B004E3WO62 EBOK Read online

  MORTON J. HORWITZ

  For Pnina

  In terms of its chronology, this book can be regarded as taking up the story of the history of American law as I left it in The Transformation of American Law, 1780-i86o (1977). But it is a very different book.

  The reader will notice that I have begun this book in 1870, not 186o. Though I make many references to the influence of the Civil War, I believe that only a separate book can do justice to the profound significance of the Civil War in American legal history. I hope to write that book someday.

  As compared to Transformation I this book gives cultural factors somewhat more explanatory weight, although I continue to insist that the development of law cannot be understood independently of social context. Questions of power are obviously an important part of that context. The source of the change in emphasis derives from the massive challenge to traditional ideas of historical explanation that have invaded both the worlds of theory and historical practice since Transformation was written.

  This is not the place to say a great deal about these changes. Briefly, they involve the disintegration of the nineteenth-century conception of explanation in the natural as well as the social and historical sciences. Nineteenth-century social theory sought to find general laws of society modeled on the natural sciences, just as historical thinkers as varied as Hegel and Marx, or Whig historians like McCauley, or conservatives like Sir Henry Maine, sought to find the general laws of history, change, and social progress.

  In social thought, belief in the explanatory possibility of very general "covering laws" capable of making "if-then" predictive statements has plummeted (except as economics deploys ever more elaborate tautologies to conceal this fact). The result has been a dramatic turn toward highly specific "thick description" in which narratives and stories purport to substitute for traditional general theories. Today there are scholars in all fields of social thought who view orthodox claims to objectivity as contests over the appropriate generality of discourse. I have acknowledged this problem by offering perspectives at different levels of generality.

  At the same time, several of the most important assumptions underlying nineteenth-century social thinkers' and historians' confidence in the objectivity of their explanations have been severely challenged. * Not only has the separation between fact and value as the basis for value-free social science or history been drawn into question, but self-consciousness of the contingency of categories, theories, and frames of reference has been accelerating as the message of the sociology of knowledge has been absorbed into interpretative and deconstructive intellectual movements. Also, intense skepticism about the nineteenth-century working assumption that causation was objective-notwithstanding flume, Kant, and Millhas, in the twentieth century, begun dramatically to undermine the claimed objectivity of explanation. A complex, multi-factored interdependent world has lost confidence in single-factor "chains of causation" that were embedded in most nineteenth-century explanatory theories. But how does one explain anything objectively in a world of complex multiple causation?

  The practicing historian needs to be conscious of these theoretical debates without either solving the problems or being paralyzed by them. Yet these debates have influenced me in taking many more factors into account than before. There remains the serious question of whether the new cult of complexity does not simply avoid through fiat the admirable generalizing and simplifying goals of nineteenth-century modes of explanation.

  One of the prominent casualties of multi-factored explanation is the disintegration of those philosophical dualisms that have stereotyped all forms of theoretical debate over the last two (or is it four?) centuries. Just as recent neo-pragmatism has rejected the "on-off" choice between deontological and utilitarian moral theory, so too has it followed John Dewey in refusing to accept a deep chasm between "principled" and "result-oriented" ethics or jurisprudence. Whether it is the "fact-value" or "mind-body" or "theory-practice" or "subjective-objective" or "idealism-materialism" or "freedom-coercion" dualities, almost all these efforts at mutually exclusive categorical formulations have come to seem less and less satisfying.

  My acceptance of multi-factored complexity has produced a certain tendency in this book toward multiple (and perhaps sometimes contradictory) explanations. As one sees both theories and causes as more contingent, one's belief in one's own objectivity is also drawn into question. Is it just my story, with all the connotations of skepticism and subjectivity that the word "story" implies? No; I still aspire to give the best possible explanation, but without the wish to suppress all difficulties by intoning pieties about what a terrible place the world would be without an objective account.

  As a result, the book constantly wavers between, on the one hand, conventional efforts at historical explanation that continue to derive from nineteenthcentury models of objectivity, and, on the other hand, the recognition that modernism has challenged the objectivity of these forms in many different ways.

  A portion of chapter 2 has previously appeared in The Politics of Law (Pantheon, 1982) as "The Doctrine of Objective Causation." Chapter 3 has been somewhat revised from a version that appeared in the The West Virginia Law Review and was reprinted in Warren J. Samuels and Arthur S. Miller, eds. Corporations and Society (Greenwood Press, 1987). Chapter 4 was originally presented as the Julius Rosenthal Lectures at Northwestern University Law School.

  During the time I have been working on this hook, I have been the beneficiary of an extraordinarily dedicated and talented group of research assistants, all of them Harvard Law School students. I wish to thank Greg Bibler, Thomas Brown, Stephanie Farrior, Anthony Herman, Carl Landauer, Mark Linder, Judson Lobdell, and, especially, Marta Wagner. Stephen Wagner was very helpful in preparing the manuscript for publication. Kenneth Halpern prepared an outstanding index. At Oxford University Press, Valerie Aubrey was the very ideal of a supportive but critical editor.

  I also wish to express my gratitude to my colleagues Todd Rakoff, who commented on chapter 8, and Duncan Kennedy, with whom I have been discussing the ideas in this book over the course of a decade. Robert Gordon, Stanley N. Katz and G. Edward Wiiite offered valuable comments on the manuscript. In addition to providing significant suggestions for improving chapters 6 and 9, Pnina Lahav has been a source of love and inspiration throughout.

  I have received extensive research support during the period of writing this book. The National Endowment for the Humanities and the Guggenheim and Rockefeller Foundations were generous sources of research grants. The legal history program at the University of Wisconsin during the summer of 1982 not only provided stimulating discussion of the legal history of organizations but also supported my research into the history of corporate theory. The generous research support program of Harvard Law School was indispensable.

  Introduction 3

  ONE The Structure of Classical Legal Thought, 1870-1905 9

  TWO The Progressive Attack on Freedom of Contract and Objective Causation 33

  THREE Santa Clara Revisited: The Development of Corporate Theory 65

  FOUR The Place of Justice Holmes in American Legal Thought 1oq

  FIVE The Progressive Transformation in the Conception of Property 145

  SIX Defining Legal Realism 16q

  SEVEN The Legacy of Legal Realism 193

  EIGHT Legal Realism, the Bureaucratic State, and the Rule of Law 213

  NINE Post-War Legal Thought, 1945-1960 247

  Conclusion 269

  NOTES 273

  NAME INDEX 343

  CASE INDEX 349

  SUBJECT INDEX 351

  The recent political crises over the appointments of judges Robert Bork and Clarence Thomas to the U. S. Supreme Court have once again raised to consciousness the
question of whether and in what sense law is political. The appointments triggered political crises because they were widely understood to represent the culmination of a constitutional revolution initiated by the Reagan Administration.

  Like scientific revolutions, constitutional revolutions have been rare events in American history. The New Deal constitutional revolution of 1937 represented a fundamental shift in the constitutional relationship of the states to the federal government as well as of government to the economy. The constitutional legitimation of an interventionist and redistributionist federal government did not only reflect the political triumph of the New Deal. It also constituted the successful culmination of a generation of intellectual struggle against the legal foundations of the old order. The New Deal constitutional revolution thus represented a genuine paradigm shift, a fundamental overthrow of a system of legal consciousness that reached the apex of its development a century and a half after the ratification of the Constitution. Whether the Warren and Rehnquist courts will also come to be regarded as having produced constitutional revolutions will become clearer as time passes.

  A constitutional revolution can take place only when the intellectual ground has first been prepared. The New Deal revolution can only be understood in light of the success of the previous generation of legal thinkers in undermining the existing system of legal orthodoxy.

  This book traces the struggle between late nineteenth-century legal orthodoxy, often called "Classical Legal Thought,"' and "Progressive Legal Thought," which began to crystallize in reaction to the decision of the U. S. Supreme Court in Lochner v. New York (1905). That struggle, which drew into question the funda mentals of the legal order, expressed a deep crisis the stress lines of which could be traced directly to the ideological foundations of American society. The most basic conflict was over whether law could be characterized as neutral and nonpolitical.

  The Progressive attack on Classical Legal Thought developed, above all, into a challenge to the world view that endowed nineteenth century orthodoxy with legitimacy. In law, it came to represent no less than a fundamental reexamination of the core of ideas that constituted the "rule of law"-the conviction that there existed a structure of impartial and self-executing norms suggested by the phrase "a government of laws, not of men."

  Classical Legal Thought was rooted in what I call an "old conservative" world view, one that presumed that the existence of decentralized political and economic institutions was the primary reason why America had managed to preserve its freedom. A self-regulating, competitive market economy presided over by a neutral, impartial, and decentralized "night-watchman" state embodied the old conservative vision of why America had uniquely been able to avoid falling victim to tyranny.

  The Progressive critique of Classical Legal Thought emerged out of a crisis of legitimacy generated by the fantastic social and economic changes during the generation before World War I. The rapid centralization of economic power resulting from the cartelization and concentration of the American economy during the last years of the nineteenth century shook the authority of those who had proclaimed the naturalness and necessity of decentralized institutions. Moreover, the dislocating forces of urbanization, massive immigration, and industrialization triggered unprecedented levels of social struggle. This, in turn, placed enormous stress on the traditional legitimating ideal of equality of opportunity as practiced within a market system that was thought to distribute rewards more or less fairly according to the value of one's economic contribution. In particular, an increase in social and economic inequality drew into question the dominant old conservative commitment to the ideal of a neutral, non-redistributive state. The assault on Classical Legal Thought cannot be understood independently of struggles over the meaning of social justice and challenges to the moral foundations of individualism that had emerged by the turn of the century.

  As in any authentic legitimacy crisis, Classical Legal Thought was forced to confront both external and internal attacks on its very foundations. Externally, it suffered from its close connection to a world of decentralized institutions that was rapidly fading away. In particular, much of the system of private law rulescontract, tort, property, and commercial law-had been infused with the individualistic premises of a self-executing market economy composed of small, competitive units. As these common law rules were themselves transformed to accommodate an increasingly interdependent and organizational society, they frequently contradicted established legal principles that had been derived from an earlier vision of American society. Often, however, these increasingly anachronistic principles stood unyielding against the winds of change, adding fuel to the ever more prominent accusation that American law had grown fundamentally out of touch with society.

  If private law was forced to come to terms with the emergence of organizational society and the decline of decentralized markets, American public law, both constitutional and regulatory, was made to confront the meaning of its longstanding commitment to the ideal of neutrality. Amidst increasing pressure to bring law into closer touch with society, what could remain of the post-revolutionary ideal of a government of laws whose judges saw their role as impartially discovering and declaring pre-existing law? What was to be the fate of the still-broader nineteenth-century liberal ideal of a neutral, non-redistributive state standing astride an American society becoming ever more unequal in wealth and power?

  In this book, I seek to provide a picture of the structure of Classical Legal Thought and of the crisis of legitimacy it encountered. That crisis was manifested both inside the structure of thought, where increasingly numerous and serious stress points emerged from attempts to accommodate changing reality, and outside of that structure, as represented by the pervasive challenge of Progressive Legal Thought itself. That challenge took the form of narrowly focused and technically powerful internal assaults on one or another postulate of Classicism, as well as of large and expansive jurisprudential critiques of the political and philosophical legitimacy of the old order.

  The culmination of the Progressive challenge to legal orthodoxy was the emergence of "Legal Realism" during the 19zos and 1930s. In this book, I make the case for regarding realism as essentially a continuation of the reform agenda of pre-World War I Progressivism. In particular, I wish to dispute the view put forth by its most important spokesman, Karl Llewellyn, that Realism was simply a methodology or "technology" unrelated either to substantive intellectual disputes or to social or political struggle. I seek to show instead that Llewellyn's positivism-his wish to sharply separate law and morals, as well as facts and valueswas hardly typical of Realism. Moreover, the intellectually fertile alliance between reformist social science and Realism should not be confused with the austere positivism that Llewellyn advocated.

  Yet it is true that one branch of Realism did succumb to the most barren forms of value-free social science, and that Llewellyn's commanding position in the movement has persuaded historians to see this as both the essence and the fatal flaw of Realism. While I too see important connections between this positivistic strand of Realism and the increasingly conservative and apologetic turn of some Realist thinkers after World War 11, the important point is that many Realists remained consistently hostile to any sharp separation between law and morals or facts and values. Moreover, while the supposed "value relativism" of Legal Realism has been emphasized, its "cognitive relativism" expresses what is most lasting and significant about its contribution to legal thought.

  Beginning with their challenge to the constitutionalization of "freedom of contract" in Lochner v. New York (1905), which struck down a maximum-hours law for bakers, Progressive legal thinkers sought to undermine the claim of Classical Legal Thought that law was a "science" that could be separate from politics and that legal reasoning could be sharply distinguished from moral or political reasoning.

  This attack on the autonomy of law was combined with an increasing insistence that law had lost touch with society. Explaining why the "law in boo
ks" was out of touch with the "law in action" produced a powerful and intellectually self-conscious body of writing about law that continues, even after a half century, to radiate critical power. In their challenge to the self-executing and nondiscretionary character of legal reasoning, Progressives and Legal Realists were among the earliest American thinkers to see the implications of cognitive relativism and cultural modernism for legal justification and explanation. As they mounted their assault on Classical Legal Thought, it began to dawn on them that they faced a broad interlocking structure of thought, a complex system of categorization and classification that could be thought of as a form of legal architecture. The point of the Realist critique was to emphasize that the architecture of Classical Legal Thought was neither neutral, natural, nor necessary, but was instead a historically contingent and socially created system of thought. The Realists were thereby led to connect with many of the intellectual movements of the 192os and 1930s that today we would identify as creating an interpretativist or hermeneutic understanding of the relationship between thought and reality. The discovery of "frames of reference" in the sociology of knowledge or in the newly emerging field of anthropology marched hand in hand with an insistence that all schemes of categorization and classification embody debatable political and moral premises.

  The Progressive critique of legal orthodoxy as oblivious to questions of social change and social justice developed side by side with its modernist recognition of the plastic and malleable character of law and legal categories. It sought to combine a pre-modern sense of moral outrage with both the social reformers' instrumental commitment to the social sciences and the modernists' critique of positivist social science. It thus nurtured both objectivists and those who believed that the objectivity of the social sciences, like the supposed objectivity of legal doctrine within Classical Legal Thought, was a delusion. In the process, Progressive legal thought attained a level of critical brilliance and self-consciousness that makes it speak to us across almost an entire century.