Law versus History
Nate Oman describes his experience presenting a paper on natural law and legal positivism in the nineteenth century at a history conference. The historians, of course, thought that legal ideas were causally impotent. Here is the thing I find odd. Historians toss off sweeping generalizations about the nature of historical causation–even though their methods have little to teach us about the causes of legal events. When thinking about this issue, I always come back to the famous debate between Jon Elster and Gerald Cohen over Marxist theories of history. From where I sit, Elster won this debate decisively. Without microfoundations, Marxist theories of history are close to mere dogma. But Historians believe they can explain legal events, like Supreme Court decisions, with absolutely no account of causal mechanism at all. This sort of sloppy thinking is really quite astounding. Read Nate’s post, which is eloquent and thoughtful.
Update:For some thoughtful comments by Bruce Boyden, check out this post in the Legal Theory Annex.
All the theory that fits.