Washington Law Review


This essay describes the strategies that sometimes allow me to make sense of the answers that people give to the question Why? when it comes up in scholarly accounts of legal outcomes from the past. The essay is constructive, not deconstructive; programmatic, not polemical. I mean to sketch and recommend a way of thinking about legal history that I call methodological self-consciousness. "Methodological individualism" would be both inaccurate and accurate as a label for the essay's approach to questions of causality. The label is inaccurate, because it fails to express the heavy emphasis that I place on the dialectical relationship between individual legal actors and the social context in which they are embedded: People cause law, but law, in many interesting ways, also causes people. On the other hand, the label is accurate, because the methodology I advocate pays close attention to the ways in which an observer imagines that individual legal actors experienced the production of legal outcomes. As far as my wherefores are concerned, chipmunks, rocks, and sunbeams don't make law: people do (although this does not mean that people aren't constrained and shaped by the physical world they inhabit). By the same token, classes, ideologies, and institutions don't sign decrees and judgments ordering people to pay money or go to jail: individual judges do (although this does not mean that a judge's perceptions are not shaped-even determined-by his connections with one or more of these collectivities).

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