by-blow narrative of the rebellion, bears his mark. But the first half is quite different, dwelling on Turner’s life from his birth until the rebellion, matters of which Gray could have had little independent knowledge. Its central concern is the ascent of a severely ascetic personality to a state of religious grace and the consequences attending that outcome. The essay counterposes Gray and Turner, treating the former as the bearer of a “disenchanting” positivist rationality opposed to Turner’s metaphysical and religious account of his motivation. It pays particular attention to the revelatory “soterial” (pertaining to salvation) aspects of Turner’s narrative, and enquires into their origins. It notes the influence on antebellum evangelical Protestantism of the millenarian hermeneutics of the Massachusetts cleric Jonathan Edwards (1703-1758) and suggests that Turner may have been familiar with some of Edwards’ writings. The essay describes the Turner Rebellion as a fracture in the social-historical and socio-legal normalization of the world (a normalization that Thomas Ruffin Gray labored hard to reestablish). It argues that such fractures grant us access to new orderings of the phenomena with which as scholars we concern ourselves. In this case, a soterial-legal history uncovers realms of human motivation and action that socio-legal history cannot explain, exposing a theological metaphysics at work in an American history and law that we have been taught to think of in determinedly atheological terms.
- Bentham’s Jurisprudence and Democratic Theory: An Alternative to Hart’s Approach, by David Lieberman
- John Austin (1790-1859), by David Lieberman
- Debt, Death, and Redemption: Toward a Soterial-Legal History of the Turner Rebellion, by Christopher Tomlins
Location: Dean’s Board Room, 2nd Floor UNSW LAW SCHOOL