Historicism and Materiality in Legal Theory

Current interest in a rapprochement between legal theory and legal history rests on a transformation of legal theory into a species of historicism, a mode of inquiry emphasizing the tempero-spatial locatedness of objects of attention, and examines the multiplicity of relations between object and context.  Contemporary paradigms in historicism further contend that whatever the context in relationship to which the object of inquiry is situated, the outcome is indeterminacy – the irreducible contingency of alternative possibilities, paths taken and not taken. 

Given historicism’s stranglehold in legal history, it is unsurprising that its core contentions drive revisionism in legal theory.  However, alternatives should be considered.  This paper will undertake a critique of historicism, and will then examine a rival philosophy of history that I will call “materiality.”  A less developed, more eclectic, standpoint, materiality stresses the impact upon the formation of law of technologies, artifacts, and material practices.  Rather than collapse law into its context, it seeks to examine the fabrication of law’s differentiation.  Its potential is exemplified in work as varied as Cornelia Vismann’s Files: Law and Media Technology (2000; trans. 2008) and Bruno Latour’s The Making of Law (2002; trans. 2010).  My main emphasis, however, will be on the species of historical materialism developed in the work of Walter Benjamin (1892-1940), where one finds both an intense stress on the materiality of an object of attention, and an understanding of historical perspective to entail much more than the derivation of the object’s meaning from the circumstances in which it is located.  If history promises to enliven our understanding of an object, we must recognize the object is not enlivened by the relationalities of its time, within which it allegedly belongs, but by the fold of time that creates it in constellation with the present, the moment of its recognition.