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Book Review
| John Fabian Witt, Patriots and Cosmopolitans: Hidden Histories of American Law, Cambridge: Harvard University Press, 2007. Pp. 406. $29.95 (ISBN 978-0-02360).
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| John Fabian Witt is one of the most talented legal historians of his generation. His first book, The Accidental Republic, was widely and deservedly praised. This new book has the intriguing subtitle: "hidden histories of American law." It consists of "four yoked essays" (6), drawn from different periods, and focusing on five figures in American history—James Wilson, Elias Hill, Crystal Eastman, and, in the final essay, Roscoe Pound and Melvin Belli, an odd couple if there ever was one. The book is a "historical inquiry into law and the experience of American nationhood" (1). Each of the essays is supposed to illuminate a different aspect of American "nationhood," as experienced in different times by very different people—James Wilson, the founding father and land speculator; Elias Hill, a black preacher who went into exile in Africa; Crystal Eastman, a radical internationalist; and Roscoe Pound, a disillusioned philosopher and progressive, who joined forces with Belli, the flamboyant personal injury lawyer, to fight the administrative state and champion the common law system of torts. |
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One way of looking at the book is simply as four brilliant and fascinating essays, each one exploring a particular life and career. Each story works in its own right; each sheds a new and surprising light on some rather obscure aspects of American legal and social history. Many readers, I imagine, will recognize Wilson's name, but almost nobody will recognize the name of Elias Hill, the crippled black preacher who ended his life in Liberia; nor (probably) Crystal Eastman; and while both Pound and Belli are familiar names, their weird friendship and collaboration is something of a surprise, and a shock. |
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Whether these "yoked essays" actually hang together is a bit more problematic. The general idea, as I understand it, is that each essay illustrates a different take on national identity—usually a dissenting take. Human beings are richly complex and inconsistent; and the five main characters are no exception. Much of what they aspired to do ended in failure or frustration. Wilson was in constant financial trouble and toward the end of his life "slid into delusion and delirium" (79). Elias Hill dreamt of a land of freedom for black Americans; but he died of malaria in Liberia, and the emigrants who came with him escaped from American slavery only to found a rather unjust society on the backs of indigenous people. Crystal Eastman struggled for a new international order, dedicated to human rights; but the growing movement for civil liberties rejected her approach. Pound and Belli, in their zeal for the common law, fought against the administrative state, which, for all its faults, had become one of the main hopes of American progressives. |
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What does it all add up to? "Patriots and Cosmopolitans," the book's name, suggests one answer. Each of the protagonists was profoundly influenced by some sense of nationhood, even when they felt frustrated by social realities in America. That's the patriot part. Each also had some notion that was bigger and bolder, that reached out beyond the confines of the United States, either in some physical sense, or in a conceptual sense. That's the cosmopolitan part. This comes through very clearly in the case of Elias Hill and Crystal Eastman, least clearly with regard to Pound and Belli; but perhaps what was "cosmopolitan" was their worship of the ordinary common law, and their hatred of the administrative state, which had usurped the old, true nation of the founders. |
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American nationhood, Witt tells us, was a big tent, remarkable for its "capaciousness and variety" (281). But though there have been many "American nationhoods," they have "not been unbounded" (282). Witt's characters were often wrong or wrong-headed about the boundaries and where the boundaries were located. It cost most of them dearly. |
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For Witt, the history of nationhood has been "one not only of variety and contingency, but also of limits and constraints" (282). American "nationhood" is thus both idealistic, far-sighted, bold and, at the same time, and in other respects, crabbed and confined and narrow-minded. Whether the four essays make their points about nationhood with enough clarity and persuasiveness is another question. Still, I would recommend this book to anybody seriously interested in our legal and social history. At the end of my journey through the book, I was not (to be frank) completely sure I knew where we were supposed to be going. But the trip was more than worth-while because of all the wise and wonderful things along the way. |
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| Lawrence M. Friedman
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| Stanford University |
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