Professor Martin Krygier’s description and argument for “Law as Tradition” began with a claim about law’s pastness, but the bare fact of pastness cannot be the end of the story, because much of the past does not figure in any tradition at all. The second feature of law as tradition that Krygier discusses is law’s “authoritative presence,” and it involves the normative force of the past on the present — when the past, real or imagined, is thought to be of continuing significance to the present (hence the double sense of “presence” in Krygier’s phrase — as meaning both existence and present-ness). For this reason, law’s traditionality is reflected not only in the pastness of its present, but in the presence of its past — “the extent to which only the presently authoritative past is treated as significant and only to the extent of this present authority.” (248) This “presentism” is often heard as the complaint of the historian, but it functions to distinguish the work of the historian from the work of the lawyer:
In seeking to explain ‘Why the History of English Law is not Written’, Maitland suggested that one reason was the lawyer’s peculiar attitude to the legal past:
what is really required of the practising lawyer is not, save in the rarest cases, a knowledge of medieval law as it was in the middle ages, but rather a knowledge of medieval law as interpreted by modern courts to suit modern facts.
Applied to legal history itself, this attitude to the legal past has frequently led to history-as-genealogy or, as the American historian Daniel Boorstin has written, the considerations of legal history as ‘an alchemy for distilling legal principles’ . . . . A similar complaint has recently been made by Douglas Hay [in an essay on criminal prosecutions in England and “their historians”]. When it comes to thinking about the past, one characteristic of ‘thinking like a lawyer’, Hay argues, is what historians call ‘presentism’; ‘the fallacy of working from present concerns to past origins, is anathema to historians, but necessarily half the lawyer’s method’. What appears to historians as bad history is simply typical of the behaviour of participants within a tradition. Whig interpretations may be unsuccessful history, but they are often very successful law.
When participants in a recorded tradition consult its records, they are rarely concerned to reconstruct the past wie es eigentlich gewesen ist [as it is in actuality]. All developed legal systems, for example, produce rules of statutory interpretation which prescribe and circumscribe the resources on which a lawyer may draw to interpret statutory provisions. A point little remarked upon by lawyers is that these are not rules for which an historian seeking to analyze the origins and purposes of a statute would have much use. Even if he could make sense of the notion of the ‘intention of the legislature’, for example, no historian seeking it (or them) on a particular matter would feel bound to limit himself to the sources or kinds of inference allowed to a judge by whatever rules of statutory interpretation prevail in a particular jurisdiction. Nor should he believe he had found the intentions he was looking for if he did so. An historian, qua historian, is an outsider to the internally authoritative traditions of law, even though he may need to be an empathic outsider. A lawyer is bound to invoke legal rules of interpretation, not because he is an inferior historian, but because, qua lawyer, he is not an historian at all. He is a participant in a legal tradition, for whom statutes are primarily important not as sources of clues to events in the otherwise hidden past, but as authoritative materials from which meanings must be extracted by authorized means, to enable responses to present problems to be fashioned; or at least to be publicly justified to other cognoscenti of the tradition.