Why was James Willard Hurst important for legal history?

James Willard Hurst

On June 20, 1997, the New York Times obituary for James Willard Hurst described him as the “dean of American Legal Historians.”[1] While few legal historians would have challenged this description of Hurst, it hardly encompassed the full scope of his career. Hurst was a legal historian, a prolific scholar (he wrote seventeen books, numerous journal articles and book reviews), a historical sociologist and a legal education reformer. Hurst was not only the most prominent legal historian of his day, but he had broader goal by attempting to explain how law fit into the fabric of American life. He also founded the “Law and Society” movement which sought to bring a more interdisciplinary approach to American legal education by emphasizing the importance of social sciences. Hurst worked hard throughout his career to reform both legal history and education.

Hurst was not a historian by training. He attended Williams College for his undergraduate work and proceeded to Harvard Law School.[2] When Hurst attended Harvard Law, he became disenchanted with emphasis on the case method and legal formalism as the exclusive way to educate law students.[3] Hurst believed that the Harvard legal education ignored the vital role of legislation and administration in the law.[4]. Hurst became interested in the work of the Legal Realists (such as Karl Llewellyn) who argued that laws had social origins and that they were not simply the result of legal logic.[5] Hurst began to believe that any history of American laws would also have to be a social history of the United States.[6]

Hurst’s legal and historical education continued during a research fellowship with Felix Frankfurter and clerkship with Supreme Court Justice Louis Brandeis during the mid 1930s.[7] By 1937, Hurst began teaching at the University of Wisconsin law school. At the University of Wisconsin, Hurst developed a number working relationships with faculty members in the social sciences. These relationships (along with his extensive knowledge of scholarship in history, sociology and political science) would play an important role in developing his work as a legal historian.

When Hurst began his teaching career, modern legal history was “dead.”[8] One of Hurst’s early works, Law and the Conditions of Freedom in Nineteenth-Century United States helped revive it from its slumber. Unlike previous legal historians, Hurst believed that legal history could not be studied in isolation: “a realistic history of law in the United States must relate law to institutions and ideas derived largely from outside the law. Thus we need to study the social history of law, and not merely appraise its history as a self-sufficient institution.”[9]. Hurst’s shift in focus revitalized legal history by broadening its scope.

In 1956, Hurst published Law and the Conditions of Freedom in the Nineteenth-Century United States, based on series of lectures given by him at Northwestern University. This book is described by Carl Landauer as a prehistory of America’s New Deal liberalism.[10] In this work, Hurst explains that the legal and social order of law in the nineteenth century was defined by “working principles.”[11] According to Hurst, these historical working principles were that: “The legal order should protect and promote the release of individual creative energy to the greatest extent compatible with the broad sharing of opportunity for such expression” and that “[t]he legal order should mobilize the resources of the community to help shape an environment which would give men more liberty by increasing the practical range of choices open to them and minimizing the limiting forces of circumstances.” [12]

Hurst was essentially arguing that American society and the economic marketplace had shaped the law. Hurst did not believe that you could understand how the law worked in society by only examining the great cases of the past or philosophers such as John Locke, instead you had to examine how society’s needs shaped the law.

The Law Economic Growth: Legal History of the Lumber Industry in Wisconsin 1836-1915, an exhaustive study the Wisconsin timber industry, attempts to do just that. Hurst argued here that legal history had previously exaggerated the importance of the judicial process and common law doctrine. Instead he sought to show that “great issues of policy” were instead contained in the legislative history and the law of real and personal property.[13]

Furthermore, Hurst admits that there were not any important legal cases relating to the Wisconsin timber industry, but instead his study showed how the nineteenth century Wisconsin community was quick to use law as practical means to exploit an important and profitable resource.[14] Hurst states that the story of Wisconsin’s lumber industry was of a secondary importance to him and that his primary concern was to show how “the interaction of legal and economic institutions yielded a product relevant to broader social theory.” (Hurst, p. xx.) In order to achieve this goal, Hurst analyzed “the interaction of all the relevant legal agencies (every piece of official paper) surrounding the changes in a given public policy over time.”[15]

It is Hurst’s study of the Wisconsin timber industry that William Novak cites to support his belief that Hurst was a historical sociologist in the same vein as Marc Bloch, E.P. Thompson, and Immanuel Wallerstein. While their conclusions differ, Novak argues that these historians used an interdisciplinary approach in an attempt to understand the “interrelationship of individual action, large-scale social structures, and fundamental processes of historical change.” [16] Novak states that while “Hurst’s historical sociology was so extensive and multifaceted that to some extent it defies compression and concise summary” Hurst sought to connect nineteenth century American law to the broader story of the general social experience.[17]

Novak argues that Hurst had developed three categories for understanding law in society and used them as a metanarrative in all of his substantive books: function, value and power. Function was the “relationship of law to the functional requirements of a market economy.” Value was the “relationship of law to the amorphous realm of articulated norms in society.” Finally, power was “the relationship of law to public force.”[18] “Through these basic categories, Hurst explored the interaction of law with (a) economy, (b) society, and (c) polity.”[19] Hurst’s approach was revolutionary. Instead of examining constitutional law through judicial review, Hurst incorporated legal history into American socio-economic development, American liberalism and the constitutional state.

Hurst’s scholarship expanded the bounds of legal history and he lobbied tirelessly to promote his views. Hurst helped found and promote the Law and Society movement.[20] Hurst sought out funding from private donors to establish Law and Society centers at the University of Wisconsin, University of California-Berkley, University of Denver and Northwestern University.[21] Hurst hoped that these centers would play a vital role in shaping the legal education of America’s lawyers. Aside from the University of Wisconsin Law School, ultimately, very few of his ideas were incorporated into the American legal education. The traditional case study still dominates most law schools’ curriculum. Social scientists, and not legal scholars, have played a bigger role in the Law and Society movement. A cursory glance at the Law and Society Review demonstrates that most of its authors are sociologists, political scientists and historians, not legal scholars or attorneys. While the Law and Society movement is no longer dominated by legal historians, legal history was forever changed by Hurst’s work.

It is not surprising that Hurst’s work has been endlessly debated in the legal and historical communities. Both Robert Gordon and William Novak agreed legal historians were indebted to Hurst because “much of the best American legal history since the 1980s has been devoted to issues missing or minimized in Hurst’s vast body of work.” [22] Any historian who inspires this much scholarship is bound to be controversial and Hurst is no exception. Despite Hurst’s advocacy of law and society, Novak argues that he probably would not be adverse to revisions to his own ideas.[23]

Hurst’s work focused almost exclusively on economic activity and policy, and there have been several valid complaints that his work ignored marginalized groups within American society who were excluded from the legal system. Since the 1980s, legal historians have started writing areas completed ignored by Hurst. Scholars have begun writing social histories of law on race, gender, and class relations and they have established new fields in slave law, Native American law, family law and immigration law.[24] Hurst essentially excluded all of these groups in his studies. Hurst’s studies instead focused on middle class economic activity and in or around Wisconsin. It is unsurprising that much of the diversity and character of America is left out.

Barbara Welke points out that Hurst’s academic world would have been peopled almost exclusively by men. For most of Hurst’s career, both the faculty and students at law schools were predominately men.[25] Additionally, Welke is troubled that most of the discussions about Hurst are still dominated by historians who lack both gender and racial diversity.[26] According to Welke, Hurst only studied those Americans who had achieved the freedoms he describes, instead of the majority of Americans who lived various degrees of “unfreedom.”[27] Despite Welke’s criticisms, she agrees that Hurst’s work opened up the study of these underrepresented individuals in legal history by being the first to challenge its original boundaries.[28]

Hurst’s legal scholarship provides the foundation for modern American legal history. He believed that legal history needed to move beyond its roots and start discussions of law in society. He also directed legal historians to conduct extensive factual studies to better understand the impact of law in society. While the influence of his scholarship may ebb over time, he provided legal historians with a number of tools to further their scholarship.

References

  1. Gelder, sec. B, pg. 8, col. 5, New York Times, June 20, 1997.
  2. Tomlins, Christopher, “Framing the Field of Law’s Disciplinary Encounters: A Historical Narrative,” Law and Society Review, vol. 34, 2000, p. 956.
  3. Ernst, Daniel R., “Willard Hurst and the Administrative State: From Williams to Wisconsin,” Law and History Review, vol. 18, 2000, p. 8.
  4. Ernst, p. 8.
  5. Ernst, p. 8-9.
  6. Ernst, p. 9.
  7. Tomlinson, p. 956.
  8. Sugarman, David, “Reassessing Hurst: A Transatlantic Perspective,” Law and History Review, vol. 18, 2000, p. 215.
  9. Hurst, James Willard, Law and Social Order in the United States, Cornell University Press, 1970, p. 270.
  10. Landauer, Carl, “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, vol. 18, 2000, p. 61.
  11. James Willard Hurst, Law and Conditions of Freedom, p. 3-5.
  12. Hurst, p. 5-6.
  13. Hurst, James Willard, Law and Economic Growth, The Harvard University Press, 1964, p. xi-xii.
  14. Hurst, p. 607-608.
  15. Novak, William, “Law, Capitalism, and the Liberal State,” Law and History Review, vol. 18, 2000, p. 114.
  16. Novak, p. 98.
  17. Novak, p. 100.
  18. Novak, p. 118.
  19. Novak, p. 118.
  20. Garth, Bryant G., “James Willard Hurst as Entrepreneur for the Field of Law and Social Science,” Law and History Review, vol. 18, 2000, p. 39-40.
  21. Garth, p. 40.
  22. Gordon, Robert W., “Hurst Recaptured,” Law and History Review, vol. 18, 2000, p. 167.
  23. Novak, 144.
  24. Novak, p. 140.
  25. Welke, Barbara, “The Archipelago of American Legal Historiography” Law and History Review, vol. 18, 2000, p. 197.
  26. Welke, fn. 3, p. 199.
  27. Welke, p. 201.
  28. Welke, p. 201.