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Interpreting Legal Documents

The challenge of historicizing a legal document, although daunting, is not as impossible as it may seem, and you have already overcome many of the initial obstacles in your way.  Sections 1-3 dealt with the technical aspects of reading and analyzing a law.  This section deals with putting law into its greater historical context.  In order to contextualize legal material, it is helpful to first review the debates within the field of legal history about such an activity.

The first significant period of legal history is the period prior to 1950.  Before 1950, legal historians focused on the origins and developments of legal doctrine, without attending to the socio-economic context in which they were created and implemented.  Law and the legal system were considered autonomous (Friedman, 103).  Legal materials, however, are useful beyond the field of legal history.  In the 1950s a group of socially-conscious lawyers, led by James Willard Hurst of Wisconsin, founded a new school of thought with regards to legal history.  They focused on the legal response to economic change, thus including outside factors when considering of legal history (Grossberg, 191).  For this school, law was not autonomous onto itself but a mechanism by which members of a privileged class could obtain economic goals.  As such, law became a tool for society—a dependent variable rather than an independent entity (Friedman, 109). 

Restrictive in its Marxist analysis, new issues and methods soon began challenging the Wisconsin approach (as it became known). The rise of social history in the 1960s and 1970s affected legal history.  “Legal decisions do not take place in a vacuum,” Victoria Brown and Timothy Shannon explained in their reader to American history (116).  “All sorts of external factors influence how lawyers, witnesses, juries, and judges present and interpret evidence.  Racism, prejudice, or outright bribery can and do corrupt the legal process,” they continued (116).  Beyond economic determinants, then, topics such as race, gender, and culture became key considerations to legal historians attempting to contextualize their subject matter by the 1960s (Grossberg, 192).  This new approach to legal history addresses practical, ideological and symbolic uses of the law, while still maintaining that it acts as a dependent variable in society, institutionalizing cultural norms and ideologies rather than creating them (193-194). 

Historians influenced specifically by the Critical Legal Studies movement from the 1970s, however, do not see law reflecting consensual cultural norms and ideologies, but reinforcing and legitimizing particular distributions of wealth and power (Grossberg, 194).  Special interest must be paid to those responsible for lawmaking, and an understanding of how it affects those not responsible for lawmaking must be a part of any conversation about legal history.  Friedman, once a practitioner of the Wisconsin approach, concludes that law both acts as a monopolizing force and reflects cultural norms (115).  It is no surprise, then, that laws which institutionalize economic and social stratifications in society reflect the interests of those in power, and are used to maintain those positions of power and influence at the top of that stratified system.  While contentions continue to exist within the legal-historical discipline, the developments of the different approaches to legal material and legal history is useful for our purposes because it provides a choice in methods of interpretation.  Moreover, despite the arguments over what influences law and how it manages to do so, one thing is clear: since the 1950s it has become acceptable practice to study legal materials in conjunction with their broader historical context; in fact, it has become mandatory.

So what does this mean?  This means when a historian is unable to answer the questions posed in the last section that they must seek out other sources to fill the gaps.  To understand how a particular law functions in society, the historian must look beyond the law itself.  While legal documents can tell us something about the legal structure of a society, they may not be able to answer questions such as: why was the law made; did people abide by it after its implementation; did people rebel against it; did law makers consider it a fundamental change for society, or was the law only considered to be a minor adjustment; did external factors such as sexism, racism, prejudice, class interests, or bribery influence the outcome; how did the law both reflect and reinforce cultural norms and ideologies?  To answer questions such as these, more history work has to be done.  Other primary source materials become necessary, especially for analyzing statues and contracts—legal documents that do not usually detail the law’s development and justifications.  Letters, newspaper articles, speeches, other laws, oral histories and many more resources can, and should, be drawn upon to contextualize a legal document.  If “law has a life of its own,” as Hoffer, Stueck and Hoffer suggested, then it is the job of the historian to determine what the life of a law in question was and how it fits into the broader historical context. 

Go to the “Using Legal Documents as Primary Sources” activity to practice analyzing a legal statute and putting it in its larger historical context.  Answer questions about the statute.  Then, use the other primary sources available to answer questions about the purpose and usefulness of the law in question.