History, Law, and Justice: Empirical Method and Conceptual Confusion in the History of Law

This Article draws on Wittgenstein’s Philosophical Investigations, Ulpian’s definition of law, and Aristotle’s definition of the polis in order to improve our understanding of the relationship between history, law, and justice. It makes three points. First, real progress can be made by taking one’s instruction from Wittgenstein’s lifelong attempt to banish meaninglessness from thought and speech. He has far more to offer than has been recognized to date. Second, historians of law deceive themselves if they believe that they can write the history of law without writing the history of justice at one and the same time. Law and justice are thoroughly intertwined. Their intertwinement constitutes their meaning. Treating one of them in isolation from the other impairs the meaning of both. Third, writing the history of law means making a commitment to a political community by settling disagreements with the dead. It furnishes a kind of knowledge that is essential for maintaining justice because it gives a meaning to “law,” “justice, ” and “politics ” without which law, justice, and politics fall to the judgment of the dead or that of arbitrary rulers. It does not consist of writing about justice, but of making judgments in writing about the history of law. It is neither to be confused with expressions of opinion nor with statements of pure fact: not expressions of opinion, because it requires statements of fact; not statements of pure fact, because there are no facts to state without agreement in the judgments that make a political community.