Exploring the Richness of Legal History

A Conversation with Professor Tamar Herzog

22. Juni 2023

Professor Tamar Herzog, the Monroe Gutman Professor of Latin American Affairs and Radcliffe Alumnae Professor at Harvard Law School, is a prominent scholar in the field of early modern and modern legal history. In recognition of her achievements throughout her career so far, she was honoured with a Humboldt Research Award in 2022. In 2024, she will be visiting the mpilhlt to engage in research on the uses of historical narratives in legal cultures of the Global South and Global North. Her expertise and insights have been sought after, and she served as a member of the Advisory Board from 2015 to 2021.

In this interview, we had the privilege of engaging in a conversation with Professor Herzog, discussing the surge of interest in historical perspectives on law and the potential consequences of losing intellectual diversity in the field. Furthermore, we explored the significance of the German legal tradition and its contributions to legal scholarship, as well as the need for a more global dialogue about the past and future of law.

Professor Herzog, there has been a significant surge in interest regarding historical perspectives on law in the past two decades. What factors do you believe have contributed to this remarkable increase?

We usually know what has drawn us to specific questions, but when we look around us, we frequently realise that many others were captivated by similar inquiries. Once upon a time, social history was fashionable, then economic history, cultural history, the so-called new political history, and now it seems to be the turn of legal history. But what makes so many different individuals from a variety of disciplines, countries and personal trajectories be interested in analogous issues? Benedetto Croce once said that all history is contemporary history because our historical gaze is necessarily motivated by our experiences. If this is true, the question would be what in the present is leading us to seek to better understand the legal past. I suspect that the response has to do with our dissatisfaction with existing legal systems, which fail to deliver much of what they had promised. We thus look to the past either to reconstruct the reasons for this failure or to examine the other options that had been proposed yet had been discarded. The legal past, in other words, becomes the land of possibilities, the repository of alternative pasts, which will - hopefully - supply alternative futures.

Nevertheless, as national and disciplinary structures are being dismantled, and with the critical examination of existing concepts and practices, certain analytical traditions face the risk of fading away.

The greatest challenge we now face is how to overcome barriers and create bridges while also remembering the enormous diversity of human experience. National and disciplinary structures facilitate research because they allow us to reduce what is profoundly polyphonic, even cacophonic, into an orderly arrangement that can be grasped and studied. They create boxes and accommodate what we know inside them. This process decreases complexity, and, as such, has both positive and negative aspects. At any rate, I personally believe that even more important than questioning national and disciplinary boundaries is the need to avoid jumping into common sense conclusions or giving in to the temptation of domesticating all that seems foreign and strange to us. 

You have a unique perspective on the richness of various analytical traditions and the potential consequences of losing this intellectual diversity. Through your comprehensive education and professional positions held at universities in Israel, France, Spain and the US, alongside your collaborative efforts with colleagues from Italy, Portugal and Latin America, you have acquired firsthand insights into various research communities. In the upcoming year, you will embark on a research visit to our Institute in Germany. What insights and perspectives could the German legal tradition contribute?

The German legal tradition has always been very important, but it won special prominence in the nineteenth and early twentieth centuries, a time when no serious legal historian, anywhere, could ignore German scholarship. Though this is no longer the case, the German legal tradition still has much to teach us. It has a greater tendency than other traditions for conceptualizations and theorisation, which also leads to a greater interdisciplinarity with fields such as philosophy or theology. Besides its extremely distinguished tradition of studying Roman law, it has also pioneered important research into medieval law. One could also look to the German legal tradition for an understanding of the relations between local and national law, commonalities and variations. The German legal tradition is also one in which genealogy and schools matter, but in ways radically different than in the Italian or Spanish legal traditions, to mention but two examples. Here, too, the question how ideas pass from one generation to the next, while also radically changing, is where the German legal tradition may supply extremely interesting answers. 

Do you think we need a more global dialogue about the past – and the future – of law?

I am under the impression that we rarely speak about the law. That is, we endlessly discuss specific legal solutions to specific problems. When we do, we are willing to look widely and deeply, compare solutions across traditions, and be inspired by the past. Yet, we rarely speak about the legal system itself. Are there ways to rethink our penal system? Are there modes to ensure that the legislators we elect indeed represent us, and act following reason and in the pursuit of the common good? Is legal equality a sufficient instrument to enable the kind of society we wish to live in? How much legal recognition and weight should we give to cultural differences and group belonging? All these questions preoccupy many of us across the globe, and many of them inspire incursions into the legal past, but, perhaps naturally, we often end up discussing the immediate issues in front of us, while failing to address the larger picture.

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