Like the consensus theory from which it was drawn, the neutral principles school sought to avoid ever having to decide whether one group was victimizing another, since that inevitably involved substantive evaluation of the justice of their respective claims. The emphasis on generality foreclosed any intervention to reform unjust social practices in precisely those cases in which the dominant groups had the greatest stake in justifying the status quo. By abstracting the question of segregation from its concrete historical meaning in order to avoid being accused of having a result orientation, Wechsler achieved neutrality through formalismthat is, by simple assuming the equal legitimacy of both groups' desire to choose freely with whom to associate. In its unhistorical abstractness, neutral principles analysis combined with ethical positivism to produce a new conservative formulation in orthodox legal thought.
Why have I ended the story around 196o, when the full flowering of the civil rights movement and the war on poverty, as well as a large proportion of significant decisions of the Warren Court, still were in the future? How could I have concluded without taking account of the breathtaking changes in postwar academic legal thought, as the virtual hegemony of the Legal Process School until the mid-196os was followed by a swift decline of its influence during the next decade? The short answer is that, for the historian, a degree of perspective and distance remains essential if history is not to become simply an extension of current controversies about law. I wish to conclude, therefore, with a brief sketch of contemporary trends within legal theory,while acknowledging that, in the perspective of time, they may come to look very different from the ways I see them today.
Three different intellectual movements have struggled for ascendancy following the demise of the Legal Process School. The first movement has represented an extension of the postwar return to rights theories. Rights theories have developed both in reaction to the horrors of totalitarianism as well as out of admiration for the Warren Court's apparent success at disentangling rights theories from their traditional links to defenses of property and inequality. Whereas until 1940 the overwhelming majority of American Progressive legal thinkers were legal positivists who identified all talk of natural rights with the defense of.unequal wealth and privilege, many of the most important progressive decisions of the Warren Court were derived from natural rights conceptions. At the same time, a parallel rightwing libertarian legal philosophy has demonstrated the malleability of rights discourse by reviving the property-centered version of rights that was a staple of Classical Legal Thought.
The two other intellectual tendencies that emerged out of the ruins of the Legal Process School are Law and Economic, and Critical Legal Studies, both of which claim to be the rightful heirs to Legal Realism. This is not the place to elaborately analyze their relationship to Legal Realism; however, one important set of claims is intimately connected to several major arguments presented in this book.
The frequent assertion that the politically conservative Law and Economics movement is the true heir of Legal Realism because both share an instrumentalist and consequentialist approach to law can be accepted only if Legal Realism is treated, in Karl Llewellyn's words, as a "methodology" or "technology" entirely divorced from its connections to Progressive moral and political goals. In light of the Realists' brilliant analyses of the underlying social and political premises of the market, it would be particularly ironic if the Law and Economics movement should succeed in reestablishing Classical Legal Thought's reified picture of the market as neutral, natural, and necessary.
Even the narrower claim of Law and Economics to be the legitimate methodological successor to Legal Realism rests, in the final analysis, on understanding the connection of Legal Realism to the social sciences. Here our conclusions must be nuanced because the story, we have seen, is quite complex.
Some of those who called themselves Realists did in fact seek to substitute the behavioral social sciences for the discredited doctrinal "legal science" of Classical Legal Thought. Many explanations for the decline of Legal Realism identify this move as the fatal flaw that ultimately contributed to the demise of Realism. But this picture needs to be corrected in several respects. First, the Realists absorbed many of the earlier versions of the social sciences that did not adopt either the impoverished behavioral methodological apparatus of logical positivism or the sharp distinction between facts and values characteristic of ethical positivism. Neither turn-of-the-century institutional economists nor Progressive social and legal reformers divided their efforts to understand modern industrial society from their commitments to social justice. Second, there was an entire body of Legal Realist work that explicitly rejected both ethical positivism and the alliance between Legal Realism and value-free social science. As I have sought to demonstrate, historians have been misled into portraying Legal Realism much too narrowly because they have been seduced by Karl Llewellyn's early efforts to legitimate Realism through the prestige of science.
The most important reason why it is misleading to identify Law and Economics with Legal Realism is that, in my view, the greatest and most enduring contribution of Realism was its early recognition of the implications of cultural modernism and, in particular, of cognitive relativism for legal thought. Deriving from their attacks on the claimed objectivity of legal reasoning within Classical Legal Thought, some Realists were among the earliest American thinkers to understand the social and historical contingency of structures of thought. As they sought to delegitimate the powerfully interlocking categories of Classicism, they began to explain things in language not dissimilar from what would eventually be called the sociology of knowledge or the hermeneutic understanding of reality. It is this strand of cognitive relativism that Critical Legal Studies revived and extended in its own post-rg6os critique of the Legal Process School's revival of "neutral principles."
The 1950S search for "neutral principles" was just one more effort to separate law and politics in American culture, one more expression of the persistent yearning to find an olympian position from which to objectively cushion the terrors of social choice. The search for neutral principles has always been the secular alternative in religiously pluralistic American society to a direct resort to religious authority. Yet it has served similar dogmatic and legitimating functions. One of its most important influences has been to encourage the production of abstract jurisprudential debate divorced from more particular (and inevitably controversial) political and moral visions. These abstract jurisprudential controversies have repeatedly served as snares and delusions to generations of legal thinkers, misled into believing that the previous generation's jurisprudential controversies necessarily continue to have the same political and moral significance.
The standard dichotomies of jurisprudence-judicial activism versus judicial restraint, democracy versus judicial review, positivism versus natural law, utilitarianism versus natural rights-have been argued about without the slightest acknowledgement of the fickle hold they have had on successive generations of American jurists. The idea that something concrete really follows from one's abstract position on, say, natural rights versus positivism is widely believed. Yet in American history natural rights has equally served both abolitionists and the defenders of the rights of ownership in human and non-human property. Progressive legal theory has been advanced both by the positivist view of the Realists that property is a social creation and by the emancipatory natural rights vision of the Warren Court. Conservative judicial views seem to be promoted equally well by the utilitarianism of judge Richard Posner and the natural rights philosophy of Professor Richard Epstein of the University of Chicago. So why has legal theory continued to be discussed as if "general propositions" do indeed "decide concrete cases"?
Nowhere has the process of reification been more pronounced than in American legal theory. One of the most discouraging spectacles for the historian of legal thought is the unselfconscious process by which one generation's legal theories, developed out of the exigencies of particular
political and moral struggles, quickly come to be portrayed as universal truths good for all time. This process of reification draws deep sustenance from a religious and unhistorical American culture. Thus, for example, "result oriented" jurisprudence is regularly equated with opportunism, and principled jurisprudence with sticking to one's principles regardless of their consequences. Only pragmatism, with its dynamic understanding of the unfolding of principle over time and its experimental appreciation of the complex interrelationship between law and politics and theory and practice, has stood against the static fundamentalism of traditional American conceptions of principled jurisprudence.
Until we are able to transcend the American fixation with sharply separating law from politics, we will continue to fluctuate between the traditional polarities of American legal discourse, as each generation continues frantically to hide behind unhistorical and abstract universalisms in order to deny, even to itself, its own political and moral choices.
Introduction
i. The term "Classical Legal Thought" was originally coined by Duncan Kennedy in his manuscript "The Rise and Fall of Classical Legal Thought." A small portion of that manuscript has been published as Towards an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940, 3 RES. LAW & Soc. (1980). Kennedy was the first scholar to attempt to elaborate a structure of latenineteenth-century legal thought, from which I have extensively borrowed. He should also be credited with having first identified the history of American legal thought as a coherent scholarly field separate from constitutional history.
Chapter 1
1. See C. COOK, THE AMERICAN CODIFICATION MOVEMENT (Greenwood Press 1981); P. MILLER, THE LIFE OF THE MIND IN AMERICA: FROM THE REVOLUTION TO THE CIVIL
WAR (Harcourt, Brace & World 1965); Gordon, The American Codification Movement: A Study of Antebellum Legal R~fform, 36, VAND. L. REV. 431 (1983).
2. See M. HORWITZ, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, at 1718, 257, 258 (Harvard Univ. Press 1977).
3. THE FEDERALIST No. lo, at 131 (J. Madison) (B. Wright ed., Harvard Univ. Press 1961). See generally J. NEDELSKY, PRIVATE PROPERTY AND THE LIMITS OF AMERICAN CONSTITUTIONALISM (Univ. of Chicago Press 199o).
4. J. KENT, COMMENTARIES ON AMERICAN LAW (4 VOIS, 0. Halsted 1826-1830).
5. See M. HORWITZ, supra note z, at 253-66; C. E. WHITE, TORT LAW IN AMERICA: AN INTELLECTUAL HISTORY 20-62 (Oxford Univ. Press 1980); Gordon, Legal Thought and Legal Practice in the Age of American Enterprise, 1870-1920, in PROFESSIONS AND PROFESSIONAL IDEOLOGIES IN AMERICA 70, 82 (G. Geison ed., Univ. of North Carolina Press 1943).
6. See Usher, James I and Sir Edward Coke, 17 ENG. HIST. REV. 664 (1903); T. HOBBES, A DIALOGUE BETWEEN A PHILOSOPHER AND A STUDENT OF THE COMMON LAWS OF ENGLAND (J. Cropsey ed., Univ. of Chicago Press 1971).
7. R. WIEBE, THE SEARCH FOR ORDER, 1877-1920, at 81-83, 92-93, 117 (Hill & Wang 1967).
8. See E. GENOVESE, ROLL, JORDAN, ROLL: THE WORLD THE, SLAVES MADE (Pantheon 1974).
9. See M. TUSHNET, THE AMERICAN LAW OF SLAVERY, 1810-1860: CONSIDERATIONS OF HUMANITY AND INTEREST 63-64, 71-73 (Princeton Univ. Press 1981).
10. See The Public/Private Distinction, 130 U. PA. L. REV. 1289, 1423-28 (1982).
11. Dartmouth College v. Woodward (Story, J., concurring), 17 U.S. (4 Wheat.) 518 (1819).
12. See C. HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS 88-95 (Harvard Univ. Press 1930).
13. See M. HORWITZ, supra note 2, at 63-66.
14. See infra text accompanying note 81.
15. See 6 C. FAIRMAN, RECONSTRUCTION AND REUNION, 1864-88, at 918-1116 (Macmillan 1971).
16. See C. DEGLER, AT ODDS: WOMEN AND THE FAMILY IN AMERICA FROM THE REVOLUTION TO THE PRESENT 26-29 (Oxford Univ. Press 1980); Delamont & Duffin, Introduction to THE NINETEENTH-CENTURY WOMAN: HER CULTURAL AND PHYSICAL WORLD at
19-21 (S. Delamont & L. Duffin eds., Barnes & Noble 1978); C. LASCH, HAVEN IN A HEARTLESS WORLD: THE FAMILY BESIEGED 6-8 (Basic Books 1977); N. COTT, THE BONDS OF WOMANHOOD: "WOMAN'S SPHERE" IN NEW ENGLAND, 1780-1835 (Yale Univ. Press 1977); E. ZARETSKY, CAPITALISM, THE FAMILY, AND PERSONAL LIFE (Harper & Row 1976).
17. See Benedict, Laissez-Faire and Liberty: A Re-Evaluation of the Meaning and Origins of Laissez-Faire Constitutionalism, 3 LAw & Hlsr. REV. 293 (1983).
18. "Public wrongs, crimes and punishments, depend on the legislative will for their existence as such: private rights and private wrongs are founded on and measured by the immutable principles of natural law and abstract justice." J. GOODENOW, HISTORICAL. SKETCHES OF THE PRINCIPLES AND MAXIMS OF AMERICAN JURISPRUDENCE (J. Wilson 1819), cited in M. HORWITZ, supra note 2, at 246.
19. See W. NELSON, AMERICANIZATION OF THE COMMON LAW: THE IMPACT OF LEGAL CHANGE ON MASSACHUSETTS SOCIETY, 1760-1830, at 69-88 (Harvard Univ. Press 1975).
20. See Kennedy, The Structure of Blackstone's Commentaries, 28 BUFFALO L. REV. 209, 233 (1978-1979).
21. See W. NELSON, supra note 19, at 85-88.
22. J. STORY, SELECTION OF PLEADINGS IN CIVIL ACTIONS (Barnard B. Macanulty 1805).
23. N. DANE, A GENERAL ABRIDGEMENT AND DIGEST OF AMERICAN LAW (9 vols., Cummings, Hilliard 1823-1829).
24. F. HILLIARD, THE LAW OF TORTS Vii ((Little, Brown 1859).
z5. Id.; see also G. E. WHITE, supra note 5, at 11.
26. F. HILLIARD, supra note 24, at iv.
27. T. SHEARMAN & A. REDFIELD, A TREATISE ON THE LAW OF NEGLIGENCE iV (1St ed., Baker, Voorhis 1869).
28. T. SHEARMAN & A. REDFIELD, A TREATISE ON THE LAW OF NEGLIGENCE iii (3d ed., Baker, Voorhis 1874).
29. See Holmes, Codes, and the Arrangement of the Law, 5 AM. L. REV. 1 (1870).
30. See infra ch. z.
31. See J. Perilleux, Some Reflections on Causation and the Law of Torts in Nineteenth Century Common Law 234-54 (unpublished S.J.D. dissertation, Harvard Univ. 1981); Holmes, The Theory of Torts, 7 AM. L. REV. 652, 660-63 (1873).
32. See O. W. HOLMES, THE CbMMON LAW 63-103, 115-29 (M. Howe ed:, Harvard Univ. Press 1963).
33. Holmes, supra note 31.
34. See Brown v. Collins, 53 N.H. 442 (1873); Losee v. Buchanan, 51 N.Y. 476 (1873); Rylands v. Fletcher, L.R., 3 E. & I. App. (H.L.) 330 (1868); C. Dalton, Losing History: The Case of Rylands Y. Fletcher (unpublished manuscript); G. E. WHITE, supra note 5, at 16-18.
35. O. W. HOLMES, supra note 32, at 16o-161. See M. HORwITZ, supra note z, at 204-7.
36. Holmes, Agency (pts. I & 2), 4 HARV. L. REV. 345 (1891), 5 HARV. L. REV. 1, 14 (1891).
37. See M. HORwITZ, supra note 2, at 264.
38. W. KEENER, A TREATISE ON THE LAW OF QUASI-CONTRACTS (Baker, Voorhis 1893).
39. See infra ch. 5.
40. 157 U.S. 429, aff'd on rehearing, 158 U.S. 6o1 (1895); see also discussion infra text accompanying notes 61-105.
41. 198 U.S. 45 (1905)-
42. See J. SHKLAR, LEGALISM (Harvard Univ. Press 1964).
43. The debate over whether there was a harmonious and gapless fit between the doctrines of law and equity became one other arena of challenge to the perfectionist claims of Classical Legal Thought. See Cook, The Place of Equity in Our Legal System, 3 AM. L. SCH. REV. 173 (1912); Hohfeld, The Relations Between Equity and Law, 11 MICH. L. REV. 537 (1913) (criticizing Maitland and Langdell).
44. Compare United States v. E. C. Knight Co., 156 U.S. 1 (1895) with Swift v. U.S., 196 U.S. 375 (1905) and Stafford v. Wallace, 358 U.S. 495 (1922).
45• Munn v. Illinois, 94 U.S. 113 (1876).
46. See Beale, The Proximate Consequences of an Act, 33 HARV. L. REV. 633, 646 (1920).
47. See United States v. Trans-Missouri Freight Ass'n, 166 U.S. 290, 328 (1897).
48. See infra ch. 6, text accompanying notes 110-114.
49. See infra text accompanying notes 63-79.
50. See infra text accompanying notes 72.
51. For the eminent domain power, see M. HORwITZ, supra note z, at 49-50, 65. For the taxing power, see infra text accompanying note 81.r />
52. See Standard Oil of New Jersey v. United States, 221 U.S. 1 (1911).
53. See Rose v. Socony-Vacuum, 54 R.I. 411, 173 A. 627 (1934). For injunctions against nuisances, the balancing test came into being much earlier. See Kurtz, Nineteenth Century Anti-Entrepreneurial Nuisance Injunctions-Avoiding the Chancellor, 17 WM. & MARY L. REV. 621 (1976); Halper, Nuisance, Courts and Markets in the New York Court of Appeals, 1850-1915, 54 ALB. L. REV. 301 (1990).
54. The classic statement for the law of negligence is found in Terry, Negligence, 29 HARV. L. REV. 40, 42-44 (1915). It is the basis for the Learned Hand test elaborated in United States v. Carroll Towing, 159 F.zd 169 (zd Cir. 1947).
55• See Pennsylvania Coal Co. v. Mahon, 26o U.S. 393 (1922).
56. See Schenck v. United States, 249 U.S. 47 (1919).
57. Pound, A Theory of Social Interests, 15 PAPERS & PROC. AM. SOC. SOC'Y 16 (1921), published (with revisions) as A Survey of Social Interests, 57 HARV. L. REV. 1, 7 (1943). See also Aleinikoff, Constitutional Law in the Age of Balancing, 96 YALE L.J. 943, 959 (1987).
58. 157 U.S. 429, aff'd on rehearing, 158 U.S. 6o, (1895).
59. See L. LEVY, THE ESTABLISHMENT CLAUSE 25-62 (Macmillan 1986).
6o. See Nelson, Changing Conceptions of Judicial Review: The Evolution of Constitutional Theory in the States, 1790-1860, 120 U. PA. L. REV. 1166 (1972).
61. See L. FRIEDMAN, A HISTORY OF AMERICAN LAW 126-27, 371 (2d ed., Simon & Schuster 1985). By 1890, about two-thirds of the states elected their supreme and superior court judges. See M. KELLER, AFFAIRS OF STATE 358 (Harvard Univ. Press 1977).
6z. See Horwitz, Republicanism and Liberalism in American Constitutional Thought, 29 WM. & MARY L. REV. 57 (1987).
63. T. COOLEY, TREATISE ON THE LAW OF TAXATION 3-4 (Callaghan 1876).
64. Id. at 2.
65. F. HILLIARD, THE LAW OF TAXATION 290 (Little, Brown 1875). See Diamond, The Death and Transfiguration of Benefit Taxation: Special Assessments in Nineteenth Century America, 12 J. LEGAL STUD. 201 (1983); M. KELLER, supra note 61, at 323, 332.
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