Past-Dependency, Pragmatism, and Critique of History in Adjudication and Legal Scholarship

Using Nietzsche's great essay on the uses and disadvantages of history for life as his jumping-off point, Judge Posner examines the utility of the study of history for adjudication and legal scholarship. He argues, following Nietzsche, that the wrong kind of historical study can be very bad for "life," including law, while the right kind -- the kind deployed by a pragmatic judge or a policy-oriented legal scholar -- may deviate from literal accuracy in the direction of a rhetorical and imaginative narrative of historical events that can be constructively employed in a forward-looking approach to legal problems.