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  Holmes began to resist the propertizing move in the labor cases around 1895, in his famous dissent in Veghelan v. GuntnerM and his article "Privilege, Malice, and Intent. 116' The main thrust of his effort was to challenge the dominant rightsbased theory of the labor cases. In this sense, he was re-connecting with the Austinian interests of his youth. The labor cases were also closely related to the issue of "competitive injury," which raised the question of whether property rights were compatible with the right to inflict injury on one's competitors.66

  We have seen that the question of competitive injury-of the relationship between the right to property and the legitimacy of injurious competition-was one of the dominant intellectual issues in the law during the 189os. It appeared in constitutional challenges to the Sherman Act, as well as in common law discussions of whether cartelization was a legitimate form of competition. Finally, it was Holmes who insisted in the labor cases that the struggle between labor and capital was but another version of competition and should be understood in the same way.67 In framing the issue as one of competition versus property, Holmes was erecting a challenge to orthodox rights-based conceptions of legal reasoning. Hohfeld appears to have understood and carried forward this Holmesian move.

  Late-nineteenth-century courts were "conceptualistic" in the sense that they believed that one could derive particular legal rules and doctrines from general concepts such as property .68 And they were formalistic in believing that one could logically deduce these rules from the nature of property itself. Property, then, was thought to have an essence or a core of meaning, even if there could be legitimate argument about what was to be included at the periphery. Moreover, the orthodox idea of property was that it was a pre-political, Lockean natural right not created by law, though all lawyers recognized that the law might be needed to specify rights for the hard cases at the periphery of the concept. 61

  In late-nineteenth-century orthodox legal thought, it was thus possible to make statements such as "a labor boycott is inconsistent with the right to property" or "coercive picketing violates the employer's property rights and therefore should be enjoined." What workers could and could not legitimately do was thought to follow logically from the very definition of their employers' property rights.

  By calling rights and duties "correlatives," therefore, Hohfeld sought to subvert the privileged position that rights had occupied as the starting point for orthodox legal analysis. Ile thus wished to relativize rights discourse by emphasizing that one might just as logically begin such an analysis with the concept of a duty created by law. A right therefore became simply the legal enforcement of a socially created duty.

  Equally important was Hohfeld's classification of "privilege" as not logically entailing a right. "The lesson is that there is no logically necessary bond between a right over some act . . . and a privilege over that same act . . ., no logical reason why having the right must go with having the privilege, or vice-versa."70

  Hohfeld's analytic scheme seemed to have had an electrifying influence on his Yale Law School contemporaries, Walter Wheeler Cook and Arthur L. Corbin, who were struggling to break out of the prevailing orthodoxy of rights discourse in their respective fields, conflicts of laws and contracts. Indeed, in his devastating analysis of the Hitchman Coal Case (1917),71 published shortly after Hohfeld's tragically premature death, Cook self-consciously offered the only extant example of an application of Hohfeldian analysis to an actual legal problem.72

  In the Hitchman Coal Case, the U.S. Supreme Court held that an employee's agreement with his company not to join a union created a right in the company to enjoin a union organization drive. The fact that the company had the privilege of employing non-union labor-that is, the state did not bar such activity-did not mean that it also had a right to prevent unionization, Cook showed. "So far, therefore, as the learned justice meant to say that the right of the plaintiff to protection necessarily followed as a matter of mere logical inference from the privilege to make the agreements . . ., the reasoning is clearly fallacious," Cook concluded.73

  The most important consequence of Hohfeld's system of classification was that it carried through the radical implications of a de-physicalized system of property.74 Property consisted of abstract legal relations, not physical things, Hohfeld showed. As Arthur L. Corbin put it in 1922, "Our concept of property has shifted; incorporeal rights have become property. And finally, `property' has ceased to describe any res, or object of sense, at all, and has become merely a bundle of legal relations-rights, powers, privileges, immunities."75

  The idea that property consists merely of "a bundle of legal relations" is perhaps the most radical and far-reaching implication of Hohfeld's system. "By breaking property into its constituent parts, Hohfeld both demonstrated that property does not imply any absolute or fixed set of rights in the owner and provided a vocabulary for describing the limited nature of the owner's property."76

  The Higher Law Basis of Classical Legal Thought

  The struggle over whether there should be a jurisprudence of rights or of duties highlights one of the most complex questions about how to understand Classical Legal Thought. A pervasive Progressive criticism of Classical Legal Thought charged orthodox jurists with having imported natural law into constitutional interpretation. The "revival of natural law concepts" came to be treated as one of the major explanations of how the Supreme Court during the Lochner era was able to write its own views of the Constitution into law.77 The charge is also closely related to criticism of the emergence of so-called substantive due process during the twenty years before Lochner. 78

  Much of the confusion over this question derives from lack of clarity about how late-nineteenth-century lawyers thought about the character of higher law. At the time of the drafting of the Declaration of Independence, there was confusion over four different conceptions of higher law. 79 The first was medieval Thomistic natural law, with its premise that any positive law that violated natural law was void.80 While this view had never been as influential in England as it was on the Continent, by the late eighteenth century it had been largely marginalized by English jurists.81

  The communitarian and hierarchical character of traditional natural law also began to be transformed by the emergence of individualistic ideas of natural rights in seventeenth-century social contract theories. Emphasizing the primacy of prepolitical rights in nature, the liberal social contract thinkers believed that positive law, especially laws dealing with property, should reflect those natural rights that individuals retained when they agreed to enter into civil society. Unlike traditional natural law, natural rights theories were centered on conflict between the individual and the state.82

  In the period leading up to the American Revolution, these two very different versions of higher law were perhaps overshadowed in English and American constitutional thought by the notion of fundamental law, which usually referred to the "immemorial rights of Englishmen" or some other conception of immemorial custom.83 Jefferson's great accomplishment was that he managed to weave all of these different strands of higher law thinking into the Declaration, adding perhaps a fourth variation as traditional natural law ideas were slowly reformulated into a Newtonian vision of universal moral laws.84

  The Progressive charge that legal orthodoxy illegitimately turned to natural law in the late nineteenth century was built on several foundations. Beginning with the early Supreme Court case of Calder v. Ball (1798),85 there had been a running debate in early American constitutional history over whether it was appropriate for judges to go outside of the specific provisions of a written constitution to invoke higher law principles. And while judges and jurists of the Lochner era were virtually unanimous in concluding that it as inappropriate to go outside of the Constitution, the charge that they did so nevertheless has been widely shared among constitutional historians.

  The first count in the historians' indictment derived from what Edward S. Corwin called the "doctrine of implied limitations."86 As we s
aw earlier,87 latenineteenth-century courts were willing to hold that, for example, an unequal tax "impliedly" violated a state constitutional provision requiring separation of powers because only taxation for revenue, not for purposes of redistribution, was a legislative act. Using similar reasoning, antebellum state courts had struck down uncompensated takings, even without a specific just compensation provision.

  The question of how much one can legitimately imply from a provision in a contract, statute, or constitution has been a perennial issue in legal theory. It appeared early in American constitutional history in debates over Jeffersonian strict constructionism, as well as in Chief Justice John Marshall's expansive conception of the implied powers of the national government in McCulloch v. Maryland. es Similarly, in the late nineteenth century, we saw, the scope of implication in contract law was a major subject of controversy.80

  The debate over the legitimate scope of implication was closely related to the more general Progressive challenge to the breadth of legal reasoning in Classical thought. As we shall see,90 to the extent that Progressive jurists insisted that analogical reasoning needed to be restricted because analogies were productive of judicial legislation, they would similarly be suspicious of any claims about the neutral or necessary character of legal implication. If general propositions could not decide concrete cases, it was unlikely that one would believe that legal implication from highly abstract conceptions could be non-discretionary. If, by contrast, a concept was thought to have a fixed essence or core of meaning, it was correspondingly easier to derive particular sub-rules or doctrines from more general principles. Much of the Progressive charge that the Lochner court turned to higher law was really an expression of Progressive disbelief in the claimed power and scope of traditional legal reasoning.

  The other, more obvious source of the Progressive charge that legal Classicists turned to natural law focuses on the question of the rise of substantive due process after the Civil War. In my judgment, this argument was largely a fabrication of Progressive thought, designed to delegitimate the Lochner court by arguing that it had taken a completely unprecedented turn in the late nineteenth century. In fact, under the due process clause of the Fourteenth Amendment, the Supreme Court after the Civil War promulgated doctrines not very different from those that had previously been developed under, for example, the contracts clause or state cjust compensation provisions. While there was considerable debate among Lochner court judges over whether the Civil War amendments should result in a vastly more interventionist federal constitutional system-a debate that included the very important claim that the amendments were meant to be limited to the protection of newly freed blacks-the controversy did not significantly turn on whether due process had previously been restricted to a procedural meaning. It was easy to confuse the controversial expansion of federal judicial power under the Fourteenth Amendment with a supposed change in constitutional methodology from "procedural" to "substantive" due process. That confusion was largely produced by later critical Progressive historians intent on delegitimating the Lochner court.

  While natural rights conceptions were extremely important in shaping the character of Classical Legal Thought, they did not usually operate as higher law principles that alone could determine the validity or invalidity of positive law. Rather, natural rights discourse structured legal argument by suggesting starting points, background assumptions, presumptions, or first principles in the law.

  Perhaps the best way to see this is by turning to Robert M. Cover's discussion of the influence of natural rights ideas on anti-slavery judges before the Civil War. In a typical expression, one of these judges declared in 1845:

  Slavery is wrong, inflicted by force and supported alone by the municipal power of the state or territory wherein it exists. It is opposed to the principles of natural justice and right, and is the mere creature of positive law. Hence, it being my duty to declare the law, not to make it, the question is not, what conforms to the great principles of natural right and universal freedom-but what do the positive laws and institutions . . . command and direct.91

  As Cover indicates, this statement captures the place of natural law/natural rights doctrines in the structure of antebellum constitutional discourse. He writes:

  [Tlhe courts uniformly recognized a hierarchy of sources of law . . . in which "natural law" was subordinate to constitutions, statutes, and well-settled precedent. This hierarchy was clearly established and unambiguously articulated by the courts. The reason for natural law's subordinate place was a thoroughgoing positivism concerning the origin of "law." Law was perceived as operative and valid because of a human constituent process and by virtue of valid lawmaking processes in pursuance of that Constitution. It was the will of men that gave law its force. But men look to various sources for the content of their law. And one very important kind of source is that which declares what is right and just. Most of the jurists of this period felt comfortable designating this tradition as "natural law" and finding it in books and maxims that were self-styled statements of the law of nature. This body of principles and rules was conceived of as "existing," though without authority, apart from its incorporation, by virtue of men's wills, in the "law" of a particular state. Natural law was, indeed, a subject for study by the lawyer or law student because it was helpful in understanding the principles underlying so much of a rational legal system. It was also one potential source for formulating new rules or modifying old ones.92

  Cover's understanding is confirmed by virtually all Classical legal thinkers. For example, Christopher G. Tiedeman, whose influential A Treatise on the Limitations of the Police Power in the United States (1886) was a major building block of laissez-faire constitutionalism, has been regularly portrayed as a natural law thinker.93 Yet Tiedeman began his treatise by rejecting justice Chase's early view in Calder v. Bull that it was appropriate to appeal above the Constitution to natural law principles. "[T]he current of authority, as well as substantial constitutional reasoning, is decidedly opposed to the doctrine," Tiedeman proclaimed.

  It may now be considered as an established principle of American law that courts, in the performance of their duty to confine the legislative department within the constitutional limits of its power, cannot nullify and avoid a law, simply because it conflicts with judicial notions of natural right or morality, or abstract justice.94

  Like Cover's anti-slavery judges, Tiedeman was willing to appeal to higher law principles in the interpretation and "reasonable construction" of positive law. "[A]lthough these fundamental principles of natural right and justice cannot, in themselves, furnish any legal restrictions upon the governmental exercise of police power . . . yet they play an important part in determining the exact scope and extent of constitutional limitations."9s

  Nor was Tiedeman unique in his views. The other great exponent of laissezfaire constitutionalism, judge Thomas M. Cooley, was equally clear in his Treatise on the Constitutional Limitations Which Rest Upon the Legislative Power of the States of the American Union that a court could not declare a statute unconstitutional "solely on the ground of unjust and oppressive provisions or because it is supposed to violate the natural, social, or political rights of the citizen. . . ."96

  For Progressive jurists bent on de-legitimating the claimed autonomy of orthodox legal reasoning, any distinction between judicial interpretation and construction, on the one hand, and judicial lawmaking, on the other, simply represented an effort to disguise the appeal to natural law principles. Yet just as anti-slavery judges acknowledged that these ideas restricted the scope of what they could legitimately do as judges, so too is there no reason to doubt that Classical legal thinkers felt just as constrained by their own positivistic framework. It is that framework that Progressive constitutional historians ultimately failed to acknowledge.

  Rate Regulation

  Legal positivism combined with the de-physicalization of property to produce dramatic legal changes in the area of judicial oversight of the "reasona
bleness" of governmentally regulated rates. The process of overseeing the reasonableness of rates forced courts to articulate abstract conceptions of property, and especially of value, that constituted a sharp departure from the emphasis on physical intrusions across boundaries that had marked earlier legal definitions of interference with property. Moreover, the rate cases impelled most courts to think in terms of the "market value" of property for the first time. This process of abstracting the idea of property into market value was not only dangerously over-inclusive-it made virtually every change in government policy that caused a decline in market value potentially a taking-it also eventually exposed the circularity in the very conception of property, a circularity that had been hidden from view by the traditional land-centered distinction between direct and consequential injuries.