Leaving the Fortress of Legal History Behind

Professor of Law and History, University of Pennsylvania Law School

Like many of you, I found great pleasure in rereading Gordon’s essays all in one place. One thing that stands out when you do is Gordon’s wonderful metaphors. Today, I want to focus on one type of metaphor: his use of metaphors about bounded, contained spaces and their bridging, and what they tell us about the practice and future of what I would call Gordonian legal history.

Bob Gordon, Maeva Marcus and Sophia Lee, January 12, 2018. Photo Misha Bruk, Stanford Law School

This type of metaphor appears throughout the book and is most often used to convey the relationship of law to everything else. For example, in The Common Law Tradition in American Legal Historiography, Gordon introduces his now famous graphic depicting law as a contained box, through which societal inputs and outputs enter and leave, respectively.[1] Then, in Critical Legal Histories, he describes how the premises underlying this box metaphor for the relationship between law and society were “corrode[d]” by Critical Legal Studies scholars.[2] Instead of a law box with distinct social inputs and outputs, we learn that “law and society are inextricably mixed”[3] and that law “has been imbricated in and has helped to structure the most routine practices of social life.”[4]

But we also see this type of metaphor used to conjure the challenges of legal history writing. In The Elusive Transformation, Gordon writes of legal historian Morton Horwitz that “his orderly structuralist garden” in The Transformation of American Law, 1870-1960 “is overrun by its sprawling post-structuralist undergrowth: a luxuriant, unruly proliferation of divergent interpretations.”[5] Or, in Critical Legal Histories, Gordon describes functionalist historians as “always grandly overflowing their conceptual channels.”[6] This version of the metaphor is even made literal in Gordon’s own writing when his ideas overflow the essay’s typical paragraph form to yield pithy lists and sublists of Gordon’s incisive insights. Even the title, Taming the Past, based itself on Oliver Wendell Holmes’s metaphor of the law as a dragon that must be lured from its cave and tamed or killed, evokes the idea of legal history writing as an undertaking at once worthy and quixotic. Worthy because, as Gordon tells us, “we need to know what it [the past] looks like, and how it looms, for good and ill, over our present.”[7] Quixotic because, as he also observes, it “cannot always be tamed – it is too wild and unruly for taming.”[8]

My remarks today are focused on an instance of the metaphor that itself bridges my efforts to contain his use of these sorts of metaphors in tidy typologies about the subject versus the doing of legal history: Gordon’s evocation of a drawbridge in his 1975 essay Social-Legal History’s Pioneer: The Work of James Willard Hurst. Gordon writes that Hurst “almost single-handed, lowered from the inside the drawbridge over the moat isolating American legal from general historiography.”[9] In this metaphor, law and legal history are what resides inside the fortress. General historiography spreads across the lands without. As Gordon notes, some residents of the land of general historiography had been laying siege to the fortress before Hurst, but Hurst, Gordon tells us, was the first occupant of law’s fortress to welcome their methods in.[10]

Hurst’s primary goal in this drawbridge lowering, however, was not to show the generalists outside the fortress the value of legally trained historians but to demonstrate how legal history illuminated law for lawyers—how the moat lowering benefitted those inside the fortress. Gordon describes, for instance, Hurst’s focus on using history to train “lawyer statesmen”[11] and to help today’s and tomorrow’s lawyers heed the “dreadful warnings” of the past.[12]

The remainder of my remarks consider how Gordon has continued Hurst’s work of bringing history across the moat and into the fortress, but has also moved beyond Hurst’s model to reverse the traffic across the drawbridge, encouraging the flow of law and legal history out into the territory of “general historiography.” I close with some thoughts on the state of this project: whether more outflow is needed, and whether the metaphor itself still holds or, like Horwitz’s structuralist garden, has been overrun by the messiness of real life.

As we all know well, Gordon has done a tremendous amount to bring historiography, and particularly critical historicism, into the fortress of law and legal history. His work has promoted, as he recognizes in his introduction to the volume, “any approach to the past that produces disturbances in the familiar, comfortable strategies that lawyers use to tame the past in order to normalize the present.”[13] He has also trained an army of students, many of them participating in this symposium, who have made the case to law faculties that this type of critical legal history belongs in legal training and scholarship, as a way to serve the statesmen-producing and warning-heeding functions Hurst embraced.

But Gordon has also played a key role in sending traffic out of the fortress and across the moat, in bringing legal sophistication to “general historiography.” This he has again accomplished through mentoring and teaching generations of students with both “unassailable lawyer’s … credentials” in law (how Gordon described Hurst, and to which he attributed his ability to accomplish something the general historians outside the fortress had not)[14] but also impeccable training in “general historiography.”[15]

Gordon has also brought the methods of legal history to general historians through his writing and its dissemination. His historiographic essays in particular have helped infuse legal historiographic approaches into the work of historians who do not have legal training. I’m thinking here of scholars such as Laura Edwards whose essay in the 2012 symposium on Gordon’s Critical Legal Histories acknowledged that article’s influence on her.[16]

There is much for legal historians to be happy with about their reception among their general historian peers. One particularly high-profile example is the number of Bancroft prizes that have gone to legal historians in recent years.[17] Nonetheless, there is still imbalance in the commerce, with the flow of general historiography into the fortress of law far greater and steadier than the flow of legal historical methods into the land of general history.

Institutionally, there are few J.D.-Ph.D. trained legal historians in American history departments. Just as an illustration, on the entire program for this symposium, there are only two participants with full appointments in a history department. Further, they are both at universities that do not have law schools and only one of them has a law degree. Intellectually, methodologically, and substantively we are a long way from generalist historians thinking it imperative to engage with the methods and discipline of legal history, in the way that they would familiarize themselves with social, cultural, or intellectual history. Also, those of us who are cross-trained in law and history are relatively new to using that training to contribute not only to legal history but also subfields of general history.

There are sturdy institutional, job-market, and financial reasons for J.D.-Ph.D. legal historians’ under-representation in history departments (what Laura Kalman in her comments referred to as the bells and whistles that come with a law school appointment), as well as for at least some, reasons of intellectual interests and commitments to that Hurstian project of training lawyers. There may also be intellectual and methodological reasons for this imbalance. Edwards, in her piece on Critical Legal Histories discussed above, assessed, with incredible insight, how the functionalist conventions of general historiography form a barrier to entry for Gordonian critical legal historicism and serve to marginalize legal history within the history discipline. With so few products of Gordon’s training in history departments to make the case for critical legal history, the pull factors of law schools and intellectual push-factors of history reinforce each other.

But there are costs to this imbalanced commerce. These accrue to legal historians’ stature in the history field, where we are still viewed by many as something like a zoo animal … and not the exciting zoo animals, the Panda bears for instance, but the somewhat fusty ones, like a hundred-year-old tortoise camouflaged in a deep corner of a dusty enclosure off the beaten track. There are also costs of this separation to our own scholarly development and ambitions. Our location inside the fortress, where we are relatively cut off from the ideas and methods of our history colleagues and immersed in generalist legal education and scholarship, conditions us to focus more on the incoming traffic, on bringing history to law, than on using our legal training to transform history or participate in broader historiographic shifts in the discipline.

With the Hurstian project of bringing history to law arguably accomplished sufficiently, the future calls on us to continue the reverse traffic project, begun by Gordon and his fellow travelers. Continuing that project may require distinguishing between legal history as a subject, where law remains the focus, and legal history as a methodology, where law can be decentered as the subject but legal historical approaches still provide a way to rethink historical subjects from imperialism and colonialism to labor and capitalism to gender and race.[18] But it also may demand that some of us forego the “bells and whistles” of law-school appointments for the rich historical and historiographical dialogue of history departments, or at least find a way to deeply engage in that dialogue despite a law school appointment.

At some point, the out-migration project I am proposing may raise its own set of boundary questions about whether what we are doing is still distinctly legal at all. But we have a long way to go before we need to worry that we have left the drawbridge, and the fortress from which it leads, far behind. And even were we to get to that point, I suspect Bob would welcome the move away from a world where the drawbridge channels and contains traffic between legal and general history, to one where the two appear as deeply imbricated as Bob’s volume reminds and urges us law and society themselves can be. That is a goal, after all, that is sympatico with his volume of essays, with its many metaphors of boundaries overrun and its title, which urges us to coax the past writ large out of the cave, not only Holmes’s dragon as law, to seek to understand it even if we cannot hope to slay it or to ever bring it fully to heel.

[1] Robert W. Gordon, Taming the Past: Essays on Law in History and History in Law 18 (2017).

[2] Id. at 222.

[3] Id. at 266.

[4] Id. at 281.

[5] Id. at 111.

[6] Id. at 59.

[7] Id. at 11.

[8] Id.

[9] Id. at 86.

[10] Id.

[11] Id. at 91-92.

[12] Id. at 80.

[13] Id. at 7.

[14] Id. at

[15] Gordon has also mentored plenty of legal historians who have not pursued doctorates in history in addition to their law studies. They may also choose to venture outside law’s fortress, but I am focusing here on the particular J.D.-Ph.D. hybrid Gordon advised and mentored throughout his career.

[16] Laura Edwards, The History in “Critical Legal Histories, 36 Stanford L. Rev. 187 (2012).

[17] John Fabian Witt, Lincoln’s Code: The Law of War in American History (2012); Tomiko Brown-Nagin, Courage to Dissent: Atlanta and the Long History of the Civil Rights Movement (2011).

[18] A good example of this kind of work is Karen Tani’s recent book, States of Dependency: Welfare, Rights, and American Governance, 1935-1972 (2016). Tani makes numerous important contributions to legal history, but she also uses her legal training and a Hurstian attention to the sinews of bureaucratic interpretation to revise conventional understandings in women’s history about the two-track welfare state. Id. at 9-10.