WILLIAM J. NOVAK

Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst

The knowledge to which his life is consecrated is of things which it concerns the world to know.

—Oliver Wendell Holmes, Jr.

Two legacies vie to take the measure of the work of Willard Hurst. The first understands Hurst primarily in his formal role as the "founding father" of an academic sub-specialty known as "American legal history"—the author of a canonical text Law and the Conditions of Freedom, and the coiner of interpretive phrases like "legal instrumentalism" and "the release of energy" that established the boundaries of disciplinary debate for two generations of acolytes and dissenters. The second legacy flows from the substantive range of Hurst's research and writing as a whole—the depth and breadth of an intellectual project that tears at and transcends the very disciplinary borders being constructed by his texts and phrases. ¹ In this essay, I will ignore the first perspective, which tends to dominate hagiographic and commemorative commentaries. But I will take the second very seriously, that is, the notion that there is something substantively unique and lasting in the scale and scope of Hurst's work, in his capacious and self-reflexive conception of his project and his field of inquiry. In this essay, I will talk about Hurst's work as "historical sociology," not "American legal history." Historical sociology offers a fresh context against which to measure Hurst's largest intellectual contributions while simultaneously freeing the substance of his writings from the disciplinary canonization that so often inhibits new perspectives and future research and writing. ²
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      What is historical sociology? The combination of a historical concern for the broad compass of time together with a sociological ambition to understand the vast complexity of society as a whole exudes a certain "bigness." And indeed Theda Skocpol identifies historical sociologists in the first instance by their ability "to ask bigger questions than most social scientists ever dream of posing." Historical sociology has as its lofty objective nothing less than the holistic understanding of the interrelationship of individual action, large-scale social structures, and fundamental processes of historical change. ³ It attempts to encompass both past and present, events and processes, action and structure, and the individual and the collective via a method that merges conceptual development, comparative generalization, and in-depth empirical exploration. ⁴ Such full-scale, transdisciplinary attempts to grasp the totality of socio-historical change are not for the faint of heart as indicated by the short list of historical sociologists, old (Montesquieu, Tocqueville, Marx, Weber, Durkheim) and new (Marc Bloch, Barrington Moore, Karl Polanyi, E. P. Thompson, and Immanuel Wallerstein).
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      The work of Willard Hurst crosses the threshold of historical sociology. His questions and methods were certainly "big." Hurst worked and talked in books and long-term projects envisioned as written for subsequent generations. He often repeated Robert Lynd's probing question, "Knowledge for What?" as he attempted to move legal scholarship toward a broader conceptualization. Hurst attacked the "parochialism" of extant legal writing for its "inattentiveness to the study of large processes and end values." ⁵ "Want of philosophy" is the fundamental defect, he argued. "Legal research has moved within very limited borders, relative to its proper field, because it has not been grounded in ideas adequate to the intellectual challenge which the phenomena of legal order present." What were the ideas adequate to illuminate the "proper field" for legal inquiry? For Hurst they were history and sociology—"the living interplay of law and social growth." As he put it, "Only a broad concern with law's operational ties to other components of social order will lead to the contributions the study of legal history should make to an illuminating sociology of law." ⁶
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      This is the most appropriate context within which to weigh Hurst's intellectual achievement—not as the forebear of a band of American legal history specialists nor as the founder of a distinctive "school" of legal sociology—but as a broad-gauged socio-legal thinker of the first order, writing in the tradition of Tocqueville, Weber, Holmes, and Pound. ⁷ Hurst's project is less interesting for its contribution to local historiographical debates about formalism vs. instrumentalism, classicism vs. realism, consensus vs. conflict, continuity vs. change, or functionalism vs. critical legal theory ⁸ than for its broader synthesis—its total (theoretical, empirical, and normative) attempt to sketch the whole set of interrelationships between law and society. Hurst consciously strove to underwrite his work with a systematic and elaborate conceptual framework designed to link his close empirical investigations of nineteenth-century American law to perennial questions about the "general course of social experience." ⁹ This essay is a preliminary attempt to map and summarize that remarkably consistent Hurstian system.
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      At the center of Hurst's system was the particular study of American law and civilization and the changing roles of market and state from the nineteenth to the twentieth century, that is, the story of law, capitalism, and the American liberal state. But just as important were the more general analytical categories generated by Hurst's investigation of law and society highlighted throughout this article: sequence, context, structure, function, value, power, and drift. Hurst's work was a never-ending dialogue between the most particular and the most general—between facts and values—between the Wisconsin log-labor lien and social theory (between the trees and the forest). ¹⁰ As Oliver Wendell Holmes, Jr., once counseled, "All that life offers any man from which to start his thinking or striving is a fact.... Your business as thinkers is to make plainer the way from some thing to the whole of things; to show the rational connection between your fact and the frame of the universe." ¹¹ Many thinkers and scholars have assorted facts. Willard Hurst was one of the few to take the next step—to try to twist the tail of the cosmos.
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I. Hurst's Method: Sequence, Context, and Structural Complexity

Hurst's historical sociology was so extensive and multifaceted that to some extent it defies compression and concise summary. This article thus makes two formal concessions to the task at hand. First, for the most part, it is a sympathetic re-presentation of Hurst's intellectual project. It attempts to reconstruct those aspects of Hurst's synthesis most deserving renewed scholarly attention. In the notes and in the conclusion, I hint at some important criticisms (some very old, some quite recent) of Hurst's work; but this article is overwhelmingly a constructive re-engagement with rather than a critique of Hurst's historical sociology. Secondly, at the risk of pulling things apart that Hurst wove together, I have divided this reassessment into two parts. Part I is devoted to the underlying concepts of Hurst's historical-sociological method: sequence, context, structure, and complexity. These were the analytical foundations upon which Hurst erected his more elaborate legal histories. Part II then takes up the Hurstian legal-historical narrative itself—the story of modern American legal evolution from the early nineteenth through the early twentieth century. Once again, however, emphasis is placed on the generalized interpretive constructs with which Hurst told that story, most importantly: function, value, power, and drift.
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From Constitutional History to Historical Sociology

It is comforting to know that despite his prodigious intellectual skills, Willard Hurst could develop a historical sociology only with time and effort. Hurst's first serious research and writing effort was his collaboration with Felix Frankfurter on The Commerce Clause under Marshall, Taney, and Waite (1937). ¹² That volume was as traditional methodologically as its focus on constitutional doctrine and judicial personalities implies. Frankfurter and Hurst defended a simple concentration on chief judges and Supreme Court opinions: "The reduction of history to the efforts of a very few personalities is an expression of the ineradicable romantic element in man. We want to dramatize life, and also to simplify it." Scattered throughout their narrative were truisms about the relationship of history and law like Maitland's, "To-day we study the day before yesterday, in order that yesterday may not paralyse to-day, and to-day may not paralyse to-morrow." ¹³ When he arrived at Wisconsin, Hurst's first approach to the teaching of legal history followed a similar orientation. In 1939 and 1940 he taught "An Historical Inquiry into the Development of the Process of Judicial Review," a course that relied on classic cases (Marbury v. Madison, Gibbons v. Ogden, Fletcher v. Peck, Dartmouth College v. Woodward) and classic readings (the AALS's Selected Essays on Constitutional Law) to explore the formal origins of American constitutional doctrine: commerce clause, contract clause, judicial review, and due process. As Hurst noted simply in his opening lecture, the nature of this historical inquiry was "to explore the familiar ... to see and tell what happened." Special emphasis was placed on the usefulness of historical knowledge to get at courtroom "evaluation and prediction"—to explain "what motives may move judges." Hurst even spent time on the individual court reporters, Dallas, Cranch, Wheaton, Peters, Howard, Black, and Wallace, as if to bear out Frankfurter's observation about the "influence of personalities." ¹⁴
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      Hurst's future career was nothing if not an explicit repudiation of this doctrinal, constitutional, and biographical approach to legal history. One of the more interesting things about his own first work The Growth of American Law (1950), which he subtitled "The Law Makers," is that there were no people in it. ¹⁵ By 1960, Hurst's critique of a legal history made up of a "recital of Great Cases" was growing indignant: "I confess to some irritation that the writing of legal history tends to take the cream off the top of the bottle and let the nutritious skimmed stuff flow down the drain because it is bulky to handle and not so pleasing to taste." ¹⁶ He cited Oliver Wendell Holmes on the need to get at the harder questions of underlying causation, more general trends, and deeper social and historical processes: "I have no belief in panaceas and almost none in sudden ruin. I believe with Montesquieu that if the chance of a battle—I may add, the passage of a law—has ruined a state, there was a general cause at work that made the state ready to perish by a single battle or a law." ¹⁷ Hurst was moving, in other words, away from constitutional history toward historical sociology.
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      Later renderings of Willard Hurst's legal history course at Wisconsin reflected the attempt to get beyond the established interpretive frameworks of constitutional historiography—beyond Roscoe Pound's taught legal tradition, beyond Edward Corwin's neo-whiggish story of liberty and higher law, beyond Charles Beard's discovery of economic interest, and beyond Felix Frankfurter's preoccupation with public doctrine and legal personality. ¹⁸ Simple stories of doctrinal necessity, idealistic teleology, economic interestedness, or biographical efficacy no longer fully explained for Hurst. Like Talcott Parsons, he grasped for a more comprehensive sociological and historical schema that took account of the whole, that attempted to wrestle with human agency as well as structural restraints, public values as well as private interests, legal doctrine as well as nonlegal social forces, the market as well as the state, short-term events as well as long-term historical processes. ¹⁹ Socio-historical explanation was not a simple matter—it was fraught with an overwhelming complexity and the inherent tensions and dualisms that pervaded Hurst's more mature scholarship: Drift and Direction, Initiative and Response, Leverage and Support, Force and Fruition. ²⁰ As he frequently argued, "There can be no single point of view from which all United States legal history falls into a coherent sequence. Rather, the subject must be turned this way and that, to catch different but relevant aspects of a complex reality." ²¹
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      This complexity revolved especially around that fundamental conundrum at the heart of historical sociology: the relationship of human agency and social structure. Philip Abrams neatly summarized this constantly recurring, ever-evasive theme of social theory as:
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The problem of finding a way of accounting for human experience which recognizes simultaneously and in equal measure that history and society are made by constant and more or less purposeful individual action and that individual action, however purposeful, is made by history and society. How do we, as active subjects make a world of objects which then, as it were, become subjects making us their objects? It is the problem of individual and society, consciousness and being, action and structure.... It is easily and endlessly formulated but, it seems, stupifyingly difficult to resolve. People make their own history—but only under definite circumstances and conditions; we act through a world of rules which our action creates, breaks and renews—we are creatures of rules, the rules are our own creations: we make our own world—the world confronts us as an implacable and autonomous system of social facts. ²²

This problem—the relationship of the creative energies of active, self-conscious, independent individuals and the webs of associations, institutions, and processes that limited them—became Willard Hurst's problem. Captured best in that artful, tension-filled phrase "The Conditions of Freedom" that graced Hurst's most popular book, the coincidence of individual possibility and social limitation was the ground on which Hurst constructed his new legal history. ²³ He tried to grasp simultaneously growth and scarcity—human beings' seemingly infinite "capacity to make new meanings in social experience" amidst constant evidence of their ultimate finitude. ²⁴ Hurst realized that any adequate appreciation of the complicated, constantly changing relationship of agency and structure could only come about through a method both historical and sociological, diachronic and synchronic— a method that undertook to explain agency and structure in time as mutually interdependent (as a dialectical process) as well as in their complex relations with other phenomena. ²⁵ Hurst's historical sociology would require many definitional and analytical categories, but his first conceptual concern was the two categories he dubbed "sequence" and "context."

      Sequence (The Historical). Sequence represented Hurst's attempt to deal overtly with history and time in his analysis—"to define the dimensions of experience which the perspective of time reveals." As Hurst put the question: "What is 'the law,' the life of which we would study?" For one steeped in history, there existed "no timeless, placeless, essential legal order; on the record, law has been man-made, or at least has grown out of men's social experience." ²⁶ Building on the contributions of sociological jurisprudence and legal realism, Hurst demanded a thoroughgoing historicist approach to law as "a living" rather than a revealed or a natural order. ²⁷ The legal order was suffused with dimensions in time that determined "its character, impact, and direction." From the rather simple observation that "items in experience follow one another in a sequence," Hurst charted the way in which time influenced social experience by generating perceptions of change or continuity, tradition or revolution, stasis or accumulation. ²⁸ Hurst analogized sequence to length (compared to breadth for context) and offered up Oliver Wendell Holmes (compared to Louis Brandeis for context) as the legal scholar who in The Common Law best illustrated the force of time, the weight of history, the momentum of the past on law. ²⁹ Hurst opened his legal history course at Wisconsin with an annotated time line to drive home the point that the contemporary American legal system was a remarkably recent achievement shot through with the sequential influences of a 2500-year prehistory. ³⁰ That was why any comprehensive appraisal of the complex forces involved in the legal process had to entail a significant element of legal history.
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      Context (The Sociological). Context was Hurst's attempt to identify the notion that we not only experience situations or issues or events sequentially, linearly, and in time, but we also experience them concurrently as coexisting with different, interrelated situations, issues, or events. Context referred to the "whole event as it exist[ed] by the convergence of many factors." As Hurst summarized, "The content and energy which patterns of behavior and ideas, feelings, and events impart to men's lives are conditioned by the fact that these elements do not exist as isolated entities. They coexist and interact." Law could not be studied as an isolated and autonomous science precisely because of its multiple relations "to the life outside of and around and about the law." ³¹ That is what Hurst meant by "the need for a social history of law"—contextual history—a realistic legal history "pursuing law into whatever relations it has had to the whole course of the society." ³² The study of law not only had to be historical to account for the sequential pressures of 2500 years of previous development, it also had to be what Roscoe Pound called a sociological jurisprudence "which might put law into realistic context with other institutions." As Hurst commanded simply, "Significant legal research must relate to the society at large." ³³ Though Louis Brandeis best exemplified this kind of sociological, contextual legal research agenda for Hurst, Oliver Wendell Holmes contributed the clarion call for context when he argued, "To be master of any branch of knowledge, you must master those which lie next to it.... If your subject is law, the roads are plain to anthropology, the sciences of man, to political economy, the theory of legislation, ethics." ³⁴
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      Since Robert Gordon's pioneering historiographical articles, it has become common for legal historians to illustrate this point about studying law in context, law in society, through a simple diagram charting the interdependent relationship of the black box of law with the rest of socio-economic life. ³⁵ Willard Hurst's class notes contained just such a diagram (see Figure 1).
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Fig. 1. Hurst's class notes diagram.

      Hurst's box reflected his desire to understand law "not as a self-contained system but as a part of the life of its society." Law was a product of the larger social, economic, and political forces around it. True to form, Hurst subdivided those multiple forces into three different kinds of societal pressure: focused pressure (the balance of power among different centers of will and competing interests), functional pressure (the involvement of law in "the functional integrity and efficiency of certain social institutions and processes"), and inertia (unconscious drift, indifference, habit, custom, and ignorance). ³⁶
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      The most important thing to notice about Hurst's visual representation of the relationship of law and society was how little of what went into law was the product of conscious, intentional, or "focused" action (roughly 20 percent). As Hurst noted, "Our minds and energies are not equal to grasping the whole sequence or context of experience. The manifest evidence of our shortcomings is the extent to which grounds of public policy remain inarticulate at any given time." The great mass of the accumulated accretion of social experience weighing upon law at any given moment was overwhelmingly unconscious, unwilled, and unarticulated in Hurst's analysis—the product of inertia or unquestioned values or the hidden "structure and processes" of the underlying, half-defined "patterns of behavior we call institutions." ³⁷
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      This is where it becomes easy to misinterpret Hurst's ideas about consensus. When Hurst talked about shared values and institutions, he was not talking about the absence of conscious and willed contest and struggle—much to the contrary, conflicting interests and competing centers of power played crucial roles in his analysis. Rather, Hurst's point was that the whole realm of intentional wills or interests (whether in conflict or not) was but a small fraction of the overwhelming social pressure impacting on law that it was incumbent upon scholars to explain. Hurst was interested in the more substantial, if less explored, subterranean story of general causes—of the deeper, hidden functional, inertial, institutional, and environmental forces impinging upon law below the level of conscious intent or interest on the part of historical actors. There was no conflict over these forces, not because Americans were a particularly tolerant, nonideological people, but because no one actually realized such forces were operating. In Hurst's diagram, inertia and function account for almost 80 percent of the context of legal change. In his opinion, traditional constitutional historians focusing on judges and personalities and conscious economic interests were only accounting for 20 percent of the story of law's sequence and context.
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      Of course, formally defining or diagraming sequence and context was a much easier task than substantively accounting for their innumerable interrelationships in any given legal history. For that purpose, Hurst relied on another heuristic device (and one of my favorites), the list. In a manuscript on "Technology and the Law: The Automobile" (1949), Hurst conveyed some sense of the range and complexity of the sequential and contextual pressures on law by means of a marvelously thorough list of 119 "Derivative Effects of the Auto Upon the Law" including:
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4. Legal devices for private economic planning—contract, franchise, parent-subsidiary corporation relationships—became important for ordering an industry that draws together diverse sources of supply.

6. The industrial accident hazard is increased; workmen's compensation imposed by law, and contract systems of plant insurance and company health plans become important.

12. The demand for semi- or unskilled labor promoted more migration of labor, with attendant problems in community adjustment regarding schools, racial, religious, and rural-urban attitudes.

39. Conservation problems developed in connection with the oil industry.

50. It affected the extent and types of extra-legal sex relations through the privacy and mobility it afforded.

51. Autos themselves became prime objects of criminal activity: car thefts and traffic violations added up to impressive totals in the total bulk of offenses handled by law.

59. Health problems grew out of the readier means for carrying human disease about.

68. The hotel business, with new forms such as the tourist cabin grew, giving new importance to the law of innkeepers.

69. Discrimination on racial, national, or religious grounds, in serving the traveling public, became a greater problem.

75. A new unit of urban living—the metropolitan area—grew out of the new mobility, unmatched by older local government organization.

84. Mass use brought traffic problems—not only police regulation, but zoning, street and highway construction, and community planning.

88. Motor car uses provided a whole new field for government revenue, with accompanying growth in taxes, creation of administering authorities.

92. There was new interest in resort to law to preserve the natural beauty along the roads from invasion by roadside advertising and business.

102. Insurance regulation had to be extended to cover auto casualty insurance.

105. Accidents to persons and property growing out of the operation of autos grew to alarming proportions as the use of the motor car spread, and from this came a great diversity of demands upon law: licensing of drivers, testing of equipment, requirement of safe equipment (e.g., safety glass), stipulations for financial responsibility of drivers or owners, traffic regulation, adjustment of court structures and procedures to cope with the flood of litigation, the handling of out-of-court settlements (involving relations of lawyer and client, insured and insurer, injured party and insurance adjuster), development in legal doctrine regarding negligence, causation, joint tortfeasors, etc. ³⁸

As if this were not enough to demonstrate his point, Hurst went on to list 148 penal offenses growing out of the rise of the automobile in Illinois.

      Sequence and context were two essential categories to begin thinking about a historical sociology of American law. But as the detail of such lists suggest, the actual writing of a work of legal-historical sociology required more than abstract conceptualization. It depended upon exhaustive and wide-ranging substantive research. The prerequisite for such an empirical investigation of law was the basic identification and operation of what Hurst originally called in his own first book of legal history, "The Principal Agencies of Law in the United States." ³⁹
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Structure: The Principal Agencies of American Law

Through the ideas of sequence and context, Hurst attempted to outline a historical and sociological approach to the rule of law that would avoid the mistakes of earlier schools and methods. Law was not an Idea; it was not about the unfolding of a priori ultimates. "The reality is always finite and contingent," he noted, "even when it shows trend or pattern." Like Oliver Wendell Holmes, Hurst believed that the only kind of principles worth investigating "were existing notions of public policy." Law was also not an organism or a mechanism. Society and jurisprudence were not living bodies nor did they reflect "the inexorable and impersonal laws of social mechanics." Rather, the interaction of factors—the "contextual influences in legal history"—were "subject to contingencies of men's wills, minds, and emotions." ⁴⁰ Law was, and had to be studied as, a particular historical institution. That required a certain double vision in legal studies lacking in previous models. Legal scholarship needed to take account of law itself as an institution "with its own built-in inertias and its own interests derived from the momentum of its own operations" while simultaneously acknowledging the tight "interplay of law with other social institutions—market, family, private associations." ⁴¹
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      The intellectual sources of Hurst's historical, sociological, and institutional approach to law were many and diverse, and they have been treated at length in historiographical essays in this volume and elsewhere. ⁴² They included the sociological jurisprudence of Roscoe Pound and Eugen Ehrlich; ⁴³ the legal methodologies of Holmes and Brandeis; the social theory of Max Weber, Emile Durkheim, Talcott Parsons, and Robert Merton; ⁴⁴ and the legal realism that dominated the jurisprudential landscape when he "first came into this business in 1937." ⁴⁵ But his library was also full of somewhat odd books that seemed to influence the development of his own particular system. Hurst's copy of H. Stuart Hughes, Consciousness and Society, for example, contained an elaborate series of notes working out Hurst's ideas on Inertia, Process, and Values. ⁴⁶ From such diverse sources, Hurst fashioned an original perspective. Beyond sequence and context, its next two features were particularity and complexity.
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      Particularity. Given the central significance of sequence and context in Hurst's analysis, it was impossible to study or talk about "The Law" in general. Law could only be understood in a particular historical context. "To one who perceives the time dimensions of legal order," Hurst noted, "the question will always be one of studying a particular legal order, or comparing particular legal orders." ⁴⁷ In contrast to claims of universal elements in law, Hurst proposed the study of one specific legal order—that of the United States. Citing Alexis de Tocqueville, Hurst noted that the United States was a peculiarly legalistic society—a society in which law was deeply woven "into a wide range of living." Americans were "a law-minded, law-using people, whose affairs were touched by legal processes at many points." American legal history was thus a prime venue for a study of law's contextual relationship to society, as well as an alternative way to study the sequential and "general history of the country's character and development." ⁴⁸ But writing a particular history of law in the United States was no easy feat. The American legal system understood in sequence and context was an extremely complex social institution. Hurst's project simultaneously attempted to come to terms with two different kinds of institutional complexity: structural complexity and functional complexity.
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      Structural Complexity. Structural institutional complexity was the starting point for Hurst's own empirical research into the principal agencies of law in the United States, the project that became The Growth of American Law. Hurst envisioned Growth as something like an introductory text or, as he termed it, a work for "purely practical, journeyman's purposes." When Hurst began his own researches, he was appalled at the lack of basic information on the central institutions of American law. ⁴⁹ Growth was an attempt to survey in a single volume the different institutional structures that composed the American legal order: the legislature, the courts, constitutional conventions, the bar, and the executive. This was a first-order requirement of any legal history—a simple accounting of the independent institutional factors that structured legal decision making. It mattered profoundly whether an issue or dispute was taken up by a constitutional convention or a state assembly or a county court or an administrative agency. And all were law makers. Legal historians had to wrestle with the different implications of the different institutional pressures on law. That was the origin of one of Hurst's most often-repeated injunctions—that legal history must go well beyond a history of courts and judges and formal doctrine. ⁵⁰ For Hurst, the proper subject of legal history was coterminous with the whole history of governance, broadly construed—formal and informal, local and central, public and private, jural, legislative, and administrative. As Hurst put it best:
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In deciding what to include as "law" I do not find it profitable to distinguish "law" from "government" or from "policy." The heart of the matter is that we formed organizations for collective action characterized by their own distinctive bases of legitimacy.... In order to see law in its relations to society as a whole, one must appraise all formal and informal aspects of political organized power—observe the functions of all legal agencies (legislative, executive, administrative, or judicial) and take account of the interplay of such agencies with voters and nonvoters, lobbyists and interest groups, politicians and political parties. This definition overruns traditional boundaries dividing study of law from study of political history, political science, and sociology. ⁵¹

This structural institutional complexity of law as governmental practice was precisely why Hurst so prized his own legal history of the lumber industry in Wisconsin. It was the only example of a historical study that attempted to simultaneously investigate the interaction of all the relevant legal agencies (every piece of official paper) surrounding the changes in a given public policy over time.

      Functional Complexity. Though many have credited Hurst for his pioneering research into the institutional complexity of the modern American legal order, he has often been accused of oversimplifying another key element in his legal-historical sociology—the socio-economic functions of law in the United States. But in Hurst's system, even more significant than his regard for institutional complexity was his general acknowledgment of law's functional complexity. Indeed, it was precisely Hurst's emphasis upon law's complex functions in society over time that most separated his brand of legal history from its whiggish, constitutionalist, progressive, and institutionalist predecessors. Hurst's focus on the multiple roles of law in society was key to his historical sociology and the point at which his work gets most interesting. In contrast to interpretive critiques that reduced Hurst's conception of law's function to a simple economic instrumentalism or middle-class values consensus, Hurst explicitly and repeatedly recognized (and called for further research into) four broad and salient combinations of value and function that marked "the distinctive roles of law in United States history": violence/force, liberal constitutionalism, procedural rationality, and resource allocation. ⁵² Those four roles were the basis of Hurst's historical-sociological definition of law: "Law has meant organization for making and implementing choices among scarce sources of human satisfaction—organization marked (1) by successful assertion of a legitimate monopoly of violence, (2) by constitutionally ordered power, (3) by procedures which emphasize adherence to legitimated form and to continual cross-check of generals and particulars, and (4) by its regular use to allocate resources to affect conditions of life in society." ⁵³
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      One should not be deceived by the simplicity of Hurst's enumeration, for it was the cornerstone of a sophisticated sociology of law. The first thing to notice about this list is that, despite his reputation for emphasizing law's functional relationship to the economy and the market, Hurst began like Max Weber (and later Robert Cover) by headlining law's principal role as force and as official, monopolized violence in society. By this Hurst meant not only the direct legal powers of the state, but also the second-order "surveillance of all other forms of compulsion." To law was assigned the "ultimate scrutiny of the legitimacy of all forms of secular power developed within the society—that is, of all means by which some men may exercise power over the will of other men." Far from underplaying the role of force, coercion, or power in law, Hurst understood it as the first function. ⁵⁴ By way of contrast, resource allocation—law's role as the "principal means to affect allocations of manpower and material means among competing objects of use"—was its fourth function. Though much of Hurst's substantive research and writing was preoccupied with the role of law in "shaping the general course of economic development," that was not the only (indeed, perhaps not even the most significant) function of law in society. ⁵⁵ Though the rest of this article will again privilege Hurst's understanding of law's relationship to capitalism and the market economy, Hurst's own legal-sociological conceptualization highlighted other concerns, including liberal values and procedural rationality.
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      That is the second important thing to notice about this list of law's roles in society—the degree to which Hurst's understanding of function (which usually has a static and systemic quality) was deeply intertwined with the more open-ended and dynamic problem of value. Like all the best works of legal sociology (again Weber and Cover as well as Jürgen Habermas ⁵⁶ are good illustrations), Hurst's project attempted to come to terms with both system and action, objectivity and subjectivity, utility and justice. As Hurst translated this constant dualism, legal history had to adequately deal with "both the instrumental and the constitutional character of law." The functional and instrumental problem of the legal distribution of political powers and economic resources in society was intimately bound up with the normative and constitutional issue of legitimacy. The second and third roles of law in American society, according to Hurst's schema, centered on the moral problem of political and economic legitimation—liberal constitutionalism and procedural rationalization. For Hurst, liberal constitutionalism was primarily a question of value. It entailed a wide spectrum of attitudes, usages, and norms focused on the constitutional ideal that "there should be no center of secular power which was not in some way subject to review by another center of such power." ⁵⁷ While Hurst elaborated the ideal of liberal constitutionalism at length in his substantive writings, he unfortunately left the ideal of procedural rationality rather undeveloped. Though he acknowledged a pivotal role for law in "providing rational and acceptable forms for finding facts and making choices among scarce satisfactions"—a procedural role that he ranked with "industrial technology and organized science as a major means for enlarging the scope of rationalized behavior"—Hurst's analysis of "procedural regularity" never quite reached the provocative dimensions of the work of Weber, Habermas, Niklas Luhmann, and Gunther Teubner on the role of "legal rationalization" or "juridification" in modern societies. ⁵⁸
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      Thus Hurst's conception of the roles of law in modern society, far from being reducible to any narrow legal instrumentalism or economism, actually revolved around the perennial historical sociological tensions between structure and agency, fact and norm, function and value. Synchronically, function and value (or in Hurst's legal frame, instrumentalism and constitutionalism) were two alternative perspectives from which to examine the same phenomenon. But through the addition of a time dimension (the historical, diachronic perspective), Hurst was able to throw his analytical system into motion—to create a narrative, a story, a legal history. Instead of understanding the relationship of structure and agency, collective and individual, system and lifeworld as distinct and static conceptual categories, the addition of a sequential narrative allowed Hurst to view function and value and power and rationality as intertwined phenomena unfolding in time as historical processes.
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II. Hurst's Narrative: Function, Value, and Power

The second part of this article is devoted to Hurst's particular historical narrative about the growth of law in the United States. It continues to adhere to a conceptual outline that emphasizes three of Hurst's primary synchronic categories for understanding law in society:
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A. FUNCTION—RESOURCE ALLOCATION—CAPITALISM—LEGAL INSTRUMENTALISM: Hurst's understanding of the relationship of law to the functional requirements of a market economy.

B. VALUE—LEGITIMACY—LIBERALISM—RULE OF LAW: Hurst's understanding of the relationship of law to that amorphous realm of articulated norms in society.

C. POWER—VIOLENCE—STATE—CONSTITUTIONALISM: Hurst's understanding of the relationship of law to public (and sometimes private) force.

Through these basic categories, Hurst explored the interaction of law with (a) economy, (b) society, and (c) polity. They supplied the basic characters in Hurst's legal history: (a) capitalism, (b) liberalism, and (c) the American state. But set in motion, they also provided a diachronic narrative structure for Hurst's histories. Almost all of Hurst's substantive books--Law and the Conditions of Freedom (1956), Law and Economic Growth (1964), The Legitimacy of the Business Corporation (1970), Law and Markets (1982)—employed the same braided metanarrative interweaving a chronological progression from the early nineteenth to the early twentieth century with a three-part movement from a focus on market functions to value conflicts to political controls. Hurst's basic outline of law's history in America moved from an early nineteenth-century story featuring law's role in the release of creative economic energies; to a mid-century preoccupation with the competing values of individual rights vs. community well-being; to a late nineteenth- and early twentieth-century tale of the rise of a modern administrative state. As Hurst charted this legal policy progression in Law and the Conditions of Freedom:

A.      1800-1870      Communications, credit, and national markets as frame for release of private individual and group energies.

B.      1820-1877      Sectional balance in federalism.

      1840-1900      Humanitarianism and conservation of human resources.

C.      1870-1900      Balance of power: for wider sharing of freedom of choice. Community strength and security, by rationalization of social processes. ⁵⁹

As indicated, the exact dates sometimes shifted and frequently overlapped. And Hurst certainly recognized that function, value, and power (capitalism, liberalism, and statecraft) played important roles in each historical period. Nevertheless, Hurst's overarching narratives generally utilized the same shifting tripartite emphases: from the release of energy to the control of the environment to the balance of power in the general history; from property and contract to police power to general planning in the lumber story; from general utility to legitimacy and responsibility to institutional policymaking in the legal history of the corporation; and from the market to commonwealth vs. individual values to bargained public policy in the story of the market. ⁶⁰ By merging sequence and context, diachronic narrative and synchronic analysis, history and sociology, Hurst produced the first comprehensive overview of law in modern American history.

Function: Market Capitalism

The starting point for Hurst's synthesis was the economy. Over the past twenty-five years, issues like economic growth, development, resources, and the proper relationship of market and state have taken a backseat to social and cultural history in both academic and public discourse. But in Hurst's formative years, the 1930s through the 1960s, political economy was a universal topic—the lingua franca—of discussion, research, and writing. Fittingly, Hurst's library was replete with the economic writings of economists and public intellectuals like John Commons, Walton Hamilton, Thurman Arnold, Joseph Schumpeter, W. W. Rostow, John Kenneth Galbraith, and Robert Heilbroner as well as ubiquitous economic histories of industries, corporations, robber barons, and state policymaking. Without question, political economy was the crucial frame of reference for Hurst's intellectual project. "Always in the background," he argued, was the constant, immovable, and economic "fact of scarcity." ⁶¹ Hurst was matter-of-fact: "It's hard not to be an economic determinist. People have to find means to eat." ⁶² He explicitly endorsed the older, nonspecialized perspective of "political economy" for exploring big historical-sociological questions: "The larger the questions, the more alike are the modes of analysis of economists and lawmen." In the history of the United States, particularly, "legal process was woven closely into the general growth of the economy." ⁶³ Indeed, American law's solicitousness toward the serviceability of the economic institution of the market was for Hurst the leading example of law's functionalism, that is, the idea that legal power should be justified and legitimated by "being useful—efficient, if you will—for socially acceptable and humanly desirable ends." ⁶⁴ Such concerns led Hurst to begin his history of law in the United States not with the old political story of vested rights and ancient constitutional limitations but with the formative, functional, and instrumental relationship of modern American law to the emergence of a market economy.
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      The Market. For Hurst, the market was unequivocally the dominant institution in nineteenth-century American life. This was a century that "put all the energy and attention it could into economic interests." The market—"the activity of private operators in producing and distributing goods and services for private profit"—was particularly valued as the institution "for achieving economic efficiency"—"the most output for the least input." ⁶⁵ Though public controls and state regulations were present (especially in the latter part of the century), the overwhelming emphasis of nineteenth-century approaches to the problem of the allocation of scarce resources was "to promote expansion rather than to regulate expressions of private energies of will." This was a society, according to Hurst that "preferred immediately visible productivity above formal order"—"dispersion and delegation put the greater weight of decision in market processes rather than in political processes." ⁶⁶
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      In Hurst's analysis, the market came first and consequently had a decisive and determining effect on the rest of nineteenth-century American social and political life. "We favored large scope for private invention and elaboration of organizational techniques for increasing control over material or social environment," Hurst argued. "Thus we assigned the market a role substantially equal to that of political process in shaping social order." Indeed, for the past one hundred and fifty years, Hurst contended, the private market was "central to ideas and styles of action which have determined the location and character of prevailing political power in the country." Law reflected that prioritization. Indeed, "with its emphasis on the law of contract and fee simple title to land," the early American legal order was something of a symbol of that "prime reliance on the market" for producing and distributing resources. For much of the nineteenth century, Americans demanded through and conceded in law "a wide scope for the initiative of private will in the market." ⁶⁷
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      Hurst was certainly not uncritical of the overriding influence of the market as a simple fact of nineteenth-century American life. As he put it, "The century was so market-focused as to be politically naive." Like many mid-twentieth-century liberal humanists (for instance, Richard Hofstadter and Louis Hartz), Hurst did not take unambiguous pride in a market system that generated effects like the rapid deforestation of Wisconsin. ⁶⁸ In particular, Hurst decried three noxious consequences of market dominance: the monetization of value, the privileging of short-term over long-term goals, and the masking of socio-economic power. ⁶⁹ One central concomitant of a reliance on the market to distribute scarce resources was the assignment of value to achievements through a simple tally of measurable inputs and outputs, for instance, "the number of men or dollars." And while there were obvious benefits to a money calculus of costs and benefits like speed, impersonality, and comparability, Hurst, like Holmes, found a certain "crudity or grossness in the country's regard for private economic power." He felt that alternative sources of worth better dealt with significant areas of life such as "the worth of a secure family unity, or the opportunity asset represented by a natural resource subject to irreversible depletion." So, too, the market was often "superficial or neglectful in matters of deep public concern," owing to its short-term, practical judgments as opposed to deeper analyses of underlying causes and consequences. The market released the creative energies and expressions of a myriad of interested individuals, but it also yielded "vast, unforeseen, unchosen social consequences out of unplanned, uncontrolled accumulations of fragmented decisions." Finally, Hurst was also critical of the obvious power element at the heart of market assessments of the appropriate distribution of scarce goods: "The market offered men leverage through skill, fortune, and energy to acquire practical powers of compulsion over other men." Despite such criticisms, however, the market loomed as an irrefutably large fact and force in nineteenth-century American life. It demanded close examination in legal history. ⁷⁰
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      Legal Instrumentalism. But what exactly was law's relationship to this powerful and sometimes problematic institution called the market? In contrast to some of the economic assertions of the critical legal studies movement (and the insights of sociological jurists like Morris Cohen and Robert Hale), Hurst did not believe that the market was fundamentally a creation of law. "The private market—sustained patterns of private trading for profit," he argued, "was primarily the product of goals set and means fashioned by industrialists, merchants, bankers, lenders and borrowers, employers and employees, and ultimate consumers." Though Hurst shared Legal Realism's recognition of the public powers that undergirded private rights like property and contract, he worried about overstating formal law's constitutive role vis-à-vis other socio-economic institutions. "Relative to the whole play of factors that produced the market," Hurst contended, "the law was marginal." ⁷¹
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      Rather than creating or constituting the market, Hurst envisioned law as primarily an enabling and supplementing institution for allocating scarce human resources. In the United States, people made "heavy and pervasive demands on the market and the law" to cope with the problem of scarcity. "In a society which believed that in economic creativity it held the means to fashion new standards of human dignity," Hurst noted, this "interplay of law and market has expressed a good deal of our way of life" ⁷² In the early nineteenth century, this interplay was primarily a functional one. Law provided "the means for assembling and channeling resources" and "the processes for resolving conflicts" derived from scarcity or the "absence of life's satisfactions." ⁷³ Hurst dubbed this economic functional relationship of law and market (law and resource allocation) in the antebellum United States "legal instrumentalism"—a pragmatic, improvising, rule-of-thumb attitude that considered law a tool rather than a rule, a means rather than an end. As Hurst put it, Americans "believed that law existed to serve men, and not men to serve the law." Law functioned primarily as a mechanism of resource allocation that channeled and dispersed "economic decision making into private hands through the market, implemented through the law of property and contract." ⁷⁴
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      As Lawrence Friedman, Harry Scheiber, Stanley Kutler, and others have made clear, Hurst's functional understanding of law's instrumental role in the "market revolution" was an exhilarating achievement and the basis for a new research agenda in American legal history. ⁷⁵ In place of traditional constitutional stories of judicial review, vested rights, and due process, Hurst's functional approach integrated legal change into the general story of American socio-economic development. In place of a relatively internalist, technical, and limited story of doctrine and judges, Hurst opened the doors to an externalist story with topics and themes as broad as history and sociology themselves. Hurst urged legal scholars to replace ubiquitous studies of natural law and constitutional clauses with topics like the ways "we used the public lands to fashion a family-farm economy in the Mississippi Valley, to underwrite the growth of the private banking which serviced this farm economy, and to subsidize the development of roads, canals, and railroads which brought its products to market" or the ways "we used federal fiscal powers to give tariff protection to foster industry, and to provide central banking facilities and regulation to promote nationwide business expansion" or the "ways in which the law of private property, contract, and tort gave legally protected scope for exercising private initiative of decision to allocate scarce economic resources, free of arbitrary intrusions either of public or of private power." With such instrumentalist topic suggestions, Hurst coaxed into being the original agenda of a new legal history. ⁷⁶
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      Three things are important to note about Hurst's conception of legal instrumentalism. First, like his ideas about the limitations of the market, Hurst could be quite critical about the early American tendency to use law "in a narrowly practical way"—"more as an instrument for desired immediate results than as a statement of carefully legitimated, long-range values." The "pragmatic insistence on using law" as "a handy tool" could too easily be perverted into the narrow calculus of short-term interests that Hurst later criticized as "bastard pragmatism." ⁷⁷ Second, legal instrumentalism was intimately linked to another underlying theme in Hurst's work—the marginality of law. As Hurst suggested, "Typically law worked only to exert limited but critical leverage upon situations; its effectiveness in this culture not only depended upon but consisted in its playing a limited part." In his work on the business corporation, Hurst made the most explicit case for the relationship of instrumentality and marginality: "Corporation law has always been an instrument of wants and energies derived from sources outside the law; it has not been a prime mover. However, ... the kind of structure, procedures, and privileges which corporation law made available significantly channeled the expression of men's wants and energies and significantly affected the responses which other interests made to these drives." Hurst's instrumentalist perspective thus carried a distinct warning about overstating law's role in the development of a market economy: "We must not exaggerate the influence of men of law compared with the inventions and energies of promoters, financiers, managers, marketing men, trade union leaders, and a host of others. In the whole course of affairs lawyers produced only marginal effect." But though marginal relative to the vast array of human factors contributing to "the market," law provided critical leverage and cumulative effects that had a decisive influence upon the balance of other factors shaping American capitalism. ⁷⁸
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      Finally, and most significantly, law's instrumental role in the allocation of scarce resources in nineteenth-century America should never be confused with a negative or passive or laissez-faire approach to the relationship of government and the economy. On this point Hurst was unequivocal: "A simple regulatory, prohibitory, narrowly policeman-role concept has not adequately described our legal order." Legal instrumentalism was Hurst's attempt to portray the active, dynamic, positive, and powerful function of law as governance in the most crucial public policy matter facing the new American nation—the creation and distribution of product and wealth. The legal tools exploited in this process included some of the most potent of sovereign authorities: taxation, public expenditure, eminent domain, nuisance, police power, even military mobilization. The Wisconsin lumber industry, for example, was almost completely dependent upon original state-created conditions for market exchange: land grants of 35,000,000 publicly controlled acres, public internal improvements like navigable streams and railroads, and sovereign grants of public privileges like corporate status, special licenses and franchises, and the power of eminent domain. ⁷⁹ Legal instrumentalism was not about a simple governmental acquiescence to the private market. It involved the positive and public deployment of legal power. Indeed, as the nineteenth century progressed, according to Hurst, the legitimacy of the market as a central mechanism of resource allocation was increasingly challenged. By the late nineteenth and early twentieth century, the same legal and governmental powers of the state that bolstered and supplemented economic decision making came to be deployed as antagonistic checks on the excesses of market allocations of scarce goods. The public utility and the administrative agency signaled a fundamental realignment of economic and political power in American history. ⁸⁰ The economic functions of law came into increasing conflict with the values and violence that also constituted a legal order. Legal instrumentalism acceded to liberal constitutionalism.
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Value: American Liberalism

Legal instrumentalism, law's functional relationship to early nineteenth-century market imperatives, was but one of law's important roles in American history. Equally significant was law's relationship to the problem of value. Hurst's historical sociology attempted to wrestle simultaneously with the problem of meaning as well as material life, law's normative as well as its positive implications. Law's sweeping power in American society was linked not only to its factual and sociological function as a distributor of resources and power (in legal realist terms, its "is-ness") but also to its intellectual and moral force as a primary source of notions of rightness and validity (its "ought-ness"). For Hurst, law not only reflected the economic demands surrounding scarce resources, it was one of the principal embodiments of the full range of articulated values in a society at any given time. "For all its frailties and fictions," Hurst noted, "law operated with a force not matched by any other major institution of social order to press men to define ends and means"—"nowhere else did men undertake so much to explain themselves." Constitutions, statutes, judicial opinions, and administrative rules constituted "the largest single body of articulated values and value-oriented contrivances in society." ⁸¹ This enormous deposit of value evidence extended well beyond issues of economic function, utility, efficiency, or the satisfaction of wants. Rather, a "deeper, more demanding" and more elusive criterion operated around this problem of value—a criterion Hurst sometimes dubbed "justice." By "justice" Hurst attempted to capture very simply something that more complicated social theories allude to with neologisms like "species-being" and "lifeworld," that is, "the humanistic demand that life should have rewarding content, that life should be made more real as an end in itself." The organized powers, administrative systems, and economic functions of modern societies were always subject to the higher stricture that institutions should enlarge rather than diminish "the humane quality of individual life for all individuals." Admittedly, this normative concept of law as justice was somewhat slippery, but Hurst was precise about its two primary valences. "On the one hand, we should structure society so that people find humane satisfaction in living in it," Hurst argued. "And, secondly, organized power in society should offer substantially equal terms of life opportunities for all." Justice for Hurst entailed that interweaving of humanism and egalitarianism, individualism and collectivism, embodied in the due process and equal protection clauses of the Fourteenth Amendment. ⁸² Indeed, law as values in American society frequently revolved around the competing demands for individual liberty vs. democratic freedom, or as Hurst understood it, the release of energy vs. the balance of power. In Hurst's synthesis, this tension was at the root of the American legal tradition of liberal constitutionalism.
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      Though values were often shared in Hurst's analysis, they were never simple or one-dimensional. Liberty and order, freedom and control, were the two faces of liberal constitutionalism, and they reflected Hurst's conviction that the human condition involved the fundamental contradiction of possibility and limitation, growth and scarcity, infinity and finitude. From Louis Brandeis he inherited an optimistic, progressive, and reformist faith in the possibility of growth "toward realizing the creative potential that resides in individuals and their society." From Reinhold Niebuhr he learned about "the tragic element, not just in life but in human history, the sense of limitations of energy, courage, imagination, vitality that adhere in being a human being." ⁸³ The patterns of values Hurst detected in American law and society often broke down around this bifurcation between the release of individual creative energy and the collective limitations of the balance of power. Hurst demarcated four values especially salient in nineteenth-century law that gave "character to the society" and that helped determine the "main currents of public and private policy in the growth of the country": (a) a deference to individual life; (b) an activist, manipulative bias; (c) pragmatism; and (d) a concern for social context—a commonwealth—whose primary constitutional requirement was a broad dispersion of decision-making power. ⁸⁴ The last, multifaceted value involves Hurst's definition of constitutionalism, limitations, and the "balance of power." It will be discussed in the next section on power and the constitutional state. The first three values were central to Hurst's rendering of the possibilities of nineteenth-century liberalism, or what he dubbed the "release of individual creative energy."
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      The Release of Energy. Hurst rooted the release of energy in a reformed and enlightened Judeo-Christian tradition not unlike Max Weber's "protestant ethic and the spirit of capitalism." Its first feature was a high individualism. For Hurst it was simply apparent that American law and public policy were dominated by a first-order concern "to foster the creative potential and dignity of individual life." In the nineteenth century, this objective was primarily reflected in law's deference toward individual market decisions, that is, "in the strong support for freedom of contract and in the emphasis on moving public lands into private, fee-simple ownership." While twentieth-century American law largely abandoned this knee-jerk market solicitousness, it "continued to focus attention on the position of the individual" but in new ways, for example, civil rights and the protection of minorities. Throughout, American legal culture "put a premium on individualism." Though like any progressive, Hurst admitted that "individuals realize their humanity only in society," he also contended that "they realize their individuality only in self-awareness, which consists in some sense of separateness." ⁸⁵ Like John Stuart Mill, Hurst placed an irreducible residual concern for the individual at the center of American law and at the core of his definition of liberalism. The energy to be released was at bottom individual.
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      But like John Dewey, the individualism that Hurst found in the history of legal liberalism was not the static, passive, or negative liberty of the vested rights school of American constitutional development—Dewey's "old liberalism." Rather, the second liberal value reflected in law was "the prizing of active will to shape social experience." The energy to be released, in other words, was active and creative, indeed at times creatively destructive. Liberal freedom implied not simply the removal of oppressive constraints, but the positive promotion of the ability of individuals to act and to create, to work and to manipulate—to continually and freely express their creative wills. "Not the jealous limitation of the power of the state," Hurst made clear, "but the release of individual creative energy was the dominant value" of nineteenth-century American law. "Where legal regulation or compulsion might promote the greater release of individual or group energies," Americans did not hesitate to make "affirmative use of law." ⁸⁶ As this call to creative action and energy was something like a secular faith, Oliver Wendell Holmes was something like its high priest pontificating, "Life is action, the use of one's powers. As to use them to their height is our joy and duty, so it is the one end that justifies itself." "I know of no true measure of men except the total of human energy which they embody," Holmes argued, "from Nansen's power to digest blubber or to resist cold, up to his courage, or to Wordsworth's power to express the unutterable, or to Kant's speculative reach." The bold and free-wheeling adventurousness of an Arctic explorer was exactly the kind of energy that Hurst witnessed as valued in nineteenth-century law. It was a legalism and a liberalism that "measured the content and quality of life by the amount and skill of manipulation which men addressed to their relations to the material world and to each other." ⁸⁷ It was thus a legalism and a liberalism constantly in motion and in flux. Like the "creative destruction" that Joseph Schumpeter identified as a central feature of capitalism, Hurst's legal liberalism was constantly revolutionizing itself—incessantly destroying old legal rights and political duties and creating new ones in their stead. ⁸⁸ Just as Hurst's understanding of shared values had little to do with consensus, his notion of the release of creative energy was fundamentally about change, not continuity. Indeed, it was precisely Hurst's emphasis on law's dynamic role in the economic and political revolutions of the nineteenth century that opened the doors to a new legal historiography.
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      But just as individualism was qualified by an emphasis on activism (in addition to the competing commonwealth and constitutional values to be discussed below), the powerful value of active will in Hurst's analysis was further qualified by a third value—pragmatism. Hurst described pragmatism as a sobering and limiting value that reined in the potential excesses of an unqualified promotion of individualism, activism, and manipulation. Pragmatism in law meant that action and judgments should be "disciplined and moderated by reasoned calculation and by a cautious sense of man's limitation." Hurst again cited Holmes on the pragmatic tendency: "Certitude is not the test of certainty. We have been cock-sure of many things that were not so." The pragmatic strain that Hurst detected in nineteenth-century law and society was irreverent and decidedly anti-absolutist. It was the hallmark American philosophy—"the idea that truth lies in operation, that truth is learned by behavior, and appears in fulfilled effort." In its most valuable, positive form, this pragmatism operated as a kind of "skeptical moderation" prodding reason to operate with "a saving skepticism" and cultivating the "capacities of mind and will to act" upon one's situation. But as implied in the discussion of legal instrumentalism, Hurst also warned about the ease with which this pragmatic tendency could be perverted into the more menacing "bias toward exalting the immediately practical—in the sense of knowledge which can be translated into immediate operation—at the expense of understanding larger causes and more remote chains of effects." "A superficial concern with immediacies" and mere "busyness" and "satisfaction with opportunistic gains" were the negative byproducts of an overly narrow version of pragmatism in American law. Hurst's conclusion that "a valid pragmatism is constantly at war with an illegitimate pragmatism in our way of life" very much mirrored his divided perspective on the possibilities and limits of "the release of energy." ⁸⁹
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      Hurst sometimes combined the values of individualism, activism, and pragmatism into something he called the "middle-class outlook" of nineteenth-century American life. But much like Tocqueville, his assessment of its achievements was decidedly mixed: "The middle-class outlook which was significant in the roles of law in United States history was morally ambiguous, marked by positive strength and by capacity for waste and wrong." Like most liberals, he praised the ideals of individuality, free expression, creative action, skeptical moderation, and tolerance as the highest social and moral ambitions. But he took no delight in the practices of unfreedom whereby "a rich, unexploited continent gave scope for self-righteous or amoral individualism" or whereby the high ambition of a protestant ethic "easily fell away into a lower kind, satisfied with mere increase in quantity of creature life." ⁹⁰ Hurst's critique and his fear of the degradation of the liberal release of energy echoed Tocqueville's depressing vision of "an innumerable multitude of men, alike and equal, constantly circling around in pursuit of the petty and banal pleasures with which they glut their souls." In 1971, Hurst argued, it was hard "to push Tocqueville aside": "People will settle for beer and television, in Tocqueville's estimate.... Their insistence on equally shared, immediate, material enjoyment would make them increasingly ready to accept the domination of the mass and of mass opinion, and increasingly willing to accept strong political direction, if it would only assure them the beer and the television." ⁹¹
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      So, even if completely and consensually shared, the values of individualism, activism, and pragmatism combined in the middle-class outlook and legal practices of "the release of energy" brought the attendant dangers of a Tocquevillian democratic despotism. Still, the values "shared by a politically effective segment of the population" were but a small part of the full story of nineteenth-century law. It would be a serious error to overemphasize the role of "the release of energy" in Hurst's total vision of law in American history and society. We have already mentioned law's functional role in the allocation of scarce resources as well as the powerful impact of "unplanned and unchosen" drift and inertia in societal and legal affairs. In addition to these factors, we still need to reckon with the fourth dominant value that Hurst identified in nineteenth-century law—constitutionalism, or the tendency to disperse decision-making authority and balance competing centers of power. As implied, this last legal value was much more about conflict and division than consensus and shared feeling. "The country's turbulent growth spawned a great diversity of goals and ambitions," Hurst was fond of pointing out. Thus, law and public policy was "much concerned with handling conflicts of interests." Hurst especially noted the "deep divisions of interest centered on wealth or income, race, and sex as criteria for allocating the gains and costs of life in society." ⁹² Indeed, this last set of values surrounding the legitimate balance of conflicting powers and interests in society leads away from the emphasis on function and value in American law and toward one of the most intriguing and important (if comparatively underdeveloped) of Hurst's themes: the role of legitimate force and violence in law's underwriting of the American constitutional state.
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Power: The Constitutional State

Though questions of instrumental market functions and shared liberal values dominated Hurst's characterization of early American legal change, questions of conflict, interest, power, force, and state-monopolized violence increasingly prevailed in his account of the creation of a modern polity and economy in the late nineteenth and early twentieth century. A victim of his own success at redirecting attention to the "formative era" of American private law and economic growth, Hurst's underlying preoccupation with modern corporate capitalism, the administrative state, and what he called "the dominant problems in law of our time" is easy to forget. ⁹³ In Hurst's original 1942 research program for legal history, h