The Transformation of American Law: 1870-1960, The Crisis of Legal Orthodoxy.

• Author: White, G. Edward

The appearance of Morton Horwitz' The Transformation of American Law 1870-1960: The Crisis of Legal Orthodoxy(1) is an instructive episode for students and practitioners of legal history. The book is a sequel to Horwitz' influential The Transformation of American Law, 1780-1860, which first appeared in 1977. Sequels are relatively common in the historical profession. Much rarer is a self-conscious change by the historian from one methodological framework to another in the process of writing a sequel. When the author associates that change with "the massive challenge to traditional ideas of historical explanation that ha[s] invaded both the worlds of theory and historical practice since Transformation [I] was written,"[2] an invitation is implicitly tendered to explore the relationship between the structure of Horwitz' historical narrative and contemporary historiographical culture.

In the course of my discussion of Horwitz, I will first contrast Transformation II with Transformation I, a book that appeared when the discipline of legal history, and the field of legal scholarship, were at a markedly different stage in their twentieth-century history. I will then turn to three central features of Transformation II: its methodology, the structure of Horwitz' historical narrative, and the metapolitical strategies driving the book. An exploration of those features, I believe, will lead us to confront the dilemmas historians currently face.

1. "A VERY DIFFERENT BOOK"

   Horwitz begins Transformation II by noting what any reader of the book and its predecessor will immediately grasp: while the sequel "tak[es] up the story of the history of American law as I left it in [Transformation II], . . . [Transformation II] is a very different book" (p. vii). This is not to say that the books are radically inconsistent. A dust jacket comment by Stanley Katz says that "Morton Horwitz has one subject - the relationship of law to politics in American history." One could refine that statement to say that Horwitz' subject in Transformation I and Transformation II is the continuing effort by members of the legal profession to effectuate a sharp separation between law and politics, so that law appears as a neutral, nonpolitical, transcendent entity, symbolized in the phrase a government of laws rather than men. In both books Horwitz is concerned with penetrating successive structures of legal thought that the legal community has enlisted in support of this effort to separate law from politics and with exposing the effort for the ideological enterprise that it has been.

   One cannot read a Horwitzian narrative of historical events, then, without noticing the many examples of this effort to separate law from politics, in such "official" forms of legal discourse as common law cases, treatises, and other commentary. Nor can one miss the author's attitude toward the purported separation of law and politics, which ranges from skepticism through censure to outrage. The overwhelming message of Horwitzian historical narrative is that to deny the interrelationship between law and politics is to deny one of the essential features of American culture.

   Thus, at one level, Transformation II "takes up the story" of Transformation I as Horwitz "left it" and tells it all over again. But, as we will see, the form of Horwitz' narrative is strikingly different in the second volume, and the differences - ranging from source materials to the theory of historiography practiced in the two books - are so patent and multifaceted that they distract the reader from any overriding similarities. Much of this review, in fact, will concentrate on differences before returning to the theme of Horwitz' unifying vision.

   Well before Transformation II appeared there were hints, explicit and implicit, that it would be "a very different book" from Transformation I. A long time passed between publication of the two books, and during that interval significant changes occurred in the field of American legal history and in Horwitz' own career. Transformation I appeared at a time when American legal history, as a modern scholarly field, was in its relative infancy. Aside from the important works of Willard Hurst,(3) Mark DeWolfe Howe,(4) George Haskins,(5) and a few others,(6) American legal history was a scholarly wasteland from the Second World War to the 1970s. Transformation I was one of several books appearing in the 1970s that helped give the field a scholarly identity and make it respectable among both legal scholars and what Horwitz called "general" historians.(7) By the time of Transformation I's publication, a number of major law schools had hired faculty members whose primary scholarly interest was in legal history. Joint degree programs sponsored concurrently by law schools and history departments were also in place at several universities. The consequence was that Transformation I reached a scholarly community of sufficient size and stature to publicize it.

   Indeed, the appearance of Transformation I at a time when modern American legal history was "coming of age" had some effects that Horwitz may not have anticipated. Given the chronology of legal-historian appointments to law school faculties and history departments, Horwitz' status as a tenured professor at Harvard, and the self-conscious formation of a legal-historian community of scholars in the 1970s, Transformation I would probably have received a significant amount of attention had it been a bland, cautious book. But it was far from that. It was one of the first "critical" scholarly efforts to seek to reach a large scholarly audience. In Transformation I, changes in the doctrinal superstructure of American private law were not portrayed as accidental or autonomous or even as simply reflective of changes in society at large. They appeared as the conscious efforts of powerful elites - including segments of the bar, the judiciary, and commercial interests - to shape legal doctrine so as to further their particularistic goals. That the elites were not identified with much precision - that Horwitz' analysis was not "sociological," but was conducted at the levels of theory or doctrine - seemed to make the narrative of Transformation I all the more sinister. It was as if Horwitz had seen through the obfuscating rhetoric of "neutral" doctrine to expose the fact that doctrinal change in the early nineteenth century invariably favored those in power.

   The audience for Transformation I was particularly suited to receive its message. The 1970s had not only brought persons with a serious interest in legal history onto law faculties and history departments; those years had also brought into tenured and tenure-track positions persons who had been undergraduates in the 1960s. A number of those persons regarded themselves as politically left, and in the mid-1970s some of them became involved in what came to be called the critical legal studies movement. Of the original "founders" of CLS, several regarded themselves as serious legal historians, and the early scholarship of other prominent "crits," such as Duncan Kennedy, was historically oriented.(8)

   Horwitz was himself active in CLS, and between the early 1970s, when he first entered law teaching, and the publication of Transformation I, his historical scholarship took on a distinctly critical bite. Some of the chapters in Transformation I reflected work that Horwitz had begun much earlier. His original frame of reference had been more that of the social historian, examining legal doctrine in the context of changing social conditions.(9) In Transformation I those chapters were woven into the polemical superstructure of the work, which emphasized elite manipulation of doctrinal rules and categories.

   The "critical" dimensions of Transformation I made it a source of excitement and inspiration for a number of legal historians who regarded historical scholarship as part of a larger critical project. Those dimensions also stimulated others in the field, who were unsympathetic either to "critical" politics or to Horwitz' methodology, to attack the book. The result was that reviews ranged from extremely praiseworthy to extremely unreceptive, and Horwitz became something of an academic celebrity.

   With the exception of reviewers who attacked the entire vision of historical scholarship allegedly embodied in Transformation I, (10) negative reviews tended to focus on Horwitz' analysis of specific common law fields, arguing that he had misrepresented or distorted the cases that he had used as supporting evidence and that more careful or complete readings would reveal a doctrinal picture less consistent with his larger claims.(11) The collective assessment of these reviews was that the book was a provocative thesis in search of evidence, resting more on rhetoric and passion than on fact. The reviews were in one sense guilty of faulting Horwitz for not doing something he had not sought to do. In Transformation I, Horwitz' analysis did not aspire to denseness, complexity, and comprehensiveness; rather, it operated at a level of inarticulate and unselfconscious rhetoric. His methods had been those of the intellectual historian, although his claims appeared to have sociological content.(12)

   Still, the critical reviews must have given Horwitz pause about his methodological format. Was Horwitz' analysis truly "sociological" in the sense that he was claiming the existence of actual "alliances" or other relationships between "merchants," lawyers, and judges?(13) If So, he had provided precious little evidence on any such relationships. Or was it something else: a recognition of a consciousness in legal doctrine that reflexively identified "principled" rules as those that promoted security and predictability among persons whom those rules regularly affected? If the latter, this was the stuff of intellectual history, unencumbered by quantitative sociological analysis. Precisely how many...