Robert W. Gordon on Taming the Past

Professor Robert W. Gordon of Stanford Law School discusses his forthcoming book: a collection of essays entitled Law in History, History in Law: Taming the Past. The essays examine the ways in which lawyers make use of history and attempt to “tame” it to their own purposes. In the video clips below, Professor Gordon discusses Taming the Past and his inspiration for writing it.

Professor Gordon on his forthcoming book and why he titled it Taming the Past:

This book is a collection of essays and lectures that I’ve written over a period of about forty years; the first essay in the collection was written in 1975, and the last one was written last year, in 2015. And they’re all around the same theme and variations on the theme, which is how lawyers use history. And lawyers use history in a variety of ways. The most common use, obviously, is as authority. When we cite precedent, we’re saying that because we did something one way in the past, we should continue to do it today. Sometimes they use historical periods as a source of inspiration, like our founding, the golden age of American politics. And sometimes history is used as a series of examples of what we should be moving away from. At the founding of the Republic, these were autocratic monarchy, ecclesiastical tyranny, and feudalism. In our day these are things like slavery, the remnants of Jim Crow, and past invidious discrimination and so forth.

So history, as used by lawyers, has a lot of different modes. Lawyers are, among other things, historians; they write stories about the past. And this book is partly a kind of analysis of the way lawyers use history and the past and it’s also partly a history of the histories that lawyers write about the past. And my focus is basically on lawyers’ uses of history from the seventeenth century onward. And then it’s a critical analysis of the various uses that lawyers make of history. Lawyers obviously are using history for present purposes; it’s very motivated history, which generally means that it’s rather distorted and one-sided history. It’s history put together by advocates for a particular legal position. So one of the things that I’m trying to get at in this book is the various ways in which lawyers obscure or soften or modify aspects of the past that they think are dangerous to present projects. The title of this book is Law in History, History in Law: Taming the Past. And the “taming” part of the title refers to the ways in which lawyers try to make the past manageable–try to obscure, or soften, or modify the frightening, unruly, disruptive, subversive aspects of the past.

Professor Gordon on what inspired him to write Taming the Past:

We’re living in a period in which lawyers are very intensively once again resorting to history. And a lot of the ways that history is used nowadays is by relatively conservative lawyers who are trying to use the past to reproach the present. That is, to say that there was an earlier, freer, happier, more communitarian, more solidary, more religious time before our present disorders. And they date the disorders to the New Deal and the welfare state and the sexual revolution—all of the sort of discomforting aspects of modernity. So there’s a strong urge in conservative legal history to return to what they think is a sturdier and sweeter and more golden period. So I think we’re living at a kind of high point of sort of nostalgic history. Liberals, on the other hand, are much more inclined to represent the past as full of things that we should be moving away from—things that we should be leaving behind with the march of progress. And the book that I’m writing really is trying to see the best in both of these approaches. Both to understand the past as full of episodes and tendencies and views and conditions that we would not want to return to, but also as a source of inspiration for the present.

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