Imagining Equity I
Bill Long 12/09/04
The Anamnestic Function of Law
I have often rehearsed in my mind the first line of my lecture when I am installed into my endowed chair in legal history. Of course, this will never happen, but the imagining of such a situation has helped me think through a lecture I would likely give. The first line would run something like this. "Law has three primary functions in our society and common life: a historiographic, a pictorial and an anamnestic function." I will begin this way because it is a little obscure, and because people expect you to be obscure, especially if you are being installed in the "Rich Person's Chair of Legal History at XXX Law School."
Actually, the true reason I never think I will be installed in such a position is that I can only maintain the facade of unclarity for a very short time. I just have to explain myself lucidly. That is a great fault, I know, and one that earns you the scorn and the disrespect of most muddled thinkers, who actually rule the academy. Clarity of thought is a real threat to them, and must be an indication of simple mindedness. It reminds me of my first teaching position at an elite college in Oregon in the 1980s. Many of my colleagues thought that a smile was indicative of a lack of tough-mindedness. So, I smiled my way into being fired. Thus, the position in legal history will never come, and I am ok with it. But, I will still begin rather obscurely.
The second line would, to use Jesus' words, 'like unto it.' "There is no law but only the history of law and even this does not exist but only its historiography, which has not been written." This second line would then launch me on my first point, law and historiography. By the time that people are completely bored and confused, I would slip in my third point, on the anamnestic function of law. In order to understand the word "anamnestic," I suppose I would begin with the OED, which defines it as "recalling to mind; aiding the memory or recollection." Though one of the definitions from the OED assumes that an anamnestic is some kind of drug, I would use it in my lecture to mean "calling to mind" or sort of a cross between remembering and imagining. Here is what I mean.
Anamnestic/Anamnesis According to Bill
When I talk about the anamnestic function of law, I mean that even if you don't know the specifics of a statute to which someone makes reference, you can "imagine" what the provisions of such a law would be if you can "remember" the context of American life in which the statute was enacted. An example will clarify. Let's say I am lecturing to a group of first-year law students and I mention the "Family and Medical Leave Act (FMLA)." Let us imagine further that no one has actually heard of such an act (sort of a possibility) in the first year class. I would tell them the following. "The FMLA was enacted in 1993. It is an employment statute. Put yourself back in 1993 and tell me what the provisions of the Act would be."
I would then ask them to raise their hands and "imagine" the law by "recollecting" history. Guess what? They could come up with probably more than 90% of the provisions of the statute and definitely the major provision without ever having studied the statute at all. This is the anamnestic function of law. Understand the context well in which a law was enacted, and imagine what you would have put into such a law had you been responsible for enacting it.
Applying the Insight to Legal History
Now we have the key methodological insight for studying legal history. In addition to learning languages, legal history is nothing else than imagining what you would do in a circumstance where you know the actors, the factors and the reactors, so to speak. Thus, you really don't need to slog through tons of pages of old reporters, hundreds of books or treatments of historical themes in law, or even thousands of legal articles in journals great and small. You simply have to learn a few words, a few people, a few things that were bugging the people at a particular time, and then begin to imagine. You can not only come up with the various approaches to a problem that were no doubt considered, but you could probably "guess" how things came out.
And, because statutes were actually enacted, you could "check your guesses" by actually going back and reading what took place. This method not only will make you more attentive to primary texts, but will enable you to construct history more critically than any scholar you will ever read. You will be studying history "proactively," wading in and positing controversies that must have existed even before you know whether certain texts survive that represent every approach to a problem. But you will be ready to pounce on data like you have never pounced before, searching and imagining as you go. Then, if you combine this instinct with a few facts, such as what happened on a particular date or collection of dates, you will be prepared to understand the human side of historical controversies. You will be the one in charge as you "listen" to the stories from the past.
Conclusion on Equity
I would like to illustrate this imaginative historical method through a brief consideration of equity. Equity is a historical accident of the common law (British/American) tradition of law, and has mostly disappeared from lawyers' consciousness in 2004. Yet one of my goals is to resurrect equity as the "conscience" of law, a conscience which I believe that law sorely needs today. The next mini-essay will introduce equity.
Copyright © 2004-2008 William R.Long