Precedents of Injustice: Thinking About History in Law and Society Scholarship

• Pages: 61-81
• Date: 05 December 2007
• DOI: https://doi.org/10.1016/S1059-4337(07)00003-8
• Published date: 05 December 2007
• Author: Eve Darian-Smith

PRECEDENTS OF INJUSTICE:

THINKING ABOUT HISTORY IN

LAW AND SOCIETY SCHOLARSHIP

Eve Darian-Smith

ABSTRACT

In this essay I discuss how law and legal precedent present a false or

eschewed construction of the past. The Chicago Haymarket Riot in 1886

and the subsequent trial of eight rioters in Spies vs. People provide a

dramatic illustration of the lasting consequences of privileging some

historical narratives and silencing others. Occurring as it did at the dawn

of the ‘‘Red Scare,’’ the miscarriage of justice in Spies vs. People acts as

a landmark precedent in a tradition within the United States of extra-

judicial lawlessness that stretches from this case through 100 years of

labor turmoil, two World Wars, McCarthyism, the Cold War, and up to

the current War on Terror. Moreover, these instances of lawlessness and

extra-judicial activity, while not written into legal records, nonetheless

resurface again and again to form patterns of behavior that amount to

what I call precedents of injustice, and which I argue are as integral to law

as any formal legal precedents. By way of conclusion I urge all sociolegal

scholars to remain attentive to the wider historical contexts which over

time are repeatedly silenced through the institutionalized legal processes

of denial and forgetfulness.

Special Issue: Law and Society Reconsidered

Studies in Law, Politics, and Society, Volume 41, 61–81

Copyright r2008 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(07)00003-8

61

Modern western law appears to float above the melee of human experience

and historical specificity. As a body of knowledge and mechanism of power,

law presents itself as an objective, autonomous, and universal entity, outside

of localized context and temporal meaning. In the past, law’s claim to being

ahistorical allowed it to transcend national borders and be applied by

colonial regimes to a variety of cultures and political systems, in turn

violating and oppressing local systems of control. Today, these dangers

continue to be very real given that the economic might of the United States

and the west often leads toward a myopic vision of law and a readily

asserted belief in its universal application. Such assertions ignore the

cultural specificity of western legal concepts, and prevent people appreciat-

ing that, analogous to past colonial periods, in a global political economy

Anglo-American law is not always transportable, transferable, or transla-

table across political landscapes and religious communities.

In a sense, I have written this essay to serve as a warning to the dangers of

disconnecting law from historical context. This is not a new or original idea,

but one that seems to need constant reiteration.

1

My general argument is

that in order to counter the ahistorical construction of the rule of law,

sociolegal scholars have to be ever vigilant in recovering and reattaching

historical context to otherwise sterilized legal processes and precedents. Of

course, some sociolegal scholars – particularly those trained as historians

and anthropologists – are very attentive to history. And, for instance, the

USA Law & Society Association makes great efforts to promote legal

history with an annual prize awarded in this research area. My aim here is

not to chastise law and society scholars for their lack of attention to the

importance of history. Rather, given the drive by the legal system to silence

or forget the historical conditions in which law is created, and that this

silencing is typically affirmed through law school education

2

, my hope is to

underscore the importance of history in all sociolegal scholarship so that as

a field of inquiry it can remain critical, insightful and, above all, relevant to

real world affairs.

My first aim is to demonstrate that law and legal precedent privilege some

historical narratives and silence others. Law’s history, as I discuss below,

presents a false or eschewed construction of the past. The Chicago

Haymarket Riot in 1886 and the subsequent trial of eight rioters in Spies

vs. People provide a dramatic illustration of the lasting consequences of

privileging some historical narratives and silencing others. By drawing on

the Haymarket Riot, and then linking this past case to subsequent events up

to the current War on Terror, I hope to show how law eviscerates from

public record and memory particular traces of historical content. This

EVE DARIAN-SMITH62