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 p