Gone and forgotten: Vinogradoff's historical jurisprudence

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Abstract

Sir Paul Vinogradoff was once well known for his historically contextualised approach to legal theory which held that legal ideas were the contingent products of social factors. Law was necessarily engaged with other subjects, and ‘historical jurisprudence’ could produce real insight into the nature of law – in part by placing theories such as analytical jurisprudence in context, evaluating and modifying theoretical models by reference to the contingent social facts of an era. This was part of the nineteenth-century turn to ‘science’ in history and a focus on methodology. Sir Henry Maine argued that legal history proved the insufficiency of analytic theories, but his method met with many criticisms, some of which Vinogradoff sought to address. However, Vinogradoff's insights have rarely been pursued or developed, with legal history favouring Maitland's more doctrinal approach, and legal theory rejecting historical jurisprudence – at least explicitly. Despite its imperfections, historical jurisprudence offers a rich and valuable way to understand law, including to evaluate analytical models such of those of HLA Hart, and as a methodology for dialogue between comparative and historical legal scholarship. It has, in fact, continued to do so without explicit recognition in the 100 years since Vinogradoff's death.
Original languageEnglish
Pages (from-to)194-213
Number of pages20
JournalLegal Studies: the Journal of the Society of Legal Scholars
Volume41
Issue number2
Early online date21 Jan 2021
DOIs
Publication statusPublished - Jun 2021

Keywords

  • Critical legal history
  • Henry Maine
  • Historical jurisprudence
  • Jurisprudence
  • Legal history
  • Paul Vinogradoff

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