Precedents of Injustice: Thinking About History in Law and Society Scholarship

Abstract

In this essay I discuss how law and legal precedent present a false or eschewed construction of the past. The Chicago Haymarket Riot in 1886 and the subsequent trial of eight rioters in Spies vs. People provide a dramatic illustration of the lasting consequences of privileging some historical narratives and silencing others. Occurring as it did at the dawn of the “Red Scare,” the miscarriage of justice in Spies vs. People acts as a landmark precedent in a tradition within the United States of extra-judicial lawlessness that stretches from this case through 100 years of labor turmoil, two World Wars, McCarthyism, the Cold War, and up to the current War on Terror. Moreover, these instances of lawlessness and extra-judicial activity, while not written into legal records, nonetheless resurface again and again to form patterns of behavior that amount to what I call precedents of injustice, and which I argue are as integral to law as any formal legal precedents. By way of conclusion I urge all sociolegal scholars to remain attentive to the wider historical contexts which over time are repeatedly silenced through the institutionalized legal processes of denial and forgetfulness.

Citation

Darian-Smith, E. (2007), "Precedents of Injustice: Thinking About History in Law and Society Scholarship", Sarat, A. (Ed.) Special Issue Law and Society Reconsidered (Studies in Law, Politics, and Society, Vol. 41), Emerald Group Publishing Limited, Leeds, pp. 61-81. https://doi.org/10.1016/S1059-4337(07)00003-8