Vol. 3 No. 6 (June, 1993) pp. 60-62

THE TRANSFORMATION OF AMERICAN LAW, 1870-1960 by Morton J. Horwitz. New York: Oxford University Press, 1992. 361 pp. Cloth $30.00.

Reviewed by Kermit L. Hall, Dean and Professor of History and Law, The University of Tulsa.

Morton Horwitz's first book, THE TRANSFORMATION OF AMERICAN LAW, 1780-1860, has become a landmark in American legal history. Few books have either so profoundly shaped the course of debate about the nation's legal past or stirred so much controversy. Now Horwitz has produced a second book with the same title as his first, but covering the years 1870 to 1960, a period during which prevailing legal orthodoxy was thrown into crisis. We have, therefore, TRANSFORMATION ONE and TRANSFORMATION TWO. One might speculate that Professor Horwitz, who teaches at the Harvard Law School, will eventually produce TRANSFORMATION THREE to cover the ten-year period of the Civil War and Reconstruction, an era considered by most legal historians of unparalleled importance to the definition of modern legal culture yet resolutely ignored by Horwitz.

Readers expecting in this new book an interpretive rehash of TRANSFORMATION ONE will be surprised, perhaps even disappointed. In some ways, of course, the two share much in common. Like the first volume, this newest work is less a book than a collection of essays roughly stitched together. Like the first, Horwitz draws randomly from a wide range of cases, social changes, and cultural developments without making explicit connections among them. Moreover, he continues, as he did in the first book, to rely on the case method of analysis, even when that means playing fast and loose with chronology.

More than TRANSFORMATION ONE, however, TWO is definitely not an inquiry into the socio-economic basis of law. Horwitz's earlier work stressed that the antebellum legal system indirectly subsidized capital formation and economic development. Judges and lawyers, according to this view, used legal rules to redistribute the costs of economic growth away from business and toward laborers and farmers. The legal system became an instrument to foster capital development by placing the costs of capital formation on those least able to shoulder them.

TRANSFORMATION TWO explicitly eschews this approach. It seeks instead to link legal and cultural, rather than economic, change. Horwitz's perspective has become post-modern as he attempts to assess developments between the late nineteenth century and the Age of Aquarius. He has embraced the idea that any rendering of history must be partial and reflect the views of the historian as much as the subject being investigated. TRANSFORMATION TWO, therefore, fits more with the emerging school of pragmatic hermeneutics in intellectual history than with either critical legal studies or mainline intellectual history.

At the heart of TRANSFORMATION TWO is Horwitz's explanation of the shift from classical legal thought, the emergence of which figured in the closing chapters of TRANSFORMATION ONE, to Progressive legal thought. Classical legal theory -- the old orthodoxy -- stressed neutrality and objectivity; it dominated American legal culture until the mid-1930s. Progressive legal theory, on the other hand, arose in response to ever increasing social and economic inequality, and its adherents claimed that, in the face of this inequality, arguments about the law's autonomy -- of a government of laws and not persons -- was bogus, a sham.

Progressive legal thought took its boldest expression in the Legal Realist movement of the 1920s and 1930s. The cumulated weight of the realist movement, the Great Depression, and the New Deal brought on the collapse of classical legal theory and with it the idea that law was neutral. For example, Horwitz explains how the natural entity theory of corporations came to replace the notion that corporations were merely driven by competitive pressures. One of the

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book's most important sections argues that the consolidation of big business under the natural entity theory had the unintended consequence of demonstrating that all claims to rights were artificial and therefore subject to regulation by the state. Arguments inside the law about the proper definition of the corporation were complemented and reinforced by arguments outside the law on issues involving the rise of the joint stock company and the emergence of critical social science.

Horwitz's richly textured analysis shows that "legal theory does powerfully influence the direction of legal understanding." (p. 106-7) The attack on classical legal theory began in the late nineteenth century and accelerated rapidly in the early twentieth under the prodding of Progressive thinkers. They urged reform of the law in light of their contention that lawmakers acted politically, not objectively. Progressives complained, for example, that the notion of freedom to contract, which was sanctified in LOCHNER v. NEW YORK (1905), assumed equality among all individuals bargaining in the market place. Oliver Wendell Holmes, Jr., who dissented in LOCHNER, was among those Progressive legal thinkers who understood that such an assumption was neither supported in theory nor in social scientific evidence. Instead, Holmes stressed, proper analysis of legal relations depended on understanding the interdependence not the independence of persons engaged in bargaining.

Legal scholars have long appreciated the important role that Holmes played in the shift from classical to Progressive legal theory. Horwitz invokes Holmes's legal career to brilliant advantage. Holmes, Horwitz writes, moved from an early position that gave credence to the idea of law as an objective force to a more mature view that treated the entire matter of objectivity in law and social science with a skepticism bordering on cynicism. Horwitz argues that the appearance in 1894 of Holmes's pivotal essay, "Privilege, Malice, and Intent," marked "the moment we should identify as the beginning of modernism in American legal theory." (p. 131) Holmes concluded that there was simply no objective or neutral way to reconcile the competing claims of labor and capital. Such a conclusion, of course, echoed the pragmatism of Henry James and John Dewey, who Horwitz argues had a powerful influence on Progressive legal theorists such as Holmes. Horwitz also concludes that the Progressive approach to law meant that the state had an inescapable responsibility in redistributing wealth.

The early chapters treating these developments provide the foundation for the book's most important contribution: its nuanced treatment of the rise of Legal Realism. Horwitz argues that realism grew directly from Progressive legal theory and that it was, in the end, more a mood than a movement. Horwitz explains that the realists are better appreciated for their diversity than their similarity. Much recent writing on the realists, of course, has stressed their commitment to the methods of social science and value-free empiricism. Yet Horwitz correctly points out that Karl Llewellyn, perhaps the best known proponent among the realists of a scientific and positivistic methodological approach to the law, was the exception and not the rule. More central to the tradition of Progressive legal thought and, therefore, to our own time, was the committed reformism of Louis Brandeis, Roscoe Pound, and Benjamin Cardozo. Horwitz significantly rehabilitates these three as major forces in developing American legal theory and as the exponents of the "real" Legal Realism.

The notion that all realists were without values and that they were ethical relativists, Horwitz goes on to argue, is simply wrong. Indeed, a good number of realists were what he calls cognitive relativists, meaning that they appreciated that thought processes were such that law could not be understood as self- executing and non-discretionary. Hence, any methodology that sought to categorize and compartmentalize the law, as Llewellyn argued was one of the realists chief goals, was not only suspect, because it contained debatable political and moral assumptions, but contrary to the authentic meaning of realism. Legal Realism and the

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Progressive tradition that informed it, Horwitz concludes, did not die with World War II, the alleged victims of an ethical relativism rooted in objective social science. Instead, both continue as major intellectual forces in the law today, with schools of legal thought as diverse as the Law and Economics movement and Critical Legal Studies claiming them as intellectual ancestors. Horwitz notes that such competing claims merely underscore the tension between value-neutral empiricism and committed reformism, a tension created by the Progressives' continuing efforts to reform American law.

TRANSFORMATION TWO is an important book. It offers a bold reinterpretation of modern legal history, it elevates the discussion of legal change above the level of the "people" versus the "interests," and it affirms the value of taking legal doctrine seriously. TRANSFORMATION TWO, however, is unlikely to have the same success enjoyed by TRANSFORMATION ONE. Part of the reason has to do with the increased sophistication of legal history as a discipline since the latter appeared sixteen years ago. The behavioral, law-and-society approach associated with Lawrence Friedman has captured a broad following, one that heavily discounts the importance of ideas and stresses instead the wisdom of studying the law in action. There is among legal historians renewed interest in the history of legal doctrine, as TRANSFORMATION TWO so eloquently testifies. Yet the new book, while sophisticated in the ways of intellectual history, does little to explain legal behavior, one of the chief concerns of Friedman and his adherents. Horwitz has demonstrated the value of taking doctrine seriously, but he has hardly addressed the concern of behavioralist scholars that such attention to the intellectual life of American law actually obscures its day-to-day workings.

Second, Horwitz himself has failed to come to terms with recent scholarly assessments that stress the variegated nature of the Progressive movement. For example, he rests much of his discussion of modern constitutional history on Charles Beard's now thoroughly exploded assertion that the Constitution was originally written to protect property rights and enforce inequality. This view seems antique, even wooden given the mountain of neo- Progressive and republican interpretations of the document's origins by scholars such as Gordon Wood. Horwitz's Beardian interpretation also flies in the face of what is an otherwise sophisticated explanation by Horwitz of the futility of approaching American legal history as the story of how law and politics are separated from one another.

TRANSFORMATION TWO's worst enemy is itself. Much of the success of TRANSFORMATION ONE stemmed from its direct and not so subtle argument. The Horwitz thesis was elegantly stated and easily tested by other scholars. Indeed, a host of historians have complained that in the first book Horwitz failed to connect changes in legal doctrine to observable changes in economic behavior. Horwitz, of course, was not so much interested in proving this point as in stating it. TRANSFORMATION TWO, however, has substituted abstraction for simple elegance in attempting to tell its quite complex and not easily grasped story. Surely, one would think, the same concrete interests and groups that Horwitz identified in the first book would have their parallels in the second. If anything, industrialization in the late nineteenth century created more not fewer threats to workers and farmers, the so-called producing classes. Most of the twentieth century's concrete issues -- minimum wage laws, collective bargaining, consumer protection, farm subsidy policies, and social security -- are largely ignored by Horwitz. Moreover, Horwitz's focus is on figures such as Holmes, Jerome Frank, and Llewellyn, the elite of the legal profession and the abstruse ideas with which they played. The result is brilliant analysis but petrified history. Horwitz speaks with much insight to the evolution of legal theory but little force to changing social behavior through and under the law.