In this article’s contribution to the symposium Theorizing Contemporary Legal Thought, I inquire into some of the topic’s methodological difficulties. In particular, I suggest that, as the writing of contemporary legal thought is the writing of a kind of history, we ought to pay attention both to the special historiographical challenges we are likely to experience as well as those avenues that may better ease our passage into a telling of the “legal contemporary.” Ultimately, my argument is that, although it has been in the periphery for a generation, structuralist legal history may be an edifying way of usefully constructing a history of contemporary legal thought.
But first things first. Perhaps you haven’t heard of contemporary legal thought. This could be because you already know it, only by another name, maybe the “new private law” or “new legal realism.” Or maybe contemporary legal thought is a mystery due to a temptation to look for analogies in other disciplines, like art history. If so, the idea of “contemporary art” may seem of little use, however, since we typically suspect legal history and art history to be very different things. Trying a different approach, you might wonder if contemporary legal thought is a meaningful category at all. Might it not be the same thing as the “modern” legal thought of the first half of the twentieth century? If not, and “modern” and “contemporary” have different meanings in legal history, what could they be? Falling further, you might even wonder whether “modern” has any stable meaning, much less a “postmodern” contemporary.
Interestingly, in whichever register we ask it, the question of contemporary legal thought has rarely been answered. One possible explanation for this lack is the balkanized state of legal studies in the United States, a condition in which judges, lawyers, and legal academics might operate in an intricately fragmented grid of expertise. From this point of view, when we imagine “law” what we envision is something like the law school faculty webpage, divided up into its disparate areas of experts. There are the business law experts, the civil rights experts, the constitutional law experts, the international law experts, and so on. In “normal” times, these departments of expertise are not understood as having much to do with one another. Moreover, the debates that go on within these areas among the experts themselves splinter the territory even further. The history of the legal disciplines, according to this balkanized view, is a history of shards. As Christopher Tomlins has suggested, “This is the scholarly world we live in now, a world of beauteous fragments that lacks a kaleidoscope, a world of noncausal relationality.”
Although there are sure to be any number of causes for our scholarly hermitry, I suspect that this “beauteous fragmentation” is partially a residue of the postmodernism that arrived at American law schools in the 1980s, and that it is this residue that now works as a block on our theorizing about contemporary legal thought. That is, one possible reason for our general lack of conversation about the “legal contemporary” is that we have arrived at a place in which it has become increasingly difficult to have such conversations. Poststructuralist views of law have yielded an orientation toward legal history whereby the idea of unities and cross-cutting “totalizations” have become increasingly suspect, and “grand narratives” about evolving periods of legal thought have gone out of fashion. But as the broad sweeps have been (appropriately) rendered problematic, legal historians have thrown the baby out with the bathwater, pushing the discipline to be ever more historicist, more contextual, more contingent, albeit more professionally accepted. To be sure, there was much wrong about the breadth of prestructuralist historiography, and it remains a curiosity how it managed for as long as it did.
The importance of theorists of the local and contingent operations of power and ideology as otherwise as different as Geertz and Foucault; the prominence of such theoretical terms (constantly redefined and contested) as hegemony, discourse, and identity, the multiple shifts from the global to the local, from the macro to the micro, and from structure to conjuncture and event in the distinctive intellectual practices of the era . . . are all both symptomatic and constitutive of these developments [in post-structuralist theory]. ￼￼￼
So, in many respects, the late-twentieth-century wave of critical historicism was a good thing. But with the vision of the microgrid of faculty expertise that followed the critique also came a blindness to our potential to usefully generate patterns of argument in so much of our legal language. Paralyzed by the new habit of seeking to establish discontinuities and ruptures, many legal historians turned away from these deeper digs for fear of committing the genuine errors of evolutionary functionalist historiography. I think, however, that as these patterns and structures have slipped into our disciplinary blind spots, we become less likely to get a glimpse of contemporary legal thought. Perhaps like you, I’m interested in seeing into these blind spots, but as we seek to do so we needn’t follow the old roads back to an outdated evolutionary functionalism, with its progress narratives and crass totalizations. The way is open back to a structuralist legal history—a way that generates intelligibility not through the postmodern elaboration of a never-ending series of social contexts, but through the construction of image and style, constrained by and operating through a conceptual structure. This structure is neither apodictically accountable, nor always slipping down the rabbit hole of context-dependent perception. Structuralist legal history, something quite other than late-twentieth-century “critical legal history,” presents a yet-unexplored way to get to contemporary legal thought.