Editorial

This year’s Rechtsgeschichte is flying under the flag of translation. The first Focus section deals with cultural translators of normativity, and the second Focus treats the translation of legal customs into writing – a translation into another medium. Such processes of translation may very well represent a key to understanding local, national, regional, or even global legal histories; however, in the past they have simply received insufficient consideration. In order to rectify this situation, the Max Planck Institute for European Legal History has for quite some time, within the context of a research focus area, been devoting more attention to such processes. For this reason, the contributions brought together by Lena Foljanty in the first Focus section, Translators: Mediators of Legal Transfers, stem predominantly from research projects being conducted at the institute. The contributions are looking at early modern Mexico, Helmstedt in the 18th century, Cairo in the 19th century, and Colombia in the 20th century. Another act of translation, in multiple senses of the term, lies at the heart of the second Focus section. Tzung-Mou Wu, from Taiwan, asked a group of legal historians from the Western world to examine historical experiences involving the codification of legal customs, thereby setting the stage for a Taiwanese reflection on the question as to how to make the most of the so-called indigenous peoples’ legal customs and customary law. At first glance, this approach may appear somewhat peculiar or perhaps remind us of the unfortunate attempts to directly appropriate legal history so as to shape law in the future. Nevertheless, abusus non tollit usum and the multiplicity of recourses to history certainly belong to the more interesting phenomena within the contemporary debate concerning the rights of the so-called indigenous peoples. The contributors, however, were faced with the difficult task of translating the major questions of legal historical scholarship in such a way as to be interesting for the jurists in that region, which, despite some historical points of contact, nevertheless possess very different legal cultural experiences. The demand for such texts is greater than ever and will only continue to grow in the future.

In his introductory remarks, Tzung-Mou Wu makes reference to another aspect that our discipline needs to deal with: the danger that, given the growing Anglicization of the academic discourse, the results of the important research traditions composed in the major European languages are receiving less and less consideration. This situation further emphasizes the necessity of translation; something we are attempting to do in this issue. To this end, we are publishing a comprehensive essay by Gerhard Dilcher in English, where he takes stock of his decade-long engagement with the German literature scholars and their relationship to the Historical School. In this contribution he sketches out what some readers might consider an unfamiliar image of the history of 19th century German legal historical scholarship. A number of very well-known and important jurists from the 19th and 20th centuries, some of whom are seldomly read today, are inscribed within the developmental trajectory that stretches from von Savigny to Berman. Not least because of the apparent disappearance of German literature after 1945, a great number of these figures have moved beyond the periphery of both legal historiography and legal historical reflection. Several of the portraits found in this issue are intended to help recall them. In his treatment of the Austrägalgerichtsbarkeit in the German Confederation, Jakob Zollmann also takes up and works through an important part of 19th century German legal history. His analysis sheds light on an almost forgotten legal historical phenomenon; a topic which is of particular interest given the overlap existing between various jurisdictional spheres. Finally, Pedro Cardim addresses the expansive and fundamental field of research within legal history focusing on European empires: the status of the overseas territories of the Iberian monarchy in the 16th and 17th centuries. Over the course of the last 100 years, their political and legal status was primarily analyzed from a national perspective – either in Europe or America. His article reconstructs this imperial legal space and provides a thoroughly altered picture – one little known within the context of the English-language literature.

The two Forum sections strive to provide a snapshot of a broad discussion concerning issues important to legal historical research. Christiane Birr poses the following question: what kind of | research results can be expected from the much-discussed digital humanities? Going beyond the common rhetoric, are there any concrete uses or results relevant to the humanities and, in particular, to legal historical research? – The responses to these questions include everything from fundamental reflections regarding methodological implications up to and including very specific results and how the applications of the new technologies could lead to further results. In the second Forum, Peter Collin approached several colleagues and asked them to assess the state of the history of social law. Here again we are dealing with a field that was for a long time described in terms of national histories and, as the contributions show, could profit from a broadening of perspectives via comparative or interrelational approaches.

In the Critique section, important works within legal historical research published within the last two years are discussed, several of which also deal with translation. As always, we have again done our best to discuss as many publications as possible in a language other than that in which they were written. Journals are indeed also translators.

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Two Humanists Exploring Together: or, a View from the Weeds

This essay is the product of a partnership between two professional historians interested in the possibilities of digital tools for furthering humanistic inquiry. Nystrom is a historian of technology with a personal history involving open-source software and a keen appreciation for how much fun it can be to tackle old problems with new sources and methods. Tanenhaus is a legal historian, who has been searching for methods to understand legislative borrowing. Our partnership is unusual on several fronts. Our shared field of history generally involves a lone practitioner working long hours in solitary confinement on his or her book. Digital history and digital humanities more frequently feature professional teams or partnerships attacking problems; however, these are often »patronage« or »client service« relationships because the digital historian conceives of the project and then pays experts to implement the technical bits. Other such partnerships involve »student/mentor« relationships, which imply a greater learning component for the student doing the work but are still based on an unequal relationship. By contrast, our partnership is built upon a collaborative framework motivated by an egalitarian ethos. Along the trail of inquiry, we spot different kinds of things. We take turns following each other into the scholarly weeds, and when we come to forks in the road, we discuss possible courses of action with reference to our shared professional culture and ethics. The cumulative result is a dynamically evolving historical research project with the digital humanities at its center but not bearing the full weight of our analytical expectations.

Digital possibilities brought us together initially to search for trends and patterns in juvenile justice lawmaking at the state level in the United States from the mid-1980s to the turn of the 21st century.1 This collaboration involves hunting for and gathering information; using computing power to make, analyze, and visualize data; and presenting our findings to disparate audiences that include social scientists, rhetoricians, and legal historians. To secure the resources necessary to create usable data and make our tools publicly available, we have ventured into the territory of the more empirically and model-driven social and policy sciences. Such collaboration can help social scientists and policymakers to do their work, but does not have to redefine who we are. We can cross over disciplinary borders without losing our identity as committed humanists.

We have been tempted by the lure of using big data and sophisticated programming to either capture transcendent »truth« or expose clandestine actors. Fortunately, we periodically pause to discuss the nature of our collaboration and our respective understandings of what it means to do history. For us, answering historical questions about the messiness of human experience is a vocation. Our conversations about disciplinary principles remind us of why we became humanists in the first place, energize us, and keep us focused. Most significantly, our engagement with digital legal history – a combination of using computing power and painstaking qualitative analysis of sources – allows us to see the world anew and pose new questions. Our conversations about legal historiography, for example, spark the search for new sources of information and methods to explore linkages and interconnections among ideas and their expression in lawmaking and elsewhere. Similarly, our conversations about the digital methods in our toolbox lead us to ponder the consequences of using those tools on untested sources or problems, even as we consider how we might further develop our programs to extend the reach of our techniques.

Our mantra is, »No Magic.« By this, we mean that digital historians, like all historians, must be able to understand and show their work. As we see it, digital tools themselves pose a large but not insurmountable barrier to understanding – a barrier we seek to circumvent. In »ordinary« historical practice, if we used an unusual source or a new | technique in our work, we would be obligated to explain it to our readership. To do so, we would need to understand its inner workings as fully as possible. The same must be true for digital tools used by digital historians, because better understanding leads to better interpretive results. To a digitally oriented readership, this statement will seem so basic as to be essentially a truism, but experience has shown us that it bears repeating. Professional historians would shudder if a colleague publicly proclaimed to be »just not archive-savvy.« Yet similar pronouncements about not understanding technology would more likely generate sympathy instead of scorn.

We also fervently believe that others should be able to reproduce our results. For historians working in the traditional mode, this means being able to follow our footnotes to archival or published sources. Others should be able to check our interpretations and analyze our handling of the data. This is an undisputed cornerstone of scholarly activity. We see no reason that sources in a digital form should be treated with lesser scrutiny. The challenge is that digital sources are frequently subject to transformations by machines (indeed, such transformation is key for distant reading and quantitative analysis). Without access to the precise steps and techniques of that transformation, it becomes difficult to assess such methods and results. As a consequence, we urge digital historians to make their raw sources and programs available to the public whenever possible and to take measures to increase the ease of reproducing quantitative results, such as employing non-interactive scripted programs, open-source tools, and openly-available data.

Finally, we are aware that creating publicly available data and digital tools means that others can use these resources in absolutely exciting or completely dreadful ways. Ideas, as our digital work has demonstrated, can spread unexpectedly. So be it. We still believe in the promise of digital legal history and will keep exploring together.

Bibliography

Nystrom, Eric C., David S. Tanenhaus (2016), The Future of Digital Legal History: No Magic, No Silver Bullets, in: American Journal of Legal History 56,1 (March), 150–167
1.

Nystrom/Tanenhaus (2016).

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