Book Review

When Professor Kingsfield intoned "You come in here with a brain full of mush, but you leave thinking like lawyer," in the movie The Paper Chase, he implied that legal logic had a rigor and beauty beyond that of ordinary common sense. But what kind of logic, a skeptic might well ask, would categorize the relation between hundreds of thousands of General Motors workers and the intricate bureaucracy of GM management as "Master and Servant," as if all the line workers were just so many personal valets of Alfred Sloan?	1
Chris Tomlins's magisterial study of the triumph of the law and of legal discourse in the first half of the nineteenth century provides a convincing explanation for this conundrum, as well as many others. Legal discourse, Tomlins argues, became the dominant medium through which Americans expressed their relations to each other and to the polity in the early nineteenth century. Legal discourse acted so powerfully to create the facts of everyday life that the pronouncements of judges became statements of the "natural" order. Law thus rose above mere political contingency. Legal decisions became statements of "the way things are."	2
The legal discourse's presuppositions about the role of judges and the primacy of the common law conflicted with republican visions of the primacy of constitutions and legislatures. However, law's very power to develop outside of democratic institutions, and its potential to control them, accounted for much of its appeal to those concerned with the excess of democracy in which America's republican experiment sometimes indulged. Thus, we became a nation of "laws, not men." The first part of Tomlins's work describes law's triumph over competing discourses, for law's victory was not a foregone conclusion. In particular, law embedded hierarchical power arrangements that contradicted the revolutionary era's republican vision of an open political society where all contributing white male citizens had the right to participate in creating the polity's rules in the name of the common good. Another discourse provided a vision of organizing society more in lines with these republican values, the discourse of police. Tomlins rescues the idea of police from the truncated twentieth-century version of "police powers," which allows states and municipalities to maintain order in the streets and limit some individual rights in the name of public order. The late eighteenth-century version of police envisioned a society where democracy could rule in the name of the public good. Police was the language of local rule. Police gave voice to a "community's right of response to communal necessity recast in the language of inherent popular rights of control and direction of government" (57). Thus the vision of the public good would come from the people, who were unified with the government, instead of alienated from it. While police was embraced at the local and state level, the national debate turned to the rule of law, not of men, as the appropriate organizing discourse.	3
Tomlins's resurrection of police as a discourse in contrast to and competing with the law to organize the early nineteenth-century polity—as opposed to police being a captive of the common law, as Bill Novak has argued—is a significant achievement in itself. But this study has a greater ambition. Tomlins mobilizes this intellectual history to address one of the most enduring historiographical issues of the antebellum period, the relation of the law to the rapidly transforming American economy. Tomlins rejects the theory that law molded itself to meet the "needs of capitalism." He offers, instead, a subtler theory. Law evolved according to its internal institutional and logical dictates. Part of the evolution required addressing the potent issues that the rapidly changing economy presented to the legal system. But the law's preference for hierarchical solutions and resistance to free-flowing popular visions of the communal good, which the police discourse often generated, was hardwired into the legal discourse itself.	4
The most exciting and challenging part of this work is Tomlins's application of his vision of the workings of legal discourse to explain three episodes of law and economic development, all in labor history. First, he addresses the use of conspiracy laws to prosecute nascent labor unions. Next he examines the court's seemingly illogical application of the hierarchies of master and servant law to industrial workplaces, which gave employers status authority over laborers under the guise of a contractual relationship. And third, he analyzes the development of the fellow-servant rule in the Farwell case, which had the effect of relieving industry, and especially the railroads, from liability for the increasingly devastating accidents to workers. In these case studies, Tomlins shows how courts, acting from their own ideology of law, crafted rules that only later turned out to meet the instrumental goals of industrial capitalism.	5
The main criticism of this book is that the case studies do not include strong evidence that the police discourse was a major rival of the legal discourse. The voice of the police discourse, although present, is so muted that it never seems capable of defeating legal discourse. The appropriate reaction to this critique is to realize that Tomlins's work is an invitation to reevaluate antebellum law and society. Three topics seem especially fruitful for a search for the voice of the police discourse. The codification movement had, as its clarion call, the need to demystify and assert democratic control over the common law. The campaign to elect judges attempted to reinstate political contingency into judicial decision making. Finally, we need a history of the adopting and interpreting of state reception statutes, those statutes by which the legislatures described the reach and limit of the common law in their states. These statutes placed the common law within, instead of above, the constitutional framework. Did this attempt succeed? As with the best of monographs, Tomlins's study leaves us reconsidering that which we thought we knew and considering which routes future explorations should take.	6
R. Ben Brown John Marshall Law School

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