CARL LANDAUER

Social Science on a Lawyer's Bookshelf: Willard Hurst's Law and the Conditions of Freedom in the Nineteenth-Century United States

Law and the Conditions of Freedom in the Nineteenth-Century United States, ¹ the slim volume that emerged from Willard Hurst's 1955 Rosenthal Lectures at the Northwestern School of Law, has attained an iconic status in American legal history. In his 1994 interview of Willard Hurst, for example, Hendrik Hartog mentions that both he and Robert Gordon were led to legal history as a result of reading Hurst's little book. ² A good deal of the magic of Law and the Conditions of Freedom stems from its undeniable vitality. Certainly, Hurst was after vitality in legal history, surprising Hartog in the 1994 interview by his fondness for Albert Beveridge's life of John Marshall because of its "magnificent job of bringing history to life." But Law and the Conditions of Freedom also represents a vitality of another sort and for which Hurst is celebrated, his "rebellion against the dominant tradition in legal scholarship." ³ By opposing what Robert Gordon has called the "persisting case-law centeredness of legal scholarship," Hurst set himself against the tradition represented by his first year at Harvard Law School, which, he maintained, was as "abstractly doctrinal as it is possible to get." ⁴ Despite the interventions of Legal Realism and Critical Legal Studies, the case-law centeredness of legal scholarship has persisted enough that even now Hurst's rebellion retains much of its appeal.
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      Hurst learned a good deal from the legal realists. The set of course materials on "Law in Society" ⁵ that he and Lloyd Garrison produced at Wisconsin reads largely as an exercise in Legal Realism, filled with readings from canonical realist texts like Jerome Frank's Law and the Modern Mind. To describe oneself as "typically trying to portray a real clash of selfish interests," ⁶ is to follow a quintessentially legal realist project. Hurst's reading of law within a generally socio-economic context is fully within the spirit of Legal Realism, ⁷ and Aviam Soifer has identified Hurst's The Growth of American Law as "the first sustained example of legal realist history." ⁸ Yet when Hartog suggested to Hurst that he was responsible for the economic focus of legal history, Hurst suggested another influence: "Maybe, it's partly because T. C. Smith [Hurst's professor at Williams] had me read Beard." ⁹ Charles Beard's star might have been in decline when Hurst gave his Rosenthal lectures in the mid-1950s, but Beard had been a formative influence on many historians who had learned their craft in the 1930s and 1940s, and books by Beard and those on which he collaborated with his wife Mary were obligatory reference points—if increasingly as a foil—for many historians in the 1950s. As in the case of Hurst, their imprint was still quite real. ¹⁰
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      Although Robert Gordon has acknowledged that "Beard was of course the most influential proponent of a revised notion of law as the expression ... of economic interests pursued through factional politics" ¹¹ and described Hurst as a Progressive historian on the next page, he did not make the connection between Beard and Hurst. If we look not only to the place of the American economy in Charles and Mary Beard's The Rise of American Civilization but also to the book's sweeping vision, we can imagine the power it must have held over Hurst. But if the Beards had a special place in Hurst's imaginative vocabulary, they were still only part of a larger constellation of authors that helped to shape his and other minds in the 1950s. By placing Law and the Conditions of Freedom in this context—the intellectual context of its writing—I propose to work through Hurst's engagement and debate with the major intellectual sources of this early statement of "Hurstian" legal history. Interestingly, in 1956—the year Law and the Conditions of Freedom was published—Hurst produced a reading list of forty-seven books for the Wisconsin Bar entitled "Social Science on a Lawyer's Bookshelf." ¹² A reading of Law and the Conditions of Freedom is incomplete without an examination of that list interspliced with the references that appear in the book's endnotes.
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      Of course, neither the book list nor the endnotes can contain the full catalog of the intellectual forces in play in Law and the Conditions of Freedom. Reinhold Niebuhr's books—so clearly important to Hurst ¹³ —were unlikely to appear among readings on his social science list. And there were obvious political choices Hurst made both in drawing up his reading list and creating his endnotes; despite his acknowledged harvest from Oswald Spengler, ¹⁴ he was unlikely to place Decline of the West on a book list in 1956. Nonetheless, by turning to a core sampling of Hurst's chosen "sources" one may tell a new story about the intellectual force field in which Law and the Conditions of Freedom was written.
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      Law and the Conditions of Freedom also tells its own story: in large part the book is a prehistory of New Deal liberalism. Considered as such, Hurst's narrative stands in contrast to a current view held by Alan Brinkley and a number of economic historians that New Deal liberalism was a by-product of America's growing consumer economy—for them, what emerged as New Deal liberalism paired a focus on consumption in the economy with civil rights and civil liberties, and this replaced an earlier emphasis on real economic reform. ¹⁵ More interesting, however, is the comparison between Hurst's narrative and that of Richard Hofstadter's The Age of Reform. Hofstadter takes pains to differentiate the Populist/Progressive past, with its nativism, anti-Semitism, and potential for "hatred as a kind of creed," from a markedly more rational New Deal, which Hofstadter labeled a "new departure." ¹⁶ For Hurst, by comparison, the turn-of-the-century birth of reform characterized by the application of intelligence to social policy is continuous with the liberalism of the mid-twentieth century, even if the challenges of pressure group politics meant that Americans had to be even "more deliberate and self conscious" about their policy making "than had characterized the nineteenth-century record." ¹⁷
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      It is easy to explain the difference between Hofstadter and Hurst by identifying Hurst as a Progressive historian and Hofstadter as a consensus historian who would write his critique of the Progressive historians in the 1960s. ¹⁸ Certainly, the Hurst who was early imprinted, as Robert Gordon has suggested, by the "Wisconsin idea" of social science as an aid to legislation can be identified as a historian in the Progressive tradition. ¹⁹ But rather than adopt the easy Progressive/consensus polarity, I prefer to collapse the two, thus seeing Hurst as at once a Progressive and a consensus historian. ²⁰ Despite the customary opposition of these categories, one may locate Hurst's Progressive/consensus history within the force field of 1950s intellectual life with which he identified and which, in its turn, helps us to identify the project of Law and the Conditions of Freedom.
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I. Patterns of Culture

Law and the Conditions of Freedom in the Nineteenth-Century United States begins anecdotally, a standard practice in historical writing, especially in writing that begins its life as a series of lectures in the hope of drawing in a live audience. Hurst's opening tale of Jason Lothrop and the Pike Creek Claimants Union is particularly memorable. In a tribute to John Reid at the 1997 meeting of the American Society for Legal Historians, Stanley Katz mused from the podium that an argument in one of Reid's books made him think of Willard Hurst's opening tale—his obvious expectation was that an audience of legal historians would share this memory. But Hurst's tale is memorable in part because it provides a distillation of the chapter it introduces, "The Release of Energy," and in part because of the paradox it represents.
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      Narratives like the Pike Creek tale often make their point by starting with the familiar to arrive at the new. Indeed, the first long sentence of Hurst's book seems to draw from the standard mythos of American history:
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One day in February of 1836, in the scarce-born village of Pike Creek on the southeastern Wisconsin shore of Lake Michigan, Jason Lothrop—Baptist minister, schoolteacher, boarding house proprietor, and civic leader—set up on a stump a rude press of his own construction and with ink which he had made himself printed a handbill setting forth the record of the organizational meeting of "The Pike River Claimants Union ... for the attainment and security of titles to claims on Government lands." ²¹

Here we have a series of well-worn tropes in the American mythology: the tinkerer, the self-made man, the small-town leader—essentially, the American Adam in the Virgin Land. As the leader of a claimants union, Lothrop is, however, not quite granted the utter independence often accorded the American Adam. One thinks, for example, of the mythic end to trapper Bill Williams, his body found frozen in the wilderness by a party of mountain men. With this image, Yale historian Ralph Henry Gabriel opened The Course of American Democratic Thought. ²² Gabriel's exaggerated tale of Bill Williams as an "individualist who never surrendered his independence" was meant to provide an extreme example of one of the core "faiths" of American democratic thought. But Hurst was after different effect and his opening was structured to set his reader up for a reversal. No sooner had he introduced this Baptist minister, school teacher, and civic leader than Hurst changed course and observed that the claimants of Lothrop's union were "squatters; put less sympathetically, they were trespassers." We are told that these settlers had dashed ahead of the legal starting date for entering federal land. Basically, they contrived a legal institution to salvage their unlawful gains.

      As Hurst tells the story, the claimants adopted a constitution, and by describing the "turgid grandiloquence" of its prose, Hurst momentarily widens the distance between us and the claimants as if they were describing the rules of the chess game to Alice. But he had already established that the settler's effort "tells us some basic things about the working legal philosophy of our nineteenth-century ancestors." It is clear then that in the paradox of Hurst's tale—trespassers marshaling legal rhetoric and fashioning a legal institution—we confront the past of our own legal culture. Hurst states this quite explicitly: "The preamble of the Pike Creek Claimants Union reflects in miniature two working principles by which we organized the relations of legal order and social order in the nineteenth-century United States." ²³
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      Hurst explains the special meaning he has in mind in adopting the term "working principles." "I speak," he tells us, "particularly of 'working' principles, principles defined and expressed primarily by action ... these essays seek to understand the law not so much as it may appear to philosophers, but more as it had meaning for workaday people and was shaped by them to their wants and vision." If it were not already clear to his Northwestern School of Law audience or the reader of his book that they were moving far away from Kent's Commentaries or Joseph Story's contributions to the common law, Hurst was making it quite clear now—they would learn more about the law of the nineteenth century from squatters than from judges. And to make this point, Hurst turned to Tocqueville, at that time in the mid-1950s undergoing a revival. Tocqueville, he tells us, "is closer to apprehending the decisive faiths and beliefs of our nineteenth-century ancestors when he reads these out of what they did and said as they acted, rather than out of their self-conscious philosophizing." ²⁴ Tocqueville's observations validated his own—American law expressed working principles rather than theory.
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      Before Hurst defines the two "working principles," he identifies three "base lines of nineteenth-century public policy implicit in the Pike Creek document." These are the "premises" for the working principles. And without establishing a background or providing additional texture, he moves from his opening, narrative, mode to list the three baselines tersely:
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(I) Human nature is creative, and its meaning lies largely in the expression of its creative capacity; hence it is socially desirable that there be broad opportunity for the release of creative human energy. (II) Corollary to the creative competence which characterizes human nature, the meaning of life for men rests also in their possessing liberty, which means basically possessing a wide practical range of options or choices as to what they do and how they are affected by circumstances. (III) These propositions have special significance for the future of mankind as they apply in the place and time of the adventure of the United States; here unclaimed natural abundance together with the promise of new technical command of nature dictate that men should realize their creative energy and exercise their liberty peculiarly in the realm of the economy to the enhancement of other human values.

With the title of his chapter on "The Release of Energy" already embedded in public policy baselines, the working principles might have seemed a bit anticlimactic. Indeed, Hurst's working principles actually represent little more than statements that the legal order should be instrumental to the attainment of the public policy baselines. The first holds that "[t]he legal order should protect and promote the release of individual creative energy to the greatest extent compatible with the broad sharing of opportunity for such expression"; the second that "[t]he legal order should mobilize the resources of the community to help shape an environment which would give men more liberty by increasing the practical range of choices open to them and minimizing the limiting force of circumstances." ²⁵

      In these two lists Hurst summarized the American legal order as a system embodying the small constellation of values at the core of nineteenth-century society. In his essay on Hurst's Growth of American Law, Soifer referred to a "commonplace, faulty assumption that Willard Hurst is either an extreme, unsophisticated functionalist or one of those post-World War II apologists for the status quo now generally lumped under the label 'consensus historians.'" ²⁶ But if Hurst was not the extreme, unsophisticated functionalist of Soifer's opposition, he was nevertheless a functionalist. In setting out his baselines and working principles, he was following the claim in Ruth Benedict's Patterns of Culture that "[a] culture, like an individual, is a more or less consistent pattern of thought and action" and that "[w]ithin each culture there come into being characteristic purposes not necessarily shared by other types of society." ²⁷ In essence, the patterning of a culture is driven by the culture's particular goals.
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      In writing Law and the Conditions of Freedom, Hurst was indeed working out of an understanding of culture that drew heavily upon the definition of culture developed by Franz Boas and his students, particularly Ruth Benedict and Margaret Mead. In this he was joining a wave of postwar social scientists and historians who turned to cultural anthropology—whether Mead, Benedict, or Kluckhohn—and tended to interweave that anthropology with the neo-Freudianism of Karen Horney or the members of the Frankfurt School, so that the cultural portrait was given a psychoanalytical, often a psychopathological, underpinning. ²⁸ Hurst's Law and the Conditions of Freedom may not have been as deeply entrenched in the anthropology of Mead, Kluckhohn, and Benedict or the neo-Freudianism of Horney, Adorno, and Fromm as David Potter's People of Plenty, with its attempt at producing a characterological definition of the American people. But the second endnote of Hurst's Law and the Conditions of Freedom paired Margaret Mead's And Keep Your Powder Dry with Karen Horney's The Neurotic Personality of Our Time. And Abram Kardiner's The Psychological Frontiers of Society, Norman Cameron's The Psychology of Behavior Disorders, and Ralph Linton's The Cultural Background of Personality appeared in later endnotes. These references were not empty gestures; in the book list "Social Science on a Lawyer's Bookshelf," Hurst provided a special heading for "The culture concept," under which Benedict's Patterns of Culture appeared, and another heading for "Personality structure, within a social framework," where one encounters Kardiner's The Psychological Frontiers of Society with its analysis of Plainville, U.S.A.
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      If Hurst read the nineteenth-century legal order as purposive cultural patterning, his working principles made clear that nineteenth-century government had a positive role, exemplified by the Pike Creek events. On the page following his statement of the working principles, Hurst turned explicitly to deflate the standard laissez-faire mythology. "It has been common," he tells us, "to label nineteenth-century legal policy as simple laissez faire and political debate of the last sixty years has propagated a myth of a Golden Age in which our ancestors—sturdier than we—got along well enough if the legislature provided schools, the sheriff ran down horse thieves, the court tried farmers' title disputes, and otherwise the law left men to take care of themselves." ²⁹ Here Hurst adopted a revisionism that was noted by Arthur Sutherland in a review of Law and the Conditions of Freedom for The American Political Science Review. ³⁰ Indeed, Hurst was joining his voice to the revisionism represented by the series of state studies that came out in the 1940s and 1950s headed by Louis Hartz's study of Pennsylvania and Oscar and Mary Handlin's study of Massachusetts. ³¹
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      Clearly, Hurst had a much more dynamic and instrumental notion about the public function of law in the nineteenth century than the standard laissez-faire conception would allow. But there is something far more interesting in his opening pages, signaled by the "we" in his transition from the policy baselines to working principles: "From these premises we drew two working principles concerning the uses of law." ³² In this sentence Hurst elides from references to "our ancestors" to "we"; the book—especially in the final chapter—increasingly refers to "we" and "our." Clearly, the story Hurst is telling is meant to be "our" story. Hurst writes not to illuminate class, racial, gender, or other conflict but to depict a shared culture. For him that remains the core story. ³³ He has no qualms about writing a book on law and the conditions of freedom in the nineteenth-century United States that makes slavery essentially invisible. ³⁴ To this point, his very first mention of slavery conveys its irrelevance to his story: "Circumstances through the first three-quarters of the century thus never called for a major test of attitudes toward protecting the status quo simply as such, unless one counts the issue of slavery as an instance." ³⁵ That "unless one counts" is emblematic. Hurst may have listed the major work on race of his generation, Gunnar Myrdal's two-volume An American Dilemma, on his book list directly after Tocqueville's Democracy in America under the heading "National character," but, even in the aftermath of Brown, race simply does not have a role in Law and the Conditions of Freedom. Despite numerous models he could have followed, Hurst's progressivism seems little touched by questions about the powerful and the powerless.
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      Law and the Conditions of Freedom identifies a shared American culture. Thus it fits into the broad mid-century study of American culture that stretches from Vernon Parrington's Main Currents of American Thought through Perry Miller's work on the New England Mind and Merle Curti's Growth of American Thought to the explosion of works in American Studies and the "consensus history" of the 1950s. It is common to see a sharp divide between the Progressive historians, with their concern for conflict in American culture, and the consensus historians of the 1950s. ³⁶ Certainly, Richard Hofstadter did so in The Progressive Historians, his study of Frederick Jackson Turner, Charles Beard, and Vernon Parrington. In fact, Hofstadter provides a wonderful depiction of Louis Hartz and Daniel Boorstin's "consciously revert[ing] to Tocqueville's sense of the ineluctable singularity of American development," ³⁷ even if he does not take time to explain that Boorstin's consensus is pure celebration while Hartz's is at best ambivalence. But as one reads the Progressive historians, with their focus on conflict, the story seems no less singular. There may indeed be division in society, but the dividing line itself seems fixed and the trajectory of social movement can be clearly defined. This is obvious in Merle Curti's The Growth of American Thought. Although his thick text is replete with antidemocratic forces and sketches various periods of reaction, they ultimately fit into his larger story of the "growth" of an American thought that is primarily democratic and progressive. Consequently, he can conclude the book's penultimate paragraph with the assertion that "[t]here had always been those who distrusted the masses, but faith in democracy by all the people had not only survived but grown." ³⁸ In the end, Curti's story is susceptible to the same critique Lionel Trilling aimed at Parrington in his famous demolition of Main Currents of American Thought: "Parrington's characteristic weakness as a historian is suggested by his title, for the culture of a nation is not truly figured in the image of the current. A culture is not a flow, nor even a confluence; the form of its existence is struggle, or at least debate—it is nothing if not a dialectic." ³⁹ For Trilling, the struggles recounted by the progressive historian were superficial. In the end, the progressive narrative may be no less unified than Oscar Handlin's The Uprooted, which confidently depicts all immigrant lives as minor variations of a single elegantly told story, and which identifies that story ultimately as the core story of American history. ⁴⁰
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      A fair amount of attention has been paid to whether or not Hurst should be identified as a consensus historian. Soifer's essay on The Growth of American Law focuses on the question and comes down clearly on the side of refuting Hurst's consensus identity. But Soifer does this mainly because he sees consensus history as an apology for the social system in place. In the end he does not deny Hurst's identification of a consensus in American society: "It is true that over and over Hurst suggests an American mainstream." It is just that "he hardly celebrates it." ⁴¹ But the important message of consensus history is not its apologetics—I have already stated that Hartz was hardly an apologist for core American values—but rather the identification of core American values. And its search for patterns of culture was tied to the project of cultural identification in mid-century anthropology, psychology, and sociology.
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      Part of the project of cultural identification was the claim of exceptionalism, and one can find various forms of American exceptionalism flowing through a broad array of studies of American culture. On the opening page of his introduction to The First New Nation, Seymour Martin Lipset tried to connect the two poles of scholarship on American society in order to "reconcile these two pictures." ⁴² Lipset may have made a career of expounding upon American exceptionalism—indeed his latest book is entitled American Exceptionalism—but he was right to see that a broad range of studies of American culture and society belonged together. This observation offers a new route to Willard Hurst, not Hurst the Progressive historian or the consensus historian, but a historian in a larger camp of students of American culture and society whose goal was to locate America's defining imagery and values. ⁴³ As Harry Scheiber has pointed out, Hurst was in pursuit of the Volksgeist in which nineteenth-century law operated. ⁴⁴ This pursuit is what makes the conjunction of Hurst's Wisconsin book list with the endnotes of Law and the Conditions of Freedom instructive. In part their joint significance resides in their obvious overlap. But it also resides in their complementarity: the book list fills out the pieces of Hurst's project.
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      Hurst's detailed knowledge of Wisconsin judicial, legislative, and administrative materials is, of course, well known. ⁴⁵ One has only to think of the thousand pages of text and notes that made up his study of public policy and the lumber industry in Wisconsin, Law and Economic Growth. Not surprisingly, then, Law and the Conditions of Freedom has a great number of citations to various Wisconsin sources, starting with the tale of the Pike Creek Claimants Union. However, the endnotes for Law and the Conditions of Freedom show the 1950s historian delving into the American psyche and culture. In addition to the psychological and anthropological references I have mentioned earlier, Hurst's notes also list Tocqueville, Parrington, and Boorstin. Oscar Handlin's The Uprooted, Arthur Schlesinger's The Rise of the City, Joseph Dorfman's The Economic Mind in American Civilization, and Louis Hacker's The Triumph of American Capitalism each receive multiple citations. The Beards' The American Leviathan and the Lynds' Middletown make their appearances. So do Henry Steele Commager's The American Mind, Richard Hofstadter's The American Political Tradition, and Walter Prescott Webb's The Great Plains. Mixed among the various Wisconsin materials, these titles in Hurst's notes provide a basic reading list for a 1950s course in American Studies. ⁴⁶
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      Although Parrington appears, what is missing is the more literary end of the American Studies spectrum, represented by Perry Miller, R. W. B. Lewis, Charles Feidelson, and Henry Nash Smith. In his essay on Hurst's Law and Economic Growth Mark Tushnet is quick to fill this gap. He complains that "Hurst's devotion to exclusively legal materials leads to a failure of evidence. We cannot automatically assume that the consciousness Hurst finds embodied in the law is dominant in other areas of social activity; we must examine religion, formal literature, informal writing, and so on, directly." Here Tushnet offers Perry Miller's The Life of the Mind in America and Leo Marx's The Machine in the Garden. In the next paragraph, however, Tushnet volunteers that Hurst's account of the hierarchy of principles in fact "so closely parallels Henry Nash Smith's classic analysis of American literature, Virgin Land, that we can infer that the hierarchy of values Hurst describes was not only an attribute of the legal system but was part of the general social consciousness." ⁴⁷
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      The issues addressed by Henry Nash Smith in Virgin Land, however, were not all broadly cultural; some were quite specifically literary, such as his running analysis of internal limitations presented by the genres in which Western writers were working. For that reason, it is somewhat difficult to see Smith's "hierarchy of values" exactly matching those of Hurst's lumber book. But in fact one does not have to invent a connection between Hurst and Smith, as Tushnet attempts to do; Smith's Virgin Land was one of Hurst's forty-seven recommendations for the lawyer's bookshelf. Indeed, the appearance of Virgin Land on the list expresses Hurst's cultural concerns. In this fashion, the book list, with its outline structure, helps illuminate the aims of Law and the Conditions of Freedom. It is, then, worth closely examining Hurst's Wisconsin book list for its embodiment of some of the common preoccupations of 1950s scholarship shared by Hurst as well as to reveal some of Hurst's personal preoccupations.
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      The first section of "Social Science on a Lawyer's Bookshelf" is devoted to "Political History," which is in turn divided into two subsections: "The event as laboratory science" and "Ideas and environment: the importance of the commonplace." The first of these subsections lists three works of history, including Woodward's Reunion and Reaction; the second includes Charles Beard's An Economic Interpretation of the Constitution of the United States, a volume on Henry Adams, Smith's Virgin Land, three books by Richard Hofstadter (Stocking and Watkins, with their jointly written books, are the only other authors with three titles listed), and Parrington's Main Currents of American Thought. Rather than identifying "ideas" and "environment" as disjunctive, it is important to see that Hurst worked with a definition of "environment" that included the social and cultural "environment," just as his colleague Merle Curti did in The Growth of the American Mind. In his chapter on "The Control of the Environment" in Law and the Conditions of Freedom, Hurst set out "three environments" with which the nineteenth-century American interacted: "nature apart from man," the "social environment," and the "individual's internal environment." ⁴⁸ Hurst may have identified these three levels of interaction, but we should not forget the words following "Ideas and environment" in the book list—"the importance of the commonplace"—and their suggestion of shared culture.
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      It is significant, in that light, that the second section of Hurst's book list focuses on "Anthropology, Social Psychology, Sociology; cf. Social History." This is where Benedict, Kardiner, and Leighton appear in the first two subsections on "The culture concept" and "Personality structure, within a social framework." As I have tried to emphasize, these authors' appearances mark Hurst's participation in the postwar preoccupation with an anthropological psychology and a psychological anthropology. That preoccupation was associated with the effort to define the national character in psychological and sociological terms, which was particularly central for the growing American Studies project. But Hurst fills his subsection on "National character" (the third subsection under "Anthropology, Social Psychology, Sociology"), not with American Studies professionals, who are after all not writing social science, but with Tocqueville's Democracy in America, Gunnar Myrdal's An America Dilemma, Oscar Handlin's The Uprooted, David Riesman's The Lonely Crowd, two books by C. Wright Mills, Warner and Lund's sociological study of small-town America, and a book on the psychology of social classes.
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      Up to this point, Hurst's Wisconsin book list is more or less standard-fare selections for the 1950s intellectual. But as we turn to Hurst's suggested economic readings—more than half of the books on the list—his partisanship becomes clearer. The third and largest section focuses on "The politics of the economy." After a broad heading, "Ideas and structure," where Hurst could place Joseph Dorfman's three-volume The Economic Mind in American Civilization, he then listed eight books under a subsection on "The historic line of policy regarding the state and the economy in the United States: the SSRC Committee on Economic History." These are the studies of the Committee on Research in Economic History of the Social Science Research Council formed in the 1940s to provide the history of the economic policies of American states up to the Civil War. In his "Foreword" to the Handlins' Commonwealth, Arthur Cole, the committee's chairman, explained that "[n]o hypothesis was suggested to those placed in charge of the several investigations, not even the commonly voiced belief that, prior to the advent of federal control of economic affairs, the country had pursued a policy of laissez faire." ⁴⁹ In fact, the scholars working for the committee were motivated, if anything, to discover the exact opposite, state precedents for the New Deal's regulatory state. It was not by chance that Louis Hartz in his study of Pennsylvania, Oscar and Mary Handlin in their study of Massachusetts, and the other scholars on this team were able to provide detailed analyses of the state regulatory past and help to erode the myth of a nineteenth-century laissez-faire America. The very number of books Hurst recommends from the Social Science Research Council team indicates his commitment to the project of the "Commonwealth studies."
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      Harry Scheiber has distinguished Hurst's views from those represented by the Commonwealth studies. "There is," he writes, "more than a rhetorical difference as between the Handlins, who cover the whole diversity of Massachusetts' record as evidence of 'common aspirations and intentions,' and Hurst, who reads the record as evidence that men sought 'the release of individual energies,' even at the price of leaving their state governments bereft of 'independent energy' of their own." ⁵⁰ But, ultimately, the shared critique of the laissez-faire myth had deep importance for Hurst and reflected his understanding of the affirmative role that government played in the nineteenth century.
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      The three subsections following the Commonwealth studies under the heading "Politics of the economy" focus on "Property," "The Balance of power," and the "administered society." What is significant in these subsections for a reading of Hurst, other than the use of the title of the last section of Law and the Conditions of Freedom, is the number of institutional economists listed, among them New Deal figures Adolf Berle, Gardiner Means, and John Kenneth Galbraith. In his essay on the institutional school of economics for the Encyclopaedia of the Social Sciences, Paul T. Homan described this "dissent from orthodox economics" as standing "in close spiritual relationship to certain developments in all the social sciences both in America and Europe." Homan provided as American examples of such kindred spirits "the work of Roscoe Pound and R. L. Hale in jurisprudence, of Charles A. Beard and J. H. Robinson in history and government and of W. F. Ogburn in sociology." ⁵¹ The school, which put an institutional and sociological spin on economic analysis, was close to Hurst's heart. The prevalence of economists with an institutional bent—if not early members of the school like Veblen or Commons—makes Hurst's own economic predilections quite clear. In turn, as I will suggest in more detail later, that link helps to provide a key to understanding the political economy of Law and the Conditions of Freedom. ⁵²
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      As I have argued, Hurst's "sources," and specifically the recommendations he made to members of the Wisconsin Bar, say a good deal about the history he wrote. They locate him in an intellectual force field, much of which he shared with others in the 1950s. It is interesting, for example, that Willard Hurst and David Potter, two historians who do not cite each other's books, have so many common sources that their notes continually overlap. Potter's People of Plenty: Economic Abundance and the American Character is, of course, an explicit attempt to expound on the American character. One can expect Potter's engagement with his psychological and anthropological sources to be much more extensive than Hurst's. Thus, for example, he could devote three pages to David Riesman's The Lonely Crowd, while Hurst could only spare Riesman a place on his Wisconsin book list. Potter could dwell on Mead and Horney while Hurst ran them together in a single footnote. Nevertheless, Potter and Hurst use the same sources to make the same points. Hurst's footnote on Mead and Horney begins by stating that "[t]he release-of-energy faith demonstrated in our law expressed one aspect of a social value scale which measured men by their accomplishment in striving toward self-appointed material goals, rather than by their status." ⁵³ Similarly, Potter observes of Mead that "her strongest emphasis falls upon the way in which American life is geared to success rather than to status." ⁵⁴ Oriented by his progressive politics and institutional economics, Hurst's writing is framed by the same cultural anthropology that infused so many of the intellectual efforts of his generation.
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II. The Psychological Frontiers of Society

In People of Plenty, David Potter made Frederick Jackson Turner the centerpiece of a chapter called "Abundance and the Frontier Hypothesis." Hurst, despite his concern with the interaction of Americans with their natural environment, failed to mention the former University of Wisconsin professor either in Law and the Conditions of Freedom or on his Wisconsin book list. ⁵⁵ Although, as Aviam Soifer has observed, one finds "echoes" of Turner in Hurst, it is fair to say that Turner's name is conspicuous by its absence in Hurst's study. ⁵⁶
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      By mid-century, Turner had, of course, many more detractors than supporters, but he still had a number of champions renewing and remodeling his thesis. Stanley Elkins and Eric McKitrick, for example, announced in their two-part essay in the Political Science Quarterly in 1954 that "Turner's critics may be allowed the most sweeping of concessions. Nearly everything could be sacrificed—everything, that is, except the one thing that mattered: the development of political democracy as a habit and the American as a unique political creature." To firm up their point, Elkins and McKitrick made the almost obligatory turn to Tocqueville. It is important here to note the self-conscious tone of Elkins and McKitrick's essay. In their first paragraph they noted: "So full of promise did the remarkable theory then appear, so charged with import, that its present status as an academic curiosity seems to symbolize some profound intervening disillusionment." ⁵⁷ Despite the number of anthologies featuring Turner and his critics, Turner's name came with a stigma; one senses that Hurst must have decided to avoid him, despite opening Law and the Conditions of Freedom on the frontier.
29

      The "frontier" in American culture encompasses a great deal—it is burdened with a large variety of related concepts and images, such as the various romanticisms of the rural and the agricultural, the individual and the new community, the Jeffersonian yeoman and the Jacksonian farmer. And, of course, there are Turner's specific concerns with the development of American democracy and the safety valve that he believed the frontier provided for the East. Hurst tended to avoid the word "frontier" probably because he wanted to describe the state of things for the "nineteenth-century United States" as a whole. But we have already visited "the scarce-born village of Pike Creek" and it is difficult to ignore its frontier status. What Hurst urgently wanted to tell us about Pike Creek was its need for law and the particular usefulness of the working legal philosophy of early nineteenth-century America for the Pike Creek claimants. His Pike Creek is far removed from the mining camp at Silver City described by Ralph Henry Gabriel in the opening pages of The Course of American Democratic Thought with its "plunge into anarchy" and characterized by "parasitic individuals, mob violence, lynch law." ⁵⁸ But if the paradox of Hurst's squatters involved the turn of the lawbreaker to law, the legacy left by Turner was to determine whether the law that Hurst described in Law and the Conditions of Freedom came out of the frontier experience or was rather transported to the frontier from the East.
30

      In the 1930s Harvard government professor Benjamin Wright argued in an essay called "Political Institutions and the Frontier" that "[i]n their choice of political institutions the men of [the Middle West] were imitative, not creative." ⁵⁹ Indeed, Hurst's Pike Creek claimants appeared imitative rather than creative in their legal forms; their "turgid grandiloquence" represented an awkward attempt to mimic past forms. But Hurst paid a great deal of attention in Law and the Conditions of Freedom to the environmental challenge as a condition of legal development. As he explained, "We came from a scarcity-conscious Old World into a rude new land where our own capital scarcity was a fact continuously weighing on us. We were the more dominated by the virtue of overcoming scarcity because the contrast between our limited resources and our vast opportunities constantly challenged and tantalized." And later in Law and the Conditions of Freedom he pointed out the important "challenge of physical fact; for 250 years as we drove inland from our coasts, again and again we had to master wilderness and distance." Indeed, Hurst explained that nineteenth-century public land policy "evidences attitudes we learned from challenging the wilderness and writing our social rules on a relatively clean slate." ⁶⁰
31

      Clearly, for Hurst, the environment was formative in the evolution of American law. That was an unmistakable part of his argument about the development of the legal regime in the nineteenth century. Was Hurst, then, basically in agreement with Walter Prescott Webb's contention in The Great Plains that the environmental conditions of the West called for a new kind of law, as opposed to the argument of Louis Wright's Culture on the Frontier that law on the frontier, just like other cultural forms, was disseminated from the East? ⁶¹ Webb's book, in contrast to Wright's, even offered an explanation for events like the creation of the Pike Creek Claimants Union: "Before the cumbersome machinery of government could be set in motion to change the system, the pioneers made the adaptation, defied and evaded the law, and set up in the Great Plains an extra-legal system of landholding which caused many of them to be looked upon as criminals and perjurers ... Practice, or custom, first worked out a new land system in the Great Plains, and law cautiously followed after." ⁶²
32

      Despite the obvious importance of the frontier to Hurst's story, Law and the Conditions of Freedom is finally not in the Turner-Webb mold. Following Hurst's announcement of the entrance onto "a rude new land where our own capital scarcity was a fact continuously weighing on us," he states flatly: "Our prime inheritance was of middle-class ways of thinking." Similarly, immediately preceding the paragraph describing the "challenge of the physical fact," he wrote: "Our place and time in history made it natural that we should confront the challenges of our environment with increasing confidence that we could master circumstance. Experience taught us so, and social inheritance made us receptive to the lesson." The "place" may have been the open American continent, but the "time" indicated a particular stage of history. On the next page Hurst was more specific: "It was of definitive importance in our legal history that the firm settlement of North America came in the seventeenth and eighteenth centuries rather than in the fourteenth, and by people whose lives were already caught up in the Commercial Revolution. North American growth was thus early and inseparably part of the expansion of middle-class energy." ⁶³
33

      Hurst, providing a middle-class, capitalist context for American institutions, was arguing very much along the lines of Louis Hacker's assertion in The Triumph of Capitalism that "our American economic institutions have been developed wholly in a capitalist climate." "From the start of our development," Hacker asserted, "our history was associated with Europe's progress." For that reason, he began his study of capitalism in the United States with a chapter on "The Origins of Capitalism" in which he reviewed the Renaissance background of capitalism's "first stirrings." Significantly, in the course of telling the story of capitalist development, Hacker devoted several pages to a discussion of "The Protestant Ethic," thereby introducing Weber's The Protestant Ethic and the Spirit of Capitalism into his narrative. For Hacker, "the Protestant Reformation did release a vast number of forces which were to change profoundly the prevailing religious habits of thought—and in this way affect social and economic living." ⁶⁴
34

      Although Hurst returns numerous times to Hacker as a source in Law and the Conditions of Freedom, he is content to make no references to the "Protestant Ethic." Indeed, Hurst's explanation for the political and legal institutions of nineteenth-century America is fundamentally one of social and economic instrumentalism. ⁶⁵ There are few religious or intellectual roots in evidence, just a people "whose lives were already caught up in the Commercial Revolution." This, of course, is not only a refutation of Weber's "Protestant Ethic" thesis, but it also stands as a repudiation of Perry Miller's "errand into the wilderness." ⁶⁶ Hurst may have made a place for religious values as a stage in the American development. "Security," he explained, "was a natural emphasis in colonial law." He told us that always "in the background was the consciousness of lonely communities on trial before God and the hard facts." ⁶⁷ But with the coming of the nineteenth century, that core concern with security disappeared. So, consequently, did the religious and intellectual forces of such importance to Perry Miller and his various intellectual offspring.
35

      Indeed, Hurst seems to see very little intellectual import in the story of nineteenth-century American law and politics. The political project of the "American Renaissance," of such significance to F. O. Matthiessen, is nowhere in sight. ⁶⁸ It was a commonplace of the American academy—well to the right of Matthiessen—to identify Emerson, Thoreau, Melville, and Whitman as heroes of American democratic thought, but Hurst would have none of it. Consequently, there was no suggestion of the intellectual profiles in democracy that appeared in Ralph Henry Gabriel's The Course of American Thought, such as his chapter on "Melville, Critic of Mid-Nineteenth-Century Beliefs." ⁶⁹ Instead, Hurst's story remains basically a close reading of nineteenth-century Americans' interaction with their environments and the development of various legal regimes out of that interaction.
36

      Here Hurst's Law and the Conditions of Freedom stands in sharp contrast with Louis Hartz's famous 1955 exposition of American exceptionalism, The Liberal Tradition in America. Both tell stories of the transfer of a middle class across the Atlantic at a particular moment in European development. But the dominant figure of Hartz's narrative, John Locke, makes no appearance in Law and the Conditions of Freedom. ⁷⁰ Hartz describes "a society which begins with Locke, and thus transforms him, stays with Locke, by virtue of an absolute and irrational attachment it develops for him, and becomes as indifferent to the challenge of socialism in the later era as it was unfamiliar with the heritage of feudalism in the earlier one." ⁷¹ Hurst not only avoids Locke in his discussion of individual freedom, but is happy to avoid intellectual and religious sources altogether. ⁷² He does make a gesture towards intellectual sources when he states that of the two aspects of the nineteenth-century view of liberty, negative and positive, the negative one—letting individuals "alone to show what they could do"—was "an inheritance from the Renaissance, from Tudor England, with roots deep in traditions of classic Athens and the Roman Republic." ⁷³ But in light of the fact that the negative aspect of nineteenth-century liberty, by comparison with the "enlargement of options," was undoubtedly the less significant of the two for his story, this isolated gesture does not amount to very much. At most, it represents a minor subplot away from the main action of his story.
37

      How, then, do we square this Hurst with the scholar that Harry Scheiber has described as attempting to fix the Volksgeist of nineteenth-century America? How do we reconcile him with the man I have described as turning to the anthropologists and neo-Freudians in search of American culture? Hurst's vocabulary suggests a fully articulated cultural structure—he refers to nineteenth-century Americans' "faith," "beliefs," "principles," "attitudes," "doctrines," "priorities," "emphases," and "decisions." It is difficult to read Law and the Conditions of Freedom without perceiving a carefully structured intellectual system in which the parts work perfectly together. Preoccupation with the "release of energy" explained the nineteenth-century development of tort and criminal liability, the strict construction of statutes, the protection of vested rights only to the degree that it meant the protection of ventures, the growth of contract law with the need for consideration, the introduction of a law of negotiable instruments, and so forth. All of these fit together into one conceptual framework.
38

      Only in places did Hurst have to explain, usually in an elegant maneuver, why some piece of the puzzle did not quite fit. Thus, if the Jacksonian movement expressed antagonism to corporate grants in its platform, Hurst explained that because "the demand for freer incorporation, deep down, fitted the dominant temper of the times," the Jacksonians "appear increasingly uncomfortable in their opposition" and were able to find "that the public interest was satisfied if the privilege of incorporation for ordinary business purposes was made available to all on equal terms." The circle was squared, and the seeming discrepancy was brought into the discipline of Hurst's main line of argument. Some nineteenth-century phenomena are written out of Hurst's story a little less elegantly. Thus, when he discusses Abolitionist and temperance societies, and "controversies over Masonic lodges, Catholic convents and schools, and Mormon communities," he asserts that "these matters have significance primarily as parts of our history of middle-class morals and values, and population growth and immigration; they involve legal history only indirectly." As a general matter, where Hurst introduced an element of doubt in the path of his argument—"the record of policy was not without ambiguity" ⁷⁴ —we can be assured that a "but" is not far off.
39

       Fundamentally, Hurst was describing the working of a value system. "The tone of this society," he stated about early nineteenth-century America, "was set by men for whom life's meaning lay in striving, creation, change, and mobility." ⁷⁵ Where Abram Kardiner wrote in The Psychological Frontiers of Society that "each culture is characterized by different life goals and values," ⁷⁶ Hurst confidently identified the "life goals and values" of the United States in the period between 1800 and 1870. For Hurst, all of the framers of law, whether state courts deciding a case in the common law, the U.S. Supreme Court declaring its finding on a Constitutional matter, various state legislative or administrative bodies engaging in their regulatory activities, or Story or Kent in their commentaries, all conspired to achieve the same "life goals and values."
40

      Significantly, the key institution of Law and the Conditions of Freedom was not one of the five legal institutions studied in The Growth of American Law—the legislature, court, constitution makers, bar, and executive. In Law and the Conditions of Freedom the key institution was the market. This might not be immediately evident because the market was not encased in one of Hurst's incantations, like "release-of-energy principle" or the "drift and default" of public policy. Indeed, he tells us—drawing on the Handlins, Hartz, and others—that there was never a pure market anyway. But this fact does not detract from Hurst's view of his nineteenth-century United States as "a market-oriented, division-of-labor society." The culture he describes saw its world largely through the prism of the market. "Nineteenth-century preoccupation with the market as a key social institution," he observed, "led men to think of private property as an idea almost solely economic in significance." ⁷⁷
41

      In Hurst's analysis of the legal culture of the nineteenth century, law was clearly doing the market's bidding. Thus, for example, the development of contract law, so important to his narrative, was required for the market: "For a time the century seemed well satisfied to make the market its central institution, and contract set the legal framework for market dealing." The market also required an ability to deal "at a distance and on credit" and consequently urged the creation of a range of principles of commercial law. "This," Hurst argued, "was the outstanding area of common law development in the first half of the century, as judges exercised their invention in the law of negotiable instruments." Law was preoccupied with the goals of the market, so that nineteenth-century law "equated 'value' with 'market value.'" In sum, Hurst observed, "it does not exaggerate the role of law to see that its procedures and compulsions were inextricably involved in the growth of our market economy." ⁷⁸ The market provided the psychological frontiers of American society.
42

III. The Age of Reform

Because Hurst's depiction of law in Law and the Conditions of Freedom is market oriented, where law is not market oriented, it seems mostly beside the point. With the market thus the central institution of nineteenth-century American society and, consequently, the chief concern of American law, Law and the Conditions of Freedom can be justly described as a prehistory of New Deal liberalism. Despite Hurst's rather expansive prose about the release of energies required by the nineteenth-century market, he showed a keen recognition of the destructiveness of a purely market-driven politics. Consequently, it was important to Hurst to show how American society was able to begin the move from the politics of the market to a politics of reform.
43

      In our analysis of Hurst and the politics of the market, it is instructive to place his discussion of the market next to that of The Great Transformation, Karl Polanyi's famous 1944 study of the market and its historical impact, which headed the subsection on "Property" in Hurst's Wisconsin list. Polanyi's study of the "rise and fall" of the market economy, viewed primarily from a British perspective, is an undeniable, if breathless, tour-de-force. By comparison, other studies of industrialization and the market economy look almost lifeless. It is difficult to imagine Hurst developing his argument without Polanyi in mind, even if The Great Transformation does not appear in his endnotes. Indeed, Soifer reports in his essay on The Growth of American Law that Hurst recognized Polanyi as an important influence. ⁷⁹
44

      At the beginning of his book, Polanyi announces dramatically that "[n]ineteenth century civilization has collapsed," and he proceeds to flesh out both the emergence and the collapse of a civilization characterized by the self-regulating market. Polanyi explains that the market economy "implies a self-regulating system of markets; in slightly more technical terms, it is an economy directed by market prices and nothing but market prices." For him, this is a new phenomenon: in one of his many acts of demolition of other economists' theories, Polanyi dispenses with Adam Smith's image of humanity's natural "propensity to barter," despite the fact that it was adopted by a host of nineteenth-century economic theorists. To counter Smith, Polanyi turns to modern historians and anthropologists, who have found that "man's economy, as a rule, is submerged in his social relationships" and the value of material goods is socially defined. He explains the movement from isolated economies to an international market economy not as it was "naively imagined" in the nineteenth century as "the result of any inherent tendency of markets towards excrescence, but rather the effect of highly artificial stimulants administered to the body social in order to meet a situation which was created by the no less artificial phenomenon of the machine." ⁸⁰
45

      Polanyi is building to a point where he can announce that "[t]he road to the free market was opened and kept open by an enormous increase in continuous, centrally organized and controlled interventionism." He makes clear that a pure self-regulating market is entirely destructive and that "the trading classes had no organ to sense the dangers involved in the exploitation of the physical strength of the worker, the destruction of family life, the devastation of neighborhoods, the denudation of forests, the pollution of rivers, the deterioration of craft standards, the disruption of folkways, and the general degradation of existence including housing and arts, as well as the innumerable forms of private and public life that do not affect profits." This and other destructiveness, ultimately the breaking down of society, initiated a self-protective reaction by the society it was demolishing. Thus, for example, Polanyi describes the institution of the labor market in England as "so violent that, almost instantly, and without any prior change in opinion, powerful protective reactions set in." As Polanyi previewed his argument at the beginning of his book: "The idea of a self-adjusting market implied a stark utopia. Such an institution could not exist for any length of time without annihilating the human and natural substance of society; it would have physically destroyed man and transformed his surroundings into a wilderness. Inevitably, society took measures to protect itself, but whatever measures it took impaired the self-regulation of the market, disorganized industrial life, and thus endangered society in yet another way." ⁸¹
46

      Read with Law and the Conditions of Freedom in mind, one of the most interesting aspects of Polanyi's argument is the binary relationship between society and the economy. They are undifferentiated in that the self-regulating market is ultimately a social construct, but to the extent that the economy under the auspices of economic liberalism is allowed its sponsored autonomy, the sorcerer's apprentice turns on society. Like Polanyi, Hurst learned from the social anthropologists that the market is finally a social institution—but Hurst seems to internalize the social/economic divide more than Polanyi, so that when he comes across social phenomena, like the temperance unions, that are not part of his economically driven narrative, he shunts them aside. ⁸²
47

      Polanyi's central point about the destructiveness of the self-regulatory market was, of course, adopted by Hurst. Nevertheless, Hurst Americanized the critique: part of the destructiveness of the American market economy derived from its sheer exuberant impatience. Thus, for example, "[t]he development of a railroad network was basic for growth both in community strength and individual opportunity. But we pressed this development at wasteful speed, inviting fraud in aid grants and construction costs, overbuilding, and saddling local governments and farmers with unwisely apportioned and burdensome debt." Although he referred, as Polanyi did, both to the human and environmental costs incurred by the market economy, Hurst's nineteenth-century civilization did not entirely collapse under their weight. Indeed, Hurst's final sentence suggested adaptation rather than apocalypse: "Such challenges insistently demanded of us more deliberate and self-conscious policy making than had characterized the nineteenth-century record." ⁸³
48

      Furthermore, Hurst's narrative has much less conflict than Polanyi's, particularly class conflict. If Polanyi's middle classes "were the bearers of the nascent market economy," ⁸⁴ they brought destruction to others. For Hurst the middle classes are alone on the scene. Suggestions of class conflict are muted in Law and the Conditions of Freedom. Perhaps that is why Hurst referred in his endnotes only to the senior Arthur Schlesinger's The Rise of the City and made no place for Arthur M. Schlesinger, Jr.'s The Age of Jackson with its class-conflict story of Jacksonian democracy. It is, ultimately, quite striking not only that Hurst did not address class politics with the acuity of Polanyi, but also that his form of Progressive history seems so blind to competing class identities and interests.
49

       Another aspect of Hurst's analysis that has no exact corollary in Polanyi's market economy is a particular political value that Hurst sees in the market, its capacity to act as an agent for the decentralization of power. "The Commercial Revolution," Hurst argued, "had tied [the] institution of private property to the market and made the market the typical arena of expansion for these semiautonomous centers of decision." If "[m]uch of our legislation amounted implicitly to a judgment that the decentralized, private cost accounting of the market did not suffice for efficient social living," Hurst was making it clear that the market represented decentralized decision making. That decentralization would later become threatened. "We were," he observed, "slow to see that in the context of postwar organizational and technical invention released market energy was spinning into gathering centers of growth which could destroy the market as an institution for dispersion of power." ⁸⁵ We know that Hurst, along with the other members of the Legal Process School, placed a particular value on the dispersion of decision making in the American legal system. ⁸⁶ Hurst translated the political value he shared with other Legal Process theorists into an aspect of the nineteenth-century market economy, albeit one that he saw losing out to the increasing centralization of market forces.
50

       As Harry Scheiber has observed, Hurst believed that the "dispersion of both power and property is a source of individual dignity." ⁸⁷ That belief was also professed by John Dewey; and, as Robert Gordon has noted, there is a good deal of Dewey in Hurst. ⁸⁸ Indeed, one can find the Dewey of The Public and Its Problems and Liberalism and Social Action deeply embedded in Law and the Conditions of Freedom. Thus, for example, we can locate in Hurst not only Dewey's description of liberal economics as the "release [of] productive energies," but also the imprint of Dewey's political diagnosis of industrial society and Dewey's avowed aim of establishing "freed intelligence as a social force." ⁸⁹ Robert Gordon has broadly described Hurst's "work as an effort to apply the general insights of pragmatic theory, especially as formulated by John Dewey." ⁹⁰ But it is Hurst's departures from the model of Dewey that are particularly suggestive.
51

      In diagnosing the policies of nineteenth-century industrial society, Hurst referred repeatedly to "drift," which stood in polar opposition to "direction," so that the two were appropriately paired in the title of one of his lectures at the University of Michigan in 1959. ⁹¹ The term "drift" had been used by Dewey to describe a lack of applied intelligence in public life. In The Public and Its Problems, Dewey talked of a "social pathology which works powerfully against effective inquiry into social institutions and conditions [which] manifests itself in a thousand ways; in querulousness, in impotent drifting, in uneasy snatching at distractions...." ⁹² And in Liberalism and Social Action, he observed that "men have met the impact of change in the realm of actuality, mostly by drift and by temporary, usually incoherent, improvisations." ⁹³ Dewey's reference to incoherence is quite significant because ultimately he is describing the public's inability to focus its intelligence. Dewey's public is "lost" and "caught in the sweep of forces too vast to understand or master." When Dewey talks of a "bewildered" and "inchoate public," ⁹⁴ he is drawing heavily upon Walter Lippmann's "phantom public" ⁹⁵ despite his differences from Lippmann, ⁹⁶ and it is the Lippmann side of Dewey's analysis of the public from which Hurst is moving.
52

      Hurst uses the term "drift" in Law and the Conditions of Freedom repeatedly, almost obsessively, usually paired with "default." Thus, for example, he refers to "two elements of drift and default," "drift and default of legal policy," "an unpatterned, radically important drift and default of policy," and, to add variety, "default and drift in legal policy." ⁹⁷ Like Dewey, Hurst was trying to describe a lack of applied intelligence in public policy. But if both spoke to the unplanned and the improvisational, Hurst's critique is much sharper. Rather than the inchoate public that Dewey borrowed from Lippmann, Hurst describes a society hurtling ahead at full speed in its release of creative energies. In its speed, American society was unable to think about the costs of economic development. Hurst referred to our "bustling unconcern" and the "impatient confidence of the times." He observed, that "[w]e were unwilling to incur the time costs of a slower, more stable finance under central bank discipline." ⁹⁸
53

      Basically, Hurst described an American public that had "mortgaged the future for present haste." The release-of-energies values of the nineteenth century meant that the present was all consuming and the future ignored. Hurst would tell us that "farmers burned off great stands of hardwood to clear fields" and "[l]umbermen mined the forests for the most immediately marketable timber, leaving uneconomic islands of residue and cutting without regard to new growth or control of fire hazards." His judgment was clear: "This bustling century, preoccupied with its immediate opportunities of growth, wrote firmly into statutes and decisions some important preferences—for the promise of the future over commitments to the past, but also for the ambitions of the present over the claims of the future." Hurst was describing a society of waste that was "dangerously retarding development of a sensible social cost accounting." ⁹⁹ This was the dysfunctional side of policy founded on the release of energies. And it is important here to understand this not merely as an undirected society but as a misdirected one. Here Hurst focuses on the destructiveness of Polanyi's market rather than the inchoate public of Dewey and Lippmann.
54

      Also like Polanyi, Hurst thought that the destructiveness of the market triggered its own reaction, as implied by the title he gave to the third section of his book, "The Balance of Power." But unlike Polanyi—or Sidney Fine, whose detailed account of the rise of what he called the "general-welfare state" was published the same year as Law and the Conditions of Freedom ¹⁰⁰ —Hurst made another sociological/anthropological turn by quoting Ralph Linton's The Cultural Background of Personality at length. In Hurst's narrative, "[t]he challenge of the physical environment which had so gripped our imagination at the start of the nineteenth century gave way to preoccupation with the challenge of social environment" and "deriving from a fresh sense of the constraint of our radically changed social situation, we began to use law with growing consciousness of a need to meet the challenge of the personal environment set by individuals' emotional response to circumstance." Providing an extended list of the protest movements of the late nineteenth century, such as the Grange, the Farmers' Alliance, and the Knights of Labor, Hurst described the movements as reflecting "pervasive unease and dissatisfaction with emerging patterns of power and the lack of defined policy toward emerging issues." It is here that Hurst turned to Linton to explain the "resort to association" and quoted Linton's discussion of the "human environment" as being characterized by the "organized group." But the more traditional sociological point was Hurst's identification of the social disruption that promoted the use of law "positively to mobilize group power in behalf of individual status." ¹⁰¹
55

       The setting for the need to "mobilize group power" was the immense concentration of wealth that, for Hurst, characterized the final years of the nineteenth century. The law that was intended to "promote capital mobilization" instead "concentrated unprecedented power of decision in private hands, first in the railroads, then in heavy industry and in investment banking houses and life insurance companies." The development could be recognized as "the product of deliberate public policy," but the effect was unintended. As Hurst put it, "there is little evidence that anyone foresaw or intended the kind and extent of concentration of capital which ensued." The result was to undermine the market itself and its functioning as a mode of dispersing power. Hurst observed: "What was new in the generation of the seventies, we slowly realized, was the threat to market balance from private concentration of capital, proceeding under the spur of invention in technology and in methods of finance and distribution within the permissive framework of our release-of-energy principle." Indeed, "[w]e were slow to see that in the context of postwar organizational and technical invention released market energy was spinning into gathering centers of growth which could destroy the market as an institution for dispersion of power." ¹⁰²
56

      For Hurst, just this rapid concentration and its destruction of the market had triggered the mobilization of "group power in behalf of individual status." He depicted a widening conflict—although, significantly, it was not open class conflict. "In 1896," Hurst wrote, "Republican campaigners depicted the fight against Bryan as a rally at the ballot box to suppress by political process the growth of farmer-labor-inspired class war; but after emotion sank, cooler judgment was that the fight had still been within the family." Again adopting the all-in-the-family trope, Hurst observed: "Interest group conflict in plenty marked statute books and judicial opinions. But hard pressed positions and the angry tones among the major interests continued to be those of dispute within the family of middle-class values which had set the dominant policy tone of our society from our constitution-making generation on." We are, it would seem, in the world of Louis Hartz's The Liberal Tradition in America. Indeed, Hurst went so far as to state that a "good deal of flamboyant talk of 'class' conflict colored the oratory of farm revolt in the nineties. But the morale of agrarian politics really rested on the continued Jeffersonian vision of a middle-class society of independent yeomen." ¹⁰³
57

      At this point, Hurst's narrative follows an odd logic to move from the traumatic change of the late nineteenth century to the establishment of a public utility law framework:
58

Probably the pace of change after 1870 did as much as anything else to brake the development of a broad and lasting consciousness of class division. Events so hurried us from one society into another that we were living in a new order, with our old frames of reference, before we began fully to realize what had happened. With the pragmatism so ingrained in our working habits, we then began piecemeal, to seek particular adjustments between our circumstances and our values—as in our trial-and-error development of a new body of public utility law. ¹⁰⁴

Indeed, there is little explanation in this passage—why would a dizzying pace of change induce a "pragmatic" response? Hurst did not adopt a "nevertheless," to the effect that, despite the dizzying pace of change, Americans nevertheless responded with an ingrained pragmatism. Rather, what we have here are elements of Hurst's cultural imagination; he turned to a cultural family portrait to provide the key to historical development.

      With the emergence of the public utility law concept, Hurst's account has arrived at the goal of applied intelligence in public policy. He made clear, several times in fact, that the application of intelligence to public policy was not fully planned. As we have seen, he had already referred to the "trial-and-error development of a new body of public utility law." Similarly, he had described our departing "from our past as we groped toward a concept of social cost accounting." And in his discussion of the increased "reliance on government fact collecting," he stated that "after 1860, in response to closer social interdependence, we groped toward continuous, management functions of law which inevitably gave data collection and analysis such central importance as they never before enjoyed." But with all this seeming indirection, Hurst's narrative is not fundamentally one of the haphazard and the accidental. Rather, the tale seems clearly to be an unfolding, perhaps complicated and multilayered in character, but an unfolding nevertheless. Hurst says as much himself in the final paragraph of Law and the Conditions of Freedom: "Most significant lines of policy direction in the last quarter of the nineteenth century were only implicit in our legal history." ¹⁰⁵ In fact, there is an essential aspect to his American story that leads one through a tortuous path to progressive government and the "Wisconsin idea" of research-informed policy. ¹⁰⁶
59

      In the closing sentences of Law and the Conditions of Freedom, Hurst wrote:
60

Moreover, to pursue effectively the policy of enlarging men's options required that we learn better how to deal with increasingly powerful, limited-objective pressure groups and how to generate support for critically important areas of environment control—such as the encouragement of basic research—toward which existing pressure groups were indifferent, if not hostile. Such challenges insistently demanded of us more deliberate and self-conscious policy making than had characterized the nineteenth-century record. ¹⁰⁷

This passage is particularly illuminating because, having already mentioned the "unsettlement of two World Wars and the rise of the Russian challenge," we are not only clearly in the present but the challenges Hurst described "demanded" rather than "demands" a reaction from us. Hurst's use of the past tense here settles the question that the challenge was in the past. In this, Hurst's narrative is far more optimistic than Dewey's The Public and Its Problems, which ends by stating that, despite our lying in the "lap of an immense intelligence" as Emerson would have it, "that intelligence is dormant and its communications are broken, inarticulate and faint until it possesses the local community as its medium." ¹⁰⁸

      In his concluding sentences, Hurst not only sounded an optimistic note about the emergence of a "more deliberate and self-conscious policy making," but he also announced that the American public was learning to "deal with increasingly powerful, limited-objective pressure groups." This ability to deal with immensely powerful pressure groups was a significant postwar concern. Indeed, "pressure groups" was a common term of art in postwar writing and was very much part of the vocabulary of the book Stuart Chase wrote for the Twentieth-Century Fund in 1945, Democracy Under Pressure: Special Interests vs. the Public Welfare with chapters on "The Why of Pressure Groups," "Pressure Groups in Business," and "Pressure from Farmers." Chase's book even posed the question: "Will Main Street be the victim of a dangerous and bitter battle between warring pressure groups? Will Big Business, Big Labor and Big Agriculture take up where the Germans and the Japanese left off?" ¹⁰⁹
61

      One of Chase's worries was the immense growth of corporate monopolies. After devoting a chapter to the question of whether monopolies were inevitable, Chase turned in his final chapter to explaining that the monopolies should be controlled. Basically, he wanted to send in the most fervent anti-Truster of the New Deal, Thurman Arnold. Chase was not alone. The end of the war renewed many questions about how well big business mixed with democracy. The question is apparent, for example, in the title of James Truslow Adams's Big Business in a Democracy. With these questions in the air, it is perhaps a key to Hurst's thoughts that the last two sections of his Wisconsin book list were entitled "The Balance of power" and "An administered society." Significantly, the book list included Peter Drucker's The Concept of a Corporation in which Drucker asserted that "in itself bigness which is required in the interest of economic efficiency under modern technological conditions, is not in conflict with the requirements of social stability and social functioning." ¹¹⁰ It included Kenneth Boulding's The Organization Revolution with its mild optimism about the corporation after the "organization revolution." And it included John Kenneth Galbraith's American Capitalism of 1952 with its development of the theory of "countervailing power" in which a "countervailing power" to a monopoly, including a monopoly on the other side of a market exchange or at other times the government, may act as a "curb on economic power." ¹¹¹
62

Conclusion—The Irony of American History

In his essay on The Growth of American Law, Aviam Soifer observes that the "book has a vivid undertone of understated jeremiad." ¹¹² Since the appearance of Sacvan Bercovitch's The American Jeremiad in 1978, it has become difficult to encounter references to this genre without thinking of Bercovitch's contention that the ritual of exhortation from Puritan New England pulpits was formative for the development of American culture. Consequently, Soifer's reference encourages one to consider the relation of the jeremiad of Bercovitch's study to Willard Hurst's historical narrative. Indeed, in The End of American History, David Noble has analyzed the historical visions of several figures important to Hurst—Frederick Jackson Turner, Charles Beard, Reinhold Niebuhr, and Richard Hofstadter—through the prism of Bercovitch's book augmented by findings from Pocock's The Machiavellian Moment. ¹¹³
63

      Noble reads the Progressive historians as essentially repeating the "rhetorical ritual of promise, declension, and prophecy" of Bercovitch's American jeremiad. They have adopted the "two worlds" exodus metaphor that points to the core American "promise" of "a virtuous republic" in opposition to a decadent Europe. For Noble, Turner had linked the virtuous republic of the American jeremiad with a freehold form of property holding that was already beginning to disappear with the Census of 1890. But Beard, completing the prophetic endgame of the American jeremiad, could—despite the declension he saw all around him—foresee the victory of a virtuous popular ethos, which he and Mary Beard would sketch in lyric prose in the various volumes of The Rise of American Civilization. Noble observes that the Beards' "narratives, written in the 1920s and 1930s, reported no real declension of the American community." Then in the 1940s and 1950s, the next historical generation "demythologized" the exodus metaphor with its promise of republican virtue. Reinhold Niebuhr's Christian realism, learning its pessimism from the confrontation with Nazism, was skeptical about any claim to unalloyed virtue. As Noble describes it, Niebuhr "dismissed the promise and the prophecy of the jeremiad as sheer fantasy." Indeed, according to Noble, Niebuhr felt that Americans "must accept the present as one of those provisional goods that humans are capable of constructing" rather than read it in the terms of the Progressive jeremiad. Turning to Hofstadter, Noble argues that in the 1950s "he had joined Niebuhr in rejecting the exodus metaphor.... Concepts of exceptionalism based on such dualisms and dichotomies had become as dangerous for him as they had earlier become for Niebuhr." Instead of the republican virtue of the secularized American jeremiad, historical narratives of the 1950s praised pragmatism, so that Hofstadter would make Franklin Roosevelt "the hero of The Age of Reform because he demonstrated pragmatic qualities." ¹¹⁴
64

      Does David Noble's analysis of Niebuhr, whom Hurst identified as an important influence, and Hofstadter, who earned three entries on the Wisconsin book list, help us to read Law and the Conditions of Freedom? In his interview with Hendrik Hartog, Hurst remarked that he had learned his sense of human limitation from Niebuhr. ¹¹⁵ But that is not to say that Hurst's narrative is stuck in declension. As mentioned earlier, the final chapter of Law and the Conditions of Freedom on "The Balance of Power" portrays a victory over "drift and default" in public policy. There may be something pedestrian to "government fact collecting" and its proponents may not be heroic. To this effect, Hurst quoted Felix Frankfurter's description of Florence Kelley, the first chief factory inspector of Illinois, as not a reformer who "seeks to rout evil by moral fervor" but as one who "realized that damning facts are more powerful in the long run than flaming rhetoric." ¹¹⁶ The final long paragraph of Law and the Conditions of Freedom begins with a rather soft "of course" that "[a]fter seventy-five years of living from day to day amid the surge of an opening continent, we did not suddenly after 1870 become a nation of social philosophers," but he signals a "nevertheless" in the ensuing sentences. There Hurst moves us into postwar concerns with his reference to "increasingly powerful, limited-objective pressure groups" and ends, as mentioned earlier, by stating that "[s]uch challenges insistently demanded of us more deliberate and self-conscious policy making than had characterized the nineteenth-century record." ¹¹⁷
65

      Although Hurst's final paragraph ends his book with the "demand" rather than the success of American policy making, that success is clearly implied. And in invoking "balance" in his chapter rather than redemptive language, Hurst struck the pragmatic note that Noble claims for Hofstadter and Niebuhr. Pragmatism itself may be mythologized, as Daniel Boorstin clearly did in The Genius of American Politics: "The marvelous success and vitality of our institutions is equaled by the amazing poverty and inarticulateness of our theorizing about politics.... If we can explain this paradox, we shall have a key to much that is characteristic—and much that is good—in our institutions." ¹¹⁸ But Hurst, despite his reverence for the pragmatism he described, wanted to keep the rhetoric modest. Indeed, his pragmatism embodied a muting of rhetoric. He wrote, for example, of the "trend toward a more matter-of-fact development of public policy." ¹¹⁹ For Hurst, there was no "genius" to American pragmatism; basically, the country backed into it as a result of the costs of the release-of-energy principle.
66

      That does not mean, however, that Law and the Conditions of Freedom was without mythological overlay. I have described Hurst's homogenization of the American experience in his omnipresent "we's" and "our's." He could, for example, talk about "machinery [beginning] enormously to multiply the hazards of work and life" ¹²⁰ without using class terms. For Hurst, the fight was always "within the family" of a middle-class culture. He had clearly imbibed the middle-class mythology. As Hurst was quick to tell us, that mythology was not entirely hagiographical—just as Niebuhr was hardly hagiographical when he asserted in The Irony of American History that "[s]ince America developed as a bourgeois society, with only remnants of the older feudal culture to inform its ethos, it naturally inclined toward the bourgeois ideology which neglects the factor of power in the human community and equates interest with rationality." ¹²¹
67

      It is here, though, that I think the functionalism learned from anthropology and sociology had its impact. As much as Ruth Benedict and Margaret Mead's definition of culture was part of the "science" of Willard Hurst and other mid-century American scholars, it was also part of their mythologizing. The "myth and symbol" school of literary criticism, perhaps trained more on Suzanne Langer and Ernst Cassirer than Ruth Benedict and Margaret Mead, identified the mythological in American culture. But every demystifying identification of myth, such as that of the garden in Henry Nash Smith's Virgin Land, also embodied the creation of a new myth, one that the unveiled myth filtered through American culture. It is in this sense that the various unveiled myths of Law and the Conditions of Freedom, such as the pervasiveness of the release of energy, form a part of Hurst's mythology of American culture.
68

      In his treatment of Niebuhr and Hofstadter, David Noble makes much of their collapsing of the Progressive polarity of capitalism and democracy. From the start, the American jeremiad had set republican virtue apart from capitalism, and both Turner and Beard had followed suit. But, according to David Noble, the consensus historians of the 1940s and 1950s asserted that Beard and the other Progressive historians "had constructed a world of illusion that obscured the essential homogeneity of American culture in which democratic and capitalist values were complementary." ¹²² By comparison to Noble's image of the 1950s historical imagination, Hurst shows little interest in fusing capitalism and democracy. Rather, it is—following Polanyi's lead—the very damage caused by the market-oriented legal regime that urged American society to adopt a "more deliberate and self-conscious policy making." Perhaps this suggests that Hurst does not, as Soifer argues, easily fit the mold of the complacent consensus historian. But that mold is of modest use. Far more interesting are the traits that bridge the definitional gap and suggest continuities and similarities.
69

       David Noble may have overplayed his hand in contrasting the Progressive historians' submergence in the American jeremiad with the Counter-Progressive historians' emergence from that tradition, but he was quite right to identify the significance of irony in the thought of his 1950s scholars—"the younger historians who rejected the dominant Progressive school of 1940 were aware that they, unlike the Progressive historians, were using irony." ¹²³ In fact, irony became a routinized part of the 1950s academic landscape. The New Critics, for example, were enthralled by the irony they found in the seventeenth-century metaphysical poets. Art Berman has suggested that "[t]he critical terms 'paradox' and 'irony' achieved such prominent status in the critical lexicon of American writers on poetry in the 1950s and even into the 1960s that much explication of the time may seem, looking back, the insertion of the same critical key into every poetical lock." ¹²⁴ The "irony" of Niebuhr's The Irony of American History was the disjuncture between "our semi-official ideology" and reality. Niebuhr explained that history "offers ironic refutation of some of our early hopes and present illusions about ourselves." ¹²⁵ His location of "ironic contrasts and contradictions" in American culture is, then, essentially an act of piercing through the mythologies of American culture—exactly what so many other American scholars were doing in the 1950s.
70

      In Law and the Conditions of Freedom, we find in Hurst's various acts of historical mythography an equivalent application of the ironic. The use, for example, of the collective to create room for the individual posed just such an irony. Behind all of the lyricism about the American individual lay the force of government. Hurst turns to the ironic mode throughout Law and the Conditions of Freedom, whether identifying the social conservatism behind the "flamboyant talk of 'class' conflict" of the farm movement of the 1890s or the marshaling of law by the squatters with whom he opens the book. ¹²⁶ As ironic as Hurst's American history was, however, he was not quick to talk in terms of irony. Probably, it seemed to him too associated with the language of philosophy and the humanities to fit his image of legal history as social science, for Hurst had a personal romanticism about the unromantic use of social science in policy development, his "more matter-of-fact development of public policy." The progress of Law and the Conditions of Freedom runs from release of energies to fact collection and fact analysis. One thinks of his own immense study of the lumber industry in Wisconsin and the fact that he viewed The Growth of American Law as prefacing the lumber study. ¹²⁷
71

      We know, of course, that Hurst's list of books for the lawyer's bookshelf represents also a list of books for Hurst's own book shelf, that is, the legal historian's bookshelf. Essentially, the "Wisconsin idea," the notion that social science should inform public policy, is embodied both in the book list and the final chapter of Law and the Conditions of Freedom. If Willard Hurst chose a career as a legal historian rather than become one of the New Deal lawyers, whether in the Securities and Exchange Commission or the Antitrust Division of the Justice Department, as had so many other students of Felix Frankfurter, it was because he saw them as part of the same project. If Law and the Conditions of Freedom is, as I have described, a prehistory of New Deal liberalism, Hurst may well have seen himself as practicing New Deal liberalism as a historian and social scientist.
72

Carl Landauer is Vice President and Associate General Counsel for Charles Schwab & Co., Inc. and has taught history at Yale, Stanford, and McGill Universities. For their readings and other contributions to this article, the author would like to thank Federico Cheever, Daniel Ernst, Thomas J. Ferraro, Robert Gordon, Sarah Gordon, David Hollinger, James Kloppenberg, Susan Landauer, Harry Scheiber, and Chris Tomlins.

Notes

      1. James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1986; originally 1956).

      2. "I was talking with Bob Gordon recently about how we each came to be a legal historian. Oddly, he and I had exactly the same beginning point, which was reading Law and the Conditions of Freedom." Hendrik Hartog, "Snakes in Ireland: A Conversation with Willard Hurst," Law and History Review 12 (1994): 370-71.

      3. Robert W. Gordon, "Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography," Law and Society Review 10 (1975): 48.

      4. Hartog, "Snakes in Ireland," 372.

      5. Lloyd K. Garrison and Willard Hurst, eds., Law in Society (Madison: College Typing Company, 1941).

      6. Hartog, "Snakes in Ireland," 385.

      7. On Legal Realism and social science, see John Henry Schlegel, American Legal Realism and Empirical Social Science (Chapel Hill: University of North Carolina Press, 1995).

      8. Aviam Soifer, "In Retrospect: Willard Hurst, Consensus History, and The Growth of American Law," Reviews in American History 20 (1992): 125.

      9. Hartog, "Snakes in Ireland," 388.

      10. Particularly striking is a passage in the acknowledgments from C. Vann Woodward's Reunion and Reaction: "In looking back over the citations, however, I was struck by the omission of one name—that of the late Charles A. Beard. It was, perhaps, an unconscious tribute that it did not seem necessary to mention him as the originator of the concept of the Civil War and Reconstruction, as a revolution—the Second American Revolution, as he and Mary R. Beard called it." And later in that opening paragraph Vann Woodward goes on to express his "hope that American historians will never permit honest differences of opinion over foreign policy to withhold from the late dean of the craft the honor that is justly due him." C. Vann Woodward, Reunion and Reaction: The Compromise of 1877 and the End of Reconstruction (Garden City, N.Y.: Doubleday Anchor, 1956; originally 1951), v.

      11. Gordon, "Introduction," 18.

      12. Daniel Ernst showed me the book list, which he had found among the Felix Frankfurter Papers (10 May 1956, Library of Congress, reel 42). Part of the fascination of Frankfurter's copy is that he has checked off the books he had read on Hurst's list (Tocqueville's Democracy in America received three checks, presumably because Frankfurter had read it three times).

      13. See, e.g., Hartog, "Snakes in Ireland," 375, 376, and 389.

      14. Ibid., 376.

      15. Alan Brinkley, The End of Reform: New Deal Liberalism in Recession and War (New York: Knopf, 1995). See, e.g., Michael A. Bernstein, "Why the Great Depression Was Great: Toward a New Understanding of the Interwar Economic Crisis in the United States," in The Rise and Fall of the New Deal Order, 1930-1980, eds. Gary Gerstle and Steve Fraser (Princeton: Princeton University Press, 1989), 32-54.

      16. Richard Hofstadter, The Age of Reform from Bryan to F.D.R. (New York: Vintage, 1955), 21 ("hatred"), 302 ("new departure").

      17. Hurst, Law and the Conditions of Freedom, 108.

      18. Richard Hofstadter, The Progressive Historians: Turner, Beard, Parrington (New York: Vintage, 1970; originally 1968).

      19. Gordon, "Introduction," 49.

      20. On the Progressive/consensus polarity, see, e.g., Marian J. Morton, The Terrors of Ideological Politics: Liberal Historians in a Conservative Mood (Cleveland: Press of Case Western Reserve University, 1972).

      21. Hurst, Law and the Conditions of Freedom, 3.

      22. "On a winter day in the 1850's, according to a tradition of the West, a party of mountain men, fleeing a band of hostile Sioux, sought refuge in an isolated canyon whose entrance was concealed by a growth of cedar. To their astonishment they saw in a clearing beneath a cliff a starving horse, facing a numbing wind. One of the party recognized the mustang as Nez Perce, the mount of the lonely trapper, Bill Williams. Not far away they found the body of the old hunter, reclining against a tree, the feet stretched toward some charred pine logs half buried in snow. Bill Williams had died, as he had lived, alone." Ralph Henry Gabriel, The Course of American Democratic Thought (New York: Ronald Press Company, 1956; originally 1940), 3.

      23. Hurst, Law and the Conditions of Freedom, 3-5.

      24. Ibid., 5.

      25. Ibid., 5-6.

      26. Soifer, "In Retrospect," 136-37.

      27. Ruth Benedict, Patterns of Culture (Boston: Houghton, Mifflin, 1989; originally 1934), 46. Benedict is herself quite clear that different cultures have different levels of "integration" and that indeed contemporary Western civilization may be too diverse and complicated to be integrated. In fact, in Western civilization, Benedict suggests that units within the civilization may be integrated cultures. Western civilization, she tells us, "is stratified, and different social groups of the same time and place live by quite different standards and are actuated by different motivations." Ibid., 230.

      28. Of course, the anthropologists and psychoanalysts cross-referenced each other directly so that they were creating a psychological anthropology. Mead's work on childhood and adolescence may be the most obvious example—but, finally, the psychoanalysts and the anthropologists were working out a notion of character that could define an individual in society and consequently help to define the society.

      29. Hurst, Law and the Conditions of Freedom, 7.

      30. Arthur E. Sutherland, review of Law and the Conditions of Freedom in The American Political Science Review 51 (Sept. 1954): 832.

      31. Louis Hartz, Economic Policy and Democratic Thought: Pennsylvania, 1776-1860 (Cambridge, Mass.: Harvard University Press, 1948) and Oscar Handlin and Mary Flug Handlin, Commonwealth; A Study of the Role of Government in the American Economy: Massachusetts, 1774-1861 (Cambridge, Mass.: Harvard University Press, 1947).

      32. Hurst, Law and the Conditions of Freedom, 6 (emphasis added).

      33. In his 1994 interview with Hartog, Hurst states: "What bothers the CLS line of thinking is that they don't find in a lumber book treatment of the history of oppression (I mean consciously delivered oppression). Here's where the idea of consensus comes into the picture. I think there was little history of oppression to tell because the shared values of the society were such that you didn't have any focal points about which organized activity could arise to express the interests of the oppressed." Hartog, "Snakes in Ireland," 387.

      34. It may not be an easy task to integrate slavery into the narrative of American regulation and the economy outside the South. Slavery was clearly off-stage in William Novak's recent important study of "law and regulation in nineteenth-century America." William J. Novak, The People's Welfare: Law and Regulation in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1996). Indeed, Louis Hartz's attempt to see the South in the same Lockean terms as the rest of the U.S. rings a bit hollow. Louis Hartz, The Liberal Tradition in America (San Diego, New York, London: Harcourt, Brace, Jovanovich, 1991; originally 1955). But to the extent slavery is not an integral part of the narrative, it is important to be quite explicit about its absence and clear about why it represents a story apart. In this context, it is interesting to read the first sentence of C. Vann Woodward's Reunion and Reaction (which appeared both in Hurst's endnotes and on his book list): "There was a time, so long ago that it has been forgotten, when the South represented no distinctive departure from the general pattern of American politics." C. Vann Woodward, Reunion and Reaction, xi.

      35. Hurst, Law and the Conditions of Freedom, 25.

      36. "Consensus history" was first used in a critique by John Higham, "The Cult of the American Consensus: Homogenizing American History," Commentary 27 (Feb. 1959): 93-100. Marian J. Morton, The Terrors of Ideological Politics, and Richard H. Pells, The Liberal Mind in a Conservative Age: American Intellectuals in the 1940s and 1950s (New York: Harper and Row, 1985), provide useful analyses of consensus historians, but finally exaggerate the uniformity among them and the differences between them and their nonconsensus counterparts.

      37. Hofstadter, Progressive Historians, 445.

      38. Merle Curti, The Growth of American Thought (New York and London: Harper and Brothers, 1943), 752.

      39. Lionel Trilling, "Reality in America," The Liberal Imagination: Essays on Literature and Society (New York: Charles Scribner's Sons, 1976; originally 1950), 9.

      40. Handlin opens his Introduction by stating: "Once I thought to write a history of the immigrants in America. Then I discovered that the immigrants were American history." The Uprooted: The Epic Story of the Great Migrations That Made the American People (New York: Grosset and Dunlap, 1951), 3.

      41. Soifer, "In Retrospect," 137.

      42. Seymour Martin Lipset, The First New Nation: The United States in Historical and Comparative Perspective (Garden City, N.Y.: Doubleday, 1967; originally 1963), 1.

      43. For an identification of Hurst as a Progressive historian, see, e.g., Gordon, "Introduction," 19, and for an identification of Hurst as a consensus historian, see, e.g., Mark Tushnet, "Lumber and the Legal Process," Wisconsin Law Review 1972: 114, 115. Sacvan Bercovitch's studies of the 1970s may represent one of the last gasps of the attempt to locate America's defining imagery and values. One can see the transition between the title of Bercovitch's 1975 book, The Puritan Origins of the American Self, and Jeffrey Steele's study published twelve years later, The Representation of the Self in the American Renaissance.

      44. Harry Scheiber makes Hurst's aim quite clear when he analyzes the variables that for Hurst shaped the policy-making function of law: "Of overarching importance is the Volksgeist of the nineteenth century." Harry N. Scheiber, "At the Borderland of Law and Economic History: The Contributions of Willard Hurst," American Historical Review 75 (Feb. 1970): 746.

      45. See, e.g., Richard N. Current, "Willard Hurst as a Wisconsin Historian," Wisconsin Law Review 1980: 1215.

      46. Also significant in this context are the several entries from the Encyclopaedia of the Social Sciences—unquestionably a progressive project of the 1930s—that appear in Hurst's notes.

      47. Mark Tushnet, "Lumber and the Legal Process," 114, 129-30.

      48. Hurst, Law and the Conditions of Freedom, 39.

      49. Handlin and Handlin, Commonwealth, ix-x.

      50. Harry N. Scheiber, "Government and the Economy: Studies of the 'Commonwealth' Policy in Nineteenth-Century America," Journal of Interdisciplinary History 3 (1972): 146-47. See this article generally on the so-called "Commonwealth studies."

      51. Paul T. Homan, "Economics, The Institutional School," Encyclopaedia of the Social Sciences, vols. 5 and 6 (New York: Macmillan Company, 1949; originally 1931), 388.

      52. I am grateful to Robert Gordon for introducing me to Hurst's commitment to institutional economics.

      53. Hurst, Law and the Conditions of Freedom, 109, n. 2.

      54. David Potter, People of Plenty (Chicago and London: University of Chicago Press, 1965; originally 1954), 48.

      55. One thinks, by comparison, of Merle Curti's dedication of The Growth of American Thought to Turner.

      56. Soifer, "In Retrospect," 133.

      57. Stanley Elkins and Eric McKitrick, "A Meaning for Turner's Frontier," Political Science Quarterly 69, no. 3 (Sept. 1954): 324, 321.

      58. Gabriel, The Course of American Democratic Thought, 4.

      59. Benjamin F. Wright, Jr., "Political Institutions and the Frontier," Sources of Culture in the Middle West, ed. Dixon Ryan Fox (1934), reprinted in The Turner Thesis: Concerning the Role of the Frontier in American History, ed. George Rogers Taylor (Lexington, Mass.: D. C. Heath and Company, 1972; originally 1949), 64. It is interesting to note in this context that Wright was Louis Hartz's teacher at Harvard and provided a foreword to Hartz's study of Pennsylvania state regulation.

      60. Hurst, Law and the Conditions of Freedom, 7 ("We came from"), 34-35 ("challenge of physical fact"), 35 ("evidences").

      61. A very important part of Wright's story of legal dissemination was played by Blackstone's Commentaries, which "became the bible of American lawyers." "Backwoods lawyers," Wright told us, "with only Blackstone's Commentaries and a set of their own state's published statutes felt equipped to argue cases and set forth learned opinions on jurisprudence." Louis B. Wright, Culture on the Moving Frontier (New York: Harper and Row, 1961; originally 1955), 206-7. Daniel Boorstin opened the preface to the paperback edition of his study of Blackstone by declaring: "In the history of American institutions, no other book—except the Bible—has played so great a role as Blackstone's Commentaries on the Laws of England." Daniel J. Boorstin, The Mysterious Science of the Law (Boston: Beacon Press, 1958; originally 1941), n.p. By comparison, Hurst's single mention of Blackstone in Law and the Conditions of Freedom is a contrast made in a footnote between Blackstone's short treatment of contract and the extensive treatment of contract by American commentators. Hurst, Law and the Conditions of Freedom, 111, n. 17.

      62. Walter Prescott Webb, The Great Plains (Lincoln: University of Nebraska Press, 1981; originally 1931), 387.

      63. Hurst, Law and the Conditions of Freedom, 7 ("Our prime"), 34 ("Our place"), 35-36 ("It was of definitive").

      64. Louis M. Hacker, The Triumph of Capitalism: The Development of Forces in American History to the End of the Nineteenth Century (New York: Columbia University Press, 1946), 16 ("our American"), 26 ("From the start"), 48-49 ("the Protestant Reformation").

      65. Hurst would seem to come down on Tawney's side of his debate with Weber over The Protestant Ethic and the Spirit of Capitalism. See R. H. Tawney, Religion and the Rise of Capitalism: A Historical Study (Gloucester, Mass.: Peter Smith, 1962; originally 1926).

      66. Miller's 1952 address of that title became the title essay for Perry Miller, Errand into the Wilderness (New York: Harper and Row, 1964; originally 1956).

      67. Hurst, Law and the Conditions of Freedom, 37 ("Security"), 38 ("in the background").

      68. Although Matthiessen announced his effort to move away from Parrington's "elucidation of our liberal tradition," he described the five protagonists of The American Renaissance—Emerson, Hawthorne, Thoreau, Whitman, and Melville—as writing "literature for democracy." F. O. Matthiessen, The American Renaissance: Art and Expression in the Age of Emerson and Whitman (London, Oxford, New York: Oxford University Press, 1968; originally 1941), ix, xv.

      69. Indicative of the turn to the American Renaissance for their precedential reformism was Arthur M. Schlesinger's The American as Reformer (Cambridge, Mass.: Harvard University Press, 1950), which not only takes its title from Emerson but begins each of its three lectures with a quotation from Emerson. Even Dewey had to end one of the chapters of The Public and Its Problems (Athens: Ohio University Press, 1988; originally 1927) by turning to Whitman: "Democracy will come into its own, for democracy is a name for life of free and enriching communion. It had its seer in Walt Whitman. It will have its consummation when free social inquiry is indissolubly wedded to the art of full and moving communication" (184).

      70. In his book on culture on the frontier, Louis Wright specifically addresses the impact of John Locke on the frontier. After talking about Blackstone's Commentaries making their way to the frontier, Wright discussed John Locke's frontier impact: "Formal ideas on political theory came from many sources but none was more influential than the second of John Locke's Two Treatises of Government. ... County editors and prairie politicians might refer to Locke as to an oracle." Wright, Culture on the Moving Frontier, 207.

      71. Louis Hartz, The Liberal Tradition in America: An Interpretation of American Political Thought Since the Revolution (San Diego, New York, London: Harcourt Brace and Company, 1991; originally 1955), 6.

      72. Dan Ernst has suggested to me a possible connection to the legal realist critique of the Lockean man, which may have played a part in Hurst's avoidance of Locke, but I think this avoidance was more fundamentally based in a methodological estimation of the relative importance of more purely intellectual force over against social and economic forces.

      73. Hurst, Law and the Conditions of Freedom, 37.

      74. Ibid., 16 ("appear increasingly"), 17 ("that the public interest"), 30 ("controversies"), 50 ("the record").

      75. Ibid., 36.

      76. Abram Kardiner et al., The Psychological Frontiers of Society (New York: Columbia University Press, 1945), 414.

      77. Hurst, Law and the Conditions of Freedom, 20 ("a market-oriented"), 8 ("Nineteenth-century").

      78. Ibid., 12 ("For a time"), 13 ("This was"), 70 ("equated"), 11 ("it does not").

      79. From an interview with Hurst, Soifer reports that "Hurst also says he was greatly influenced by Karl Polanyi's The Great Transformation." Soifer, "In Retrospect," 141, n. 12.

      80. Karl Polanyi, The Great Transformation: The Political and Economic Origins of Our Time (Boston: Beacon Press, 1956; originally 1944), 3 ("Nineteenth-century"), 43 ("implies"), 43 ("propensity"), 57 ("naively imagined").

      81. Ibid., 140 ("[t]he road"), 133 ("trading classes"), 216 ("so violent"), 3-4 ("The idea").

      82. This likely relates to Hurst's telling his narrative predominantly in the first person plural. Although his critical voice, to which I will return, showed that his field of vision was much greater than his subjects, he started with their view, or rather "our" view, and never entirely left it.

      83. Hurst, Law and the Conditions of Freedom, 67 ("[t]he development"), 108 ("Such challenges").

      84. Polanyi, The Great Transformation, 133.

      85. Hurst, Law and the Conditions of Freedom, 90 ("The Commercial"), 96 ("[m]uch"), 90 ("We were").

      86. Henry M. Hart, Jr., and Albert M. Sacks, The Legal Process: Basic Problems in the Making and Application of Law (Westbury, N.Y.: Foundation Press, 1994) provides a particularly good example of the importance of the dispersion of power. See Eskridge and Frickey's discussion of "a government of dispersed power." William N. Eskridge, Jr., and Philip P. Frickey, "An Historical and Critical Introduction to The Legal Process," Ibid., xciv.

      87. Harry Scheiber, "At the Borderland of Law and Economic History," 751.

      88. Gordon discusses Hurst in the context of pragmatism, primarily Dewey's The Public and Its Problems (1927), in Robert Gordon, "Introduction," 45-48.

      89. John Dewey, Liberalism and Social Action (New York: G. Putnam's Sons, 1963; originally 1935), 35 ("release"), 55 ("freed intelligence").

      90. Gordon, "Introduction," 45.

      91. James Willard Hurst, "Drift and Direction," Law and Social Process in United States History (Ann Arbor: University of Michigan Law School, 1960).

      92. Dewey, The Public and Its Problems, 170.

      93. Dewey, Liberalism and Social Action, 57. See also his reference to "drift and casual improvisation." Ibid., 51.

      94. Dewey, The Public and Its Problems, 116 ("lost"), 135 ("caught"), 116 ("bewildered"), 131 ("caught in").

      95. Dewey acknowledges his indebtedness to Lippmann's Phantom Public (1925) and Public Opinion (1922) in a footnote to The Public and Its Problems, 116-17.

      96. Alan Ryan in a recent study of Dewey writes that "[t]he difficulty for readers of The Public and Its Problems, the book Dewey published in 1927, after two brief squarings of accounts with Lippmann in short reviews of [Public Opinion and The Phantom Public], is that Dewey accepted most of Lippmann's complaints against the existing order of things." Alan Ryan, John Dewey and the High Tide of American Liberalism (New York, London: Norton, 1997; originally 1995), 217.

      97. Hurst, Law and the Conditions of Freedom, 75 ("two elements"), 80 ("drift and default"), 52 ("an unpatterned"), 78 ("default and drift").

      98. Ibid., 62 ("bustling concern"), 67 ("impatient confidence"), 67 ("[w]e were unwilling").

      99. Ibid., 67 ("mortgaged"), 70 ("farmers burned"), 66 ("This bustling"), 52 ("dangerously retarding").

      100. Sidney Fine, Laissez Faire and the General-Welfare State: A Study of Conflict in American Thought (Ann Arbor: University of Michigan Press, 1956).

      101. Hurst, Law and the Conditions of Freedom, 84 ("[t]he challenge"), 85 ("deriving from"), 85 ("pervasive unease"), 86 ("resort to association"), 86 ("positively to mobilize").

      102. Ibid., 78 ("concentrated unprecedented"), 78 ("there is little"), 90 ("What was new"), 90 ("[w]e were slow").

      103. Ibid., 87 ("In 1896"), 94 ("Interest group conflict"), 95 ("good deal").

      104. Ibid., 95.

      105. Ibid., 96 ("from our past"), 106 ("reliance on government"), 107 ("Most significant").

      106. On the importance to Hurst of the "Wisconsin idea" of policy directed by social science research, see Gordon, "Introduction," 49.

      107. Hurst, Law and the Conditions of Freedom, 107-8.

      108. Dewey, The Public and Its Problems, 219.

      109. Stuart Chase, Democracy Under Pressure: Special Interests vs. the Public Welfare (New York: The Twentieth Century Fund, 1945), 1-2.

      110. Peter Drucker, The Concept of a Corporation (New Brunswick, London: Transaction Publishers, 1993; originally 1946), 229.

      111. John Kenneth Galbraith, American Capitalism: The Concept of Countervailing Power (Cambridge, Mass.: Houghton Mifflin, 1956; originally 1952), 113.

      112. Soifer, "In Retrospect," 126.

      113. David W. Noble, The End of American History: Democracy, Capitalism, and the Metaphor of the Two Worlds in Anglo-American Historical Writing, 1880-1980 (Minneapolis: University of Minnesota Press, 1989; originally 1985).

      114. Noble, The End of American History, 5 ("rhetorical ritual"), 6 ("promise of virtuous"), 57 ("narratives written"), 83 ("dismissed the promise"), 86 ("must accept"), 98 ("he had joined"), 99 ("the hero").

      115. Hartog, "Snakes in Ireland," 375.

      116. Felix Frankfurter, Foreword to Josephine Goldmark, Impatient Crusader (Urbana: University of Illinois Press, 1953), vii, quoted in Hurst, Law and the Conditions of Freedom, 106-7.

      117. Hurst, Law and the Conditions of Freedom, 107 ("[a]fter seventy-five years"), 107-8 ("[s]uch challenges").

      118. Daniel J. Boorstin, The Genius of American Politics (Chicago: University of Chicago Press, 1959, originally 1953), 8.

      119. Hurst, Law and the Conditions of Freedom, 103.

      120. Ibid., 105.

      121. Reinhold Niebuhr, The Irony of American History (New York: Charles Scribner's Sons, 1952), 33. As an example, Noble uses Marvin Meyer's The Jacksonian Persuasion, which found that "although the Jacksonians spoke as anticapitalists, they behaved as capitalists." Noble, The End of American History, 9.

      122. Noble, The End of American History, 8.

      123. Ibid., 9.

      124. Art Berman, From the New Criticism to Deconstruction: The Reception of Structuralism and Post-Structuralism (Urbana: University of Illinois Press, 1988), 52.

      125. Niebuhr, Irony of American History, 11.

      126. Hurst, Law and the Conditions of Freedom, 95.

      127. Hartog, "Snakes in Ireland," 380. The genre of the case study was important to Hurst. As an example, one finds on his Wisconsin book list Alvin Gouldner's study of bureaucracy in a single gypsum plant. Alvin W. Gouldner, Patterns of Industrial Bureaucracy: A Case Study of Modern Factory Administration (New York: The Free Press, 1964; originally 1954).

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