ABSTRACT
Counterfactual thinking is common in our everyday lives and in popular culture. We are constantly asking ‘what if’ a particular development had occurred differently (or not at all) and comparing that with what actually happened. However, counterfactual history is controversial amongst professional historians. For some historians, it is a mere parlour game or a romp into science fiction. Yet, for other historians, it is a vital method that highlights contingency and corrects the assumptions of progress narratives. This chapter explores whether counterfactualism should be an approach that a Subversive Legal History could employ to highlight and question the ‘stories’ given by conventional historical accounts. It examines the development, use and purpose of counterfactual history. It discusses the heated debate amongst academic historians as to the merits of counterfactual analysis. It concludes that if counterfactual history is to be used as a method of academic analysis then certain precautions and safeguards need to be in place. The chapter identifies eight rules of counterfactual history. It then suggests the creation of Counterfactual Legal History,documenting that, although counterfactual thinking is endemic in legal education, it is not appreciated as such and so is under-theorised. It contends that Counterfactual Legal History should form a part of a subversive approach. It provides a way to highlight, question, challenge and revise conventional narratives imbued by evolutionary functionalist assumptions of progress. It underscores the contingency, chaos and interconnectedness of the phenomenon we call law.
