Bob Gordon's Critical Historicism and the Pursuit of Justice.

• Author: Gross, Ariela J.
• Position: Symposium on Robert W. Gordon's 'Taming the Past: Essays on Law in History and History in Law'

My initial encounter with critical legal historicism was as a graduate student in history at Stanford trying to decide whether to stay in graduate school, teach, and do research, or go to law school to pursue politics. During my first year, I lurked around the law school, attending my first legal history workshop. It was a discussion of Bob Gordon's Critical Legal Histories, (1) then six years old. It was an exciting departure from typical academic prose-the elan of the writing, the insouciance of summarizing swaths of historiography in a few characteristic bon mots, and especially the insights into the inadequacy and overdeterminism of "evolutionary functionalism," (2) which characterized so much of the historical work I had read. But the most electrifying thing about Critical Legal Histories was the idea of the legal historian as a swashbuckling crusader knocking down the canards of received thought, killing or taming dragons, offing the fathers. It was heady stuff. For someone on the cusp of deciding between a career in politics fighting for justice and a career as a historian telling stories about the past, it was exciting that perhaps one could do both.

In Critical Legal Histories, Gordon called for a return to the "mandarin" sources, (3) yet most of his students did the opposite. (4) We took his exhortations about the mutual constitutiveness of law and culture, as well as his insights about law's indeterminacy and especially about legal consciousness, and used them to explore the ways subaltern people contested and shaped legal and constitutional regimes from below. (5) The idea that law was up for grabs enough that even oppressed people could shape its meaning was freeing.

Undoing Historical Injustice, (6) the last essay in Gordon's book Taming the Past, epitomizes the potential that critical legal historicism has for the pursuit of justice. My focus on this essay may seem self-serving, as a perusal of the author footnote will reveal that I helped Gordon with the research for this piece twenty years ago. (7) However, I want to reflect on it now precisely because our conversations at the time, and my view of the legal historian at work, modeled to me exactly what we should be doing as we try to bring critical historicism to bear on pressing questions of justice in the present day. Those conversations, and the seminar Gordon taught on the uses of history in law, were the starting point for my obsession with questions of memory, law, and politics, especially with regard to race and slavery. (8)

As a number of the authors in this collection note, Critical Legal Histories has had an enormous reach and influence; has been read by legal scholars, historians, literary critics, and students in a wide range of fields; and could be said without exaggeration to have spawned two generations of work in legal history. Undoing Historical Injustice is almost the opposite: Buried in a rather unheralded collection of essays, it appeared in the midst of an outpouring of work on transitional justice written largely without the benefit of Gordon's insights--and much the worse for it. (9) The essay is one of the most insightful efforts to analyze liberal polities' attempts to remake themselves in light of injustices instigated by the previous regime. Rather than focusing on whether their strategies are forward- or backward-looking, Gordon classifies their approaches as "narrow agency, broad agency, and structural" according to whether they "attribute injustice...