Paper's abstract

Martin Rogoff, Theory of Law and History of Law in the USA: A Conciliation
This paper deals with the relationship between the theory of law and the history of law in the context of the American legal system. Nowadays, the dominant theory of law in the United States is legal realism, which has its roots in the philosophies of pragmatism and empiricism. Given this philosophical orientation, the history of law ought to play an essential role in the American theory of law. However, in fact, it is now the social sciences (such as economics, psychology, sociology, political science, etc) and the emphasis they place on the analysis of the contemporary state of the law that are the disciplines with the greatest impact on American legal theory. Despite this fact, one sees a strange paradox: in the decisions of American courts, in particular where constitutional matters are concerned, the history of law plays a major role in the deliberations and opinions of judges, as well as in the arguments of lawyers and the analyses and evaluations of academics. But American legal theory, as expressed in contemporary jurisprudential writings, pays little heed to these developments.
The author considers the possibility of reconciling the theory of law and the history of law. He concludes that such reconciliation is needed, due to the very nature of American law and its deep roots in the philosophy and methods of the common law system, a system which is fundamentally historical, and only secondarily analytical. It is all the more necessary because of the unavoidable complementarity of these two fields (theory of law and history of law): the history of law needs more analytical rigor which the theory of law could provide, whereas the theory of law needs sounder historical bases in order to construct its abstract theories if it wants to have more impact on the legal process.

Key Words : jurisprudence, theory of law, history of law, common law
t. 53, 2010 : p. 420-441

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