ABSTRACT
Students and practitioners of English law have regular recourse to history. They look to the past as a source of authority and, in a system that has medieval origins, this may involve looking back through centuries to excavate a particular case or statute for current use. This method requires no investigation of the historical context in which a case was decided or the circumstances that brought a statute about, only in the point of law that it established. Lawyers routinely ignore or suppress evidence that does not assist their case or which is not deemed relevant according to the conventions of legal argument. This approach may serve the practising lawyer, but it is inimical to the writing of legal history. It produces ‘lawyers’ history’, in which universal legal ideas and concepts are traced through historic seams of authority in unbroken lineage and the past is enlisted to serve present ends. The lawyer perceives history as ‘the law read backwards, the inevitable unfolding of things as they came to be; and the thinking is seen as a fumbling for a result eventually reached’.2
