Vol. 3 No. 6 (June, 1993) pp. 60-62
THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 by Morton J.
Horwitz. New York: Oxford University Press, 1992. 361 pp. Cloth
$30.00.
Reviewed by Kermit L. Hall, Dean and Professor of History and
Law, The University of Tulsa.
Morton Horwitz's first book, THE TRANSFORMATION OF AMERICAN LAW,
1780-1860, has become a landmark in American legal history. Few
books have either so profoundly shaped the course of debate about
the nation's legal past or stirred so much controversy. Now
Horwitz has produced a second book with the same title as his
first, but covering the years 1870 to 1960, a period during which
prevailing legal orthodoxy was thrown into crisis. We have,
therefore, TRANSFORMATION ONE and TRANSFORMATION TWO. One might
speculate that Professor Horwitz, who teaches at the Harvard Law
School, will eventually produce TRANSFORMATION THREE to cover the
ten-year period of the Civil War and Reconstruction, an era
considered by most legal historians of unparalleled importance to
the definition of modern legal culture yet resolutely ignored by
Horwitz.
Readers expecting in this new book an interpretive rehash of
TRANSFORMATION ONE will be surprised, perhaps even disappointed.
In some ways, of course, the two share much in common. Like the
first volume, this newest work is less a book than a collection
of essays roughly stitched together. Like the first, Horwitz
draws randomly from a wide range of cases, social changes, and
cultural developments without making explicit connections among
them. Moreover, he continues, as he did in the first book, to
rely on the case method of analysis, even when that means playing
fast and loose with chronology.
More than TRANSFORMATION ONE, however, TWO is definitely not an
inquiry into the socio-economic basis of law. Horwitz's earlier
work stressed that the antebellum legal system indirectly
subsidized capital formation and economic development. Judges and
lawyers, according to this view, used legal rules to redistribute
the costs of economic growth away from business and toward
laborers and farmers. The legal system became an instrument to
foster capital development by placing the costs of capital
formation on those least able to shoulder them.
TRANSFORMATION TWO explicitly eschews this approach. It seeks
instead to link legal and cultural, rather than economic, change.
Horwitz's perspective has become post-modern as he attempts to
assess developments between the late nineteenth century and the
Age of Aquarius. He has embraced the idea that any rendering of
history must be partial and reflect the views of the historian as
much as the subject being investigated. TRANSFORMATION TWO,
therefore, fits more with the emerging school of pragmatic
hermeneutics in intellectual history than with either critical
legal studies or mainline intellectual history.
At the heart of TRANSFORMATION TWO is Horwitz's explanation of
the shift from classical legal thought, the emergence of which
figured in the closing chapters of TRANSFORMATION ONE, to
Progressive legal thought. Classical legal theory -- the old
orthodoxy -- stressed neutrality and objectivity; it dominated
American legal culture until the mid-1930s. Progressive legal
theory, on the other hand, arose in response to ever increasing
social and economic inequality, and its adherents claimed that,
in the face of this inequality, arguments about the law's
autonomy -- of a government of laws and not persons -- was bogus,
a sham.
Progressive legal thought took its boldest expression in the
Legal Realist movement of the 1920s and 1930s. The cumulated
weight of the realist movement, the Great Depression, and the New
Deal brought on the collapse of classical legal theory and with
it the idea that law was neutral. For example, Horwitz explains
how the natural entity theory of corporations came to replace the
notion that corporations were merely driven by competitive
pressures. One of the
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book's most important sections argues that the consolidation of
big business under the natural entity theory had the unintended
consequence of demonstrating that all claims to rights were
artificial and therefore subject to regulation by the state.
Arguments inside the law about the proper definition of the
corporation were complemented and reinforced by arguments outside
the law on issues involving the rise of the joint stock company
and the emergence of critical social science.
Horwitz's richly textured analysis shows that "legal theory
does powerfully influence the direction of legal
understanding." (p. 106-7) The attack on classical legal
theory began in the late nineteenth century and accelerated
rapidly in the early twentieth under the prodding of Progressive
thinkers. They urged reform of the law in light of their
contention that lawmakers acted politically, not objectively.
Progressives complained, for example, that the notion of freedom
to contract, which was sanctified in LOCHNER v. NEW YORK (1905),
assumed equality among all individuals bargaining in the market
place. Oliver Wendell Holmes, Jr., who dissented in LOCHNER, was
among those Progressive legal thinkers who understood that such
an assumption was neither supported in theory nor in social
scientific evidence. Instead, Holmes stressed, proper analysis of
legal relations depended on understanding the interdependence not
the independence of persons engaged in bargaining.
Legal scholars have long appreciated the important role that
Holmes played in the shift from classical to Progressive legal
theory. Horwitz invokes Holmes's legal career to brilliant
advantage. Holmes, Horwitz writes, moved from an early position
that gave credence to the idea of law as an objective force to a
more mature view that treated the entire matter of objectivity in
law and social science with a skepticism bordering on cynicism.
Horwitz argues that the appearance in 1894 of Holmes's pivotal
essay, "Privilege, Malice, and Intent," marked
"the moment we should identify as the beginning of modernism
in American legal theory." (p. 131) Holmes concluded that
there was simply no objective or neutral way to reconcile the
competing claims of labor and capital. Such a conclusion, of
course, echoed the pragmatism of Henry James and John Dewey, who
Horwitz argues had a powerful influence on Progressive legal
theorists such as Holmes. Horwitz also concludes that the
Progressive approach to law meant that the state had an
inescapable responsibility in redistributing wealth.
The early chapters treating these developments provide the
foundation for the book's most important contribution: its
nuanced treatment of the rise of Legal Realism. Horwitz argues
that realism grew directly from Progressive legal theory and that
it was, in the end, more a mood than a movement. Horwitz explains
that the realists are better appreciated for their diversity than
their similarity. Much recent writing on the realists, of course,
has stressed their commitment to the methods of social science
and value-free empiricism. Yet Horwitz correctly points out that
Karl Llewellyn, perhaps the best known proponent among the
realists of a scientific and positivistic methodological approach
to the law, was the exception and not the rule. More central to
the tradition of Progressive legal thought and, therefore, to our
own time, was the committed reformism of Louis Brandeis, Roscoe
Pound, and Benjamin Cardozo. Horwitz significantly rehabilitates
these three as major forces in developing American legal theory
and as the exponents of the "real" Legal Realism.
The notion that all realists were without values and that they
were ethical relativists, Horwitz goes on to argue, is simply
wrong. Indeed, a good number of realists were what he calls
cognitive relativists, meaning that they appreciated that thought
processes were such that law could not be understood as self-
executing and non-discretionary. Hence, any methodology that
sought to categorize and compartmentalize the law, as Llewellyn
argued was one of the realists chief goals, was not only suspect,
because it contained debatable political and moral assumptions,
but contrary to the authentic meaning of realism. Legal Realism
and the
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Progressive tradition that informed it, Horwitz concludes, did
not die with World War II, the alleged victims of an ethical
relativism rooted in objective social science. Instead, both
continue as major intellectual forces in the law today, with
schools of legal thought as diverse as the Law and Economics
movement and Critical Legal Studies claiming them as intellectual
ancestors. Horwitz notes that such competing claims merely
underscore the tension between value-neutral empiricism and
committed reformism, a tension created by the Progressives'
continuing efforts to reform American law.
TRANSFORMATION TWO is an important book. It offers a bold
reinterpretation of modern legal history, it elevates the
discussion of legal change above the level of the
"people" versus the "interests," and it
affirms the value of taking legal doctrine seriously.
TRANSFORMATION TWO, however, is unlikely to have the same success
enjoyed by TRANSFORMATION ONE. Part of the reason has to do with
the increased sophistication of legal history as a discipline
since the latter appeared sixteen years ago. The behavioral,
law-and-society approach associated with Lawrence Friedman has
captured a broad following, one that heavily discounts the
importance of ideas and stresses instead the wisdom of studying
the law in action. There is among legal historians renewed
interest in the history of legal doctrine, as TRANSFORMATION TWO
so eloquently testifies. Yet the new book, while sophisticated in
the ways of intellectual history, does little to explain legal
behavior, one of the chief concerns of Friedman and his
adherents. Horwitz has demonstrated the value of taking doctrine
seriously, but he has hardly addressed the concern of
behavioralist scholars that such attention to the intellectual
life of American law actually obscures its day-to-day workings.
Second, Horwitz himself has failed to come to terms with recent
scholarly assessments that stress the variegated nature of the
Progressive movement. For example, he rests much of his
discussion of modern constitutional history on Charles Beard's
now thoroughly exploded assertion that the Constitution was
originally written to protect property rights and enforce
inequality. This view seems antique, even wooden given the
mountain of neo- Progressive and republican interpretations of
the document's origins by scholars such as Gordon Wood. Horwitz's
Beardian interpretation also flies in the face of what is an
otherwise sophisticated explanation by Horwitz of the futility of
approaching American legal history as the story of how law and
politics are separated from one another.
TRANSFORMATION TWO's worst enemy is itself. Much of the success
of TRANSFORMATION ONE stemmed from its direct and not so subtle
argument. The Horwitz thesis was elegantly stated and easily
tested by other scholars. Indeed, a host of historians have
complained that in the first book Horwitz failed to connect
changes in legal doctrine to observable changes in economic
behavior. Horwitz, of course, was not so much interested in
proving this point as in stating it. TRANSFORMATION TWO, however,
has substituted abstraction for simple elegance in attempting to
tell its quite complex and not easily grasped story. Surely, one
would think, the same concrete interests and groups that Horwitz
identified in the first book would have their parallels in the
second. If anything, industrialization in the late nineteenth
century created more not fewer threats to workers and farmers,
the so-called producing classes. Most of the twentieth century's
concrete issues -- minimum wage laws, collective bargaining,
consumer protection, farm subsidy policies, and social security
-- are largely ignored by Horwitz. Moreover, Horwitz's focus is
on figures such as Holmes, Jerome Frank, and Llewellyn, the elite
of the legal profession and the abstruse ideas with which they
played. The result is brilliant analysis but petrified history.
Horwitz speaks with much insight to the evolution of legal theory
but little force to changing social behavior through and under
the law.
Copyright 1993