| Book Review | Law and History Review, 22.1

Book Review

William M. Wiecek, The Lost World of Classical Legal Thought: Law and Ideology in America, 1886–1937, New York: Oxford University Press, 1998. Pp. xiv + 286. $72.00, cloth (ISBN 0-19-511854-5); $25, e-book (ISBN 0-585-21179-5 ); $17.95, paper (ISBN 0-19-514713-8).

Classical legal thought, according to William M. Wiecek, epitomized late nineteenth- and early twentieth-century American jurisprudence. He contends that comprehension of the highly abstract legal classicism of a century ago requires an understanding of both its contentions and its applications. Coming to terms with the underlying character of classical legal thought, the Syracuse University Professor of History and Public Law continues, is essential in order to appreciate a once-dominant judicial approach that would largely be reversed by the constitutional upheaval of 1937.

Classical legal thought, says Wiecek, was more the mentality of an American legal elite than a fully articulated jurisprudential theory. Highly abstract, it held that objective truth and universal legal principles could be defined with certitude and justly imposed. Classical legal thought was rooted in an eighteenth-century notion of higher law but as enlightenment-inspired, scientifically-determined secular principles rather than divinely prescribed natural law. The preeminent legal values that classicists believed the judicial system must vigorously defend were individual liberty and property rights. Constitutionalism and judicial review served as the means to protect these principles against attack.

Proponents of classical legal thought would, for instance, have thought it perverse to treat property relations as socially constructed and thus legislatively malleable. Instead, judging was akin to science and involved finding rather than making law. Classical legal thought regarded individual will, and thus free right of contract, as a bedrock principle. Government redistribution of property through taxation, labor laws, or other legislative means ought therefore to be steadfastly opposed.

The dates supplied in the title do not identify the full chronological sweep of Wiecek's discussion. The first two of his five substantive chapters examine the rise of classical legal thought prior to the 1880s and place Supreme Court decisions such as Dred Scott v. Sandford and the Slaughterhouse Cases squarely in the classical mainstream. In Wiecek's estimate, classical legal thought reached its peak influence in the generation after the Civil War with rulings such as Pollock v. Farmers' Loan & Trust, In re Debs, and U.S. v. E. C. Knight. The purest expression of its transcendent commitment to liberty of contract and substantive due process came in Lochner v. New York. The progressive era brought challenges to increasing sterile classical thought in the form of contrary judicial views, legislative actions, and even constitutional amendment. In the 1920s the Taft Court revived classical thought as did efforts to express general legal principles through the American Law Institute's Restatements Project. The Supreme Court's decisions of 1935 and 1936 that so outraged Franklin Roosevelt and supporters of the New Deal displayed the devotion of a majority of the justices to unwavering classical principles despite shifting circumstance and the preferences of republican instruments of government. The countermajoritarian dilemma has seldom been displayed in such stark terms.

The Lost World of Classical Legal Thought thus makes a useful contribution to the ongoing debate over the nature of constitutionalism during the New Deal. Legal scholars such as Bruce Ackerman and historians such as William Leuchtenberg have considered 1937 to have marked an abrupt transformation of American constitutionalism, with a new understanding of the role of the judiciary emerging and soon articulated in footnote four of U.S. v. Carolene Products. Others, notably Barry Cushman and most recently G. Edward White, have regarded the events of 1937 as the most visible aspect of a more gradual process of change. Wiecek, by acknowledging the decline of classical thought but noting its enduring influence in the Court's 1935 and 1936 decisions, offers an intermediate position, gives some aid and comfort to each side, and renews interest in the old question of what prompted "the switch in time that saved nine." Wiecek will henceforth need to be taken into account in any serious consideration of the upheavals in legal thought in the 1930s.

In a brief epilogue, Wiecek sees a reemergence of classic legal thought in the jurisprudence of Chief Justice William Rehnquist and his Supreme Court allies. While in some respects Wiecek echoes G. Edward White in noting the revival of pre-1937 jurisprudence in the current Court, neither scholar has explored these connections or their implications in depth. Both Wiecek and White have effectively called attention to the value of further consideration of the judicial climate prior to the New Deal upheaval on its own terms as well as for its relevance to better understanding of the contemporary situation.

Oxford University Press ought to be applauded for making Wiecek's work available to scholars in its 1998 hardcover edition, but its 2002 publication of a paperback edition, which (judging by the mailings of brochures and examination copies) is obviously aimed at a classroom audience, is more questionable. Students and indeed all readers should find a thoughtful historiographical essay, included as an appendix, quite useful. However, all but the most advanced students will be challenged by the main text and, one suspects, often defeated by Wiecek's sophisticated argument, very limited contextualization, loose chronological periodization, and frequent unexplained references to cases, individuals, and other matters, as well as by his dense, passive prose. Wiecek has directed an admirable book toward a scholarly audience. His publisher, on the other hand, is seeking to place it in the hands of an audience for which it does not appear to have been designed and for which it is less well suited.

David E. Kyvig

Northern Illinois University

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