Seen from Afar: An Outsider's Response to the Hurst Symposium.

IAN W. DUNCANSON

Given the large body of expert writing about Hurst's scholarship in the United States, including the contributions to the present symposium, the most useful course for an outsider seems to me to be to ask a type of Foucauldian question: what is it about the fact of Hurst's writing what he did, at the time he did, that is strange to one foreign to the tradition to which Hurst and his commentators and critics belong? Why was a lawyer in the U.S., so long before legal scholars elsewhere in the Anglophone world, 1 able to see the necessity of conceiving law in context, perhaps moving, as Novak suggests "from constitutional history toward historical sociology"? We can not proceed too abruptly to a conclusion, as if there were a single answer to the question. After all, lawyers such as Hurst, the Legal Realists, and the Supreme Court were involved in the New Deal. By contrast, while the professional social reformer and the professional lawyer might, just, have coexisted in the same British person at this time, the two commitments would have been cordoned off from each other.	1
The first thing to strike an outsider as strange is the almost complete absence of the Brandeis Brief, which is mentioned once in Alfred Konefsky's contribution. Locally, it is too obvious and familiar to need referring to. From the outside, once one knows that Hurst was Louis Brandeis's clerk and that the judge exercised considerable intellectual influence over him, one sees both how Hurst gained an experiential grasp of the potential impact of detailed empirical studies in the legal process and also appreciates how institutional developments had made it possible to write social science scholarship in legal history (and to obtain an enthusiastic readership for it at a relatively early date). In Muller v. Oregon, 2 the intrusion into the courtroom, via the U.S. constitution, of social science data about the supposed ill effects of long working hours especially on women linked social reform and economic and forensic debates much more explicitly than would have been possible in Britain and Australia.	2
Whether there are humanitarian or social policy grounds (healthy mothers for a healthy "race" in Muller, for example) for limiting the "freedom of contract" in employment relations (favored by political economists) had long been, by 1908, an issue in all industrialized countries. But it had not been made explicitly a matter for independent juridical determination. Labor relations have been the subject of litigation in Britain, for example, but the pretense has generally been maintained that the contests were about the proper legal-doctrinal outcome of a particular dispute. Labor relations courts have long existed in Australia, first in the separate colonies, then after federation, at both state and federal levels. At first sight, social and economic information does meet and inform the application of legal doctrine; and there was some rhetoric in the beginning specifically about the arbitration process protecting the worker from the unrestrained coercion of freedom of contract. In a landmark decision in 1907—the Harvester case—Justice Higgins based his decision that seven shillings was a "fair and reasonable" wage on the criterion of "the normal needs of the average employee, regarded as a human being living in a civilized community." 3 The statistics used may have been "dubious," according to Buckley and Wheelwright, but perhaps no more dubious than those of Muller v. Oregon.	3
The variously named labor arbitration courts, however, are not places where one might imagine the informing of legality by social sciences. They remain firmly under the control of government policy and of the forces to which governments adjust their policies. For instance, when a federal Arbitration Commission judge, who had statutory tenure equivalent to a federal court judge, was dismissed in 1989 for judgments perceived (by employers) as too pro-employee, no more public concern was expressed than if a public servant's contract had been terminated. Lawyers were prepared to accept publicly that there was nothing problematic about dismissing a tenured judge by repealing the statute creating his court and his tenure, then statutorily recreating a virtually identical court with all the same judges—except him. 4 The conceptual space for fundamental contests between employers and employees is provided in Westminster-style constitutions in the expressly political arenas. Critique of the courts' and lawyers' "heaven of legal conceptions" 5 came later in Anglo-Australian writing. Until the 1970s in both Britain and Australia, law-based legal historians were able, with the complicity of lawyers in other fields, to draw dogmatic lines around their discipline and to imagine that law had developed according to an inner logic innocent of political and social controversy. Messy social struggles were the province of the historians of politics, labor, welfare, or "society," whose works lawyers did not read. Long after Hurst began writing—indeed, frequently into the present—Anglo-Australian law schools remained, as Hurst said about the Harvard of his day, "high grade school[s] for legal plumbers," their history courses dry taxonomies. Daniel Ernst's description of Hurst's own pedagogic ambition to "train lawyers to think of themselves not so much as officers of the court as 'officer[s] of the state'" would have horrified the plumbing teachers. 6	4
The second oddness to an Anglophone or European outsider is the early appearance and lavish financial underpinnings of U.S. centers of learning in the social sciences—which, for Hurst certainly included contextual historical inquiry about law in the United States. There were obviously social science "schools" elsewhere—a major stimulus to American scholarship, for example, came with the migration of many of the members of the German Institute for Social Research—the Frankfurt School—to the United States during the Nazi period. "Circles," seminars, and other loose, or more tightly organized, affiliations of humanities and social science intellectuals have probably always been common—one thinks of the Positivist Vienna Circle, Bloomsbury, or the Fabians—but not on the institutional scale of those sponsored by largely corporate wealth in the post-World War II United States. Pioneering academic work and the creation of an audience for it was made possible by foundation-sponsored social science inquiry modeled on that of the natural sciences.	5
Bryant Garth indicates one of the consequences of such a model, which is now more familiar in the rest of the world. The jurist, Lon Fuller, Garth tells us, imagined that greater funding meant traditional scholarship practices writ larger. This did happen, of course. But corporate and foundation politics in the cold war era, with the involvement of Dean Rusk as Rockefeller Foundation president, and John Foster Dulles, often also constructed a context in which, so Chomsky and Zinn suggest, certain kinds of critical scholarship might be seen as too sympathetic to the enemies of capitalism. 7 Legal scholarship was seen as related to issues about leadership within the United States, Garth writes, and could not have been unconnected with the projection of a certain image of and for the U.S., domestically and overseas. The initially puzzling and pervasive "we" in Law and the Conditions of Freedom reminds one of Lord Macaulay and later historians during Britain's imperial phase, depicting, Carl Landauer notes, a "shared culture," a narrative about an "us" that has no class, gender, or ethnicity—and, in the American case, no recollection of slavery. At a time when, Forrest McDonald suggests, many readers confused Charles Beard's An Economic Interpretation of the Constitution with Marxism, 8 the proponent of a new scholarly direction that required funding was probably wise to notice "how the pace of change ... did as much as anything else to brake the development of a broad and lasting consciousness of class division" 9 rather than "the firm connection between entrenched wealth and power, manifested in the decisions of government and in the machinery of law and justice." 10	6
Moreover, the aim of Hurst's project was, Garth says, not an attack on the law discipline and its professional ramifications but the reform and incorporation into it of what Novak calls "historical sociology" to provide a defense against challenges from the humanities and social sciences. Outside the United States, we have come to expect those who challenge the older taxonomic historians of legal doctrine—which is what Hurst was doing—to take an interest in class. This is because they are not scholars moving out from, and expanding the framework, of the law discipline, but scholars observing law as historically located social practices. They work from sites within social history and women's studies, and now cultural and perhaps postcolonial studies, disciplines that are self-consciously narratives "from below," assuming social dissensus and taking relations of subordination and superordination as their critical starting point. Dialogue with those working within law in the Anglo-Australian world has only lately begun to take place. From the perspective of a social historian, an analyst of cultural practices, or a student of bourgeois imperialism, law is one of a number of regulatory devices whose interaction one studies as technologies of subjection, positioning the human being as one kind of subject or another. This decentering and certainly contextualizing of legality goes a good deal further than Hurst's project, although it need not be seen as a complete break from it.	7
I suggested at the beginning that the early application of social science to legal scholarship under Hurst's obviously shrewd leadership can perhaps most constructively be understood by outsiders through the prism of Muller v. Oregon. One theme of the current symposiasts' discussion of Hurst's work is that it draws social science into an expanded law discipline, interrogates it as expert testimony, and uses it for its own reforming purposes: in a sense, it repeats Muller in an academic register. When we add the ingredient of class, and also that of gender, we can make an academic return to Muller, noticing the complexities of class and gender struggles as they coalesced around the issue of "protective" legislation for women workers, the "family" wage, and the male "breadwinner." 11 By demonstrating the accessibility of legality to social science/humanities analysis, while intending to strengthen the law discipline, and with a fairly conservative politics, Hurst has facilitated a multi-disciplinary approach with a more radical politics.	8
Ian W. Duncanson, LLB, BCL, Solicitor of the Supreme Court (England), teaches in the School of Law and Legal Studies, La Trobe University. Notes       1. At Oxford in the 1870s, Bryce and Henry Maine both studied and taught law in social and historical perspectives, in Maine's case using an early form of anthropology for the comparative study of legal systems and thought. Both men were thoroughly marginalized in the then very small world of the English law discipline. See Stefan Collini, Public Moralists: Political Thought and Intellectual Life in Britain, 1850-1930 (Oxford: Oxford University Press, 1991), chap. 7.
2. 208 US 412 (1908).
3. Ken Buckley and Ted Wheelwright, No Paradise for Workers: Capitalism and the Common People in Australia, 1788-1914 (Melbourne: Oxford University Press, 1988), 23
4. Justice Kirby, now of the federal High Court, virtually alone, noted the breach of the principle of judicial independence and condemned the federal government's actions. See Hon. Justice Kirby, "The Removal of Justice Staples—Contrived Nonsense or Matter of Principle?" Australian Bar Review 6 (1990): 1-48.
5. Morton Horwitz, The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 189. According to Horwitz, Muller v. Oregon made such criticism possible in the U.S. (In his text, Hurst, like the Brandeis Brief in this symposium, is an absent presence.)
6. See Alfred S. Konefsky, "The Voice of Willard Hurst," Law and History Review 18 (2000): 155, and Daniel R. Ernst, "Willard Hurst and the Administrative State," ibid., 34.
7. Noam Chomsky, Deterring Democracy (London: Verso, 1991), chap. 1; Howard Zinn, Declarations of Independence (New York: Harper Collins, 1990), chap. 10.
8. Forrest McDonald, Introduction to Charles Beard, An Economic Interpretation of the Constitution of the United States (New York: Free Press, 1986), xxiv.
9. Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956), 95.
10. Howard Zinn, The Politics of History, 2d ed. (Urbana: University of Illinois Press, 1990), 80, on the Ludlow Massacre.
11. See Mary Lyndon Shanley, Feminism, Marriage, and the Law in Victorian England (Princeton: Princeton University Press, 1989), 93-102; Anne McClintock, Imperial Leather: Race, Gender, and Sexuality in the Colonial Contest (New York: Routledge, 1995), chap. 2.

Content in the History Cooperative database is intended for personal, noncommercial use only. You may not reproduce, publish, distribute, transmit, participate in the transfer or sale of, modify, create derivative works from, display, or in any way exploit the History Cooperative database in whole or in part without the written permission of the copyright holder.