Diversity as Paradox: Legal History and the Blind Spots of Law

No. 2020-05

In order to avoid cultural and essentialist fallacies, this contribution argues that diversity can only be understood in paradoxical terms. Diversity has to be constructed and is therefore subject to temporal, regional and functional variations, which makes it an extremely fluid category. One manner in which diversity is constructed is through law. While legal history has traditionally been concerned with the manner in which law has historically created differences of personal status, amongst legal categories, and between sources of law, contemporary legal historians are confronted with the problem of how to observe cultural, ethnic, functionalist and other forms of diversity that are not necessarily defined by law. The manner in which nineteenth-century legal systems ignored the particular experience and circumstances of indigenous populations is a case in point: How can legal historians observe that which is not included in the law? By understanding diversity as paradox, I will argue that the constructivist approach to diversity requires a methodology to allow legal historians to move between legal and non-legal sources without losing sight of the specificity of legal observation.