Alumni in the Archives: An Interview with Legal Historians - Part I
Rohit De (BA LLB 2005) is an Associate Professor of History at Yale University, and a historian of modern South Asia and focuses on the legal history of the Indian subcontinent and the common law world. He is the author of A People's Constitution: Law and Everyday Life in the Indian Republic (2018).
Kalyani Ramnath (BA LLB 2009) is an Assistant Professor of History at the University of Georgia. She recently won the Surrency and Jane Burbank Prizes from the American Society for Legal History in 2021 for her article, “Intertwined Itineraries: Debt, Decolonization and International Law in Post-WWII South Asia”. In the early years of Quirk, she used to be tasked with transporting copies to the acad block from the printers.
Priyasha Saksena (BA LLB 2010) is a Lecturer in Law at the University of Leeds. She was the co-winner of the 2021 Sutherland Prize from the American Society for Legal History for her article “Jousting Over Jurisdiction: Sovereignty and International Law in Late Nineteenth-Century South Asia”. She enjoys archives, mangoes, and crime fiction, not necessarily in that order.
This interview is the first of a three-part series. In the first part, Quirk spoke to them about learning history, especially after a background in law. The interview was conducted by Jwalika Balaji (BA LLB 2023), Lakshmi Nambiar (BA LLB 2023), Chetan R (BA LLB 2024) and V Sreedharan (BA LLB 2024). We'd like to thank the Alumni Officer, Ms Akanksha Sharma (BA LLB 2013) for helping us make this interview possible. The cover image is by Akshit Singla (BA LLB 2024).
Q. What would you say to people who consider History a boring subject? And do you think (as a larger question) a course on history should be mandated to be taught at law schools? If yes, what sort of history should be covered: should it be legal history/constitutional history? Or should it be generalist theory, theory of history, or historiography?
RD: This is a question that requires you to unpack all the terms in it. What do you mean by ‘interesting’ and ‘history’? Is it about how it’s being taught in a specific way? Is it about reading certain kinds of books? ’That’s a question that's neither here nor there, because, in some ways, learning how to think historically and having a certain degree of knowledge of history is essential. For a lawyer, it's sort of the same question, as say, “Do you find contracts interesting?”, or “Do you find jurisprudence interesting?”.
I’ll just make a brief segue to talk a bit about how history was introduced into the NLS model. So until the 80s, legal education in India was done at the postgraduate level - people had all kinds of backgrounds as undergrads. The legal history paper was largely about Roman law, or listing the administrative changes that happened with the British coming into India. When NLS was set up, in its first bulletin, it made a major argument about the importance of integrating law with other social sciences with the idea that they want to train Indian lawyers to be aware of how this legal system works in a particular context.
There were three compulsory legal history courses. Initially, they were taught by our regular faculty. At Prof V.S Mallar’s memorial, people talked about how he and Professor V Vijayakumar, and others were teaching legal history, and learning it by themselves or the books. But it's really with Prof. Elizabeth coming into NLS early 90s that there was an attempt to rethink what history for law students would look like. I think one of the innovations she made was introducing the historiography course, which for many students is a bit of a shock. Why do we spend almost half the semester talking about what is history? How do we write about history? Of course, what it really does, is it equips you with certain kinds of tools through which you can navigate not just history, but also other questions that you deal with as a lawyer and as a citizen. And it became a kind of foundational tool for many of the other social science courses.
Back in my day, which is a long time ago (haha), there were three history courses, and that curriculum evolved over time. The third history course was kind of an open-ended course which had everything from English legal history to like, in some years, we learned about black feminist thought or critical legal studies. I think overall, the last model has really not been about centralising or deciding that something is required but leaving it up to the teachers to think about syllabi more innovatively.
PS: Oh, in my time, we were back to two history courses. I feel a little bit cheated, actually (laughs).
But going back to the argument of what do we say to people who find history boring or uninteresting - I think a large part of learning is linked to history. I find history interesting because, as Rohit said, as lawyers, we need a historical understanding of how we got here. that's why I also think it's important and relevant, and needs to be taught. But that's linked to how it is taught. And for people who maybe are taught history as a sequence of dates, I can understand why that might be challenging to see why it's interesting or relevant to our lives. But at least at NLS and all the other places I've studied history, that's not how we are being taught. So I think it's important to link what we mean by history and how it's taught, in order to figure out why it's important and interesting. If, after all this, people still find history uninteresting, then I guess to each their own. I'm pretty sure there are a lot of things, which I would also not be willing to spend my time on. So, it's totally fine. But I think we, as history teachers, have the responsibility to communicate why our subject is important.
KR: I want to pick up on something that Rohit said, which is the open-endedness of the NLS ‘Law and Social Sciences’ curriculum, and talk a little bit from my own experience of teaching at NLS. I wholly attribute my interest in history for the past 10-15 years entirely to Law School and history courses. I wasn't exposed to the kind of history that perhaps Rohit and Priyasha talked about at the school level. I found it interesting, but not compelling. It wasn't until I came to NLS and I took Prof. Elizabeth's courses that I realized what was possible. NLS was also down to two history courses by then: the first was the historiography course and the second one was more of a legal history course.
I became a TA for Prof. Elizabeth in my final year. She let me do what I wanted to do with the two or three classes that were allotted to me as a TA. That really led to me pursuing a research career in legal history. When I came back to teach at NLS in 2010, I remember very clearly she told me, “You can do whatever you want with the syllabus, you do not have to teach the syllabus that I taught. So bring your own perspective, your own interests, to the syllabus.” That gave me the confidence to frame legal history the way I wanted to.
The legal history course that I taught between 2010 and 2012 was a little different each time. But it picked up on themes that I thought were important for lawyers and law students to know, which was sort of the lived experience of the law, what it was like to encounter the legal system, and how that changed over time. Bringing in more secondary sources that work with archival materials, showing how history is done, what it is like to write legal history, and making that process come alive. And honestly, I think I can say this, I didn't have too many students that came to me and said “We find history boring”. A lot of them have gone down very different routes. But I like to think it gave them essential critical reading, thinking, and writing skills, an ability to think over long stretches of time, and to work with different sources. These are all skills and tools that you will need as a lawyer.
Q: Full disclosure, when we came up with the question we were primarily thinking of people in grade 9th or 10th who learn history a certain way. We came in here and Prof. Elizabeth completely turned things around. We were two of the last batches she taught before she became the Vice Chancellor of another university. So for us, it truly was a life-changing subject. And we've had people over the years and seniors tell us that there's your thinking before History 1 and History 2, and then there’s your thinking after History and how it completely changes your mindset.
KR: Yeah, she used to write that line in the beginning - she used to ask us “What is history?” And then everyone without fail would say history is a story of man's progress. And then she would unpack each one of those terms, and then your mind would never be the same again. So I remember very, very starkly her unpacking those words: Man. Progress. History.
Q: Law is a particularly historically entwined degree. Lawyers are constantly looking at precedents to prove why we're right. It continues to be the primary basis most of the time for saying why we stick by a certain view of how the law is or why we think it should be the reinterpretation that we want. Prof. Elizabeth's historiography course in a lot of ways, engaged with those core tenets of law. Any comments on this?
RD: When I was in Law School, a lot of the new innovations were offering an LLB with a BSc or with a BCom, and it was just seen as giving more options. And there's something to be said from inter-disciplinarity. You learn something with every discipline that you engage with.
But I want to go back to something Priyasha and Akanksha said: that there’s really two fundamental disciplines to the underpinning of the practice of law, particularly the common law. The first, of course, is some element of philosophy or political theory, it requires a way to analyse language, and to analyse arguments. The second is history. Not just learning a precedent - but the work you do as a lawyer is marshalling evidence about the past, making an argument that is relevant in some ways to the present, and then distinguishing the past, or drawing comparisons with the past to make your case. There's a really wonderful book by the historian Carlo Ginzburg called The Judge and the Historian where he reflects on the kind of relationship between these two figures because they're both trying to produce some version of the truth. They have certain kinds of evidentiary standards. It might be different for both disciplines, but they have to follow them. And you really have to know a set of historical practices of the region that you're working on.
KR: Picking up on the differences between a judge and a historian - that's also sort of the occupational hazard of teaching history in a law school. This is where you're socialised into being lawyers, and you also think that that's what historians do. They judge. So it's an interesting moment for history teachers within law schools to kind of make that distinction between historians and judges. The end goals are different for historians and lawyers, but the methods and the ways in which we’re kind of thinking with the materials before us is quite similar.
it's quite different, I would say, Rohit and Priyasha, from what we've seen in terms of how legal history is taught within US and UK law schools. Our system of teaching history with the Law School is quite different in that sense. I don't know if you have some reflections on that. I've always found it quite distinct and difficult to explain to others outside India, how the five-year law and social sciences model is different in the way it treats social sciences.
PS: I agree about that. I mean, I currently teach in a law school which has a three-year undergraduate LLB programme. So it is very difficult to make the argument about the significance of the social sciences. I'm firmly of the view that having a connection with the social sciences is important. I found that the kind of graduate work I did was influenced by the fact that I had done law along with other disciplines. It wasn't just a BA in Law or an LLB. I had a BA LLB and I think that genuinely made a difference. But it's also linked with where you are housed. If you're in a history department and if you are in a law school, you probably think about doing legal history a little differently. This is a methodological debate – there is currently a raging debate about how to write the history of international law and who writes what kind of history but the way I write it, I think is genuinely influenced by the fact that I studied law and social sciences as an undergraduate.
Q. Are there any particular advantages to studying law after the background in social sciences over a separate law degree upon completion of an undergraduate degree?
RD: This has been a long debate in India and we’ve come full circle, especially with NLS starting a 3 year LLB programme just this month. The interesting thing about lawyers is that if you really want to, you can pick up skills at various points in your life. It's an adaptable career as it were. And legal history is something that is a tool that's used in a number of other fields of law as well. take, for example, the work done by colleagues who work in criminal law, whether it's Mrinal Satish, or someone like Abhinav Sekhri, who practices. Eventually, if you're writing about criminal law and practice in India, you have to go back to the (Criminal Procedure) Code itself, the context in which the Code is produced and the ways in which various precedents operate. So it is a toolkit that's used in a range of other disciplines.
As to the specificities of how law should be taught, nothing prevents (even if you're doing a three-year LLB degree with only law courses) law professors from bringing legal history into the classroom. And I think one of the challenges that the NLS model faces is that while social sciences have all tried to show us how they can engage with law, a majority of law courses have been very sparse in terms of engaging with other disciplines. But you can imagine property law taught through history, philosophy and economics, you can think of IPR dealing with cultural studies. The readings are there. And I think it doesn't matter what the model is, you can bring in interdisciplinary work into any system.
KR: I think this is also a question that I'd love to hear more from my teachers who taught doctrinal law courses, who went on to do graduate work that was more interdisciplinary, how they kind of change their syllabi over time. I took a shot at teaching property law the same year that I taught legal history. And yes, it completely changes even the way you think about what you want to teach the students. But I do remember there being a fair amount of scepticism about say, "Why should we read Marx, you know, in a property law course?' So there’s no reason why the doctrinal law classes can't bring in that element – for example, to reframe the hypothetical to have students think about law in a more historical manner. So I think there are lots of avenues, not just in the classroom, but also in terms of how we evaluate critical thinking and writing skills, where you can bring in an interdisciplinary perspective quite easily.
PS: I think we're the wrong people to ask. Well, obviously the three of us will say yes. It's a question of how other people accept that. I teach trusts here and I am continually trying to smuggle in history, which for trusts is relatively easy. But, it's totally easy to reframe pretty much any doctrinal course as a historical course. And I think, it's about the significance of doing that, which probably depends on who's teaching it. But it's possible to do it, and I think it would be enriching to do it, because it helps us understand how and why the doctrine is the way it is right now. And maybe if we want to change it, or can we change it? - you know, questions like that.
Q. I have a follow up. Do you think having the BA course integrated with the LLB course helps with this, or does it take away from it? Because from personal experience, there are courses where professors may refer to, let's say, aspects of history or sociology, which they just assume that you've learned because you're doing a BA, LLB course, but sometimes our BA courses are not really that connected to law. They're more foundational courses. So do you think it helps to have BA with LLB? Or do you think it's better to have just an LLB because there, this assumption is not being made?
KR: When a teacher references something that you might have encountered in a history course, or sociology course, it's not necessary that you have to have read that particular scholar or that particular book. It's more that there is this window of opportunity here for you to go and explore that. The texts are not meant for you to know conclusively. Once you have those foundational courses of history and sociology, you'll get a sense of the questions that these disciplines ask and [become aware of] the texts that people are in conversation with. I definitely remember writing a criminal law paper that had elements of law and economics in it. That was a section that I couldn’t have done if I hadn't had that benefit of knowing, “Look, this disciplinary approach is possible”.
PS: I also think it might be easier for students to accept interdisciplinary ways of thinking about the law, if they're already exposed to historical or sociological ideas or political theory earlier on.
RD: I don't have much to add to what Kalyani said. In some ways, we'll get a natural experiment over the next few years, where we will see one group of only LLBs and one of BA LLBs. Maybe it's a conversation to be had five years into the future. I just want to just pick up on something that Kalyani said, which is that a lot of things that even this current generation of legal students take for granted as canonical, weren't always canonical. So when I was an undergraduate at NLS, we never heard of or discussed Ambedkar, in any class. Apart from certain students who were assigned projects, nobody had read the Constituent Assembly debates because they weren’t online. So to access that would mean going through the print copies, and it wasn't part of the conversation. But I think in a period of five years, for a variety of reasons, both of these have become a part of the common sense of law students. Some of the people who have been involved in making the transition have been alumni from the NLUs, who have actively gone out and talked about it. Arvind Narain's book has just come out, which really talks about a kind of Ambedkarite vision of law and the Constitution, making it part of popular imagination. So I think the resources that NLS or a private law school has is firstly, a really well-stocked interesting library; and secondly, a model that allows us to go to the library and figure it out for yourselves. Nowhere can one achieve an exhaustiveness in teaching law. So in most law degree programmes, if you don't know something, you go find out where it is and learn how to use it. So that's the kind of skill I think, should be developed and kept in mind.