Legal Histories

This subject is not offered in 2016.

144 hours.

The Melbourne Law School welcomes applications from students with disabilities. It is University and Law School policy to take all reasonable steps to enable the participation of students with disabilities, and reasonable adjustments will be made to enhance a student's participation in the School's programs.

The inherent academic requirements for the study in the Melbourne Law School are:

1. The ability to attend classes and actively engage in the analysis of complex materials and debate;
2. The ability to read, analyse and comprehend complex written legal materials and complex interdisciplinary materials;
3. The ability to clearly and independently communicate in writing a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
4. The ability to clearly and independently communicate orally a knowledge and application of legal principles and interdisciplinary materials and critically evaluate these;
5. The ability to work independently and as a part of a group;
6. The ability to present orally and in writing legal analysis to a professional standard.

Students must possess behavioural and social attributes that enable them to participate in a complex learning environment. Students are required to take responsibility for their own participation and learning. They also contribute to the learning of other students in collaborative learning environments, demonstrating interpersonal skills and an understanding of the needs of other students. Assessment may include the outcomes of tasks completed in collaboration with other students.

Students who feel their disability will prevent them from participating in tasks involving these inherent academic requirements are encouraged to contact the Disability Liaison Unit: www.services.unimelb.edu.au/disability/.

Legal Histories has two main aims. The first is to explore the empirical study of law’s past, in order to think broadly and critically about law’s meaning and development. We will interrogate questions of intent and method in a series of targeted workshops with scholars about their work, drawn from the disciplines of both law and history. The second interrelated aim is to encourage students to engage with legal history as a significant strand of legal thought and practice. Interwoven with the empirical workshops, the main body of seminars will introduce students to the concept of historiography- the ideas, theories and practice of writing history, but positioned within legal frameworks, dominated by legal questions and using legal sources. This will involve exploring the shifts in thinking about legal history itself; both as a genre of history writing, but importantly as a practice of legal scholarship, and often with very specific outcomes in litigation and reform processes. In this way, the seminar topics will include consideration of a range of approaches: from classical common law methods and constitutional interpretation to the critical legal histories emergent from indigenous and feminist perspectives.

The subject will explore how legal history is a serious question of method for practices of civil justice and legal change, not just an abstract question for academia. It will do this by looking at cases where ideas of historiography are crucial, and which may include, for example, Brown v Board of Education and the Sears cases in the US; Mabo and native title litigation in Australia; war crimes trials in International criminal law.

A student who has completed this subject should have an advanced, and integrated, knowledge of the complexity of legal histories. In addition a student will have obtained a nuanced understanding of how history operates as a critical aspect of legal practice and knowledge. This includes an ability to critically analyse and evaluate:

• The intent, form and methods of writing legal history;
• The historical context of law, with the ability to distinguish between temporal, cultural and political approaches to how such contexts are presented or deployed;
• Forms of litigation and contest in which law has explored or interpreted the past, and the nuanced outcomes of those contests;
• The operative effects, and differentiated uses, of national, transnational, and comparative histories in legal argument;
• The complexity of how ‘the past’ is conceptualised in both history and law, through what forms, and how (or if) those concepts are able to be transposed; and
• How different accounts or justifications of law’s past can be determinative of present legal questions.

Additionally, a student should be able to communicate their advanced interdisciplinary analysis in a reflective and culturally responsive manner that is open to be read and interpreted by legal and non legal audiences alike.

1. Essay (50%): Students will be required to select, and then read closely, materials relating to a discrete writer, method, or empirical topic discussed in the course. They will then be required to write an essay of 3,500 words which critically analyses and evaluates this reading, demonstrating an integrated understanding of how the subject materials contribute to legal history as discipline and practice;
2. Exam (50%): Students will be required to sit a 2 hour exam, which will involve evaluation of students' conceptual understanding of legal history as body of knowledge, and/or its operative effect in legal scholarship. The exam will be open book, and will be held in class.

Specialist printed materials will be made available from Melbourne Law School.

This subject is not available as a breadth subject.

On completion of the subject, students will have critically analysed at least one specific instance or example of the complexity of the relation of history to legal form or expression. They will therefore have developed and be able to demonstrate the following integrated cognitive, technical and creative skills:

• Initiate and self direct an analytical piece of writing, using judgment in the application of cross disciplinary theory and method;
• Generate and evaluate complex ideas at both an abstract and applied level;
• Justify and expound to legal and non legal audiences, in oral and written form, how historical principles or method are relevant to legal thinking and practice; and
• Present analyses and application of principles in the form of written arguments that are appropriately investigated, structured, developed, supported and referenced.