Reassessing Hurst: A Transatlantic Perspective

DAVID SUGARMAN

Today, the history of law and society has become an exciting growth industry. But just a couple of decades ago this possibility would have seemed implausible. Indeed, when Willard Hurst became professor of law in Madison in 1937, modern legal history was, to put it kindly, dead. Reviving this moribund discipline required more than imagination and an acute awareness of the point and nature of law. Sleeping Beauty had to be woken with a kiss, and Hurst surely brought a serious, tenacious passion to his vocation. Through exhortation, inspiration, and sheer determination, he attempted to resuscitate a huge domain.	1
Hurst's themes and subject matter were often Herculean in scope. The Hurstian model suggested that we had to transcend the formalism and case centeredness that dominated contemporary legal education and scholarship and think and read more broadly. This was allied to "thick description," with its attention to the particulars of what was actually going on in practice. His overriding focus was the role of law in facilitating the market economy, notably, through the law of contract and business corporations. Eventually, he inspired others (whether followers or critics) to tackle these and allied themes and to open up fresh territories and new lines of enquiry, within and beyond the United States. The field of modern legal history has been transformed by this efflorescence. No one can be replaced, but Hurst can scarcely even be imitated. He was an intellectual and moral beacon. In a dark century, he demonstrated many of the features of what a life of the mind should be.	2
I
The great virtue of the essays in this special issue is that they place Hurst in his intellectual milieu, providing a perceptive genealogy of his ideas and projects. The contributors offer a variety of suggestive contexts within which to reapproach and reassess his ideas and connect his outlook to the general intellectual climate of his times: the historical sociologist and philosopher, the historian of American exceptionalism, the Legal Realist whose idées fixes were the rise of the administrative state and the education of lawyers to meet the need for better and more reflexive policy decision making, the democrat who regarded history as a vital tool for creating a more democratic society and the entrepreneur of the field of law and the social sciences. The essays clarify the richness and confines of his thought. Together, they help us understand the contrariety and the evasive richness that lie at the heart of his work and his life: the highly functionalistic instrumentalist assertions about law's role in society versus those statements that recognize law's functional complexity; the identification of a middle-class consensus that dominated American society versus the historian who portrayed the clash of interests and eschewed the notion that law was a neutral and apolitical institution; the historian whose insights were complex and nuanced versus the historian whose perspective and conclusions could appear trite and simplistic; the particularistic historian versus the cosmic theorist; the historian who stressed both the marginality of the law and its central importance in society; the historian who could make history read almost like a novel and the writer who could be overly abstract and opaque; the outsider who marginalized "outsiders" in his histories; the historian who celebrated and criticized American law and society; the networker who could be reclusive, at times, almost isolated; the natural pluralist concerned with the ideological as well as the instrumental dimensions of law who nonetheless reduced the American mentalité to a thin unchanging Protestant-liberal-middle-class consciousness, etc., etc.	3
It was to be expected that any attempt to explicate the mysteries of an intellectual, almost enigmatic, persona like Hurst would produce a certain amount of dissonance. Together these essays demonstrate the multiple contexts and influences involved in the effort to place a complex intellectual identity in the history of its times. The diverse and paradoxical characterizations that emerge flow in part from the presuppositions of the contributors and their desire to lay claim to the "real" Hurst. Contextualization is a tricky business, one that is prone to simplification and anachronism. Without wishing to underestimate or add to the difficulties of the contributors, or to detract from their considerable achievements, I want in the remainder of this comment to consider Hurst's relation to contexts that build on the insights of the contributors and also canvass questions not directly addressed by them.	4
II
Landauer's important essay persuasively locates Hurst among a group of intellectuals that sustained the American exceptionalist tradition. While "isms" are inherently imprecise and need to be handled with care, American exceptionalism can help us to address a topic that has received little attention, namely, Hurst's relationship with the Anglo-civilian, legal-historical traditions. Hurst's engagement with the English and continental legal-historical traditions was limited, not because he was anti-English and anti-European—he was not—but because they appeared irrelevant to his projects. His projects defined themselves in contrast to, and were constructed against, the dominant formalist traditions of England and continental Europe. Unlike several of his mentors, Hurst was not an unrepentant Anglophile. 1 For Hurst, England and continental Europe tended to conjure up quasi-feudalism, over-formality, yawning social gulfs, intense class consciousness and conflict, snobbishness, Dickensian anachronism, 2 Weberian irrationality, 3 and a resistance to modernity and fully fledged democracy. His preoccupation with the radical break between premodern and modern society, the market economy, modernity and social change (discontinuity rather than continuity, modern law rather than the early history of law), law as a dynamic instrument rather than as ancient custom, the ways that contract and corporation law were functional instruments of the market, the rise and importance of administrative agencies and how lawyers earned a living were not the concerns of the dominant English-civilian, legal-historical tradition. It is as if Hurst were intent on turning the English-civilian traditions upside down. Hurst employed American exceptionalism as a remonstration against the "abstractly doctrinal" tradition of Harvard Law School 4 and (by implication) its English and continental European underpinnings, and as a celebration of what he valued in the Wisconsin tradition.	5
Hurst's scholarship illuminates the undeniably real and major differences between the legal cultures of America, the British Commonwealth, and continental Europe. This is not to say that he did not recognize America's English legal heritage. But he kept it at a safe distance. For Hurst, America's debt to English legal culture was principally associated with the English exceptionalism of the seventeenth century and the nascent commercial society of the seventeenth and eighteenth centuries. His commitment to American exceptionalism and his corresponding deemphasis of the English-civilian legal heritage increased over the years. His first book, The Growth of American Law, is also his most sustained discussion of the English heritage in United States law. 5 The extent to which America followed English law is rarely conceded, while the larger interaction with the common law and civilian traditions is unexamined. Having established American exceptionalism as the dominant story, his later work treated it as self-evident. 6	6
Hurst's discourse was not untypical of his American contemporaries. Cold War rhetoric and the celebrated Hart-Fuller debate reinforced America's sense that its home-grown natural law tradition was a better safeguard against the march of fascism and totalitarianism than the legal positivism of England and continental Europe. 7 H. L. A. Hart recalled that when he visited Harvard: "The word 'positivist' had a tremendously evil ring. I remember hearing somebody say, 'You know he's a positivist, but he's quite a nice man.'" 8	7
While American scholars lamented the state of English legal education and scholarship, and its failure to sustain an American-style Legal Realist revolution, 9 British and other Commonwealth scholars sought solace by decamping to the United States and Africa. 10 Occasionally, Hurst encountered those foreign itinerants who sojourned at the Wisconsin Law School and stimulated their scholarly interests, as did R. C. B. Risk, who became probably the most respected academic authority on Canadian legal history. 11	8
All this became part of Hurst's immediate intellectual context when he was elected Pitt Professor of American History and Institutions at the University of Cambridge for 1967-68. He was assigned to the faculty of law, although the lecture lists do not indicate that he offered courses in the faculty. He did, however, in the Lent Term 1968 only, offer weekly "Classes in Law and Social Process in United States History" in the history faculty. 12 Cambridge and English legal scholarship were seemingly unchanged by Hurst's visit and Hurst likewise. When I asked him about his Cambridge experience, he drolly responded that it was a case of mistaken identity: "they had invited the wrong Hurst." 13	9
III
Novak's stimulating essay suggests that Hurst's scholarship is best viewed through the lens of the transatlantic tradition of historical sociology. In fact, Novak's essay is primarily an excellent overview and analysis of the breadth and complexity of Hurst's oeuvre. Ernst and Landauer also point up some of the important transnational interactions. Yet perhaps more attention might be paid to the strong family resemblances between Hurst's work and that of his foreign counterparts. For example, American exceptionalism was bound up with the then preeminent notions of national histories, of the unity of the nation, its shared values, and nationality as the primary sense of belonging. It is also a particular national variant of an ideology that has had universal appeal. Is there any nation that does not consider itself as unique? American law may be less the product of Old World influence and more the consequence of its New World setting, but its exceptionalist ideology is grounded in a transnational core. Among other things, it sought to evade and tame historical transformations in the interests of exceptionalist ideals. 14 From this perspective, Hurst was a national mythmaker analogous to figures such as Fortescue, Coke, Blackstone, Savigny, and Dicey. Moreover, several of the features that Hurst identified as characteristically American are also characteristic of the British Commonwealth and continental Europe. From a general perspective, for instance, the transformation of contract law in North America, the British Commonwealth, and continental Europe exhibit striking parallels, as does the myth of laissez-faire and the projects of liberal legal science and law and the social sciences. 15 The debate over the rise of the regulatory state and the growing power of administrative agencies was a transatlantic one. Hurst's work also exhibits a Hobbesian and common law mind-like concern with stability and the need for law and lawyers, while his functional evolutionism suggests the shift from status to contract associated with Maine.	10
Garth's essay illuminates Hurst's struggle to constitute and legtimate a distinctive counter-hegemonic professional identity, one that would enable those working in the field of law and the social sciences to control their work and establish a jurisdictional competence vis-à-vis their principal competitors. One way of exploring this theme is to investigate the links between Hurst's rhetorical techniques and his political and professional contexts. Landauer is suggestive here. Albeit briefly, he notes Hurst's strategy of using "we" and "our" to tell the story of the rise of modern American law as the story of a shared culture. Taking this further, one might postulate that it also demonstrates the way Hurst (the author), his objects, his reading public, and American law coalesced. It is as if Hurst were the voice of the American public, and of a new professional history, a history of law and society, that was grounded in the "real" past, the most real yet, based on fact, experience, practice, and a meticulous attention to sources. Resorting to such narrative strategies was part of the process of rendering his work sigificant and authoritative. The politics of constituting historical knowledge upon the discourse of "the real" was intricately linked to unease about the rise of the regulatory state and the fact that the "release of energy" was increasingly exercised by groups rather than private individuals. 16 By merging the historian, the lawyer, and the American citizen, by speaking on behalf of all three, and by grounding the legtimacy of the law on the authority of the community at large, Hurst invited the American public to consider the virtues and vices of their legal heritage and to learn from their history, while imposing on the lawyer-historian-social scientist the duty of freeing the citizen from the irrational burdens of the past. In this sense, he constructed a people's history of the law. 17	11
Yet having constructed a people's history, the people as acting subjects were largely absent and shifts in law, economy, and society seemingly occurred without sharp conflict. For in prioritizing the history of the law in practice in terms of its administrative uses, and by deemphasizing debates about its political meaning, the agents of change were largely lawyers, administrators, historians, and politicians. As Ernst demonstrates, the rise of the administrative mode was acceptable to Frankfurter and Hurst on the basis of better trained lawyer-administrators. And for Frankfurter at least, the role model was the English civil service. 18 In these respects, Hurst resembles Maitland. 19 To see Hurst through transatlantic eyes is to locate Hurst's ideas and projects in nineteenth- and twentieth-century debates about the nature and interpretation of society and liberalism, with its concern with Whiggism, public opinion, the idea of balance, the progress of society and pluralism, infused with a strong sense of nationhood. 20 More specifically, it is to observe the parallel ways in which Maitland and Hurst played a signal role in the development of a new social history of law prior to the advent of "history from below" in the 1960s and 70s. Hurst's sensitivity to the plurality of law and legal agencies and the operation of law in practice was allied to Namierite detail. Yet despite his liberal disposition, Hurst wrote "top down" history raising questions about the extent to which he was entitled to incorporate ordinary people into his theses. The answers probably vary according to persons and places, times and contexts. The difficulty of interpretive selectivity may be illustrated with reference to the work of the pioneer of American history "from below," and Hurst's erstwhile research assistant, Herbert Gutman. While both Hurst and Gutman deal with American people in the same period, each of them could well be describing different "Americans."	12
By taking function as his focus, Hurst articulated a paradoxical discourse of citzenship and historical knowledge. His America was no Thatcherite paradise of power-hungry human atoms. Yet his fascination with the maintenance of modern society reminds me of Mrs. Thatcher at her most characteristic. On one walkabout she met a refuse (i.e., garbage) collector. "And what do you collect?" she asked, "Refuse?" "And bodies," was the disconcerting reply. Madam reeled but rallied: "Someone," she said firmly, "Has To Do It." 21	13
David Sugarman teaches in the department of law at Lancaster University, UK. He is grateful to Robert W. Gordon for commenting on his argument, to Neil Duxbury and Leonie Sugarman for stylistic criticisms, and to Chris Tomlins for his patience and encouragement. Notes       1. On Frankfurter's Anglophilia, see, for example, R. A. Cosgrove, Our Lady the Common Law (New York: New York University Press, 1987), 219.
2. See David Sugarman, "The Law and Legal Institutions," in The Oxford Reader's Companion to Charles Dickens, ed. Paul Schlicke (Oxford: Oxford University Press, 1999), 70, 230-31, 297, 316-22.
3. See David Sugarman, Law, Modernity and "the Peculiarities of the English" (Madison: Insitute for Legal Studies, 1987).
4. Hendrik Hartog, "Snakes in Ireland: A Conversation with Willard Hurst," Law and History Review 12 (1994): 370-90, 372.
5. James Willard Hurst, The Growth of American Law: The Law Makers (Boston: Little, Brown, 1950).
6. For example, whereas The Growth of American Law contained twenty-nine brief references discussing the English heritage, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison: University of Wisconsin Press, 1956) contained four.
7. See E. A. Purcell, The Crisis of Democratic Theory (Lexington: University of Kentucky Press, 1973).
8. The author's interview with H. L. A. Hart, 9 November 1988.
9. See, for example, K. C. Davis, "The Future of Judge-Made Law in England," Columbia Law Review 61 (1961): 201-20; A. L. Goldstein, "Research into the Administration of Criminal Law, British Journal of Criminology 6 (1966): 27-40.
10. See William Twining, Law in Context (Oxford: Clarendon Press, 1997), chaps. 1-3.
11. See Robert W. Gordon and David Sugarman, "Richard C. B. Risk," in Essays in Canadian Law, vol. 8, ed. G. Blaine Baker and Jim Phillips (Toronto: University of Toronto Press, 1999), chap. 1.
12. I am grateful to John Baker for providing this information.
13. The author's discussion with Hurst on 23 May 1992.
14. See, generally, Dorothy Ross, The Origins of American Social Science (Cambridge: Cambridge University Press, 1991).
15. See, for example, P. S. Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979); David Sugarman, "Legal Theory and the Common Law Mind," Legal Theory and Common Law, ed. W. Twining (Oxford: Blackwells, 1986), 26-61; Franz Wieacker, A History of Private Law in Europe (Oxford: Clarendon Press, 1995); Michael Hoeflich, Roman and Civil Law and the Development of Anglo-American Jurisprudence (Athens: University of Georgia Press, 1997).
16. Hurst, Law and the Conditions of Freedom, 107. On the transatlantic context, see David Runciman, Pluralism and the Personality of the State (Cambridge: Cambridge University Press, 1997).
17. For a similar analysis of Maitland, see James Vernon, "Narrating the Constitution," in Re-Reading the Constitution: New Narratives in the Political History of England's Long Nineteenth Century, ed. James Vernon (Cambridge: Cambridge University Press, 1996), 204-38.
18. Jerold Auerbach, Unequal Justice (Oxford: Oxford University Press, 1976), 170-72
19. Notwithstanding their significant differences, such as Maitland's privileging of the early history of law, his problematization of a major break between modern and premodern law and society, his aversion to functionalism, his commitment to comparative history, and his exquisite style of writing.
20. See J. W. Burrow, Whigs and Liberals (Oxford: Clarendon Press, 1988).
21. See N. Banks-Smith, "The Dictators of Dirt," The Guardian, May 19, 1999, p. 22.

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