Revisiting Themis and Clio: Law, History, Critique

The “history wars” were pitched on a terrain of treacherous oppositions– between theory and practice; culture and economy; discourse and materiality; language and the body; intellectual and social history. Newer trends in historiography have worked to unsettle and displace these seemingly intractable methodological binaries. One such field is legal history, which has over the past decade turned to a range of questions that traverse and reconceive these many of these distinctions– from the economics and politics of family law; to bioethics and the regulation of human life; to legal constructions of injury, suffering, and reparation. In addition to reworking oppositions between language and practice, culture and the body, subject and object, new legal histories and critical legal thought, more generally, offer genealogical insight into the very production of categorical distinctions– between what Donald Kelley has referred to in a classic 1983 essay on Clio and Themis, as “the ubiquitous juridical trinity of person, thing, and action (persona, res, action).” Entering into the first skirmishes of the “history wars,” Kelley’s essay sought to reintroduce subjectivity, reality, and action into what he viewed as the potential excesses of structuralist interpretation. My paper explores how, three decades on, legal history is again poised to offer a critical accounts of personality, ontology, and agency that recast apparent antinomies of historical interpretation.