Locating Hurst

W. WESLEY PUE

[T]he profession of the law is more potential for good than any other profession, excepting the Christian ministry, and in some respects more powerful for good than even that high profession. Its power for evil is correspondingly great.
—Henry St. George Tucker, 1905
Three aspects of J. Willard Hurst's locatedness strike me as being noteworthy: his identification as a law teacher, in Wisconsin, in the mid-twentieth century United States of America. It mattered immensely, as Ernst shows in this issue, that his life of mind was significantly formed in the period between the world wars.	1
Hurst's work is colored by these environments at every turn. Even assuming that he ranks with the likes of Tocqueville, Bryce, or Weber as a "broad-gauged socio-legal thinker of the first order," 1 it is important to consider him, not as a disembodied, unsituated intellect, but rather as a scholar who lived, worked, and wrote in a context. Though in part "an important extension of and dialogue with several well-established traditions and intellectual frameworks" on both sides of the Atlantic and on both sides of the world's longest undefended border, 2 his work was also the product of a mind embodied.	2
No historian of Hurst's caliber would lay claim either to objective judgment or to a "god's eye" impartiality in observation. One of the striking themes running through this celebratory collection of essays is precisely the pains his eulogists take to understand and evaluate Hurst, not in the abstract but as a creature of his environment. The extent to which others of his generation developed similar working assumptions, derived from their own attempts "to relate their own experiences to the history of their times," 3 is worthy of study.	3
This is not the place to engage in a detailed exploration of the complex and multifaceted questions such simple observations raise. Nor would I be the right person to undertake such an enquiry. Nonetheless, several tentative remarks seem justified in light of the reflections that form the core of this volume. The multiple contexts in which Hurst lived powerfully warped his scholarship along three dimensions: its law-centeredness, its Canadianness, and, simultaneously, its character as an "American" (that is, United Statesian) activity.	4
I touch lightly upon each before turning to a short assessment of Hurst's influence on scholarship north of the forty-ninth parallel.	5
Law-centeredness
Nothing is so striking about Hurst's work as its law-centeredness. His scholarship is the work of a professional law teacher directed, for the most part, to other law teachers and to their students. Neither his premises nor his principle conclusions can be understood as particularly striking or novel outside of the constrained hothouse environment of twentieth-century U.S. law schools. Consider Novak's summary:	6
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 apriori ultimates.... 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."... Law was, and had to be studied as, a particular historical institution.... Legal scholarship needed to take account of law as an institution ... while simultaneously acknowledging the tight "interplay of law with other social institutions ... " 4
None of this would seem the least surprising to British gentlemen barristers, to sociologists, historians, Oxford law dons, anthropologists or, indeed, to the sturdy unschooled yeomen who inhabit U.S. mythology. But they were points that needed to be registered powerfully at mid-century within the community of U.S. law schools, which lived under Harvard's shadow. To some extent his work aimed to save the U.S. from the consequences of Harvard legal education.	7
There is a seeming paradox in the fact that one of the twentieth-century's leading "law and" scholars maintained so resolute a LAW focus: Hurst consistently viewed the world from the legal academy outwards. He was unambiguous in his wish to limit the role of social science to service "on tap" for lawyers but never "on top." He sometimes spoke disparagingly of social scientists and others lacking legal training. Certainly, he could be at least as critical about legal scholars, most of whom he dismissed as "the masters of taxonomy." 5 But his ambition to lay secure foundations for "a decent, individual, humane way of life" 6 rested on the creation of a class of gentlemen lawyers, NOT on the rule of bureaucrats unsocialized to LAW's ways.	8
The aspiration to nurture from the cradle a class of lawyers who, in their capacity as universal experts, could save the U.S. (and thereby, one presumes, the world) from the tug of centrifugal forces, the influence of "pressure groups," the rapaciousness of monopoly capitalism, and the sundry hatreds of the untutored has two aspects. In part it is merely one component of a larger culture that enveloped Europe and its colonies. Variously designated a "culture of professionalism," faith in science, "technocracy," "progressivism," or even "modernity," its hallmark was confidence that value-neutral expertise, rationality, and humane (or, in some modes "tough-minded") decision making could be brought to bear so as to maximize social utility. David Laycock's ground-breaking assessment of early twentieth-century North American culture describes it as combining "widespread enthusiasm for the new and democratic social order with enthusiasm for scientific and technological solutions to social problems. To most proponents of progress, new horizons of democratic experience were expanded, not obscured, by expert technical direction of public policies." 7 Faith in science and rationality was ubiquitous, holding forth, so it seemed, the promise of transcending "the favoritism of politics, the corruption of personality, and the exclusiveness of partisanship." 8 Even when science had demonstrably gone mad, as it had under the Nazis, in eugenics, and at Nagasaki, for example, the moral many took from mid-twentieth-century traumas was only that they needed to redouble their efforts. For many of Hurst's generation the lesson to be derived was not a repudiation of the idea of rational public decision making but a renewed focus on making better experts. And in Hurst's world, they all would be subordinated to the oversight of lawyers.	9
If our parents' generation's faith in "science" seems now somewhat quaint, hopelessly naive perhaps, Hurst's mid-century passion for improving the education of lawyers seems to invite ridicule. Imagine a British comedy skit premised on a discussion between England's Lady Jackson and the U.S.'s J. W. Hurst, two eminent mid-century liberals:	10
BARBARA WARD: Within a generation population growth will surpass the planet's capacity to sustain life. Environmental degradation will destroy the earth—if nuclear catastrophe doesn't get there first. What, oh what, Willard, will we do? J. W. HURST: The answer, Lady Jackson, is plain. We will build a better law school. BARBARA WARD: I see, Willard. Thank you so much. I shan't worry now.
This oversimplifies, of course, perhaps grotesquely so. It does however capture something of Hurst's educational mission. Its central purpose was to warp legal education by endowing it with a cultural mission, to ensure that the "legal expert" of the future would temper technical "know how" with considerable cultural understanding. His ideal lawyer would combine doctrinal knowledge, interdisciplinary ability, and moral character. Importantly, s/he was to be deeply indoctrinated in essential truths concerning law and the conditions of freedom in the Anglo-United Statesian tradition.
Both Hurst's understanding of constitutionalism and his emphasis on a cultural education for lawyers place him near to a mainstream Canadian tradition of legal learning. It is to these aspects of his continental context that I now wish to turn.	11
The Canadianness of James Willard Hurst
First, it is useful to focus briefly on his aspirations for legal education and the role he envisaged for lawyers as they confronted the peculiar challenges of governance in mid-twentieth-century North America. Some of the U.S. antecedents for Hurst's positions in such matters have been elegantly and powerfully traced out by the contributors to this volume. One suspects, too, that the influence of previous U.S. commentators on legal professionalism was felt either directly or by cultural absorption. Aspects of Hurst's vision approximate those of Julius Cohen, 9 Robert Wilkin, 10 and many leaders of the early twentieth-century American Bar Association. 11 More widely, an integrationist interpretation of professionalism has been long established in social theory, tracing its heritage through "[a] line of intellectual filiation from Durkheim ... through Carr-Saunders and Wilson ... to Parsons and Bell, each of whom ... concurs that the social organization or expertise of professions may, in certain circumstances, alleviate the crises of liberal democratic societies." 12	12
It was, however, in Canada, not Europe or the U.S., where concrete plans for a legal education consonant with such goals and visions came to fullest fruition. In the early twentieth century Britishness met North America on Canadian soil. It was there, most directly, that British notions of "gentlemanly" governance—from which Hurstian visions of professionalism derived—met the peculiar problems and social structures of North America. Unscathed by the disruptions of revolution, Jacksonianism, and other U.S. deviations, Canadian legal professionalism played itself out on terrain that, for all the similarity between the two countries, differed from the United States in several key respects.	13
Dalhousie University's Law School, for example, refused to be drawn fully into Harvard's orbit. "Dal" consistently asserted the importance of a "cultural" tradition in legal education, teaching the "'cultural' or 'public law' subjects of Constitutional History, International Law, and Conflict of Laws" as its way of fostering both gentlemanly learning and an ethic of service amongst its graduates. The Dalhousie Law School's historian, John Willis, derisively assessed Harvard's early twentieth-century legal education as lacking any content beyond "subjects which would be of immediate use to the hard-shell practitioner." 13 The Oxbridge-Dalhousie influence was felt across Canada. By the third decade of the twentieth century only Ontario's intellectually impoverished program of legal training at Osgoode Hall deliberately distanced itself from the "cultural tradition" that was the Canadian norm. 14	14
Hurst's calls for educational reform in U.S. law schools, his fulminations against the "case method," and his criticism of teachers who aspired to be only "masters of taxonomy" have a Canadian and, beyond that, a "British" tinge to them. His critique of his own education would have had diminished force and different emphases had he attended law schools at Manitoba, Dalhousie, or McGill, or even Oxford in the 1920s. In each of these places even the case method was understood culturally.	15
Hurst's vision for legal education and the social function of lawyers seems distinctly "Canadian," then. More than this, however, his understanding of the relationship of law and state to economy seems less ideologically rigid, more sensible—in a word, more "Canadian"—than United Statesian. This is so even if one overlooks the direct influence on him of Canadians such as economist John Kenneth Galbraith. 15 Hurst's confidence in a mixed economy, his understanding that the state must, of necessity, be a driving force for an "economy," and his acceptance of regulation are all positions close to the mainstream Anglo-Canadian understandings of the mid-twentieth century. Never having constitutionalized Mr. Herbert Spencer's Social Statistics, such positions pass for commonplace north of the U.S. border. Similarly, other of Hurst's constitutional values strike a familiar chord in Canada. His anti-originalist view of the constitution makes eminent good sense in a country whose constitution has no "origin." Frankfurter's position that "'The Constitution of the United States is most significantly not a document but a stream of history,'" 16 is well within a British/ Canadian mainstream, strikingly reminiscent in fact of Lord Sankey's interpretation of the Canadian constitution as a "living tree."	16
Some such is, indeed, the only constitutional doctrine that makes sense in a British tradition. Lacking both canonized "founding fathers" and an "origin," our constitutionalism can only be understood as a living stream of public morality. It can only be construed historically, not in atiquarian fashion. It is possible to read Law and the Conditions of Freedom as an effort to bring the sanity of British constitutionalism to bear on the constitutional self-understandings of a country that believed its origins to lie exclusively in the insanity and rupture of revolution. The "our" that Landauer points to in his discussion of Law and the Conditions of Freedom has a dual aspect. It is, in part, emphatically an "our" that encompasses the larger Anglo-American-Canadian tradition.	17
Americanness
It is also as Landauer suggests, however, a very United Statesian "our." Hurst's writings are much colored by the facts that they were intended to address U.S. concerns and therefore were cast in a form designed to be palatable to a U.S. readership. Written from and for the center, his work addresses the parochial concerns of his own country.	18
The "parochial concerns" of the United States of America are, of course, not just anyone's run-of-the-mill, everyday, local concerns. The parochialisms of the world's most important country are not unimportant. Hurst addressed them at the beginning of the "American century" and did so from the perspective of one who had lived through the Great Depression, the war against the Nazis, and the ascendancy of an obscure Wisconsin senator who briefly rose to impose a reign of terror on the U.S. The urgency of Hurst's writings, addressed to an influential public, and aspiring to establish a baseline of constitutional understandings compatible with the construction of "a decent, individual, humane way of life," is not to be gainsaid. Nonetheless, his work emerges from within the U.S. middle-class family, addresses its concerns, and does so in a language intended to be intelligible to them. It resonates most deeply in that context and seems unfamiliar even to close kin.	19
Canadian Hurstian Scholarship
This, I think, takes us part way to understanding one of the curiosities of Hurst's intellectual legacy: his lack of substantial following in Anglo-Canada. Despite remarkable flourishings of Canadian legal history and Canadian law and society research during recent decades, there is no obviously "Hurstian" school. 17	20
The reason is not Canadian parochialism (it is de rigueur for Canadian scholars to show familiarity with U.S. writings). Nor, I think, is it any reluctance on the part of Canadian scholars to engage in what Hurst called the "'grubby down-in-the-raw-materials work'" necessary "'to realize the new kinds of inquiry to which we were summoned.'" 18 Rather, it is his "Americanness" that presents a barrier. His work is focused on U.S. concerns that, too colored by the peculiar circumstances of the time and place in which he wrote, do not resonate elsewhere.	21
Paradoxically, perhaps another explanation runs in opposite directions. Whereas Hurst's aspirations for the legal profession and prescriptions for legal education seem "Canadian" when measured against an early twentieth-century baseline, a "Harvardization" obliterated everything distinctive about Canadian legal education in years following World War II. It came with blitzkrieg force. Just at the time when Hurst's work was most influential in the United States, the climate in Canada was least receptive. While the rigor, perceptiveness, and vigor of his scholarship was remarkable, a new generation of Canadian legal academics was not in the mood to be impressed. By the 1960s his greatest work would have been widely perceived as anachronistic, "irrelevant," perhaps insufficiently hard-headed, maybe not even "law."	22
Similarly, and for reasons of their own, Canadian historians of the era were actively exorcizing all trace of constitutional or institutional history as they moved into new fields of inquiry. In both law and history Anglo-Canadian nationalism simultaneously rejected its British roots and assiduously sought to ignore our North American context as much as possible. There was little space left for Hurst.	23
Later, however, Canadian legal scholars did come to reflect critically on the narrowed doctrinal teaching they had unthinkingly absorbed from south of the border, even while venting much sound and fury about Canadian identity. In this new phase of broadened intellectual enquiry, however, Hurst's functionalism, his identification with consensus theory, and his faith in experts put him beyond the pale of fashionability. Other models for historical investigation provided by the Warwick school of social history, among others, seemed more compelling. In time his apparent lack of concern with questions of race, gender, religion, conflict, and culture made his work seem out of touch with yet another wave of Canadian historical and legal-historical scholarship.	24
When all is said and done, however, there is a discernible Hurstian legacy in Canada. It can be indirectly traced through the many distinguished legal historians he mentored and inspired. They, in their turn, have inspired and encouraged Canadian legal historians of all sorts. The influence, ability, grubby down-in-the-raw-materials scholarship, and personal generosity of his juniors is an important part of his legacy.	25
Looking forward, however, there is more than this. The themes Hurst touched upon are not "everything," but they are centrally important. His core "problematique" focused on fundamental issues of balance, of deep constitutionalism, and the conditions of tolerable governance. Such focii for research and education cannot long be safely ignored. As Canada enters the twenty-first century, our two-decade long infatuation under the spell of the 1981 Charter of Rights will, one hopes, give way to a deeper probing of what it means to live in a "free and democratic society" (to use the words of Canada's Charter of Rights and Freedoms).	26
Hurst's work speaks powerfully to such issues. His scholarship may yet, therefore, have significant influence in the larger portion of North America.	27
W. Wesley Pue is the Nemetz Professor of Legal History at the University of British Columbia. He is grateful to the University of Adelaide for the outstanding research environment provided to him during his term as Distinguished Visiting Professor in History, Law and British Studies from May to September 1999. Notes       1. William J. Novak, "Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst," Law and History Review 18 (2000): 99.
2. Ibid., 141.
3. Daniel R. Ernst, "Willard Hurst and the Administrative State: From Williams to Wisconsin," Law and History Review 18 (2000): 36.
4. Novak, "Law, Capitalism, and the Liberal State," 111-12.
5. Bryant G. Garth, "James Willard Hurst as Entrepreneur for the Field of Law and Social Science," Law and History Review 18 (2000): 49.
6. Novak, "Law, Capitalism, and the Liberal State," 144.
7. David H. Laycock, Populism and Democratic Thought in the Canadian Prairies, 1910 to 1945 (Toronto: University of Toronto Press, 1990), 52.
8. Burton J. Bledstein, The Culture of Professionalism: The Middle Class and the Development of Higher Education in America (New York: W. W. Norton, 1978), 90. Also, to similar effect, see Robert H. Wiebe, The Search for Order, 1877-1920 (New York: Hill and Wang, 1967); Harold Perkin, The Rise of Professional Society: England since 1880 (London: Routledge, 1989); Steven G. Brint, In an Age of Experts: The Changing Role of Professionals in Politics and Public Life (Princeton: Princeton University Press, 1994).
9. Julius Cohen, The Law: Business or Profession? (New York: Banks Law Publishing Co., 1916).
10. Robert N. Wilkin, The Spirit of the Legal Profession (New Haven: Yale University Press, 1938).
11. See, for example, James C. Foster, The Ideology of Apolitical Politics: Elite Lawyers' Response to the Legitimation Crisis of American Capitalism, 1870-1920. Distinguished Studies in American Constitutional and Legal History (New York: Garland, 1990). Hurst's familiarity with their positions is apparent from the bibliographic references provided in his The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950).
12. Terence C. Halliday, Beyond Monopoly: Lawyers, State Crises, and Professional Empowerment (Chicago: University of Chicago Press, 1987), 17.
13. John Willis, A History of Dalhousie Law School (Toronto: University of Toronto Press, 1979), 31.
14. See W. Wesley Pue, "British Masculinities, Canadian Lawyers: Canadian Legal Education, 1900-1930," in Misplaced Traditions: The Legal Profession and the British Empire, Symposium Issue, Law in Context 16 (forthcoming 1999) (guest edited by Robert McQueen and W. Wesley Pue), and sources cited therein.
15. 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 History Review 18 (2000): 74, 91-92.
16. Ernst, "Willard Hurst and the Administrative State," 19.
17. His preeminent follower has been R. C. B. Risk, whose contributions to Canadian legal scholarship are carefully assessed by G. Blaine Baker, "R. C. B. Risk's Canadian Legal History," in Essays in the History of Canadian Law, vol. 9, In Honour of R. C. B. Risk, ed. Jim Phillips and G. Blaine Baker (Toronto: Osgoode Society, forthcoming 1999).
18. Garth, "James Willard Hurst as Entrepreneur," 47.

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