How to write a positivist legal history: lessons from Blackstone and J.F. Stephen. Histories. 1, 2021, 169-183.
This paper is about shaping the law understood as a positivist enterprise. Positivist law has been the object of contentious debate. Since the 1960s, and with the surfacing of revisionist histories, it has been suggested that the abstraction of the criminal law doctrine is due to its categorisation in early histories. However, it is argued that positivism was hardly an intentional master plan of autocratic social control. Rather, it is important to recognise that historians need to provide a value-free recount of history. This paper examines this assertion by drawing on the writings of the English jurist William Blackstone and his work Commentaries on the Law of England (1765) and James Fitzjames Stephen’s A History of the Criminal Law of England (1883). Taking these scholars not as mere a-historical writers but reflecting on the fact that they inevitably ‘functioned’ as conduits of their own social practice opens an inquiry into the social response to a social need already underway long before their time.
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