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Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst

Published online by Cambridge University Press:  28 October 2011

William J. Novak
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Extract

Two legacies vie to take the measure of the work of Willard Hurst. The first understands Hurst primarily in his formal role as the “founding father” of an academic sub-specialty known as “American legal history”—the author of a canonical text Law and the Conditions of Freedom, and the coiner of interpretive phrases like “legal instrumentalism” and “the release of energy” that established the boundaries of disciplinary debate for two generations of acolytes and dissenters. The second legacy flows from the substantive range of Hurst's research and writing as a whole—the depth and breadth of an intellectual project that tears at and transcends the very disciplinary borders being constructed by his texts and phrases. In this essay, I will ignore the first perspective, which tends to dominate hagiographic and commemorative commentaries.

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Articles
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Law and History Review , Volume 18 , Issue 1: Engaging Willard Hurst: A Symposium , Spring 2000 , pp. 97 - 146
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Copyright © the American Society for Legal History, Inc. 2000

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References

1. Moishe Postone notes a similar tension between the formal/political and substantivel/intellectual legacies of the work of Karl Marx. See Postone, Moishe, Time, Labor, and Social Domination: A Reinterpretation of Marx's Critical Theory (Cambridge: Cambridge University Press, 1993).CrossRefGoogle Scholar

2. The best discussion of the dialectical need to create room for innovation in the face of great, canonical texts or authors (even to the extent of requiring conscious misinterpretation if necessary) is, of course, Bloom, Harold, The Anxiety of Influence: A Theory of Poetry (New York: Oxford University Press, 1973).Google Scholar One of the greatest dangers of a closed, disciplinary canonization is that a new generation of scholars anxious to make their own innovations in a field will simply ignore rather than dialectically engage the thoroughly pigeon-holed foundational text or author. Indeed, the strongest avant-garde tendency in American legal history over the last fifteen years has been a flight from Hurst's typecast concerns to those things missing or silenced in the (supposedly his) dominant narrative.

3. Skocpol, Theda, “Sociology's Historical Imagination,” in Vision and Method in Historical Sociology, ed. Skocpol, Theda (Cambridge: Cambridge University Press, 1984), 1–21, 8, 4.CrossRefGoogle Scholar

4. Smith, Dennis, The Rise of Historical Sociology (Philadelphia: Temple University Press, 1991), 3.Google Scholar

5. Hurst was very critical of the opportunistic intellectual busyness that he felt preoccupied routine legal scholarship (what Thomas Kuhn called “normal science”). “[A] satisfaction with busyness,” he intoned, “stays with us, as a limitation upon significant achievements. It is easier to be busy than to think. It is easier to be busy, because it typically leads one to the product that he can see in the next hour or the next day; it is harder to invest time and energies in enterprises which may not show returns for 10 years, or which perhaps will yield their product only past the lives of their begetters.” Hurst, James Willard, “Perspectives Upon Research Into Legal Order,” Wisconsin Law Review 1961: 356–67, 360, 366.Google Scholar For other testaments to Hurst's preference for large projects with long payoffs, see Hartog, Hendrik, “Snakes in Ireland: A Conversation with Willard Hurst,” Law and History Review 12 (1994): 370–90CrossRefGoogle Scholar; and Ernst, Daniel R., “Willard Hurst and the Administrative State: From Williams to Wisconsin,” Law and History Review 18 (2000): 1–36.CrossRefGoogle Scholar

6. Hurst, James Willard, “The Law in United States History,” Proceedings of the American Philosophical Society 104 (1960): 518–26, 521 (emphasis added).Google Scholar This crucial paragraph about a “want of philosophy” in legal scholarship is left out of the popular reprint of this article in Friedman, Lawrence M. and Scheiber, Harry N., eds., American Law and the Constitutional Order: Historical Perspectives (Cambridge, Mass.: Harvard University Press, 1978), 3–12.Google Scholar See also Hurst, “Perspectives Upon Research,” 360; Hurst, James Willard, “The State of Legal History,” Reviews in American History 10, no. 4 (1982): 292–305, 294.CrossRefGoogle Scholar

7. Hurst's seeming distaste for conferences, honorifics, placements, and other formal badges of academic distinction bespeaks a rather rare sense of intellectual mission. He seems to have inculcated the solitary, strenuous work ethic endorsed by Oliver Wendell Holmes in a well-annotated copy of Holmes's speeches that J. S. Haviland presented to Hurst before he entered Harvard Law School. Holmes prodded, “No result is easy which is worth having … To think great thoughts you must be heroes as well as idealists. Only when you have worked alone,—when you have felt around you a black gulf of solitude more isolating than that which surrounds the dying man, and in hope and in despair have trusted to your own unshaken will,—then only will you have achieved. Thus only can you gain the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who neverheard of him will be moving to the measure of his thought, —the subtle rapture of postponed power, which the world knows not because it has no external trappings, but which to his prophetic vision is more real than that which commands an army. And if this joy should not be yours, still it is only thus that you can know that you have done what it lay in you to do, —can say that you have lived, and be ready for the end.” Holmes, Oliver Wendell Jr, Speeches (Boston: Little, Brown, 1918), 24.Google Scholar

8. One or more of these perspectives underlies most of the major reconsiderations of Hurst's work thus far. On formalism and instrumentalism, see Friedman, Lawrence M., “Some Problems and Possibilities of American Legal History,” in The State of American History, ed. Bass, Herbert J. (Chicago: Quadrangle Books, 1970), 3–21Google Scholar; and Scheiber, Harry N., “At the Borderland of Law and Economic History: The Contributions of Willard Hurst,” American Historical Review 75 (1970): 744–56.CrossRefGoogle Scholar On legal realism, see Diamond, Stephen, “Legal Realism and Historical Method: J. Willard Hurst and American Legal History,” Michigan Law Review 77 (1979): 784–94.CrossRefGoogle Scholar On conflict and consensus, see Tushnet, Mark, “Lumber and the Legal Process,” Wisconsin Law Review 1972: 114–32Google Scholar; and Soifer, Aviam, “In Retrospect: Willard Hurst, Consensus History, and The Growth of American Law,” Reviews in American History 20, no. 1 (1992): 124–44.CrossRefGoogle Scholar On critical legal theory, see Gordon, Robert W., “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10, no. 1 (1975): 9–55Google Scholar; and Gordon, , “Critical Legal Histories,” Stanford Law Review 36 (1984): 57–125.CrossRefGoogle Scholar

9. Those skeptical of the powerful role of theory and conceptualization in Hurst's vision of the field might consult his devastating critique of the empiricism of the Institute of Law at Johns Hopkins: “Here are impressive collections and collations of facts. … They are books which added up to relatively little impact, because they represented on the whole a naive empiricism. … They worked hard as if they believed that wisdom might be had from accumulation of facts; if you piled up a big enough stack of facts, somehow the juice of new understanding would squeeze out the bottom from the sheer weight of the pile. We have learned a little more sophistication in this, but faith in the seeming self-evident virtue of data collection is still a very lively source of danger.” Hurst, “Perspectives Upon Research,” 365.

10. Hurst was adamant on this point: “Legal history needs philosophy of history.” Hurst, James Willard, Law and Social Process in United States History (Ann Arbor: University of Michigan Press, 1960), 2.Google Scholar The whole point of university life for Hurst was “to study the particular for the sake of the general.… Our own ignorance justifies us in studying broader questions than those which seem to be pressing towards immediate issue.” Hurst, James Willard, “Legal History: A Research Program,” Wisconsin Law Review 1942: 323–33, 324.Google Scholar His magnum opus on law and the Wisconsin lumber industry was motivated by just such a desire to merge the most particular and empirical with the most general and theoretical. As he noted in his preface, “The study tries to make its primary concern with the interaction of legal and economic institutions yield a product relevant to broader social theory. … The particular story of law and lumber in Wisconsin is matter only of secondary interest in this book; of prime concern is to learn, from trying to tell this particular story, how better to tell the story of the distinctive parts which law has played in the general course of social experience.” Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915, 2d ed. (Madison: University of Wisconsin Press, 1984), xx.Google Scholar

11. Holmes, Speeches, 23.

12. Frankfurter, Felix, The Commerce Clause under Marshall, Taney, and Waite (Chapel Hill: University of North Carolia Press, 1937).Google Scholar For a fuller discussion of Hurst's role in this volume along the lines of James Landis's collaboration with Frankfurter on the still impressive The Business of the Supreme Court (New York: Macmillan, 1927), see Hartog, “Snakes in Ireland”; and Ernst, “Hurst and the Administrative State.” One could make an argument that Hurst's first serious research and writing effort was the publication of his Williams College senior essay “Holland, Switzerland, and Belgium and the English Gold Crisis of 1931,” The Journal of Political Economy 40 (1932): 638–60.

13. Frankfurter, Commerce Clause, 3, 5–6. In an interview with Hendrik Hartog, Hurst noted that his first impulse toward history was constitutional and biographical, citing the influence of Albert Beveridge's classic volumes on John Marshall. Beveridge, Albert J., The Life of John Marshall, 4 vols. (Boston: Houghton, Mifflin, 1916–1919)Google Scholar; Hartog, “Snakes in Ireland,” 371–72.

14. Hurst, James Willard, “An Historical Inquiry into the Development of the Process of Judicial Review,” unpublished course notes (Madison: University of Wisconsin Law School, 1939, 1940)Google Scholar; Association of American Law Schools, ed., Selected Essays on Constitutional Law, 5 vols. (Chicago: The Foundation Press, 1938)Google Scholar; Frankfurter, Commerce Clause, 4.

15. Hurst, James Willard, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950)Google Scholar.

16. Hurst, Law and Social Process, 18–19. As Hurst commented, “I didn't want to wind up knowing nothing except all the gossip about the judges. This didn't seem to be that important.” Hartog, “Snakes in Ireland,” 377.

17. Hurst, James Willard, Justice Holmes on Legal History (New York: Macmillan, 1964), 23–24Google Scholar; Hurst, The Growth of American Law, 209.

18. See for example: Pound, Roscoe, The Formative Era of American Law (Boston: Little, Brown, 1938)Google Scholar; Corwin, Edward S., The “Higher Law ” Background of American Constitutional Law (Ithaca: Cornell University Press, 1955)Google Scholar; Beard, Charles A., An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1919).Google Scholar A full explication of these historiographical traditions and Hurst's relationship to them would take another article. For some of my own summary views, see Novak, William J., The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996), 21–24.Google Scholar Also see the more complete historiographies in the articles cited above in note 8.

19. Parsons, Talcott, The Structure of Social Action (Glencoe: Free Press, 1949)Google Scholar; Parsons, , The Social System (Glencoe: Free Press, 1951).Google Scholar The most useful commentaries on Parsons's work that also resonate for Hurst's project are Gouldner, Alvin W., The Coming Crisis of Western Sociology (New York: Basic Books, 1970);Google ScholarBuxton, William, Talcott Parsons and the Capitalist Nation-State: Political Sociology as a Strategic Vocation (Toronto: University of Toronto Press, 1985).Google Scholar For an example of the recognition of Hurst's work by Parsons, see Parsons, Talcott, The Evolution of Societies, ed. Toby, Jackson (Englewood Cliffs: Prentice-Hall, 1977).Google Scholar

20. These are the individual lecture titles in Hurst's Thomas M. Cooley Lectures at the University of Michigan Law School in 1959. Hurst, Law and Social Process.

21. Hurst, James Willard, Law and Social Order in the United States (Ithaca: Cornell University Press, 1977), 25.Google Scholar

22. Abrams, Philip, Historical Sociology (Ithaca: Cornell University Press, 1982), xiii-xiv.Google Scholar

23. Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956).Google Scholar

24. “What man experiences as scarcity and change is his finitude. What he experiences as growth is his capacity to make new meanings in his experience.” Hurst, Holmes on Legal History, 8.

25. For the best contemporary attempt to wrestle with this problem, see the work of Giddens, Anthony, especially his Central Problems in Social Theory: Action, Structure, and Contradiction in Social Analysis (Berkeley: University of California Press, 1979).CrossRefGoogle Scholar

26. Hurst, Holmes on Legal History, 4, 11.

27. The essentials are Holmes, Oliver Wendell Jr, “The Path of the Law,” Harvard Law Review 10 (1897): 457–78Google Scholar; Pound, Roscoe, “Liberty of Contract,” Yale Law Journal 18 (1909): 454–87CrossRefGoogle Scholar; Pound, , “The Scope and Purpose of Sociological Jurisprudence,” Harvard Law Review 24 (1911): 591–619CrossRefGoogle Scholar; 25 (1912): 140–68, 489–516; Cohen, Morris R., “Property and Sovereignty,” Cornell Law Quarterly 13 (1927): 8–30Google Scholar; Hale, Robert Lee, “Coercion and Distribution in a Supposedly Non-Coercive State,” Political Science Quarterly 38 (1923): 470–94CrossRefGoogle Scholar; Hale, , “Force and the State: A Comparison of ‘Political’ and ‘Economic’ Compulsion,” Columbia Law Review 35 (1935): 149–201CrossRefGoogle Scholar; Cohen, Felix, “Transcendental Nonsense and the Functional Approach,” Columbia Law Review 35 (1935): 809–49.CrossRefGoogle Scholar

28. As Hurst elaborated, “The effects of sequence in events, ideas, and attitudes may be felt through cumulation (the creation of a trend), change (differing balances between continuity and discontinuity …), and commitment (the occurrence of what is irrevocable, or substantially irrevocable).” Sequence revealed “ideas, attitudes, or events which exist or have impetus only through successions which outreach present action, and often exceed the lifetimes of generations.” Hurst, Holmes on Legal History, 11–13, 16.

29. “It was the sequence (and especially the trend) aspects of time which most engaged Holmes's imagination. But it was time as context (that is, the functional and balance-of-power aspects of time) which from the outset of his public career chiefly engaged Brandeis's interests.” Ibid., 11, 34. Holmes, Oliver Wendell Jr, The Common Law (Boston: Little, Brown, 1881)Google Scholar; Brandeis, Louis D. and Goldmark, Josephine, Women in Industry (1908; New York: Arno Press Reprint, 1969).Google Scholar

30. Hurst, , “Modern American Legal History,” unpublished course notes (Madison: University of Wisconsin Law School, 1969, 1970)Google Scholar, “first meeting.” As Hurst sketched the 2500-year-old origins of the western legal tradition: “The demand for legitimacy of power begins with the Greek city-states, in concern for the welfare of the commonwealth. With the Roman republic the demand for legitimacy asks that law respect the citizen as a political individual. The idea takes on new dimensions through the medieval church, with its additional concern for the individual as an entity of will and emotion, to be respected for the creative dignity resident in him. The English Parliamentary Revolution brings growth of ideas about weaving these values together to create a responsive, responsible legal order which will ultimately serve the individuals who live within it. For us, the drive for the legitimacy of power develops into a constitutional tradition symbolized in the creation of the Federal Constitution.” Hurst, James Willard, “Problems of Legitimacy in the Contemporary Legal Order,” Oklahoma Law Review 24 (1971): 224–38, 225.Google Scholar

31. Hurst, Holmes on Legal History, 13, 16, 55; Hurst, Law and Social Process, 9.

32. Hurst, Law and Social Order, 42.

33. Hurst, “The State of Legal History,” 293; Hurst, “Perspectives Upon Research,” 367.

34. Holmes, Speeches, 23.

35. Gordon, “Hurst and the Common Law Tradition,” 10.

36. Hurst, “Modern American Legal History,” “first meeting.” Hurst, Holmes on Legal History, 55, 89.

37. “We must search out the grounds of choice which men so often leave undefined.” Hurst, Holmes on Legal History, 16, 24 – 25.

38. Hurst, Willard, “Chapter Eight: Technology and the Law: The Automobile,” unpublished manuscript (Madison: University of Wisconsin Law School, 1949), 720–30.Google Scholar This manuscript seems to be one of a projected set of chapters (never published) conceived of as something of a supplement to Hurst's Growth of American Law. Hurst hoped to add to his institutional analysis some explicit examples of law-in-action: (a) the automobile as an example of the relationship of law, science, and technology; (b) the law of voluntary associations and antitrust as case studies in the relationship of law and the balance of power; (c) civil liberties as a concrete example of the relationship of law and the flow of information and ideas; and (d) taxation as an illustration of law itself as a major determinant of action in society. James Willard Hurst to Felix Frankfurter, 12 Jan. 1949, Reel 42, Felix Frankfurter Papers, Library of Congress. I owe this citation and hypothesis to conversations with Daniel Ernst.

39. Hurst, James Willard, “A History of the Principal Agencies of Law in the United States,” unpublished manuscript, 2 vols. (Madison: University of Wisconsin Law School, 1948).Google Scholar This is the earliest incarnation of Hurst's Growth of American Law.

40. Hurst, Holmes on Legal History, 61–62.

41. Hurst, “Perspectives Upon Research,” 363–64; Hurst, “Problems of Legitimacy,” 224.

42. In addition to the other articles in this volume, see the essays cited above in note 8. Also see two other tributes to Hurst's work in Law and Society Review 10, nos. 1–2 (1975–76) and Wisconsin Law Review 1997.

43. Pound, “The Scope and Purpose of Sociological Jurisprudence”; Ehrlich, Eugen, Fundamental Principles of the Sociology of Law, trans. Moll, Walter L. (Cambridge: Harvard University Press, 1936).Google Scholar

44. The works most frequently cited in Hurst included Weber, Max, From Max Weber: Essays in Sociology, ed. Gerth, H. H. and Wright Mills, C. (New York: Oxford University Press, 1946)Google Scholar; Weber, , General Economic History, trans. Knight, Frank H. (New York: Greenberg, 1927)Google Scholar; Weber, , Max Weber on Law in Economy and Society, trans. Shils, Edward and Rheinstein, Max (Cambridge: Harvard University Press, 1954)Google Scholar; Durkheim, Emile, The Rules of Sociological Method, trans. Solovay, Sarah A. and Mueller, John H. (Glencoe, Ill.: Free Press, 1950, 1938)Google Scholar; Parsons, The Structure of Social Action and The Social System; Merton, Robert K., Social Theory and Social Structure (Glencoe, Ill.: Free Press, 1957).Google Scholar

45. As Hurst summed up his debt to legal realism: “We have learned to be uneasy with studying law as if it were a self-contained system. We have learned to be uneasy with work which accepts at face value the logical pattern which we can make out of the formal expressions of law. We are uneasy until we have pushed beyond this to ask how things really work, what are the real interests which seek expression or support in formal doctrine.” But labeling Hurst a legal realist obscures as much as it explains. His critique of the realists could be biting: “The stir seems to have come to so much less than it promised. There have been brilliant exceptions, but the total lasting product of the realist movement seems small, compared to the total investment of mind and spirit that went into it.… What the realists did was mainly nihilistic. They were penetrating, clever, amusing, literate and adroit destroyers. On the whole, they were not builders.” Hurst, “Perspectives Upon Research,” 364 – 65. See the works cited above in note 27. Also see Llewellyn, Karl N., “A Realistic Jurisprudence — The Next Step,” Columbia Law Review 30 (1930): 431–65CrossRefGoogle Scholar; Llewellyn, , “Some Realism About Realism,” Harvard Law Review 44 (1931): 1222–64CrossRefGoogle Scholar; Frank, Jerome, Law and the Modern Mind (New York: Brentano's Publishers, 1930)Google Scholar; Arnold, Thurman W., The Folklore of Capitalism (New Haven: Yale University Press, 1937).Google Scholar

46. Stuart Hughes, H., Consciousness and Society: The Reorientation of European Social Thought, 1890–1930 (New York: Alfred A. Knopf, 1958).Google Scholar Other examples include: Beer, Thomas, The Mauve Decade: American Life at the End of the Nineteenth Century (New York: Alfred A. Knopf, 1926)Google Scholar; Commons, John R., Myself (New York: Macmillan, 1934)Google Scholar; and Schumpeter, Joseph A., Capitalism, Socialism, and Democracy (New York: Harper and Brothers, 1942).Google Scholar

47. Hurst, Holmes on Legal History, 4.

48. Hurst, Law and Social Process, 6; Hurst, Law and Social Order, 23.

49. A wonderful indication of how Hurst envisioned his project as never complete is his concluding The Growth of American Law with a “Prospectus for Legal History.” In other words, the entire volume was understood simply as an institutional “introduction” to the substantive theme of law as mediator of interest-group conflict in the twentieth century. Hurst, Growth of American Law, 439, 446. As Hurst explained in a letter to Hugo L. Black, “I put the book together with the prime thought of putting some perspective on a number of matters on which I wish that I might have had some reading matter when I began the study of law. I wished also to make available some materials for graduate students in the social sciences who might be curious to bridge the gap between themselves and our mysteries.” Willard Hurst to Hugo L. Black, 11 July 1950, Box 33, Hugo L. Black Papers, Manuscript Division, Library of Congress. I am again indebted to Daniel Ernst for this reference.

50. Hurst's own admonitions were ubiquitous: “Historians have exaggerated the work of courts and legal activity immediately related to litigation. … Judicial law-making was never as exclusively important as the concentration of legal writing might seem to show.” Hurst, “Law in United States History,” 520–21. “Legal history needs beware the subtle bias which arbitrarily truncates its proper subject matter by identifying it simply with the products of courts and lawsuits.” Hurst, Holmes on Legal History, 93. See also Hurst, Law and Social Process, 1, 18; Hurst, Law and Social Order, 26.

51. Hurst, Law and Social Order, 25. As Hendrik Hartog put it, for Hurst there was always the sense that “legal history isn't about law as a distinct body of knowledge; it is about the practice of government, broadly conceived.” Hartog, “Snakes in Ireland,” 372.

52. Hurst, Holmes on Legal History, 5–6.

53. Hurst, Law and Social Process, 5. These same four functions were a constant in Hurst's more programmatic statements. See also Hurst, “Law in United States History,” 518–19.

54. Hurst, Holmes on Legal History, 5–6; Hurst, “Law in United States History,” 518. For Weber's classic definitions of the modern state and law as involving force and coercion, see Weber, Max, Economy and Society, ed. Roth, Guenther and Wittich, Claus (Berkeley: University of California Press, 1978), 1:56Google Scholar; and Weber, Law in Economy and Society, 13. Robert M. Cover's classic opening statement was “Legal interpretation takes place in a field of pain and death.” See Cover, , “Violence and the Word,” Yale Law Journal 95 (1986): 1601–29, 1601.CrossRefGoogle Scholar

55. Hurst, Holmes on Legal History, 5–6; Hurst, “Law in United States History,” 519.

56. Habermas, Jürgen, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. Rehg, William (Cambridge: MIT Press, 1996).Google Scholar

57. Hurst, Law and Social Process, 8 (emphasis added); Hurst, “Law in United States History,” 518. Also see Hurst's more elaborate definition of constitutionalism: “The ideal that there should be no center of public or private power not subject to some check from outside itself, to the end that the power be used consistent with the welfare of individuals or the common welfare, according to criteria not finally determined by the power holders.” Hurst, Holmes on Legal History, 5–6.

58. Hurst, Holmes on Legal History, 5–6. “Because this legal order emphasized procedural regularity—providing diverse organized means for bringing choices to definition and mustering evidence and reasoned argument for their resolution—law entered significantly into the process by which men created social goals and mobilized energies of mind and feeling to move toward their goals.” Hurst, “Law in United States History,” 519. For the best statements of Habermas, Luhmann, and Teubner on legal rationalization, see Habermas, Jürgen, The Theory of Communicative Action, vol. 2, Lifeworld and System: A Critique of Functionalist Reason, trans. McCarthy, Thomas (Boston: Beacon Press, 1987)Google Scholar; Luhmann, Niklas, A Sociological Theory of Law, trans. King, Elizabeth and Albrow, Martin (London: Routledge, 1985)Google Scholar; Teubner, Gunther, Law as an Autopoietic System, trans. Bankowska, Anne and Adler, Ruth (Oxford: Blackwell Publishers, 1993)Google Scholar; Teubner, , ed., Juridification of Social Spheres: A Comparative Analysis in the Areas of Labor, Corporate, Antitrust and Social Welfare Law (Berlin: Walter de Gruyter, 1987).CrossRefGoogle Scholar

59. Hurst's chronological history also accounted for a pre-nineteenth-century political story in law focused on constitution making and property law. His periodical chart in Law and the Conditions of Freedom discussed the years 1620–1750, 1750–1776, and 1776–1800 as primarily involving legal public policies dealing with “community strength and security,” “political organization,” and “constitution making,” respectively. Hurst, Conditions of Freedom, 40.

60. Hurst, Conditions of Freedom; Hurst, Growth of American Law, Hurst, , Law and Markets in United States History: Different Modes of Bargaining among Interests (Madison: University of Wisconsin Press, 1982)Google Scholar; Hurst, , The Legitimacy of the Business Corporation (Charlottesville: University Press of Virginia, 1970).Google Scholar

61. Hurst, Holmes on Legal History, 64.

62. Hartog, “Snakes in Ireland,” 388. Hurst might have been thinking here of Oliver Wendell Holmes's own similar comment on the underlying importance of scarcity and economy: “As an arbitrary fact people wish to live, and we say with various degrees of certainty that they can do so only on certain conditions. To do it they must eat and drink. That necessity is absolute.” Hurst, Holmes on Legal History, 64.

63. Hurst, “Law in United States History,” 520. “Uses of law and disputes over uses of law were so woven into economic growth in the United States that legal and economic history cannot be separated.” Hurst, Law and Social Process, 5, 8.

64. Hurst, “Problems of Legitimacy,” 225.

65. Hurst, Conditions of Freedom, 29; Hurst, Law and Markets, 3.

66. Hurst, Holmes on Legal History, 42.

67. Ibid.; Hurst, “The State of Legal History,” 293; Hurst, “Problems of Legitimacy,” 225.

68. Hurst, Conditions of Freedom, 32. Hofstadter, Richard, The American Political Tradition (New York: Alfred A. Knopf, 1948)Google Scholar; Hartz, Louis, The Liberal Tradition in America: An Interpretation of American Political Thought since the Revolution (New York: Harcourt, Brace and World, 1955).Google Scholar

69. Hurst's criticism of classical nineteenth-century market liberalism was very much in sync with John Dewey's immanent critique of “old liberalism” in Individualism, Old and New (1929) and Liberalism and Social Action (1935). See Dewey, John, The Later Works, 1925–1953, ed. Boydston, Jo Ann, vols. 5 and 11 (Carbondale: Southern Illinois University Press, 1984, 1987).Google Scholar

70. Hurst, Holmes on Legal History, 46–48, 116–17.

71. Hurst, Law and Markets, 3, 9. For the CLS and realist contention that law played a major constitutive role in creating the market, see Kennedy, Duncan, “The Role of Law in Economic Thought: Essays on the Fetishism of Commodities,” American University Law Review 34 (1985): 939–1001Google Scholar; Cohen, “Property and Sovereignty”; Hale, “Coercion and Distribution”; Hale, “Force and the State.” Hurst's denial of a fundamentally “creative” role for law was categorical: “Trading among private persons for profit was not a creation of law.” As argued in the conclusion to this article, Hurst's ideas on the marginality of law are particularly vulnerable to critique. My own work on nineteenth-century economic regulation takes issue with Hurst on just this point. Novak, William J., “Public Economy and the Well Ordered Market: Law and Economic Regulation in Nineteenth-Century America,” Law and Social Inquiry 18 (1993): 1–32.CrossRefGoogle Scholar Also see Steinfeld, Robert J., “The Philadelphia Cordwainers' Case of 1806: The Struggle over Alternative Legal Constructions of a Free Market in Labor,” in Labor Law in America: Historical and Critical Essays, ed. Tomlins, Christopher L. and King, Andrew J. (Baltimore: Johns Hopkins University Press, 1992): 20–43.Google Scholar

72. Hurst, Law and Markets, 3; Hurst, “Law in United States History,” 519; Hurst, Law and Social Process, 5.

73. Hurst, James Willard, “Consensus and Conflict in Twentieth-Century Public Policy,” Daedalus: Journal of the American Academy of Arts and Sciences 105, no. 4 (1976): 89–101, 89.Google Scholar

74. Hurst, Law and Social Process, 15; Hurst, Holmes on Legal History, 43. Hurst, “Law in United States History,” 519.

75. Friedman, Lawrence M., A History of American Law, 2d ed. (New York: Simon and Schuster, 1985), 114–15Google Scholar; Scheiber, Harry N., Ohio Canal Era: A Case Study of Government and the Economy, 1820–1861 (Athens: Ohio University Press, 1968), 93Google Scholar; Kutler, Stanley I., Privilege and Creative Destruction: The Charles River Bridge Case (New York: W. W. Norton, 1978), 67–68.Google Scholar Also see Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1930 (Cambridge: Harvard University Press, 1975)Google Scholar; Horwitz, Morton J., The Transformation of American Law, 1780–1860 (Cambridge: Harvard University Press, 1977).Google Scholar For the continued vitality of the legal instrumentalism argument in socio-economic histories of the early nineteenth century, see Sellers, Charles, The Market Revolution: Jacksonian America, 1815–1846 (New York: Oxford University Press, 1991)Google Scholar; Bruchey, Stuart, Enterprise: The Dynamic Economy of a Free People (Cambridge: Harvard University Press, 1990)Google Scholar; Stokes, Melvyn and Conway, Stephen, eds., The Market Revolution in America: Social, Political, and Religious Expressions, 1800–1880 (Charlottesville: University Press of Virginia, 1996).Google Scholar

76. Hurst, Holmes on Legal History, 43, 77.

77. Hurst, Law and Social Order, 23; Hurst, Law and Social Process, 15.

78. Hurst, Law and Social Process, 17; Hurst, Legitimacy of the Business Corporation, 10–11.

79. Hurst, Law and Social Process, 5; Hurst, Law and Economic Growth. This is why Hurst can be appropriately grouped with Oscar and Mary Handlin, Louis Hartz, and others as a “commonwealth historian.” The commonwealth studies effectively demolished the notion of a nineteenth-century laissez-faire America devoid of positive state action and established the constructive role of law and state governments in affirmatively creating the conditions for an emerging market economy. Handlin, Oscar and Handlin, Mary Flug, Commonwealth: A Study of the Role of Government in the American Economy: Massachusetts, 1774–1860 (New York: New York University Press, 1947)Google Scholar; Hartz, Louis, Economic Policy and Democratic Thought: Pennsylvania, 1776–1860 (Cambridge: Harvard University Press, 1948).CrossRefGoogle Scholar For a more complete listing and analytical overview of the commonwealth studies, see Lively, Robert A., “The American System: A Review Article,” Business History Review 29 (1955): 91–96CrossRefGoogle Scholar; Scheiber, Harry N., “Government and the Economy: Studies of the “Commonwealth” Policy in Nineteenth-Century America,” Journal of Interdisciplinary History 3 (1972): 135–51.CrossRefGoogle Scholar For an excellent recent assessment, see John, Richard R., “Governmental Institutions as Agents of Change: Rethinking American Political Development in the Early Republic, 1787–1835,” Studies in American Political Development 11 (1997): 347–80.CrossRefGoogle Scholar

80. Hurst, “Problems of Legitimacy,” 225–26.

81. Hurst, Law and Social Process, 12–13. “Because the law emphasizes procedure, legal processes provide an unusual body of evidence for what these values are; it forces us to become aware of them and to define them in the process of its deliberations and decisionmaking.” Hurst, “Consensus and Conflict,” 89.

82. As Hurst indicated by citing an Office of Education survey on the attitudes of American, Scandinavian, Japanese, and Indian school children on the issue of what is a fair rule of conduct, the values he associated with “justice” were far from exclusively American: “With remarkable unanimity—children said three things similar to the 14th Amendment: a) ‘everybody ought to be equal under the rule’; b) ‘there ought to be a good reason for the rule’, i.e., not arbitrary—reason outside of power; c) ‘we ought to have something to say about it’—democratic. Plainly, there is something in these ideas broader than the special terms of our law—something that challenges deep human desires and runs wide in modern civilization.” Hurst, “Problems of Legitimacy,” 226–27.

83. Hurst, Holmes on Legal History, 17. As he explained this Niebuhrian perspective to Hendrik Hartog, “We all live within our own oxygen belt so to speak, that there are limits beyond which we can't live and limits beyond which indeed we can't think or imagine.” Hartog, “Snakes in Ireland,” 376. Hurst first heard Niebuhr at Williams College and continued to recommend Niebuhr's The Irony of American History throughout his professional life. Niebuhr, Reinhold, The Irony of American History (New York: Charles Scribner's Sons, 1952).Google Scholar

84. Hurst, Holmes on Legal History, 26–27, 46; Hurst, “Consensus and Conflict,” 89.

85. Hurst, “Consensus and Conflict,” 90; Hurst, Holmes on Legal History, 15.

86. Hurst, Conditions of Freedom, 1.

87. Hurst, Holmes on Legal History, 27–28; Hurst, “Consensus and Conflict,” 92. Paeans to “action” are a sometimes overlooked staple of liberal arguments. For a classic statement, see John Stuart Mill's critique of the idea of the “good despot” on grounds of its production of a “passive” citizenry: “What development can either their thinking or their active faculties attain under it? … Wherever the sphere of action of human beings is artificially circumscribed, their sentiments are narrowed and dwarfed in the same proportion. The food of feeling is action.” Mill, John Stuart, Considerations on Representative Government (Amherst: Prometheus Books, 1991), 56–58.Google Scholar See also John Dewey, Individualism, Old and New; and Dewey, Liberalism and Social Action.

88. Schumpeter, Joseph A., Capitalism, Socialism, and Democracy, 2d ed. (New York: Harper and Brothers, 1947), 81–86.Google Scholar

89. Hurst, Holmes on Legal History, 28–29; Hurst, “Perspectives Upon Research,” 359–60; Hurst, “Law in United States History,” 525. Of course, our historical understanding of American pragmatism has since moved well beyond Hurst's preliminary thoughts. For the best comprehensive analysis, see Kloppenberg, James T., Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870–1920 (New York: Oxford, 1986).Google Scholar

90. Hurst, Holmes on Legal History, 26–27, 47, 50–51.

91. Alexis de Tocqueville, Democracy in America, trans. Lawrence, George (New York: Harper and Row, 1969), 691–92Google Scholar; Hurst, “Problems of Legitimacy,” 235–36.

92. Hurst, “Consensus and Conflict,” 89.

93. The notion of a “formative era of American law,” of course, originated with Roscoe Pound, The Formative Era of American Law.

94. Hurst, “Legal History: A Research Program,” 331–32.

95. Hurst, “Problems of Legitimacy,” 225; Hurst, Holmes on Legal History, 29, 31.

96. Hurst, Holmes on Legal History, 29, 32; Hurst, Law and Social Process, 3, 15.

97. Hurst, “Problems of Legitimacy,” 227. As Hurst related, “In the classic expressions of the demand for legitimacy in the 17th and 18th centuries—as in Locke, or in the Federalist Papers—concern focuses primarily on the political state. But, even then we were building a law of torts, a law of crimes, a law of public nuisance, expressing the idea that private arbitrary power wasn't acceptable either.” Hurst, “Law in United States History,” 519.

98. Hurst, Holmes on Legal History, 15, 71–72.

99. Hurst, “Consensus and Conflict,” 91–92.

100. Hurst, “Problems of Legitimacy,” 228; Hurst, Law and Social Process, 7.

101. Hurst, Holmes on Legal History, 66–67. Freund, Ernst, The Police Power: Public Policy and Constitutional Rights (Chicago: Callaghan and Company, 1904).Google Scholar

102. Hurst, Holmes on Legal History, 73, 102–4. Mill's famous rendering of this liberal principle was: “The sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self-protection. That the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.” Mill, John Stuart, On Liberty, ed. Collini, Stefan (Cambridge: Cambridge University Press, 1989), 13.Google Scholar Holmes's rejoinder came in Lochner v. New York, 198 U.S. 45 (1905), 65. Mill and Holmes are basically addressing the maxim sic utere tuo ut alienum non laedas (use your own so as not to injure another). This ancient common law principle was the heart of the law of the Anglo-American law of nuisance, what Ernst Freund dubbed “the common law of the police power.” Freund, Ernst, Standards of American Legislation, 2d ed. (Chicago: University of Chicago Press, 1965), 66.Google Scholar

103. Hurst, Holmes on Legal History, 109; Law and Social Process, 11–12.

104. Hurst, “Consensus and Conflict,” 89.

105. Hurst, Law and Social Order, 33.

106. Hurst, “Problems of Legitimacy,” 225–26, 234–35. As Hurst also noted, “From the 1880s on, the growth of markets of sectional or national reach under the protection of the federal system gave impetus to expanded roles of national law, ranging into quite different realms of policy from those embraced within the bounds of pre-1860 state common law or state statute law of corporations and private franchises.” Hurst, “The State of Legal History,” 292.

107. Hurst, “The State of Legal History,” 294; Hurst, “Problems of Legitimacy,” 233; Hurst, Holmes on Legal History, 43. One of Hurst's favorite examples of the renewed positive emphasis on public welfare in the twentieth century was the development since the 1930s of the presumption of the constitutionality of legislation. This presumption suggested “that legislatures—state as well as national—are entitled to make reasonable judgements on how to make affirmative as well as regulatory use of public power for public service; what a legislature does shall not be upset in court unless the legislative action can be shown to be clearly without rational justification. Again, the emphasis is on the positive thrust of public organized power, and not just on restrictive regulation.” But as Hurst also notes (and much too briefly at that), twentieth-century American law also reflected a striking expansion in notions of individual rights just as “organized public and private power began to weigh more heavily on the individual in an increasingly interlocked society.” In response, Hurst noted, “judicial decisions have elaborated the protections which procedural due process of law holds out to those accused of crime; constitutional, statutory, and judge-made (i.e., common) law has developed some protection for individual privacy against official and private intrusion and has recognized that individuals need protection as wage or salary earners rather than as entrepreneurs. Accordingly, legislation has been developed to foster and protect the individual's right to organize trade unions and to engage in collective bargaining and has been extended to protect consumers against fraud and threats to health and safety.” Hurst, “Problems of Legitimacy,” 229.

108. Hurst, Law and Social Order, 36; Hurst, “Problems of Legitimacy,” 233.

109. Hurst, “Law in United States History,” 521, 523–24. “Both sharing and conflict were further influenced by large, undirected currents of change, especially growth and concentration of population, science-based technology, shifts in cultural patterns, and institutional imperfections in the legal order. To an even greater extent in the twentieth than in the nineteenth century, the country's life was largely shaped by influences chosen neither by the people at large nor by specific interests. Policy-makers have confronted no greater challenge than that of using legal processes to combat the massive forces of social inertia.” Hurst, “Consensus and Conflict,” 90.

110. See Hofstadter, Richard, The Progressive Historians: Turner, Beard, Parrington (New York: Alfred A. Knopf, 1968).Google Scholar

111. One should not jump too quickly to conclusions about those things that Hurst left out. For a good example, see some of his intriguing comments about Vietnam, marijuana, and civil rights in Hurst, “Problems of Legitimacy.” On civil rights Hurst emphasized the need for law and government to act positively on social issues, noting that a “major defect of the law's handling of race has been to neglect the positive element in the Constitutional tradition. We need to return to the proposition that government holds authority to take affirmative action for the general good.” Ibid., 232. Hurst was well aware of the need for legal history to move on to new topics and concentrations (beyond the law and the market themes that dominated his own career), as he noted in a “state of the field” report in 1982: “Social reality requires that legal historians pay more attention to the interplay of law and the family and sex roles, the bearing of law on the church, on tensions between conventional morality and individuality, on education, and on the course of change in scientific and technological knowledge.” Hurst, “The State of Legal History,” 293–94.

112. Hurst, Law and Social Process, 17; Hurst, “Consensus and Conflict,” 89, 91.

113. Hurst, Holmes on Legal History, 89.

114. Hurst, Law and Social Order, 42; Hurst, “Law in United States History,” 520. Durkheim, Emile, The Division of Labor in Society, trans. Walls, W. D. (New York: Macmillan, 1984).CrossRefGoogle Scholar

115. See for example, Habermas, The Theory of Communicative Action, 2:301–31; Teubner, Law as an Autopoietic System; Graham Burchell, Gordon, Colin, and Miller, Peter, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991)Google Scholar; Berry, Andrew, Osborne, Thomas, and Rose, Nikolas, eds., Foucault and Political Reason: Liberalism, Neo-Liberalism, and Rationalities of Government (Chicago: University of Chicago Press, 1996).Google Scholar

116. This literature is voluminous. For a sampling, consult the essays in Evans, Peter B., Rueschemeyer, Dietrich, and Skocpol, Theda, eds., Bringing the State Back In (New York: Cambridge University Press, 1985)CrossRefGoogle Scholar; Fraser, Steve and Gerstle, Gary, eds., The Rise and Fall of the New Deal Order, 1930–1980 (Princeton: Princeton University Press, 1989)Google Scholar; and Lacey, Michael J. and Furner, Mary O., eds., The State and Social Investigation in Britain and the United Stales (Cambridge: Cambridge University Press, 1993).Google Scholar

117. This literature is even more voluminous. For a wonderfully balanced recent assessment, see Kloppenberg, James T., The Virtues of Liberalism (New York: Oxford University Press, 1998).Google Scholar

118. Hurstxs, “The State of Legal History,” 292; Hurst, “Law in United States History,” 523–24.

119. Hurst, “Consensus and Conflict,” 92; Hurst, “Legal History: A Research Program,” 331–32.

120. Rorty, Richard, Consequences of Pragmatism: Essays, 1972–1980 (Minneapolis: University of Minnesota Press, 1982).Google Scholar

121. Hurst, “Problems of Legitimacy,” 237–38.

122. Hurst, Holmes on Legal History, 129.

123. Holmes, Speeches, 22.

124. Hurst, “Law in United States History,” 526.

125. All of these Holmes quotes are from Hurst's annotated edition of Holmes, Speeches, 22, 43, 90, 96.