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Law and Equity, and ‘Law and History’ as a resource of critique

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JournalPólemos: journal of law, literature and culture
DateAccepted/In press - 14 Feb 2017
DateE-pub ahead of print (current) - 4 Apr 2017
Issue number1
Volume11
Number of pages18
Pages (from-to)23-40
Early online date4/04/17
Original languageEnglish

Abstract

This article’s support for the critical equity agenda can be found in
proposing that scholarship on equity could benefit from embracing a distinctive
“Law and History” approach. In doing so, it acknowledges that amongst “mainstream”
areas of law, equity has been the subject of very extensive historical
scrutiny, and suggests that further but differently focused historicization can
complement what is already exigent within conventional legal history alongside
critical legal history. In illuminating how “Law and History” might differ from
traditional and critical legal histories, the analysis explains how “Law and History”
embodies established approaches within both, but emphasises the work of historians to a much greater degree than either. In identifying its current hallmarks, it explains that the parameters of “Law and History” are still being worked through. It also suggests that this notwithstanding, setting out for lawyers how historians perceive themselves and their work, and approach their craft – drawing this from current and highly profiled debate within history itself – identifies the potential of history as a resource of critique across legal scholarship. In identifying historians’ own perceptions of the importance of “mutual reinforcement” in social science scholarship, the analysis also explains how law can become a much more extensive resource of critique for history than is currently the case.
Keywords: law and history, legal history, Critical Legal Studies, equity

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