Editorial Vision of the Trinity Journal of Legal and Historical Critique

Through integrating a range of theoretical paradigms into fields of study traditionally associated with Law and History, the TLHC confronts the assertion that law is, or should be, an empirical discipline that can be studied independently of the Humanities. The TLHC is distinguished on the basis that it is not a journal of legal history; it is a journal of legal and historical critique. As such, it does not publish articles that descriptively document the historical development of certain laws or institutions. Successful submissions will instead draw on theory to situate and challenge laws, institutions, and norms. TLHC articles are characterised by their use of history, in tandem with theory, to draw context from the past, critique the present, and consider the future.

Critical law scholarship is by its nature plural because it emerges from the varying ways in which people appear before the law. The TLHC regards ‘critical law’ scholarship as including, but not limited to, law that engages with post-colonial studies, queer theory, feminism, critical race theory, legal ethnography, legal geography, Marxism, socio-legal studies, law and film, and law and literature. It is the author’s choice to challenge or to be informed by any particular school of thought. However, all submissions are expected to comprehensively and imaginatively engage with critical theory in some form. The TLHC construes the fields of History and Law broadly. The question ‘What is law?’ is therefore left open to debate by submissions to the TLHC. Historical essays may be regarded as sufficiently legal in nature for publication if they examine questions related to epistemological justice, hegemony, social ontology, ideology, or relations of domination and subjugation.¹ This is because the TLHC does not limit the scope of law to that which is binding, coercive, or formally institutional in nature. The critique of social norms and rules as they manifest in historical contexts is considered sufficiently interdisciplinary for publication.

History is the natural companion to studies in critical law scholarship because, as Emilios Christodoulides observes in Research Handbook in Critical Legal Studies (2019), critical theory is ‘thinking that locates itself in history’. To locate ideas within history can be understood as the process of revealing contingency beneath the appearance of necessity. For example, to understand why human rights became the hegemonic language of progressive politics at the turn of the twenty-first century, it is necessary to investigate how this language was important to the preliminary stages of the neoliberal project and the post-WWII global order. Without historicisation, legal norms and institutions are inaccurately afforded the appearance of inevitability.

Historicisation and critical theory are urgently needed in the context of legal education. The LL.B. curriculum rarely draws on theory from beyond its own tradition. It is common practice to devalue legal critiques that do not follow from arguments of misapplied precedent, error of law, error of fact, judicial overstepping of the established separation of powers, or public policy concerns. Legal education posits the ideal critique as that which is internally self-referential within the discipline of Law. Consequently, many legal education institutions are averse to an interdisciplinary study of Law. This aversion is due primarily to the politics-law distinction and the purported or envisioned empiricism of law. Notable resistance to interdisciplinary and critical studies of law is visible in the following passage by South African jurist W.H. Gravett, who stated in 2018 that:

“Within the university law school, in their attempts to disavow their identity as ‘law teachers’, and to convert the faculty of law into just another department of the faculty of humanities, the South African critical theorists seek the intellectual annihilation of law as an academic discipline. They are not constructively critical. Their critique is entirely of the destructive, trashing variety. They ‘seem to want to completely eradicate what is currently in place’, without suggesting a practical alternative to the present legal order… A university law school with critical legal theory as its grundnorm is akin to a faculty of theology with atheism as its central tenet.”

(“Of ‘deconstruction’ and ‘destruction’ — why critical legal theory cannot be the cornerstone of the LLB curriculum”, W.H Gravett)

The influence of politics on law is under-accounted for in the LL.B. education and the wider legal profession on the basis of arguments such as those made by W.H. Gravett. These arguments position politics as an enterprise of ideology and personal preference, while they position law as impartial and empirical. Consequently, an LL.B. education teaches that the Judiciary’s adjudication of justice is apolitical because politics is the jurisdiction of the Executive and Legislature. However, it is clear that politics is implicated in any question of legal justice because this justice is dispensed through politically-constructed institutions.

Law traditionalists such as Gravett similarly understate the influence of the judiciary’s personal politics on case outcomes. Judges do not recuse themselves from politics when they decline to rule a certain way for fear of ‘wading into public policy’. On the contrary, they promulgate politics of the status quo. The TLHC holds firmly that any politics-law distinction is artificial because the judicial role, and its decisions, are informed by politics. A given legal system cannot be divorced from politics because its construction inevitably requires the prioritisation of certain values and worldviews over others. As such, institutional impartiality is impossible. The TLHC envisions itself as a canvas for authors to critique prioritised values and dominant worldviews, as well as to imagine alternatives to our current legal order.

Interdisciplinary analyses of law are undervalued not just on the basis of the politics-law distinction but also because external fields of study are thought to corrupt the intrinsic empiricism of legal logic and legal critique. The Humanities are viewed as threatening to the empiricism of law because their very nature is to contend with subjectivity. Engagement with subjectivity is antithetical to the authority of law because this authority rests largely on the belief that existing legal frameworks are necessary and objectively formulated. It is the position of the TLHC that any legal education without a corresponding cultural education is superficial because it discourages substantive criticism of the foundations of law.

Historical-cultural education disrupts false necessities that go underexamined within the discipline of Law. The study of history is not just the study of the past, but a reflection of the present and a tool for examining the future. We therefore strongly encourage submissions that take speculative stances on legal and historical issues pertaining to the future of the twenty-first century. Possible avenues of discussion may include climate change, ecological commodification, eco-fascism, colonialism, transhumanism, technological transformation, peak oil, wealth distribution, secular-individualism, theology, and the status of international law in a multi-polar world.

Áilill Park-Sullivan (Co-Founder and Editor-in-Chief)

Isobel Houlihan (Co-Founder and Editor-in-Chief)

01/06/2024

1. This list is not exhaustive. A good argument may be made for the publication of many other areas of historical critique. The range of possible essay topics is extensive due to the nature of theoretically-informed interdisciplinary research.