THE SOCIAL SCIENCES, LAW AND THE HUMANITIES

August 19, 1999

PAST-DEPENDENCY, PRAGMATISM, AND CRITIQUE OF
HISTORY IN ADJUDICATION AND
LEGAL SCHOLARSHIP

Richard A. Posner

In a university with a German motto and a German-born president, and with a German-born professor presiding over this conference on the relation of the past to the present, and given that the historical school of jurisprudence is largely a German invention, what could be more appropriate than to take as my opening text and point of reference Nietzsche's great essay on history? That essay, moreover, ought to be regarded as one of the founding documents of pragmatism; it is also an oblique challenge to conventional methods and concepts of law; at both levels it engages my deepest interests. Law is the most historically oriented, or if you like the most backward-looking, the most "past-dependent," of the professions. It venerates tradition, precedent, pedigree, ritual, custom, ancient practices, ancient texts, archaic terminology, maturity, wisdom, seniority, gerontocracy, and interpretation conceived of as a method of recovering history. It is suspicious of innovation, discontinuities, "paradigm shifts," and the energy and brashness of youth. These ingrained attitudes are obstacles to those who Would like to reorient law in a more pragmatic direction. But, by the same token, pragmatic jurisprudence must come to terms with history.

1. Nietzsche on History

We should distinguish between the study of history, and thus with history as a way of relating to or interpreting the past (Historie), on the one hand, and history as simply events, chronology, or record of the past (Geschichte), on the other. Nietzsche's interest is in the former, not the latter; he is "skeptical" about the former; and it is the former that has been the focus of most skepticism about historical truth. It is very difficult to deny with a straight face that there are knowable facts about things that happened in the past, but the sum of those facts, devoid of analysis, interpretation, or causal ascriptions, is not what we mean by historical understanding, and such understanding is elusive. But Nietzsche is not, at least in the essay that I am considering, an epistemic skeptic about either type of history. He is skeptical about the social rather than the truth value of Historie. He audaciously contends that the quest for historical understanding tends to have a debilitating effect on meeting the challenges of the present and the future.