公法学博士生

Critical Legal Histories

2020 年 2 月 7 日

Critical Legal Histories *

[ This essay was published in 36 Stanford Law Review 57 (1984), as part

of the Review’s special Symposium issue on Critical Legal Studies (CLS),

a movement of left- leaning intellectuals who were just then coming to

prominence in the legal academy. The Symposium included the work of

many members of the movement as well as of some of their critics.

Since much of what CLS stood for has been forgotten (or badly distorted

in the remembering), a brief summary of some of its aims and methods

may be useful. It was never a unifi ed thing; its views were as diverse as its

members; but there was common agreement around the idea that the way

law was taught in American law schools, rationalized in legal scholarship,

and deployed in legal arguments and decision- making, all tended to contribute

to the complacent idea that the legal system in force was just about

as effi cient, just, and rational a system as it could be (“false legitimation”

we called this); and that it could not be reformed except in minor ways

without risking economic and political catastrophe (“false necessity”). The

motto of the legal system might have been Margaret Thatcher’s “There is

* I am grateful to Paul Brest, Tom Heller, Fred Konefsky, Elizabeth Mensch, Deborah Rhode, Mark

Tushnet, and especially to Steve Diamond, Lawrence Friedman, Tom Grey, Mark Kelman, Jack

Schlegel, Bill Simon, and Dave Trubek for reading earlier drafts and suggesting revisions. Willard

Hurst gave the manuscript his usual incredibly close attention, wrote a dozen pages of detailed

comments, approved what he could with characteristic generosity, and vigorously challenged

what he could not; this article continues a long- standing conversation with him. I owe a special

debt to David Sugarman, who has generously shared his ideas with me for years and whose

invaluable and (unlike this piece) copiously footnoted manuscript, David Sugarman, “Towards

a New History of Law and Material Society in England, 1750– 1911,” in Law, Economy and

Society: Essays in the History of English Law, 1750– 1914 (Rubin and Sugarman eds. forthcoming),

which arrived as I started to think about this article, has impressed its infl uence on every

page. [This list of intellectual debts and infl uences inexplicably left out Duncan Kennedy, not

only the progenitor of the distinctive school of doctrinal history described in this piece, but a

powerful stimulant to the revisionist thoughts here on law– society relations.]

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Critical Legal Histories 221

no alternative.” CLS writers launched a volley of critiques of this tragiccomplacent

set of assumptions, designed to show that there were indeed

alternatives, many of which were already embedded in the legal system

itself, often as exceptions to prevailing dominant rules and doctrines. Many

of the CLS critiques revived and extended the work of Legal Realists of the

1920s and 30s. The critiques began by trying to expose and challenge the

implicit political economy of the fi rst year law curriculum, then expanded

to critique the emerging theories of the new law- and- economics movement,

and eventually law as it was being applied in areas of policy, such as housing,

welfare, labor law, corporate law, legal ethics, consumer protection,

and many others. CLS went into eclipse in the 1990s, as the limited space

for leftist views in the legal academy was increasingly taken up by critical

race, feminist, and gay- and- lesbian studies. But many of its insights have

been absorbed into mainstream legal scholarship.

This piece (which turns out to have been the most frequently cited

of my essays on legal historiography) was partly written to describe a

distinctive mode of legal history being written by scholars affi liated with

CLS. But it also had a broader aim, that of trying to tease out and make

explicit a set of background assumptions (here called “evolutionary functionalism”)

about the course of Western history, and of the relation of

law to that history and to society generally, that American legal scholars

tended to take for granted; and to question those assumptions . In

2012 the journal Law & Social Inquiry invited several legal historians

(Hendrik Hartog, Susanna Blumenthal, Laura Edwards, and Christopher

Tomlins) to revisit the essay: their comments, and my response, are in

37 Law & Social Inquiry 147– 215 (2012). Tomlins has also written an

extremely provocative analysis of the program of “critical historicism”

described in this and other essays in this volume, recognizing its strengths

as critique but deploring its erosion of causal explanation; and proposing

ways to retheorize law– society relations: Tomlins, “After Critical

Legal History: Scope, Scale, Structure, 8 Ann. Rev. Law & Soc. Sci

(2012): SSRN: http:// ssrn.com/ abstract=2034423 .]

Critical legal writers pay a lot of attention to history. In fact, they have probably

devoted more pages to historical description – particularly the intellectual

history of legal doctrine – than to anything else, even law and economics. Such

a preoccupation within a radical movement is at fi rst glance surprising. After

all, lawyers have, by notorious custom, used history conservatively, appealing

to continuity and tradition. 1 And in the less common situations in which lawyers

have used history to criticize the status quo, they have usually resorted

to social and economic history, to show that the original social context of a

legal rule reveals it was adopted for wicked or obsolete reasons, rather than to

1 Morton Horwitz , Book Review , 17 Am. J. Legal Hist . 275 , 275 – 276 ( 1973 ).

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222 History and Historicism in Legal History and Argument

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the history of legal doctrine. 2 What could conceivably be radical – or, as some

unkindly ask, even interesting – about rewriting the history of doctrine?

I will attempt, in this article, to give a brief account of the impulses that have

prompted the Critical scholars to their chosen ways of writing history (or rather

histories, since the movement has actually spawned several different historiographical

practices). I’ll start by trying to describe a vision of law- in- history that

has tended, as I’ll argue, to dominate liberal legal scholarship. I will then outline

some of the Critical insights that have developed – many of them within liberal

scholarship itself – to corrode separate components of that dominant vision.

Next, I’ll show how Critical writers have tried to build these insights into a more

thorough critique and how this critique has affected the ways in which they go

about their work. Finally, I will discuss some common attacks on Critical histories,

add a few doubting remarks of my own, and proffer some suggestions and

exhortations for future directions. 3

I have little hope, in the pages that follow, of making a new contribution

to the long- standing debates over theory and method in socio- legal history. 4

I’m really only concerned with summarizing, in what I would like to think is

a clarifying way, some of the main positions in these debates, aware that the

outcome of such an effort is bound to look like a seed catalogue or a Pocket

Guide to the Common and Exotic Varieties of the Social/ Legal Histories of

North America. The audience I would most like to reach is that of liberal lawyers

who are interested enough in Critical legal writing to be curious about it

and who might fi nd it more persuasive as well as more accessible if equipped

with such a little guidebook. 5

2 Doctrinal history has not always been conservative. Radical legal argument used to draw upon its

own notions of the ancient constitution, which was to be reclaimed by revolution from a corrupt

present. See, e.g. , Christopher Hill , “ The Norman Yoke ,” in Puritanism and Revolution: Sources

in Interpretation of the English Revolution of the 17th Century 58 ( 1958 ).

3 The knowledgeable reader will have noticed that this outline follows a format (orthodoxy synthesized

– partial critiques – total critique and transcendence – critique of the critique) that has

become almost as stylized in CLS work as the sonata form was in classical composition. Perhaps

it’s time for a new format.

4 Still less does this piece try to join the interesting controversies among Marxist historians and theorists.

Although these controversies have counterparts in the literature of American legal scholarship,

they are almost never referred to in that literature. Further, any attempt to describe the

controversies would require introduction to a lot of specialized concepts and jargon. For a useful

recent survey of these controversies, see Gregor McLennan , Marxism and the Methodologies of

History ( 1981 ).

5 Mine is hardly the fi rst such guidebook. For exceptionally useful treatments of social/ theoretical

issues in legal historiography, see Alan Hunt , The Sociological Movement in Law ( 1978 );

Lawrence M. Friedman , “ Some Problems and Possibilities of American Legal History ,” in The State

of American History 3 ( Bass ed. 1970 ); Wythe Holt , “ Morton Horwitz and the Transformation

of American Legal History ,” 23 Wm. & Mary L. Rev . 663 ( 1982 ); Harry N. Scheiber , “ At the

Borderland of Law and Economic History: The Contributions of Willard Hurst ,” 75 Am. Hist.

Rev . 744 ( 1970 ); David Sugarman , “ Theory and Practice in Law and History: A Prologue to

the Study of the Relationship Between Law and Economy From a Socio- Historical Perspective ,”

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Critical Legal Histories 223

As the bulk of this piece is committed to describing criticisms of a tradition

of historiography called “legal functionalism,” I should also say that this is the

tradition that has done most to nurture and inspire my own work and there

isn’t one of its insights, including those I have come to think mistaken, that

I haven’t found useful. Moreover, as is so often true of really good history,

the best writing in this tradition is always grandly overfl owing its conceptual

channels; one could do worse than to keep trying to imitate the practices of the

great functionalist fi gures even after one has stopped accepting their theories.

I. The Dominant Vision: Evolutionary Functionalism

A. Common Threads

Over the last 150 years or so, enlightened American legal opinion 6 has adhered

with remarkable fi delity to what, in broad conception, looks like a single set of

notions about historical change and the relation of law to such change. Stated

baldly, these notions are that the natural and proper evolution of a society (or

at least of a “progressive” society, to use Maine’s qualifi cation 7 ) is toward the

type of liberal capitalism seen in the advanced Western nations (especially the

United States), and that the natural and proper function of a legal system is

to facilitate such an evolution. (The words “natural” and “proper” stress the

normative nature of the theory; deviations from the norm are both atypical

and bad.) Let me try to break this very general account down into some more

manageable pieces, the handful of propositions that compose its core. Readers

will, I hope, understand that what I’m constructing is an “ideal type”: a list of

the propositions that one could expect most legal writers within the dominant

tradition to accept most of the time, even if one could also expect that any

individual writer would want to qualify or even violently object to one or two

of them. 8

in Law, State and Society ( Fryer , Hunt , McBarnet , & Moorhouse eds. 1981 ); Mark Tushnet ,

“ A Marxist Analyses of American Law ,” 1 Marxist Perspectives 96 ( 1978 ); Richard Abel , Book

Review , 80 Mich. L. Rev . 785 ( 1980 ); Stephen Diamond , Book Review , 77 Mich L. Rev . 784

( 1979 ); Jay Feinman , Book Review , 78 Mich. L. Rev . 722 ( 1980 ); Horwitz, supra note 1 .

6 I’m speaking here not of the work of professional legal historians but of the background assumptions

about law- in- history that are present in mainstream legal scholarship generally.

7 See Henry Maine , Ancient Law: Its Connection with the Early History of Society, and Its

Relation to Modern Ideas 21 – 22 ( 1861 ).

8 The danger in trying to set down such a list, of course, is that readers – especially the readers who

believe that their own world view is the one about to be made into a target – will say, “Well, who

accepts that? I don’t know any legal writer who subscribes to that view, at least not in such a

simple- minded form. Who exactly is Gordon talking about here?” One way to defl ect this reaction

in advance would be to offer a long list of passages from mainstream legal scholarship that exemplify

these core propositions. This might indeed be done, but it would take a lot of space to do it, in

part because these propositions are rarely found in the baldly explicit form in which they are stated

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224 History and Historicism in Legal History and Argument

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1. “Law” and “society” are separate social categories, each describable

independently from the other but related to each other through various

mechanisms of causal linkage.

Writers in the dominant tradition make an important, though usually silent,

move even before they start saying anything substantive about law- inhistory:

They divide the world into two spheres, one social and one legal.

“Society” is the primary realm of social experience. It is “real life”: What’s

immediately and truly important to people, like desire and its fulfi llment or

frustration, goes on there. This realm is the realm of production, commerce,

the market, the family. “Law” or “the legal system,” on the other hand, is a

distinctly secondary body of phenomena. It is a specialized realm of state and

professional activity that is called into being by the primary social world in

order to serve that world’s needs. Law is auxiliary – an excrescence on social

life, even if sometimes a useful excrescence.

Though law and society are separate, they are related. And the big theoretical

problem for writers who see the world this way is to work out the secret

of that relationship. Thus, they ask questions such as, “Is law a dependent or

independent variable?” “Is everything about law – norms, rules, processes, and

institutions – determined by society, or does law have “autonomous” internal

structures or logic?” “If it has internal structures, do they enable it to have

an independent causal effect – to act as a positive feedback loop – on social

life?” Writers in the liberal tradition (like those in the Marxist tradition) have

resolved these questions in wildly different ways and reached wildly different

conclusions, 9 but they all assume that these are the vital questions.

here. They appear in conventional legal discourse more as diffuse background assumptions , seemingly

too unproblematic to need spelling out. I have decided against trying to document my list in

this fashion, less (I hope) out of laziness than out of the expectation that the readers and writers of

mainstream legal scholarship will simply recognize the propositions as belonging to the ordinary,

taken- for- granted, common sense of that scholarship. To supplement this method of recognition,

I actually did try in another article to give concrete examples of writers who accepted this set of

views. See Robert W. Gordon , “ Historicism in Legal Scholarship ” 90 Yale L. J . 1017 , 1028 – 1045

( 1981 ) (the dominant vision was there called “adaptation theory” and more sketchily described

than it is here). And in this article I try to provide many more examples at appropriate points.

As for readers who do recognize their own views in my list of the core propositions of the

dominant vision but think my account unacceptably reduces, caricatures, or distorts those views,

I propose the following procedure: (1) Consider whether the view you want to defend is more

accurately categorized as part of the “dominant vision” or as one of the numerous “critiques”

of that vision that appear later in this article (it may be that you are really a critic, rather than

an adherent, of evolutionary functionalism as I’ve described it); (2) if after doing that you still

fi nd yourself a defender of evolutionary functionalism, but of a far more refi ned and subtle

variety than my caricature, ask yourself whether your variant is or is not vulnerable to the many

critiques (it may be that the critiques are as good against the sophisticated as against the crude

versions); and fi nally (3) if you have isolated a strain of the dominant vision that you believe to

be immune to the critiques (or, naturally, if you think the critiques are all garbage anyway), write

a letter or publish an article in response to this one.

9 See notes 18 – 26 infra and accompanying text.

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Critical Legal Histories 225

2. Societies have needs.

This proposition is the functionalist heart of the dominant vision. 10 Social

needs may be universal – needs such as survival, stability, maintenance of social

order, confl ict management, organization of production, security against foreign

enemies, allocation of scarce resources, or preservation of continuity in the

midst of change or they may be specifi c to a given stage of social or economic

development. One key need is the need to develop along the appropriate social

evolutionary path.

Needs operate both as pressures and as constraints. They are the motors

driving the society to fi nd means for their fulfi llment, and they set the limits on

the possibilities of social experimentation – limits beyond which lie dysfunction,

futility, failure, and chaos. 11

3. There is an objective, determined, progressive social evolutionary path.

The general idea here is that the causal responsibility for change lies with

impersonal forces of historical “becoming.” More specifi cally, the histories of

certain advanced Western societies, most notably the United States, describe an

evolutionary development that is both natural (in the sense that some version

of it will happen in every society unless “artifi cial” constraints force a deviation)

and, on the whole, progressive.

Different generations have described this evolutionary process somewhat

differently, but the contemporary United States almost always ends up sitting

at the developmental summit. The great eighteenth- and nineteenth- century

story (the “Scottish Enlightenment” story 12 whose general outlines are still so

10 This proposition is probably also the single most disputed one within liberal legal scholarship:

Many writers see the attribution of “needs” to societies as excessively reifying, and they

therefore try to break societies down into their constituent individuals or interest groups. See

text accompanying note 38 infra.

11 For the purposes of this article, I’m reserving the term “functionalism” for the particular type

of explanation outlined here, i.e., one that fi rst posits a set of “primary,” more- or- less objective

needs or dynamic processes and then explains “secondary” historical phenomena as responses

to those needs or processes.

Some legal writers seem to use “functionalism” in a sense different from mine, to mean any

way of explaining legal forms or practices by reference to social “purposes” or “interests” –

indeed by reference to anything other than the formal, internal materials of the legal system.

This usage seems to me both too broad and too narrow. It’s too broad because any practice is

“functional,” and none dysfunctional, if that means it serves somebody’s interest or can be seen

as part of a system or pattern or process. And it’s too narrow because it arbitrarily excludes

attempts to show how the “function” of a legal practice might be to meet the formal requirements

of (i.e., serve someone’s “ideal interest” in) the elegance or completeness of an abstract

system. I’d prefer to call this general type of explanation “external” or “contextual” and to label

as “instrumental” the particular subset of external explanations that account for legal practices

as products of the desires or demands of social classes, groups, or individuals.

12 See John Burrow , A Liberal Descent: Victorian Historians and the English Past 21 – 35 ( 1981 );

Albert Hirschman , The Passions and the Interests: Political Arguments for Capitalism Before Its

Triumph 81 – 93 ( 1977 ).

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226 History and Historicism in Legal History and Argument

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fi rmly rooted in our culture) told of the gradual liberation of the individual

from the shackles of feudalism and superstition – from restraints on trade, on

free alienation of land, and on free movement of labor; from the oppressions of

feudal dues and tithes and of perpetual subordination to customary hierarchies

of ecclesiastical and noble orders; and from established religions. According to

this story, the concurrent spread of liberty and commerce yielded a commonwealth

of men who were actually or potentially (with some exceptions such as

slaves) politically equal property- holders, securely owning and freely exchanging

land, labor, and capital. 13

By the start of our own century, the growth of propertyless classes caused

the historians’ emphasis to shift away from the concept of progress as the

growth of yeoman freeholders and toward the concept of progress as improvement

in technology, organization of production, and creation of opportunities

for immigrants to rise in society. In our own age of dampened enthusiasms, the

labels attached to basic historical changes tend to be more neutral: “industrialization,”

“modernization,” or just “political and economic development.” In

usage, however, these labels retain a strong normative fl avor and occasionally,

as in some legal economists’ interpretation of the history of societies as one

long series of “effi ciency” gains, 14 an unabashed Victorian optimism.

What all these histories have in common is their determinist teleologies,

whose elemental parts – the “extension of the market,” the “breakdown of

13 The story was always ambiguous as to whether an ideal element (the love of liberty) or a material

one (extension of the market) was the driving force behind this liberation.

14 One can take as an example the following statement:

The effi cient society is wealthier than the ineffi cient – that is what effi ciency means – and a

wealthier society will support a larger population. This effect of greater wealth can be decisive

in the competition among primitive societies, where the methods of warfare are simple

and numbers of people count for much more than in modern warfare. Archaic societies

suffi ciently durable to have left substantial literary or archaeological remains and primitive

societies suffi ciently durable to have survived into the nineteenth century (when serious

anthropological study began) are likely, therefore, to be societies whose customs are effi cient.

…

Clearly, however, the primitive social equilibrium is less effi cient, at least in the long run,

than that of advanced societies: consider the very small proportion of the world’s population

that lives in primitive societies today. This situation is due in some part to coercion, rather

than peaceful competition, from advanced societies (dramatically so in the case of the North

American Indians, for example), but in greater part to the adaptive responses of primitive

society to its economic environment. These responses include practices, such as denying people

privacy and preventing them from amassing wealth, which are inimical to economic progress

and in turn to population growth. This is a point to give the romantic anarchist pause.

Richard Posner , “ A Theory of Primitive Society, With Special Reference to Law ,” 23 J. L. &

Econ . 1 , 53 ( 1980 ).

I suppose that if Society A invents the Maxim gun, which it uses to massacre the natives of

Society B, or develops an immunity to its own virulent venereal diseases, which then spread

among and wipe out the population of Society B, we could say that Society A is more “effi cient.”

Other adjectives also come to mind.

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Critical Legal Histories 227

traditional communities and status hierarchies,” the “shift from ascribed to

achieved social status,” the “triumph of the middle class,” the “revolution of

production in the factory system,” the “rise of the administrative state,” and the

“development of the multi- divisional form of corporate organization” – are all

linked together in a master process of social evolution. 15

Lawyers once played a moderately important role in actually writing these

histories. Recent legal writing is more likely just to assume that some objective,

generally understood process of development has been working away in the

background, and to leave the actual details of the process to vague implication.

4. Legal systems should be described and explained in terms of their

functional responsiveness to social needs.

Functionalist sociological legal history has an exceedingly distinguished lineage,

beginning with Montesquieu and Adam Smith, continuing through

Karl Marx, Max Weber, and Rudolph von Jhering, and virtually all lesser

nineteenth- century writers on law, 16 and including among twentieth- century

lawyers such fi gures as Oliver Wendell Holmes, Roscoe Pound, Karl Llewellyn,

Franz Neumann, and Willard Hurst. The general functionalist method is to

construct (or, as is rather more common, to assume without much discussion)

a typology of stages of social development and then to show how legal forms

and institutions have satisfi ed, or failed to satisfy, the functional requirements

of each stage. Obviously, an enormous gap in sophistication and conceptual

power separates the best and worst examples of this method. At its best, as in

Weber’s work, complex bundles of rules are tied through explicit theorizing to

elaborate accounts of social development. At its comically vulgar worst, the

method produces wholly speculative functional rationales for legal rules in

underlying social changes – vacuously described rationales such as “the evolution

of the right of privacy was a response to the increasing complexity and

interdependence of modern society.” 17

Of all the generalizations produced by this method, one so familiar that it

has become a cliché of our common discourse is that capitalist development

(or as our forebears preferred to put it, the expansion of commerce) requires

legal improvements that increase the certainty and predictability of exchange

relationships. I will come back to this assertion, but I should fi rst list the fi nal

identifying characteristic of the dominant vision, namely:

15 It was of course not a lawyer, but the sociologist Talcott Parsons. who produced the Summa of

modern accounts of this integrated process. See, e.g. , Talcott Parsons & Neil Smelser , Economy

and Society: A Study in the Integration of Economic and Social Theory 284 – 294 ( 1956 ). Yet

something like the Parsonian account is remarkably pervasive in modern legal scholarship

though its optimism is occasionally qualifi ed with a trace of tragic modernism.

16 See, e.g. , Peter Stein, Legal Evolution: The Story of an Idea 122– 127 (1980).

17 For a marvelous collection of examples, see Mark Kelman , “ Trashing ,” 36 Stan. L. Rev . 293

( 1984 ); see also notes 53 – 60 infra and accompanying text.

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228 History and Historicism in Legal History and Argument

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5. The legal system adapts to changing social needs.

This concept expresses the confi dence that, in the advanced Western nations

and especially in the United States, the legal system has in fact responded to

evolving social needs. Save for egregiously Panglossian writers (Blackstone in

some moods is one of these), the proponents of this notion do not feel a need

to attribute a social function to every piece of law in the system; most writers

will concede that even major legal forms and processes can be dysfunctional

for short periods. But a committed functionalist will maintain that, despite

undeniable instances of lag and reaction, adaptation is the normal course. The

perspective thus tends to produce statements such as the following (presented

here for the sake of illustration in their simplest and most unqualifi ed form),

which discuss specifi c changes in legal rules or forms:

– Tort law rules such as the negligence standard and the fellow- servant rule

were adopted to meet the needs of early industrial development. (They

allowed employers and transportation entrepreneurs to externalize a portion

of their costs.) But as technological increased the risks of accidents

stemming from employment and from the use of consumer goods, the law

responded with rules of strict liability.

– Warranty rules such as “caveat emptor” refl ected a society in which most

commercial trading was face- to- face. But with the rise of mass consumer

transactions between remote sellers and purchasers and with increasing

ignorance about the risks of defects, the law implied warranties of

merchantability.

– The corporate form developed in order to fulfi ll the need for capital accumulation

during the period of industrial take- off.

– Various features of modern corporate organization, including the “business

judgment” rule and the rules specifying areas of management “prerogative”

exempt from collective bargaining, developed in order to give management

broad discretionary decision- making power necessary for effi cient maximization

of profi ts in advanced industrial societies.

– Courts and legislatures were competent to handle the problems of regulating

the early nineteenth- century economy of competitive individuals. By the

late nineteenth century, however, the concentration of corporate enterprise

was raising problems of such complexity that administrative agencies were

required to handle them.

– Professionalization of the bar – the development of bar associations, law

schools, formalized training and entry requirements, the large urban law

offi ce, etc. – was necessary to enable lawyers to take on the complex specialized

tasks of law in a modern economy.

This perspective also produces some very large claims indeed. The fi rst two

examples listed below were commonplace in legal rhetoric through the end

of the last century; the third is asserted by some lawyer- economists in our

own time:

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Critical Legal Histories 229

– The common law over time tends to work itself pure.

– Progressive improvements in legal science have tended to clarify legal doctrine,

making it ever more certain and predictable, as well as more adaptable

to social needs.

– Common law rules have tended to become more and more effi cient.

B. Divisions Within Functionalism

By now it will be evident that my “dominant tradition” is a very broad

umbrella, covering legal writers whose views on many issues differ radically,

some of whom would be appalled to fi nd themselves sharing even a limitedpurpose

category with the others. In particular, I mean to group under the

common shelter of “evolutionary functionalism” both of the great antagonistic

parties of modern American legal thought, labeled here for simplicity’s sake

“Formalism” and “Realism.” Each of these parties has, I think, worked out

contrasting visions of what social development consists of and how law has

adapted to that development without disturbing the fundamental assumption

of progressive adaptation that they hold in common. The parties have clashed

instead over such issues as the defi nition of law and the autonomy of legal

decision- making. 18

The Formalist side has a very restrictive notion of law as judge- made

law: “The legal system is the domain of the legal specialist; the legislature is

in general not part of the legal system but a source of the goals that the legal

system is to carry out.” 19 Legislation and usually administration as well are

thus relegated to the “social” sphere of the great law/ society dichotomy. On

the Realist side, however, law is “what offi cials do about disputes,” 20 or even

more broadly, the work of anyone, including the private bar, whose task is the

administration of public policy.

Formalists and Realists also divide over the issue of the “autonomy”

of legal decision- making processes in relation to political, social, and economic

decision- making. Formalists think that it is both usual and desirable

for legal decisions to follow an internal professional agenda such as “a

18 Incidentally, the fact that legal Formalism has been politically conservative and Legal Realism

more liberal- reformist is only an accident of our recent history. It is easy to imagine a radical formalism,

such as the French Revolution’s program to remake society in accordance with abstract

legal rights, or a conservative Realism, such as German historicism.

19 Robert Means , Underdevelopment and the Development of Law: Corporations and Corporation

Law in Nineteenth- Century Columbia xii ( 1980 ) (footnote omitted). This book is an exemplary

performance in the functionalist/ evolutionist mode of legal history (lacking, however, the normative

notions of progress common to that mode).

20 Karl Llewellyn , The Bramble Bush: On our Law and its Study 20 ( 1951 ). For a clear idea of

what Llewellyn meant by this famous phrase, see William Twining , Karl Llewellyn and the

Realist Movement 148 – 152 ( 1973 ).

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230 History and Historicism in Legal History and Argument

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taught legal tradition” 21 of the common law. The idea is that such decisions

will best perform their social/ functional task of adaptation if lawyers and

judges are not thinking about society at all but only about perfecting their

own craft, because a logic of liberty or effi ciency is inherent in the practice

of that craft. Realists think that this proposition is nonsense, that policymaking

can’t be socially functional unless it is self- consciously directed

toward the satisfaction of social needs. Realists do, however, have their

own notion of legal “autonomy”: Policy- makers ought to be, and sometimes

actually are, insulated from the immediate pressures of short- term

political or economic interests so they can concentrate on their society’s

long- run needs. 22

These differences lead to differing Formalist and Realist approaches to legal

history. Formalist legal history focuses exclusively on the development of legal

doctrine, while Realist legal history considers doctrine as one component of a

general, if not always well- coordinated, policy- making enterprise. 23 Further,

formalist legal history considers phenomena outside the legal craft as distorting

judicial decision- making or as simply irrelevant to the important story to

be told; the Formalist hero is the judge or treatise- writer who best clarifi es

doctrinal categories. Realist history, on the other hand, takes as its main subject

the relations of function or dysfunction between law and major trends of social

development; the Realist hero is the social engineer who masterfully wields law

as an instrument of policy. 24

Naturally, these differences lead to fundamental disagreements about the

course of recent history. For many Formalists, the high point of legal development

was reached around the end of the nineteenth century when the ideal of

the rule of law as primarily enforced by judges through an autonomous legal

order was at its peak of infl uence. 25 But the Formalists’ high is the Realists’

low: At that time, abstraction from concrete social forces had put the legal

system badly out of synch with the evolving requirements of society, and we

only climbed out of this trough of dysfunction through the implementation of

the policies of Progressivism and the New Deal. 26

21 Roscoe Pound , The Formative Era of American Law 82 ( 1978 ).

22 See, e.g ., James Landis , The Administrative Process 111 – 117 ( 1938 ) (discussing why agencies

were organized so as to insulate them from the administration that appointed agency offi cials).

23 See, e.g. , James Willard Hurst , The Growth of American Law: The American Law Makers 439 –

446 ( 1950 ) (adopting a broad view of law and of the tasks of legal history).

24 See, e.g. , James Willard Hurst , “ Alexander Hamilton, Law Maker ,” 78 Colum. L. Rev . 483

( 1978 ).

25 See generally 1 Friedrich Hayek , Law, Legislation, and Liberty: Rules and Order 94 – 123 ( 1973 ).

26 See, e.g. , James Willard Hurst , Law and the Conditions of Freedom in the Nineteenth Century

United States 84 – 108 ( 1956 ).

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Critical Legal Histories 231

II. Interlude for Questions about the Point of

this Project

Before going on to say something about the attacks that have been eating away

at the evolutionary- functionalist vision of legal history, it is worth pausing a

moment to ask why anyone should bother to attack the vision at all. Social

scientists who have heard previous versions of this piece wonder why I worry

so much about evolutionism (our dominant vision’s points 3 and 5) and functionalism

(2 and 4), the mainstays of the liberal sociology of the 1950s; these

views have been so thoroughly discredited in modern social theory, they argue,

as to be left almost without serious defenders. On the other hand, some of my

legal colleagues, who have spent their working lives trying to slay the Formalist

hydra that is still powerfully present in legal- academic and professional thought

generally, think it perverse and ungrateful to attack the Realist versions of functionalism,

for these versions have proven to be the most reliable weapons against

the dogma that legal forms can be understood apart from their social context: If

the weapons are broken, won’t the hydra stalk the law schools unafraid?

To the fi rst question, the second is itself a partial answer: Evolutionary functionalism,

in both the Formalist and Realist versions, has been kept going much

longer in legal thought than in social thought generally. This isn’t only because

the law schools tend to pick up mainstream intellectual opinion ten to fi fteen

years late. The notion that law always is, or at least ought to be, functionally

adapting to evolving social needs is so deeply embedded in standard legal

speech that one isn’t likely to make a legal argument of any length without at

least mentioning it. This notion presumably persists because of its serviceability

to the liberal idea of law as the neutral arbiter of social confl ict: It tells

the managers of the legal system that their basic instructions are specifi ed by a

social process outside of the legal system and that they have no responsibility

for that process except to solve the technical problems of devising functional

responses that will help rather than hinder it. Hence, the inevitable ambiguities

of legislative command, prior case law, custom, or constitutional text need

never force a legal system to the pain of political choice because its managers

can always claim to be serving the logic of an historical process, or immanent

social consensus that exists beyond and prior to politics. 27

27 For example, dominant visionaries argue that in “modern” or “developed” societies, innovations

in technology and the organization of the work force are continually expanding the size

of the total economic pie. Political confl ict properly takes place only over issues of secondary

importance, such as how the pie is to be divided; expansion is both the natural course of

development for a modern society and something that is in everyone’s interest. The job of the

legal system, absent (evidently misguided) authoritative political directions to the contrary, is to

facilitate the needs of the production process (e.g., “effi cient management.” “industrial peace”),

which by defi nition are universal needs rather than those of a particular faction or class. See,

for a fuller description of this example, Katherine Van Wezel Stone , “ The Post- War Paradigm in

American Labor Law ,” 90 Yale L. J . 1509 , 1545 ( 1981 ).

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232 History and Historicism in Legal History and Argument

232

What’s more, not only is evolutionary functionalism still a living force in

traditional legal argument, but it has in recent years received a terrifi c hormone

boost from some of the fanciest and most interesting new work coming out of

the law schools: the Chicago law and economics movement, 28 Williamson’s

“transaction cost” approach to legal institutions, 29 Bob Clark’s explicitly evolutionary

approach to the history of the modern corporation, 30 and Selznick

and Nonet’s theory of “responsive law.” 31

Perhaps by now the second question, “Why knock functionalism when it’s

been so good to you?,” is on its way to being answered. Realist functionalism

has unquestionably been a politically progressive and intellectually liberating

force; it has moved us away from the occasionally useful but ultimately sterile

studies of technical forms evolving in a cultural vacuum and from the idea that

lawyers and judges will always and automatically do the most possible good

through complacent inattention to the society in which they live. Its empirical

investigations of the law “in action” have exploded forever the Formalist

fantasy that a universal scheme of neutral, general rules controls equally and

impersonally the discretion of every class and faction of civil society. We owe

to the Realist tradition of scholarship most of our understanding of variations

in the effectiveness of law according to the power and wealth of the people it

touches or who seek to use it, of “legal pluralism” (the fact that real social life

is prodigal of sovereigns – different governments, offi cials at different levels

of government, “private” associations – each making its own brand of law

in cooperation or competition with the others), and of the complexity and

perversity of legal/ social relations (how it so often happens that a legal form

seemingly designed to strengthen A’s at the expense of B’s ends up wiping out

A’s and entrenching B’s more immovably than ever). So much indeed have the

Realist functionalists accomplished that it’s hard not to sympathize with their

resentment of Critics who seem to be trying to displace them just as Law- and-

Society studies are beginning to make a dent on the mainstream lawyers who,

until recently, showed little more than scorn for Realist empiricism. “Must we

always,” the empiricists ask despairingly, “be patronized by lawyers with fancy

theories in their heads and no respect for facts? Might not our movement be

28 See, e.g. , George Priest , “ The Common Law Process and the Selection of Effi cient Rules ,” 6

J. Legal Stud . 65 ( 1977 ); see also John Goodman , “ An Economic Theory, of the Evolution of

Common Law ,” 7 J. Legal Stud . 393 ( 1978 ); Paul Rubin , “ Why Is the Common Law Effi cient?, ”

6 J. Legal Stud 51 ( 1977 ); Peter Terrebone , “ A Strictly Evolutionary Model of Common Law ,”

10 J. Legal Stud . 397 ( 1981 ).

29 See Oliver Williamson , Markets and Hierarchies: Analysis and antitrust Implications ( 1975 ).

30 See Robert Clark , “ The Four Stages of Capitalism: Refl ections on Investment Management

Treatises ,” 94 Harv. L. Rev . 561 ( 1981 ); Robert Clark , “ The Interdisciplinary Study of Legal

Evolution ,” 90 Yale L. J . 1238 ( 1981 ).

31 See, e.g ., Philippe Selznick & Philip Nonet , Law and Society in Transition: Toward Responsive

Law ( 1978 ).

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Critical Legal Histories 233

allowed its dialectical moment of supremacy before the tides of Critical negativity

drag it away?” 32

The Critics can give this cri de coeur a straightforward answer: Any intelligent

Critical approach will make use of the insights and empirical fi ndings of

Realist functionalism, 33 but there are apologetic aspects even to the Realist versions

of the dominant vision that the Critics feel compelled to resist. For example,

by emphasizing law as policy, Realist functionalism almost unconsciously

reserves even what it believes to be the very marginal opportunities for legal

infl uence on the direction of social change to an elite of policy- makers: Mass

movements and local struggles are not ordinarily thought of as makers of legal

change. 34 Because it assumes a natural harmony of interests in the fulfi llment

of social needs, it has trouble seeing confl ict as other than dysfunctional disturbance

of equilibrium. And, with all regard for its heroic contributions, I believe

its essential working assumptions misleadingly objectify history, making highly

contingent developments appear to have been necessary.

The Critics’ basic argument – elaborated more fully below – is that by

taking the world as we know it as largely determined by impersonal social

forces, evolutionary- functionalists obscure the ways in which these seemingly

inevitable processes are actually manufactured by people who claim (and

believe themselves) to be only passively adapting to such processes. 35 If there

are evolutionary processes in social life, they are processes whose logic is one

32 David Trubek , “ Critical Legal Studies and Empiricism ,” 36 Stan. L. Rev . 575 ( 1984 ) is an especially

useful statement of the differences, both real and supposed, between CLS and the Lawand-

Society movement.

33 I give examples of such uses at text accompanying notes 61 – 71 , infra .

34 How ironic it is that the country whose People, by their offi cial ideology, have delegated only

limited powers to their State; whose political origins lie in revolutionary protests organized by

“the people out of doors,” crowds explicitly claiming legal status and legitimacy; and whose

history is so full of mass reform movements should have produced such a Tory legal literature,

narrowly focused on offi cial agencies, especially the courts, and almost completely indifferent

to extra- institutional law- making. On the different conceptions of reform within and “outside”

the “system” informing liberal and Critical thought, see William Simon , “ Visions of Practice in

Legal Thought ,” 36 Stan. L. Rev . 469 ( 1984 ).

35 For example, the functionalist lawyers who helped to design the ground rules regulating laborcapital

confl ict after World War II assumed that the expansion of the total economic pie (which

was in everyone’s interest) required unconstrained management discretion over investment decisions

and general working conditions, leaving to resolution through collective bargaining only

the residual issue of how to divide the resulting surplus. Critical historians treat this more or less

unexamined background assumption of a relationship of social necessity (effi cient production

requires legal forms preserving managerial prerogatives) as an ideological practice that helped

to produce social necessity because it suppressed alternative methods of governing production

as unthinkable or unrealistic. Thus, in company with many other social actors, lawyers were

more or less unwittingly reproducing the world they were used to – actually helping to create

what they imagined to be the given, pre- existing “hard social reality” of the situation – because

they were trapped in a functionalist logic that told them the basic conditions of the production

process had to remain much as they already were.

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234 History and Historicism in Legal History and Argument

234

of multiplicity, not uniformity of forms. The social nature of human beings

reveals itself not through constant responses to their environments but through

an astonishing diversity of cultural responses and, most remarkable of all, a

repeatedly demonstrated capacity to reimagine their situations so as to generate

novel responses still. 36 We invent shorthand labels like “modernization” as

a way of summarizing what has happened in and trying to generalize about

the history of particular societies. Then, by a trick of the mind, we suddenly

reify our label into a process that had to happen the way it did. The next thing

you know, we start explaining the whole contingent miscellany of contemporary

social practices (especially the nasty ones) as the natural outcome of the

“modernization process.” But if there is no such single process, there can’t be

any single set of functional responses to it either. Surely there are other ways

of thinking about history that don’t trap us into supposing we’re permanently

stuck with what we happen to be used to, with only the tiniest margins for

maneuvering. The hope of getting out of that trap and of exploring the alternatives

is what fuels the enterprise of criticizing the dominant vision.

III. Partial Critiques: Variations on the Dominant Theme

I call the sample of views that follow “partial” critiques because they remain

faithful to many elements of the dominant vision while rejecting others. These

critiques come from all colors of the political spectrum.

A. Variation #1: Collapse “Needs” into “Interests”

This move is so common that it could be called a subtheme rather than a variation

of the dominant view. It consists simply of breaking down the universal

category of societal needs into the particular confl icting desires or interests of

society’s members. The function of law then becomes that of responding to

some balance of those interests.

This variation has an interesting history of appearances in modern legal

scholarship. Toward the beginning of this century, a writer who identifi ed the

factional pressures behind the creation of a legal form was usually describing

either an abnormal and regrettable situation or one that had happened a comfortably

long time before. Explaining the political and economic origins of old

law was all right so long as you made clear that recent law had developed independently

of all pressures save the “taught tradition” of the profession. If you

did attribute a class or special- interest origin to contemporary law, you did so

36 See Stephen Gould , The Mismeasure of Man 324 – 334 ( 1981 ) (what is biologically determined is

a brain capable of creative variation in its cultural environment), Clifford Geertz , “ The Impact

of the Concept of Culture on the Concept of Man ,” in Clifford Geertz , The Interpretation of

Cultures ( 1973 ) (the human species realizes its “nature” not through uniformity but diversity of

cultural forms).

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Critical Legal Histories 235

in order to condemn it. Thus, legal conservatives condemned wages- and- hours

laws as “class legislation,” and Progressives condemned judicial invalidation of

such laws as caving in to the Interests at the expense of the People.

But with time and growing disillusionment with the regulatory welfare

state, one could hear more scholars, of whom perhaps the most infl uential were

Lawrence Friedman and Gabriel Kolko, explaining not just bad law but all law

as the product of interest- group pressures. 37 These writers were soon joined

by the Chicago- school economists, the sires of the modern law and economics

movement, in rapidly increasing numbers. And if today you hear a voice

claiming that a legal rule was adopted because its adoption served the interest

of some regulated industry, or that a complex procedure exists only because it

makes money for the legal profession – explanations of a kind once despised by

mainstream lawyers as the paranoid cynicism of Populist and Marxist vulgarisateurs

– the voice as likely as not belongs to a right- wing economist. 38

There are several different ways of characterizing the interests that law

tries to satisfy. Right- wing economism says that interests are just the arbitrary

desires of individual subjects, revealed through crude behavioral proxies such

as “willingness to pay” or votes. This school has no theory at all of how such

desires originate, except perhaps a vague notion that people in a given occupational

or institutional role will want to maximize the interest the theorist casually

attributes to that role. 39 Centrist- liberal pluralism discovers what interests

are by looking at the programs of organized groups and largely explains legal

enactments as compromises among those interests. While this view is certainly

a big advance over the view of society as isolated individuals or roles, its mainstream

forms have been famously vulnerable to the charge of lacking any plausible

account of power or social structure that would help explain why some

groups get their way more than others, or why some groups never get to be

“interests” at all because they can’t organize. 40 Finally, various economisms,

not all on the left, do pay attention to power and social structure and explain

law as the instrument of ruling groups. These last merit their own subheading

and are treated under Variation #2.

37 See, e.g. , Lawrence Friedman , A History of American Law ( 1973 ); Gabriel Kolko , The Triumph

of Conservatism: A Reinterpretation of American History, 1900– 1916 ( 1963 ).

38 See, e.g. , Peter Pashigian , “ Regulation, Preventive Law, and the Duties of Attorneys ,” in The

Changing Role of the Corporate Attorney 3 ( W. Carney ed. 1982 ); George Stigler , “ The Theory

of Economic Regulation ,” 2 Bell J. Econ. & Mgmt, Sci . 3 ( 1971 ). The economist can afford

this kind of candor about political pressures on law because he’s got the suprapolitical norm of

“effi ciency” to fall back on. The left- wing writer, on the other hand, is much more likely to argue

that the legal system is “relatively autonomous,” not completely to be explained by this sort of

infl uence. See notes 86 – 88 infra and accompanying text.

39 For example, stockholders “want” profi t on their investment and easy exit; workers “want”

higher wages and benefi ts; neither “wants” a stake in management of the enterprise.

40 See Richard Parker , “ The Past of Constitutional Theory – and its Future ,” 42 Ohio St. L. J . 223

( 1981 ).

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236 History and Historicism in Legal History and Argument

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