Hendrik Hartog recently published “Four Fragments,” an attempt to address an old question—“What does it mean to know law as . . . existing in historical time?”[1] Surely, any answer given to this question is also given in an historical context, in a present of which there are many possible, only possibly linear, pasts. Which past is the appropriate one? It is with a review of possible pasts that I wish to begin to confront Hartog’s answer to his question.
There was a time when to do law, to engage in its formal study, sometimes spoken of as a jurisprudence, was to do law’s doctrinal history. In the United States that activity starts with the building of a treatise tradition designed to respond to the fact that independence brought with it the need to decide the degree of continuity between the great volume of English law long applicable in the American colonies and the newly American law that would follow from the severing of ties to England. This is the world of Ante-Bellum America, of Joseph Story, though many other people participated in it. It was a world of doctrine seen as both principles and rules, and their joint explication. It is anything but our world.
After our Un-Civil War, the combination of the slow replacement of Common Law with Code pleading, the expansion and academicization of legal education, and an openness to other understandings of doing law from across the North Atlantic, brought a casebook-based drive for understanding law as an exercise of reason, and so the rational nature of American law. This variety of formal study was the world of academics such as Christopher Columbus Langdell, James Barr Ames, John Chipman Gray, James Bradley Thayer, and John Henry Wigmore, among others. It was a world of ordered bodies of law and broad bulwarks designed to protect these bodies of law from potential disorder. This too is not our world, though it still claimed to include a bit of the earlier historical enterprise.
Come the Twentieth Century, whenever that happened, the job of large-scale ordering seemed to have been completed. The teachers at the multiplying accredited Law Schools scattered across the country were left with not much to do other than to examine the great output of the courts and increasingly intrusive legislatures for fit with, or deviation from, Common Law reason. By then the formal study of law had slid away from history except in Roscoe Pound’s schematic stories of legal change. The world of these scholars and their product, squirreled away in the ever-growing number of law reviews, increasingly eschewed the large scale of doctrine, for the smaller scale of rules and their exceptions. This world is more completely lost to legal historians than that of any part of the Nineteenth Century, or so it would seem.
Bored by what might have been seen as legal needlepoint, two different groups of academic lawyers, one in the Twenties and Thirties called the American Legal Realists and another in the Fifties and Sixties called the Legal Process scholars tried to identify a different, more interesting role for their colleagues. The Realists primarily saw law as inflected by social and economic life; the Legal Process scholars, by governmental institutions. But in either case, law was seen as having a particular background that helped to explain doctrinal pieces, and sometimes wholes. Each group, however, had hidden in its own projects an interest in law reform derived from Roscoe Pound’s earlier advocacy of Sociological Jurisprudence, a part of Pre-World War I Progressive politics.
The Realists’ marriage of doctrinal reform with empiricism was short lived and quickly absorbed into the New Deal program of economic and social reform that sought, and eventually received, judicial support as the court system altered existing constitutional law doctrine when permitted by changes in its membership,[2] something we are experiencing again today. The Legal Process scholars, alarmed by the earlier constitutional changes that they saw as implying that law was a political enterprise, attempted to focus scholarship on the proper roles of institutions, especially courts, in a constitutional democracy. Together these distinct jurisprudences fostered an argument, supposedly about judicial decision-making, but really about whether significant reform could be made by judicial action or must be largely centered in legislative or administrative institutions.
During these years history had almost completely disappeared from the formal study of law. And yet, at the same time, and sort of reflexively, it began to reappear as an academic subdiscipline, first in the 1930s[3] and then with the founding of the American Society for Legal History in the 1950s.[4] As an inquiry into a past, legal history had become both separate from the formal study of law within the larger legal academy and yet somehow, in some indistinct way, influenced by that study, as is made clear by the fact that legal historians today know of this onetime fierce argument about judicial decision-making no matter what legal period they study. It is part of our academic identity.
Then, starting in the Seventies, scholarly understandings of law began to take a new form, one that pushed law reform front and center, no matter whether the question was constitutional law, statutory law, or common law. Systemic organization of law was mostly out, empirical and institutional perspectives were reduced to evidence in support of scholarly preference, and even coherent political preferences seemed irrelevant except for subgroups of scholars. Law had returned to its post-Revolutionary War existence—singular instances of isolated rules, only this time seen exclusively as matters of normative preference, masked as instantiations of some timeless public good.[5] If this understanding of law needs a name, Pierre Schlag’s appellation is spot on—Normative Legal Thought.[6] What had always been true, that rules expressed normative preferences, had been reduced to the only possible way of understanding law, a formal study of law as preferentially inflected snowflakes argued in front of hypothetical decision-makers as if instances of timeless principles.
Each of these ways of seeing law over more than two centuries implies an understanding of the task of knowing law and, as such, might be interrogated in an effort of critique. None is timeless (or placeless or probably other “lesses” too). Hurst shared one such understanding which was characteristic of historians in the Forties and Fifties. Hartog, and especially the students encountered in his essay have theirs’ . . . a preference shared with much of the legal academy for seeing law as a normative enterprise and only as such. [7] It is from these particular presents that history needs undertake its analysis of the question of knowing law as existing in a particular historic time. It is with this recognition that I wish to approach Hartog’s Fragments.
***
The first fragment starts with the archival historian’s view of teaching and writing history with an accompanying worry over “[w]hat does history do?”[8] This question may lead to one of the many possibilities of understanding a thing as “existing in historical time.”[9] Hartog’s conclusion is that legal history stands “in a critical relationship to the law as it is taught and practiced.”[10] It offers a “challenge to the conventional wisdoms . . . that shape and define American public and private doctrinal law, judicial opinions and treatise writing, law review articles and statutory debates.”[11]
To offer this conclusion is to see legal history differently than it might have been seen in the earlier times identified at the outset. Though asserted to stand in opposition to “conventional wisdoms,” it is not far from the current dominant understanding of law within the law schools, that of Normative Legal Thought. In asking “who made law beyond the urban and jurisprudential elite”[12] or “how the many, including the subaltern or oppressed, participated in making law,”[13] it suggests a somewhat more systemic understanding than that of the current law professoriate. Still, it does rhyme.[14]
The second fragment is a long discussion of Willard Hurst’s 1964 book Justice Holmes on Legal History.[15] This fragment seems to have been written either in response to, or to document, Hartog’s graduate students’ complaints about having to read the book. The discussion begins auspiciously enough with a reference to Robert Darnton’s oft quoted statement about historical inquiry. “By picking a document where it is most opaque, we may be able to unravel an alien system of meaning,”[16] a specific, unfamiliar set of taken-for-granteds.
Given that a generation is about twenty years and that Hartog is about two generations younger than Hurst, and the graduate students are probably two generations younger than Hartog, the invocation of Darnton’s words seems quite appropriate. However, what follows in this fragment is less an attempt to recover “an alien system of meaning,” “to make the past accessible to . . . us,”[17] than a decision to “distance or separate oneself”[18] from that past and in the end to critique that past from a present set of values, a different set of taken-for-granteds.
Now, I have nothing to say against the activity of critiquing the past; some people would say that I have done much of that over my modest academic career. But I would hope that a teacher of graduate history students, and a very successful one at that, would do much to dampen the tendency of any new crop of students to judge the past unkindly, to measure the past against present concerns. Instead, when approaching Hurst’s work, Hartog at times seems to share attachment to present judgments of the students in his essay.
Hartog offers four complaints about Hurst’s work, two sins of absence and two sins related to presence. The two presences are Hurst’s emphasis on the importance of the middle class and his relentless use of a single word — “we.” The two sins of absence are a lack of emphasis on race relations and the exclusion of various people from the “we,” not just African Americans, but also women, Hispanic immigrants and Native Americans. Curiously both Catholics in the Nineteenth and early Twentieth Centuries and working-class individuals at least up until the mid-Twentieth Century and intermittently thereafter, are not included in this list. Hartog is right to identify both “we” and the middle class as important for Hurst, though the separate emphasis on the exclusions seems close to double counting, since of necessity law, like everything else, excludes what it doesn’t include. However, all four complaints are troublesome.
I make this assertion even though I am quite willing to admit that I have never been a big fan of Hurst’s work except for his successful effort to open what Robert Gordon wonderfully labeled “the law box.”[19] That opening, starting with his 1950 book, The Growth of American Law,[20] made it possible for the spectacular expansion of work in legal history over the past seventy or so years, an openness that I have taken advantage of. Still, for me, Hurst’s emphasis on the importance of governmental action for creating the American economy, seems significantly overstated. He took law as rule too seriously, as would be expected of a person who opened the law box, not exploded it. As best I can tell, government mostly got out of the way, and when not, pretty much followed the desires of Hurst’s middle class that has long been the background of American institutions. But, Hartog is as much entitled to his understanding of Hurst’s work, to his concern with presences and absences, as I am with mine,[21] and the is especially the case given his real effort to make Hurst’s work understandable as part of mid-century America. So, I will do as he does, start with “We.”
To understand a speaker’s usage, one needs to understand whom is being spoken to. Justice Holmes on Legal History is a series of lectures given in 1962 at the University of Iowa School of Law. The first was given in April as part of the celebration of the School’s new building. Two more were delivered in October. It is likely that the audience was largely lawyers and law students and so it is odd to complain about a lawyer speaking to other lawyers or law students as “we.” Exactly whom else might be interested in the ideas about legal history by a deceased Judge of the United States Supreme Court, however otherwise famous he might be?
Put this understanding of Hurst’s use of “we” aside for the time being. Consider instead, that it is reasonably likely that Hurst hoped for a larger audience than just lawyers. His lectures were not published by a law review or even an academic publisher. The book was published by The Macmillan Company, an old and respected publisher of books by authors such as Thorstein Veblen, Upton Sinclair, Jack London, William Butler Yeats, Marianne Moore, Rabindrananth Tagor, C.S. Lewis and Margaret Mitchell. Macmillan’s target audience, the focus of its list, was the upper-middle and lower-upper classes. The members of this group thought of themselves as possessing a certain amount of cultural and social authority and, as a group, possessed a similar amount of political power. The group thought of themselves as a “we,” by implication “We Americans,” and spoke in that language too. If one wanted to reach them, one spoke as they did, and if one had been educated as they had, doing so came naturally. In such circumstances to object to Hurst’s usage on the grounds that he does not speak like a Twenty-First Century academic is thus understandable, but wildly ahistorical.
Similarly, it would be an error not to recognize that this group, and Hurst as a member, spoke of themselves as the “middle class.”[22] This term was simultaneously descriptive and normative.[23] It affirmed both that it was true that “we” as a “middle class” believed the things that Hurst identified as common understandings of law and that these things were precisely what should be identified as proper understandings of law.
Of course, “middle class” is anything but an inclusive concept and was not really seen as such. The term denoted a social class whose voice should matter. Sometimes it did. The actual meaning of “middle class” and earlier locutions has changed since the late Eighteenth Century, when the middle class consisted only of “small (property) holders.” Only slowly, and grudgingly, as political power diffused, did membership in the middle-class expand to include others. Thus, as a political matter, membership in the middle-class was a fairly accurate identification.
If one was talking about who created (and often benefitted from) the law in any sense other than of the political formalisms of the classroom—elementary, high, college or law—the middle class was for individuals of Hurst’s generation a perfectly accurate statement of who mattered in fact. They thought of their country as a middle-class democracy, not as an egalitarian one; though they worked at leveling social relations, they recognized the existence of those both above and below them. Hurst’s work, first on workers compensation[24] and later on civil rights,[25] made it clear that he did not always approve of this understanding, but as an historical matter he recognized its accuracy. So again, to object to Hurst’s usage on the grounds that he does not speak like a Twenty-First Century academic is more than modestly ahistorical.
The absence of a discussion of race relations when talking about law is a somewhat more difficult question than “we” or “middle-class.” First, there is a narrative problem in Justice Holmes on Legal History. It is clear when Holmes is speaking; Hurst is meticulous in crediting the source of any quoted language. But Hurst is unclear about who else is speaking: Hurst himself or Hurst attempting to speak as he thinks Holmes would have spoken had Holmes fully worked out his limited observations about legal history. Such an ambiguity is made doubly difficult when the question is whom to credit/blame for an absence.
Three good friends and fine historians assert that Hurst is using a chance to attend to Holmes’ modest discussions of legal history as an occasion for the exposition of his own understanding of the major themes of American Legal history. Hartog makes it clear that this is his opinion too. I probably should follow their collective judgments; all are more comfortable in the Nineteenth Century than I am. But the once practicing lawyer in me finds absences a troubling place for exercising judgment, as might be obvious from my disdain for the way intellectual historians dispense with human interaction when tracing ideas and their influence of. Speculation about absences on the part of the trier of fact is both discouraged by the law and routinely engaged in by attorneys when they can get away with it. I shall be cautious.
It is clear that Holmes was not interested in in the anti-discrimination cause. He made it clear that he did not believe that law was a particularly effective weapon for overturning engrained social practice.[26] From my modest reading of those of his opinions that have been pushed my way and of some of the voluminous literature on the man it seems to me that he generally doubted how effective the law was, except to the extent that it delivered criminal penalties and moved money for someone’s pocket to that of someone else. So, Holmes might have ignored the subject despite its deep and abiding influence on his life. [27]
Race was the great issue of the Nineteenth Century and that many people, perhaps most, other than the slaves themselves, who were by definition not a part of “we” of the “middle class,” preferred not to think about it and that, after an awful war settled the issue of slavery, but not of race, many people, perhaps most, other than African-Americans themselves, returned to not thinking about it, however much they may have lived within it. Silence on the part of the “we” of the “middle class” may in fact be an accurate historical observation.
The question of Hurst himself, is initially less complicated. An even modest review of his papers at the University of Wisconsin Law School would make it quite clear that the historian Hurst and the politically attuned human that was Hurst could have been at odds on the relevance of the question of race for the middle class in the Nineteenth Century.[28] What then of Hurst the historian situated in his own historical past?
Here, Hartog does a particularly good job with Hurst’s historical past as both an heir to the Progressive vision of legislative power and as a partisan for a kind of “consensus” history. Thus situated, Hartog observes that by the time of the Holmes book these two attributes of his consciousness made him then “slightly out of date.” As a law student in 1964, the year Justice Holmes on Legal History was published, I might have said the same thing. However, as no longer a lawyer, but as a sometimes legal historian, I’m not sure that is the case. The attractiveness of legislation continues unabated, across the land as is the mistaken assumption that the adoption of this or that bit of law will solve serious problems. Moreover, we still hear the regular assertion that there is a consensus understanding of the past to be found across the land, though unfortunately, now there are two such understandings, each of which is undermined by the existence of the other.
Put aside being slightly out of date. Being less au courant is only part of situating Hurst in his historical past. There is also the matter of his research. Here, I suppose it is idiosyncratic of me not to have emphasized that Hurst was primarily a historian of the American economy in the Nineteenth Century, maybe the Long Nineteenth Century. Though he had written about other things, mostly he was interested in how the various immigrant peoples who came to this very large place, the fourth largest after only Russia, Canada and China, managed to build an economy that more, though perhaps less, hung together. Doing so was an astonishing achievement that took a very long time. In no sense was it foreordained that the telegraph and the railroad, then later the automobile, the airplane, and even later the television and the mall would cumulatively bring together the great expanse that is America to form something like a national economy, however transient it has turned out to be, and a national culture, however tawdry it may be. It was an achievement, and it is the beginnings of that achievement that Hurst chronicles and critiques. As a first-rate historian, he surely knew that there were other things going on in his chosen century, but he was not writing a universal history so he might sensibly have ignored them. At the same time, I strongly suspect that he would have been pleased with scholarship of the past 40 years that has begun to flesh out those things that his narrow economic focus left out; he was, after all, a. partisan of history.
Without question, for many years of Hurst’s century there were real social questions other than race, some of which could be avoided by moving West and even slavery was a question that implicated the viability of an aristocratic agricultural system that soon wasted farmland and so implied westward expansion for its maintenance and growth. There were real problems for women, some of whom did not like their limited rights; for various sexual minorities whose rights were non-existent; for people such as Catholics, Jews and Mormons whose religion was seen as suspicious; and for immigrant groups that spoke strange languages and observed strange customs. Most of these people may have been citizens, and as such at least the men had the right to vote, but voter or not they did not count; their voices were seldom heard and when heard, were ignored. Native Americans were kept out of sight so as to be out of mind when not targeted for extermination.
Historians in the Twenty-First Century may regret these facts, may even be outraged by them, but our outrage does not render these excluded voices critical for understanding the Nineteenth Century economy, or the social life that accompanied it. They were there, often in the roll of victims, but it was only those with voice who were heard. Thus, as I mentioned earlier, it is very important that Twenty-First Century historians have worked hard to unearth these excluded voices, to allow them to be heard, and so extend backward the longer story of how these voices have worked to come to be heard. But that still doesn’t mean that others’ historical work is somehow lacking, that it is only “winner’s history,” if it doesn’t contribute to this project. Understanding how the winners managed to pull off their victory is important in its own right.
Fragments Three and Four comprise Hartog’s exposition of Hurst’s contributions to legal history “as I want it to be.”[29] He starts with “the collective power of the middle-class point of view,”[30] at least if accompanied with greater periodization so as to make it possible to encompass the dynamic that leads to the expansion of the groups considered to be part of that class. Crucial to the job of explicating this redefined middle-class point of view is a “willingness to look at law as a human activity,”[31] but nevertheless undertaken within doctrinal streams, that include narrowly legal texts that somehow need not be traced to “questions of origins,”[32] but rather situated within the contingency that is part of human life.
This combination of the contemporary drive for inclusion and the social/cultural aspects of law with an asserted importance of narrowly legal documents and practices is both surprising to me and perhaps attractive to legal history graduate students who hope it will help them secure relatively well-paid law teacher salaries. I surely have no reason to advocate for an increase in the number of poorly paid historians, but there are some intellectual costs to accepting Hartog’s disciplinary package. As he makes clear, Hurst’s work created the possibility that legal history would not forever be limited in its scope to doctrinal history, to an updated version of work of late Nineteenth and early Twentieth Century historians such as Langdell, Ames, Gray, Thayer and Wigmore. It made possible work on lawyers and legal academics, courts and legislatures as legal institutions, as well as on cases as historically situated events that has exploded in the last sixty years. Hartog identified some of this work with the movement in legal thought called Critical Legal Studies,[33] though significantly, some of this work was not welcomed as openly by Hurst.
The “critique” implied by the word “critical” was important in law as it was in history for its assertion that there was no understanding of a past or present that can escape from the positionality of the author. In history this assertion led to a brief renewal of the disputes about “objectivity” that have occasionally bedeviled the discipline for now about one hundred years.[34] Not much changed this time either. Though the dispute in law was quite a bit newer, the result was somewhat different. Law professors changed from hiding their preferences when discussing what the law was/should be, to boldly affirming those preferences. This normative element, Schlag’s Normative Legal Thought, came to dominate legal scholarship. What might have been seen as an unfortunate limit to knowledge—positionality—came to be affirmed as liberation of the scholar, at least when buttressed with an asserted common identity that informed that preference.
This shift in legal scholarship was helpful to me. Instead of spending time trying to figure out an author’s more or less hidden values, a scholar’s stating such at the outset saved time and effort. In history the move of the author’s normative preferences front and center might also be seen as helpful to the reader; it may also make such scholarship understandable to law school hiring committees. That said, there is a real difference between law and history. Legal scholarship is directed toward present, or increasingly future, social relations.[35] By definition, history is about understanding a past. Legal historians, following Braudel, might sensibly insist that understanding a past is necessary for effectively charting a normative future.[36] However, that fact does not make present concerns crucially relevant for understanding the pastness that is the past, except possibly as a clue to significant differences between present and past and maybe a potential future.
Now, in making this point and so criticizing Hartog’s students’ response to Hurst’s work, and implicitly his toleration of that criticism, I am not arguing for an “objective history.” All historians have values that inform their work. I have spent over twenty years of my academic life trying to understand how it was that after the New Deal brought the inclusion of hourly factory workers into those who counted, who were entitled to a voice in the community, to be a part of Hurst’s middle-class, only to be tossed aside after at most two generations.[37] No one who carefully read what I have written could doubt that this question is what has animated my work, if not from the beginning, from soon after. But to understand how these events happened and what a difference they made in local communities, as well as to suggest how the results might be altered—yes, there is some law professor still to be hidden in these aged bones—I spent an incredible amount of time trying to understand the history of an economy that made this particular sequence of events possible, to treat his past as respectfully as I could. Both Hartog and his students in their scholarship do the same, probably even more diligently than I. What I cannot understand is why past historians are not worthy of such an effort at understanding too.
***
It is time to return to where I started. Dirk Hartog began by posing the question “What does it mean to know law as . . . existing in historical time?” Knowing that he was responding to a work by Willard Hurst who so changed legal history, I set forth a possible list of historical times for their understandings of law’s history as a way to understand Hurst’s place in that history. Later Hartog shifted his question to “What does history do?” This is a significant change . . . from meaning to doing. And so, with thanks to Archibald McLeish for the inspiration,[38] I wish to assert that like poetry, history does not mean, much less do, but be. Each time has its own history, and the historian needs to try to understand, even appreciate, that time before noting its presences and absences, assessing its values, giving it meaning. We historians may judge history as we choose, but it is best to do so after understanding our chosen piece of the human past.
Here it seems to me that Hartog’s graduate’ students’ concern for those excluded from Hurst’s “we” indirectly provides testimony for the accuracy of the history of the Nineteenth and early Twentieth Centuries that Hurst offers. His past is not our present. The centrality of legislative institutions to Hurst’s opening of the law box was less an expansion of legal, to include social, history than a dragging of legal history from its obsession with the common law into the recognition of the changes in law in the years after the Civil War. In those years, legislation was a response to then extant social conditions that the common law seemed unable to address in the same way that our current concern for those constitutional rights that some see as absent from Hurst’s history is a response to extant social conditions that legislative power seems unable to address.
Thus, Hurst’s distance from contemporary concerns is the best possible indication that his is a foreign land that needs first to be understood on its own terms, rather than reflexively criticized by ours. In so doing a certain humility is in order. The point of history is not to affirm our present normative superiority to those who came and wrote before us, but to understand their “taken-for-granteds,” lest those who follow us take our criticism of those who came before us to be a license similarly to question our “taken-for-granteds.”
If, when confronting the work of earlier historians, graduate students in Hartog’s and others’ classes, as well as already frocked historians, were to undertake the serious inquiry into the foreignness of the past that Darnton identifies, they might better understand the world and work of those earlier historians. In Hurst’s world the American economy had fallen apart. For people of his age and, yes, station, inquiry into economic structure was important because the resulting Depression had overwhelmed life and so brought economic questions to the forefront of concern. As an historian, this economic event seems to have led Hurst to ask questions about government management of the economy in earlier times, both legislative and administrative. Understanding his present, might help one to understand that past and his response to it, just as our present may similarly lead to the history that that each of us chooses to do. Such an understanding is all that humility requires; it says little or nothing about present choices of what to write about.
[1]. Hendrik Hartog, “Four Fragments on Doing Legal History: On Thinking With and Against Willard Hurst,” Law and History Review 39, no. 4 (November, 2021), 835-65.
[2]. Barry Cushman, Rethinking the New Deal Court: Rethinking the Structure of a Constitutional Revolution (New York: Oxford University Press, 1998) mightily disagrees with me on this point. I agree with Laura Kalman, FDR’s Gambit: The Court Packing Fight and the Rise of Legal Liberalism (New York: Oxford University Press, 2022). Both are my good friends.
[3]. The American Legal History Society was an offshoot of the Association of American Law Schools. It first met in 1933. Joseph Beale of the Harvard Law School was its first president. It seems to have died out by 1938.
[4]. The American Historical Association, an offshoot of the American Historical Society, was organized in 1956. Hurst was a part of the organizing committee. In the beginning, the American Journal of Legal History, a publication of the Temple University Law School, was distributed to the Society’s members. In 1983 the Society began to publish its own journal, Law and History Review.
[5]. The common cite is to work by members of the Conference on Critical Legal Studies. To my way of thinking, John Henry Schlegel, “Notes Toward an Intimate, Affectionate and Opinionated History of the Conference on Critical Legal Studies,” Stanford Law Review 36 (1984), 391-411, better cites are to the work in Critical Race Theory and Feminist Legal Studies.
[6]. Pierre Schlag, “Normative and Nowhere to Go,” Stanford Law Review 43 (1990), 167-91.
[7]. I have mine. Anyone who asks politely could receive a summary and, if appropriate, a defense.
[8]. Hartog, “Doing Legal History,” 838.
[9]. Hartog, 835.
[10]. Hartog, 839.
[11]. Ibid.
[12]. Ibid.
[13]. Ibid.
[14]. As one would expect who had read Risa Goluboff’s, “Response to Hartog’s ‘Four Fragments’ in a Flow Chart and Three Venn Diagrams,” The Docket, Law and History. Review (March 28, 2022). In her third diagram legal history occupies a small sliver between large but overlapping spaces occupied by “Law” and History.” This diagram may reflect how legal historians see themselves in a world dominated by law schools and history departments, but I am quite sure that as an intellectual matter the overlap of law and history, and so the realm of legal history, is far larger than the diagram suggests.
[15]. James Willard Hurst, Justice Holmes on Legal History (New York: The Macmillan Company, 1964). I find this choice of seminar reading quite strange. Hurst’s better known book Law and the Conditions of Freedom in the Nineteenth Century United States (Madison, Wisconsin: University of Wisconsin Press, 1956), would be far more representative of Hurst’s work. Hartog can’t have chosen Justice Holmes because the book is still in print. Both books are no longer in print.
[16].1 Robert Darnton, The Great Cat Massacre and Other Episodes in French Cultural History (New York: Basic Books, 1984), 4.
[17]. Hartog, 841.
[18]. Dan Ernst supplied this phrase; he had no idea I would steal it.
[19]. Robert W. Gordon, “James Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review 10 (Autumn, 1975), 9, 10.
[20]. James Willard Hurst, The Growth of American Law: The Lawmakers (Boston: Little Brown and Co., 1950).
[21]. For me, the more critical exclusion is of the working-class group that in the Post War years became a part of the middle class. I recognize that this exclusion is from work in my century, not his.
[22]. In contrast to whatever a social historian might say, Americans at the top of the ladder measure social class by what they lack, not by what they have. It is only at the bottom of the ladder where having more is treated as a mark of social position.
[23]. Such a usage of words, which as a kid I was taught was “normatively ambiguous,” is a very common understanding of things in Hurst’s world and that of the academic of the Twenty-First Century, except that most of such usage contains a negative normative judgment, not a positive one. “Racism,” “sexism,” “agism” and a whole bunch of other words are said to describe a state of affairs in the world and to affirm that such a state is bad. Words such as “elitism,” “secularism,” “anti-Americanism,” and a whole bunch of other words are structurally identical, though they come with a different political valence. Which is not to say that all such words are descriptively equivalent or normatively indistinguishable. They are not. But both usages are intellectually sloppy. Instead, it is probably best to focus on either the normative or the descriptive usage rather than to contrast one’s normative understanding with someone else’s descriptive understanding.
[24]. James Willard Hurst and Lloyd K. Garrison, Law in Society, Volume II: Developments in the law of Industrial Accidents (Madison: College Typing Co., 1940).
[25]. His papers contain a surprising amount of material on “race relations” and “school segregation,” given that he never published on the subject.
[26]. See Giles v. Harris,189 US. US 475, 488 (1903). I discovered this case in a comprehensive explication of Holmes’ cases on race, Thomas Halper, “Justice Holmes and the Question of Race,” British Journal of American Legal Studies 10 (January 2021), 171. Holmes was not obviously wrong, however lawyers might rue his proposition, as is evidenced by the 80+ years since Brown.
[27]. Suggestive, but indirect, evidence on these two points can be had by putting together the opinion of Massachusetts Chief Justice Lemuel Shaw in Commonwealth v. Roberts, 7 Cushing (Mass.) 198 (1849), the Boston school segregation case, where in upholding segregated schools he noted at page 209, “It is urged, that this maintenance of separate schools tends to deepen and perpetuate the odious distinction of caste, founded in deep-rooted prejudice in public opinion. This prejudice, if it exists, is not created by law, and probably cannot be changed by law.” We do not know if Holmes approved of Shaw’s statement about the function or role of law, but we do know that Holmes approved of Shaw. In The Common Law (Boston: Little Brown and Company, 1881) 106, Holmes discussed Chief Justice Shaw’s opinion in Brown v. Kendall, 60 Mass, 292 (1850), and spoke of Shaw as a “great judge” whose “strength” “lay in an accurate appreciation of the requirements of the community whose officer he was,” further commended Shaw for his “understanding of the grounds of public policy to which all laws must ultimately be referred,” and called him “the greatest magistrate which this country has produced.” Holmes was not known for his praise of the work of others. Fred Konefsky pointed me to these two bits of Nineteenth-Century understanding.
[28]. Hurst, Memorandum regarding the 13th and 14th Amendments, in Wisconsin, and related subjects. Outline examining the 13th and 14th amendments done at the request of William Coleman of the NAACP relevant to Brown v. Board of Education. Willard Hurst Papers, University of Wisconsin Law School Library. For a similar example of work done on the subject of race that nevertheless was never published, see the unremarked work of Karl Llewellyn on race recovered in Alfred L. Brophy, “Cold Legal Points into Points of Flame”: Karl Llewellyn Attacks Lynching,” (2015). Available at: https://scholarship.law.ua.edu/fac_working_papers/376.
[29]. Hartog, 856.
[30]. Hartog, 853.
[31]. Hartog, 855.
[32]. Hartog, 857.
[33] John Henry Schlegel, “Notes Toward an Intimate, Affectionate and Opinionated History of the Conference on Critical Legal Studies,” Stanford Law Review 36 (1984), 391-411, may not have been what he was thinking of.
[34]. Peter Novick, That Noble Dream: The “Objectivity Question” and the American Historical Profession (New York: Cambridge University Press, 1988).
[35]. There is almost no reason to believe that the law review article influences law more than occasionally. If normativity is the cost of law’s opening the box to history, surely this is a price that may be too high to pay.
[36]. See Fernand Braudel, Civilization and Capitalism 15th-18th Century, Volume 1: The Structures of Everyday Life, tr. Sian Reynolds (New York: Harper & Row, 1981), 56,
[37]. John Henry Schlegel, While Waiting for Rain: Community, Economy and Law in a Time of Change (Ann Arbor: University of Michigan Press 2022).
[38]. Archibald McLeish, “A poem should not mean/ but be.” Ars Poetica, 28 Poetry: A Magazine of Verse, 126 (Issue 3, 1926).