The central importance of history

Most property law textbooks start out with a brief history of key concepts - equity and the trust, tenure and estates - intended to explain the reasons for the peculiar forms that survive today. This desire not simply to explain but to justify present law in past developments derives from old methods of teaching the subject, when a chronological format of the law's development was used rather than today's exposition of current principles and authorities. Early property law textbooks compromised by introducing each topic with a concise history, 'for the purpose of explaining some of the more intricate of the modern rules', as the author of Topham's Real Property explained (Topham, 1911, p. v). This systematic treatment is less often seen today, where history is confined to an early chapter and largely ignored thereafter.

Of course we need the historical context; without it, English property law would make even less sense than it already does to many students. Indeed, I would argue for the inclusion of much more history, especially recent history. But the version we have in most textbooks - the history of ruling-class men, without controversy, nuance, or anything after the late nineteenth century - hardly fits the bill. The 1925 legislation is covered, of course, but we learn little about its context and rationale. If a socio-legal enquiry is to be followed, it must start here.

The textbook accounts we are generally offered are, for the most part, antiquated, self-justifying, uncritical and partial. They are antiquated because they are based on the often discredited works of eighteenth- and nineteenth- century legal writers and judges, not on the researches of more recent scholars using modern historical methods. They are self-justifying because the authorities they rely on have selected and manipulated the sources to produce the desired story of progress to the present. They are uncritical because they make no effort to apply modern scholarly techniques to this received version of history. By justifying the present by reference to the past, they produce an unabashed 'Whig' version of history - that ideology beloved of the Victorians but long abandoned by serious historians - that sees the present state of things as culmination of a more or less linear process of improvement. They have little conception of 'the past' as something that can change as fresh light is cast upon it by new research; textbook writers may conscientiously update each new edition of their text, yet we rarely see any alterations to the historical sections. These accounts are, finally, partial, in both senses of the word: they are incomplete, and they favour certain actors in history. When law students were all destined to become ruling-class men, such histories told a reassuring tale well-adapted to their world-view. They are totally unsuitable for the law student of today.

The problem is that law, as a discipline, has traditionally recognized no sources but its own. Thus, for the legal scholar, the writings of Coke and Blackstone must necessarily be more authoritative than those of a contemporary, non-legally trained historian - especially when she happens to be American, as many scholars working in this field are. This is in spite of decades-old critiques of the great men's methodologies and misogynistic bias by, for example, Stopes on Coke (1894, pp. 99-107) and Beard on Blackstone (1946, pp. 77-95). While most of today's legal scholars - and indeed judges - are not quite so dismissive of extra-legal resources as they used to be, they still tend to be unaware of developments in history-writing and the huge body of relevant scholarship out there that would temper - or even contradict - the received accounts.

This ground needs to be cleared before students embark on further sociolegal explorations because, without it, they will have a very imperfect understanding of the society that produced our laws, they will continue to dismiss or undervalue non-legal sources, and they may fall into the same uncritical, descriptive, self-serving trap that so many textbook accounts do. The way that textbooks present history may lead students to assume, as many people do, that history is no more than a collection of facts that speak for themselves. The reality is that history is an interpretation of particular facts - just like legal judgments, in fact! Once students grasp this truth about both disciplines, they will be well on the way to understanding the socio-legal approach.

Two shifts are therefore needed. First, legal sources should be seen for what they are - historical documents, products of a particular social context and an individual author or group of authors with an intended goal and audience. Students need to recognize that, because of the circumstances of its creation, an English law rarely takes the form its authors would ideally have chosen, let alone the form preferred by other stakeholders and campaigners on the issue. Judge-made law is shaped by precedent, legislation by politics, and both, usually, by compromise.

Second, the traditional exposition of the development of English property law must be critiqued and rethought. The problem with Whig history is that it represents legal developments as a tale of progress from complexity and injustice to greater simplicity and justice, with the terms often elided - that is, simplicity is seen as conferring justice. (This is particularly true of accounts of registered land.) While it is acknowledged that we are far from reaching this goal - apart from anything else, society keeps throwing up new challenges to keep the courts and Parliament on their toes - there is always a sense that law is essentially benevolent and will get there in the end. It is easy to see why this form of history appeals to lawyers; as historian Susan Staves explains:

Because legal history has usually been done by judges and law professors involved in a system which society requires to produce articulate defenses of the justice and rightness of current legal institutions, legal history has most often been celebratory, explaining how the law was more and more beautifully adapted to the needs of society, more and more reflective of absolute justice. (Staves, 1990, p. 9)

The effect is to stifle criticism of both present and past, since both are seen as natural developments or, where there has been a substantial break with the past (as with registered land, for example), as reforms which are inevitably positive. It is almost impossible now to mount a critique of registered land (O'Donnell and Johnstone, 1997, pp. 85ff.).

This representation of legal history has two important consequences. First, it erases the power struggles, the opposition to reform and the agency of the campaigners who ultimately succeeded, or not. Students are led to believe that the law has evolved through internal reform rather than as the result of radical movements - feminism is an obvious example - or external pressures. Second, it presents an image of contemporary law as essentially just, or at least moving towards justice, and conversely of past law as less just, simply because it was based in a less just society. This excuses, as well as misrepresents, the past - but also the present. Some reforms have not made for greater justice, and some past injustices need further explanation.

How are we to persuade students that the textbook account is inadequate? The textbook is the Authority in many of our classrooms; for most students, what appears in a book published by Oxford University Press must be more reliable than something said by their obviously biased lecturer in class. My response would be, first, to produce your revised version of history in your lecture handouts, together with an extended reading list to act as evidence and scholarly support for your assertions. Second, I would devote a lecture or seminar to explaining the historiography of property law (that is, the ways different historians have approached writing its history) and techniques of historical method, and demonstrating how historical method can usefully be used to interpret legal sources. Extracts from received accounts, more critical approaches and relevant cases could be reproduced, with appropriate questions, for class discussion. In my experience, students love this kind of work; it really engages them. They have an opportunity to think rather than simply absorb and to make suggestions without worrying about whether they have the 'right' answer.

Third, build history into all your teaching. Take the topic of charities, for example. After the complexities of constructive trusts and the perhaps tedious detail of administration of trusts, the law of charities, which most of us teach towards the end of the course, comes as something of a light relief, with its clear and intelligible principles, accessible subject matter, interesting case law and relevant policy considerations. Even so, there is a sense in many textbooks of the inevitability of its development from the Statute of Elizabeth to the Charities Act 2006 that invites critical interrogation. The books tell us that the familiar classification derives from an era in which charities provided most of the social services now largely delivered by the state; yet how often do we seize this opportunity to explain to our students - or ask them to find out for themselves - how the welfare state evolved, how fiercely reforms were fought for and how strongly they were resisted by vested interests, and how great a difference state control made to people's lives (Wilson, 1977). It goes without saying that such knowledge is particularly useful at a time when the process looks likely to be reversed.

Following through the development of particular charitable categories will help make students aware of the political content in legal policy. Take education, for example. Students may not be aware that free secondary education only became available after the Second World War, transforming the lives of large numbers of boys and, especially, girls, who were more likely to have to forgo schooling in families with limited funds. For the first time in history, these working-class young people were able to transcend the barriers that had previously doomed them to a lifetime of poorly paid, menial work and go on to further training, higher education, careers and the comforts of middle-class existence - including the chance to own their own home. Free, state-provided education did this - yet the well-to-do at private schools and Oxbridge have continued to cling to their privileges as charities. Finally, and critically, I would set a piece of assessed coursework about one aspect of property law history you have mentioned in your lecture, again with a list of references to assist research (for students will not be familiar with this kind of resource). Alternatively, your coursework could be a repetition of the classroom exercise, with a different set of extracts and questions.

 
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