Archival Research in the History of the Law: A User's Perspective
Legal history and the social history of law have become very active fields of research in Britain, the United States, and Canada in the past ten years. Moreover, they have begun to affect each other, so that social historians are now much more sensitive to doctrinal changes, shifts in legal rules, and legal concepts, while legal historians increasingly appreciate that explaining legal change – or the lack of it – may require extensive research outside the law library. In short, lawyers and historians are beginning to meet not only in law libraries, but also in archives. And, like all users, they are asking the impossible.
From law librarians, they want every variant edition of every obscure and outdated procedural manual, every ancient set of reports, and every printed trial extant for earlier centuries. Fortunately, large international microfilming projects are increasingly making it possible for librarians to supply all of these, and seen extensive manuscript collections of legal materials. But historians of law make more outrageous demands on archivists: retain everything; prepare finding aids for everything; manage your collections with us, above all others, in mind. I am told that the professional duties of archivists include measuring such demands by the tests of budgets, conservation imperatives, the interests of other users, the finite dimension of the working year, available shortage space, and a healthy instinct for preservation of self as well as collections. But since I am a user, not an archivist, I shall innocently describe utopia, and say little about how to get there. My only excuse for doing so is that legal records, like all records, present specific problems, problems that are not particularly evident without close familiarity with the recent large research literature, much of it still in dissertation form, on the legal and social history of the law. A review of some of its themes may help archivists, lawyers, and historians to discuss some of the hard decisions about retention. One of my conclusion is that lawyers and historians may in fact have rather different professional imperatives, even conflicting ones, and that the historically and legally informed archivist will necessarily play a critical role in adjudicating between them.