Vinogradoff Essays In Legal History Conference

This piece below was presented during the Jurisprudence and (Its) History Symposium, held by the Virginia Law Review and the Program in Legal and Constitutional History in September 2014. A separate Commentary on this piece was also introduced during the Symposium, and can be found here.

As Charles Barzun and Dan Priel note in their prospectus for this symposium, the question of how jurisprudence and history relate to one another arises in a number of distinctive forms, and raises a range of interesting and consequential questions. And yet the parallel lines between jurisprudence and the history of legal ideas, which they lament in particular, are reproduced across several of these questions—notably between philosophical theories of law and historical analyses of the development of laws and legal institutions, as well as of the other social institutions and circumstances which provide the environment and framework for that development. Moreover, the historical jurisprudence to which Vinogradoff aspired—a discipline which would bring history, psychology and the social sciences into dialogue with philosophical analysis of law—stands, a century after its conception, as little more than a footnote in contemporary study of the history of jurisprudential ideas (and as yet less than that in conventional jurisprudential study).

The reason, certainly, lies in the incomplete success with which Vinogradoff was able to articulate his vision of the intellectual linkages underpinning the desirability of that dialogue; and more generally in the association of historical jurisprudence with discredited or outmoded ideas, such as the relationship between the identity of particular legal orders and the essential spirit of a people articulated by Savigny; or on generalizations grounded in broad-brush historical anthropology, such as that of Maine. But, whatever the weaknesses of that broad (and itself diverse) nineteenth- and early twentieth-century tradition in the history of legal theory, there is strong reason to think that something important was lost with its decisive and lasting marginalization at the hands of an analytical jurisprudence which has no use for a careful analysis of either its own or law’s genealogy.Indeed, as Gerald Postema argues in his contribution to this symposium, there is further reason to think that this loss also implies an impoverished conception of philosophy and of its contribution to legal theory.

In this Article, after setting out some of the key ways in which the intellectual lines of history and jurisprudence intersect, I will approach the question of whether, and why, history deserves a more central place in jurisprudential thinking in terms of a broad understanding of law as having a fundamental institutional dimension, as well as being a product of social power and interests. Since law realizes itself in terms of intersecting institutional arrangements, and since these change over time, institutional history is central to the very idea of law which jurisprudence aspires to illuminate. Moreover, the history of institutions is fundamental not only to positive jurisprudence but also to normative jurisprudence: Understandings of law and legality structure the conditions of existence for the realization of moral or political ideals in and of law.

After reviewing this argument in relation to a key question of general jurisprudence—that of the quality of legality, understood as the distinctive modality of law—I will pursue it through a more detailed case study in special jurisprudence: an analysis of the trajectory of ideas of criminal responsibility in English law since the eighteenth century. I will argue that, while a broad family resemblance among ideas of responsibility in different eras can be identified, the variations on those ideas—and their particular inflection, relative importance, and impact—depend fundamentally on historically contingent constellations of ideas, institutions, and interests. Furthermore, I will argue that this historical insight into the evolution of law itself maps onto the history of twentieth-century jurisprudence, with three broad—and all-too-often mutually indifferent or even contemptuous—traditions concerning themselves with each of the three broad, law-shaping dynamics, in contrast to the more generous reach of jurisprudential—including philosophical—thinking of earlier eras. This narrowing focus of jurisprudential study, doubtless, has been to some degree a consequence of the increasing specialization and sophistication of the relevant disciplines. But, like the rejection of the bold vision of some versions of historical jurisprudence, it has not been without intellectual cost.

Before moving on, I should perhaps preface my argument, forming part of a symposium in which some distinguished historians of law and legal ideas are represented, with something of a confession. In the early part of my career, legal history and the history of legal ideas were closed books to me, as I made my way in a field of criminal law scholarship dominated by doctrinal scholarship and by concept-focused philosophical analysis of the foundations of criminal law. These two very different paradigms have one big thing in common: They tend to proceed as if the main intellectual task is to unearth the deep logic of existing legal doctrines, not infrequently going so far as to read them back onto history, as if things could never have been other than they are. The reasons for this intellectual disposition vary, but it is, to me, a very unsatisfactory one, and from quite early on I found it necessary to temper my reading of criminal law’s conceptual arrangements in the light of sociological information about the context in which they emerge and operate. But in more recent years, I have increasingly found myself turning to historical resources to motivate a more critical examination capable of revealing, first, the contingency of particular legal arrangements, and second, the patterns of development over time which may help us to develop causal and other theses about the dynamics which shape them and hence about the role and quality of criminal law as a form of power in modern societies. So, in a sense, I have been using history in support of an analysis driven primarily by the social sciences.

This is not always a palatable approach to historians. Historians are by disciplinary temperament, after all, closely attentive to detail and particularity; hence their reservations about the construction of general theories which inevitably flatten out detail or nuance are understandable. Yet history is of central importance to social theory, and it is no accident that all of the great social theorists, from Marx to Foucault via Weber, Durkheim, and Elias, among others, have incorporated significant historical elements into their interpretations of the broad factors shaping societal development. Indeed, without the diachronic perspective provided by history (or the perspective offered by comparative study) we could have no critical purchase on social theory’s characterizations of or causal hypotheses about the dynamics of social systems. Hence, while recognizing that not all historians feel comfortable about the deployment of historiography in the service of social theory, I would argue for its appropriateness and indeed necessity (as well as adding—by way of plea in mitigation!—my boundless gratitude to the historians whose meticulous research makes this sort of interpretive social theory possible).

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1. See Snooks, Greame Donald, “The Lost Dimension: Limitations of the Timeless Economics,” in Historical Analysis in Economics, ed. Snooks, Graeme Donald (London: Rout-ledge, 1993), 41–66, for a recent account of this process.

2. There were early indications of some economists' growing interest in regulation, in transactions, in firms, and in nonmarket settings, but these trends were still in their infancy in the 1950s. They gathered momentum in the 1960s, but this was already after the emergence of the new economic history. Viewed from the perspective of dominant economic theory, on the eve of the cliometric revolution, legal change was inapplicable to economists' models of change.

3.Davis, Lance and Engerman, Stanley, “Cliometrics: The State of the Science,” History Methods20 (1987): 97–106; Williamson, Samuel H., “The History of Cliometrics,” Research in Economic History6 (1991): 15–31; Coats, A. W., “The Historical Context of the ‘New’ Economic Theory,” Journal of European Economic History9 (1980): 185–207.

4. For the proceedings, see Journal of Economic History 17 (1957): 509–602.

5. The meeting was organized by Lance Davis, Jonathan Hughes, and Duncan McDougall. For an article coming out of Purdue and, in a way, setting the agenda for the conference, see Davis, Lance et al., “Aspects of Quantitative Research in Economic History,” Journal of Economic History20 (1960): 539–47.

6. Earlier on, after the appointment in 1955 of John Meyers as the editor of Explorations in Entrepreneurial History, this journal became a cliometrics forum and was retitled Explorations in Economic History. However, the Journal of Economic History remained on center stage and, under the old guard, was not considered favorable to cliometrics submissions. The new editors opened the doors to cliometricians in 1960.

7.Whaples, Robert, “A Quantitative History of the Journal of Economic History and the Cliometric Revolution,” Journal of Economic History51 (1991): 289–301.

8. So far, the only accounts of this revolution were written by participants and their younger fellows. No history of the transformation of this field was written by an intellectual historian. As a result, my account of it is sketchy and possibly also biased.

9.Conrad, Alfred H. and Meyers, John R., “The Economics of Slavery in the Ante Bellum South,” Journal of Political Economy66 (1958): 95–130; Fogel, Robert William, “A Quantitative Approach to the Study of Railroads in American Economic Growth: A Report of Some Preliminary Findings,” Journal of Economic History22 (1962): 163–97.

10. For a survey of the relationship among the three scientific schools: the Cliometric school, the Marxist school, and the Annals school in the mid-1970s, see Landes, David, “On Avoiding Babel,” Journal of Economic History38 (1978): 3–12; Donald [Deirdre] McCloskey, “The Achievements of the Cliometric School,” ibid., 13–28; Jon S. Cohen, “The Achievements of Economic History: The Marxist School,” ibid., 29–57; Robert Forster, “Achievements of the Annals School,” ibid., 58–76; Douglass C. North, “Comment,” ibid., 77–80.

11. See Fogel, Robert and Elton, Geoffrey Rudolph, Which Road to the Past: Two Views of History (New Haven: Yale University Press, 1983). For a criticism of cliometrics as one of several brands of scientific history, and a prediction that its influence on mainstream history will be merely reactionary, see Stone, Lawrence, “The Revival of Narrative: Reflections on a New Old History,” Past and Present85 (1979): 3–24.

12.North, Douglass C., “Beyond the New Economic History,” Journal of Economic History34 (1974): 1–7.

13.Goldin, Claudia, “Exploring the ‘Present through the Past’: Career and Family across the Last Century,” American Economic Review87.2 (1997): 396–99.

14. See Posner, Richard, “The New Institutional Economics Meets Law and Economics,” Journal of Institutional and Theoretical Economics149 (1993): 73–87; Kenneth Scott, “The New Institutional Economics Meets Law and Economics: A Comment,” ibid., 92–95; Ronald Coase, “Coase on Posner on Coase,” ibid., 96–98; Oliver Williamson, “Transaction Costs Economics Meets Posnerism Law and Economics,” ibid., 99–118; Posner, Richard, Overcoming Law (Cambridge, Mass.: Harvard University Press, 1995), 426–43.

15. He mapped the school based on the types of institutions on which various scholars were working. See Williamson, Oliver E., “The New Institutional Economics: Taking Stock, Looking Ahead,” Journal of Economic Literature38 (2000): 595–613.

16. For the political and intellectual origins of law and economics, see Hackney, James R., “Law and Neoclassical Economics: Science, Politics, and the Reconfiguration of American Tort Law Theory,” Law and History Review15 (1997): 275–322; Duxbury, Neil, Patterns of American Jurisprudence (Oxford: Clarendon Press, 1995), 339–81.

17.Alchian, Armen and Demsetz, Harold, “The Property Rights Paradigm,” Journal of Economic History33 (1973): 16–27, addressed the 1972 annual meeting of the EHA and called for empirical historical studies that would enrich the “speculative theory” (their own work included). See North, Douglass and Thomas, Robert Paul, The Rise of the Western World: A New Economic History (Cambridge: Cambridge University Press, 1973); Libecap, Gary, “Economic Variables and the Development of Law: The Case of Western Mineral Rights,” Journal of Economic History38 (1978): 338–62; Eggertsson, Thrainn, Economic Behavior and Institutions (Cambridge: Cambridge University Press, 1990), 247–62.

18.North, Douglass C., Institutions, Institutional Change and Economic Performance (Cambridge: Cambridge University Press, 1990); Barzel, Yoram, Economic Analysis of Property Rights (Cambridge: Cambridge University Press, 1989); Libecap, Gary, Contracting for Property Rights (Cambridge: Cambridge University Press, 1989); Lee Alston, J. et al., “The Determinant and Impact of Property Rights: Land Titles on the Brazilian Frontier,” Journal of Law, Economics, and Organization12 (1996): 25–61.

19.Fogel, Robert, “Economic Growth, Population Theory, and Physiology: The Bearing of Long Term Process on the Making of Economic Policy,” American Economic Review84 (1994): 369–95; Douglass North, “Economic Performance through Time,” ibid., 359–68.

20.David, Paul, “Clio and the Economics of QWERTY,” American Economic Review75 (1985): 332–37; Arthur, Brian, Increasing Returns and Path Dependence in the Economy (Ann Arbor: University of Michigan Press, 1994).

21.Nelson, Richard, “Recent Evolutionary Theorizing about Economic Change,” Journal of Economic Literature33 (1995): 48–90; North, Douglass, “Cliometrics—40 Years Later,” American Economic Review87 (1997): 412–14; Crafts, Nicholas F. R., “Exogenous or Endogenous Growth? The Industrial Revolution Reconsidered,” Journal of Economic History55 (1995): 745–72; Crafts, Nicholas, “The First Industrial Revolution: A Guided Tour for Growth Economics,” American Economic Review86 (1996): 197–201; Paul Romer, “Why, Indeed, in America? Theory, History and the Origins of Modern Economic Growth,” ibid., 202–6; Greif, Avner, “Cliometrics after 40 Years,” American Economic Review87 (1997): 400–403.

22. This characterization is based primarily on: North, Douglass C., Structure and Change in Economic History (New York: Norton, 1981); North, Institutions, Institutional Change and Economic Performance; Eggertsson, Economic Behavior and Institutions, 247–62; Alston, et al., Empirical Studies in Institutional Change (Cambridge: Cambridge University press, 1996); Drobak, John and Nye, John, eds., The Frontiers of the New Institutional Economics (San Diego: Academic Press, 1997); Greif, Avner, “Microtheory and Recent Developments in the Study of Economic Institutions through Economic History,” in Advances in Economics and Econometrics: Theory and Application, ed. Kreps, David M. and Wallis, Kenneth F. (Cambridge: Cambridge University Press1997), 79–113; Greif, Avner, “Historical and Comparative Institutional Analysis,” American Economic Review88.2 (1998): 80–84; Symposium, , “The New Institutional Approach to Economic History,” Journal of Institutional and Theoretical Economics145 (1989). A yet unpublished book provides a comprehensive, analytical, and updated view of the school by one of its leading members. See Avner Greif, Historical Institutional Analysis (Cambridge University Press, forthcoming), chaps. 1 and 3.

23.Hardin, Garrett, “The Tragedy of the Commons,” Science162 (1968): 1243–48. Al-chian and Demsetz, “The Property Rights Paradigm,” 16–27, addressed the 1972 annual meeting of the EHA calling for empirical historical studies that would enrich the “speculative theory” (their own work included).

24. Donald [Deirdre] McCloskey, N., “The Prudent Peasant: New Findings on Open Fields,” Journal of Economic History51 (1991): 343–55.

25. Donald [Deirdre] McCloskey, N., “The Enclosure of Open Fields: Preface to a Study of Its Impact on the Efficiency of English Agriculture in the Eighteenth Century,” Journal of Economic History32 (1972): 15–35.

26.Allen, Robert C., “The Efficiency and Distributional Consequences of Eighteenth-Century Enclosures,” The Economic Journal92 (1982): 937–53, and Enclosure and the Yeoman (Oxford: Clarendon Press, 1992).

27.Clark, Gregory, “Commons Sense: Common Property Rights, Efficiency, and Institutional Change,” Journal of Economic History58 (1998): 73–102.

28. Libecap, Contracting for Property Rights, 29–50.

29. Ibid., 51–72.

30. It is interesting to compare Libecap's work on the far West with Hurst's work on Wisconsin. In Hurst's Wisconsin a homestead policy fell prey to the lumber industry. According to Hurst, the working of the market played a major role in bringing about this outcome. I believe that implementation of Libecap's framework could benefit Hurst's interpretation. It would put more emphasis on the working of conflicting interest groups that facilitated the legal and political outcome and on the distributional effects of this outcome. It is somewhat ironic that an interaction with an economist (though of the HNIE brand) would take a legal historian in such a direction. Even if the application of Libecap's framework would not have changed Hurst's conclusions, as Hurst's analysis is very rich and multifaceted, it might have drawn in marginal factors. It could lead, at a second stage, to an enlightening comparison, based on common theoretical and methodological grounds, of the cases of Wisconsin and the far West. See Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass.: Belknap Press of Harvard University, 1964), 62–107, 117–42. For an application of Libecap's framework, in an earlier form, to Hurst's territory, see Johnson, R. N. and Libecap, G. D., “Efficient Markets and Great Lakes Timber: A Conservation Issue Reexamined,” Explorations in Economic History17 (1980): 372–85.

31.Libecap, Gary D., “Bureaucratic Opposition to the Assignment of Property Rights: Overgrazing on the Western Range,” Journal of Economic History41 (1981): 151–58.

32.Botticini, Maristella, “A Loveless Economy? Intergenerational Altruism and the Marriage Market in a Tuscan Town, 1415–36,” Journal of Economic History59 (1999): 104–21.

33. Maristella Botticini, “The Bequest Motive: Do Dowries Disinherit Women?” (work in progress).

34. Maristella Botticini and Aloysius Siow, “Why Dowries?” American Economic Review (forthcoming) (January 2003).

35.Greif, Avner, “Cultural Beliefs and the Organization of Society: A Historical and Theoretical Reflection on Collectivist and Individualist Societies,” Journal of Political Economy102 (1994): 912–50.

36.Greif, Avner, Milgrom, Paul, and Weingast, Barry R., “Coordination, Commitment, and Enforcement: The Case of the Merchant Guild,” Journal of Political Economy102 (1994): 745–76.

37.North, Douglass C. and Weingast, Barry R., “Constitutions and Commitment: The Evolution of Institutional Governing Public Choice in Seventeenth-Century England,” Journal of Economic History49 (1989): 803–32.

38.Wells, John and Wills, Douglas, “Revolution, Restoration, and Debt Repudiation: The Jacobite Threat to England's Institutions and Economic Growth,” Journal of Economic History60 (2000): 418–1, empirically test this argument in the English context and support it.

39. 347 U.S. 483 (1954).

40.Roback, Jennifer, “Southern Labor Law in the Jim Crow Era: Exploitative or Competitive?” University of Chicago Law Review51 (1984): 1161–92, is mid-way variation. She argues that Jim Crow laws, not the market or social norms, were the chief oppressors of blacks. But what was needed was a prohibition on discriminatory action by government, not by individual employers. This is what the Civil Rights Act provided and this was enough, because market competition did the rest.

41.Donohue, John J. and Heckman, James, “Continuous versus Episodic Change: The Impact of Civil Rights Policy on the Economic Status of Blacks,” Journal of Economic Literature29 (1991): 1603–3. See also Heckman, James J., “The Value of Quantitative Evidence on the Effect of the Past on the Present,” American Economic Review87, no. 2 (1997): 404–8.

42. With this they can contribute to the ongoing debate among legal historians and lawyers, ranging from CLS to libertarians, about the actual effects of Brown. For this debate see, e.g., Klarman, Michael J., “Brown, Racial Change, and the Civil Rights Movement,” Virginia Law Review80 (1994): 7–150; Gerald N. Rosenberg, “Brown Is Dead! Long Live Brown!: The Endless Attempt to Canonize a Case,” ibid., 161–71; Mark Tushnet, “The Significance of Brown v. Board Of Education,” ibid., 173–84; Rosenberg, Gerald N., “The Implementation of Constitutional Rights: Insights from Law and Economics,” University of Chicago Law Review64 (1997): 1215–23. Paradoxically, while some of the authors call for nonlegal approaches to the question, and the last article even aims at demonstrating the relevance of economic approach, none makes use of Heckman and Donohue's methods or empirical findings. This is a good example for a legal history debate that can definitely be enriched by a more intensive interaction with economic history. Legal historians can benefit from their own methodologies when studying what happened in the court, how the Brown decision was interpreted in later cases, what was its symbolic value, and what were the legal measures that were taken for implementing it. However, their methodology falls short when it serves for examining Brown's social and economic impact.

43.Wright, Gavin, “The Civil Rights Revolution as Economic History,” Journal of Economic History59 (1999): 267–89.

44.Hoffman, Philip T., Postel-Vinay, Gilles, and Rosenthal, Jean-Laurent, “Information and Economic History: How the Credit Market in Old Regime Paris Forces Us to Rethink the Transition to Capitalism,” American Historical Review104 (1999): 69–94; Hoffman, Philip T., Postel-Vinay, Gilles, and Rosenthal, Jean-Laurent, “What Do Notaries Do? Overcoming Asymmetric Information in Financial Markets: The Case of Paris 1751,” Journal of Institutional and Theoretical Economics154 (1998): 499–530; Hoffman, Philip T., Postel-Vinay, Gilles, and Rosenthal, Jean-Laurent, Priceless Markets: The Political Economy of Credit in Paris, 1660–1870 (Chicago: University of Chicago Press, 2000).

45. Some of these tools were used in earlier work of the authors and were the foundation of the present project. See, for example, Hoffman, Phillip T., Growth in a Traditional Society: The French Countryside, 1450–1815 (Princeton, N.J.: Princeton University Press, 1996); Rosenthal, Jean-Laurent, The Fruits of Revolution: Property Rights, Litigation, and French Agriculture, 1700–1800 (Cambridge: Cambridge University Press, 1992).

46. Historians of early modern Britain have already recognized the role of attorneys as matchers between lenders and borrowers. But they did not use economic theory in their analysis. Sec Anderson, B. L., “The Attorney and the Early Capital Market in Lancashire,” in Liverpool and Merseyside: Essays in the Economic and Social History of the Port and Its Hinterland, ed. Harris, J. R. (London: Frank Cass, 1969), 50–77; Miles, M., “The Money Market in the Early Industrial Revolution: The Evidence from West Riding Attorneys, c. 1750–1800,” Business History23.2 (1981): 127–46; Mathias, Peter, “The Lawyer as Businessman in Eighteenth-Century England,” in Enterprise and History: Essays in Honour of Charles Wilson, cd. Coleman, D. C. and Mathias, Peter (Cambridge: Cambridge University Press, 1984). 151–67.

47. It is interesting to compare this de facto pragmatism to the argued pragmatism of Posner, Overcoming Law, 427. It is not clear to me how Posner can defend the unified and coherent paradigm of the Chicago school's law and economics as a pragmatic approach while at the same time deploring some of the institutionalists as antitheoretical. See also Getzler, Joshua, “Pragmatism and the End of Ideology,” Oxford Journal of Legal Studies17 (1997): 525–35.

48. We can, of course, find the combination of law, economics, and history in the work of Adam Smith and Karl Marx, in the sociological-historical approaches in the traditions of Maine and Durkheim, and in the extensive synthesis between legal and economic history and theory in the work of Max Weber.

49. In the late nineteenth century and early twentieth, interaction between the legal and economic branches of this school took place in Germany and, to some degree, also in England. In England, Cunningham and Ashley on the economic side, and Maine, Maitland, and Vinogradoff on the legal side, had some interaction. In Germany the familiar names in the younger historical schools are Schmoler on the economic side and Gierke on the legal side, and some of Sombart's work.

50. In the U.S., traditions that originated with Thorstein Veblen and Oliver Wendell Holmes eventually met in the institutionalist-legal realist interaction of the 1920s and early 1930s in the works of John Commons, Robert Hale, and their contemporaries. But the American interaction between legal and economic thought was less historically oriented than the European one (yet with some evolutionary stance). See Hovenkamp, Herbert, “The First Great Law and Economics Movement,” Stanford Law Review42 (1990): 993–1058; Pearson, Heath, Origins of Law and Economics: The Economist's New Science of Law (New York: Cambridge University Press, 1997); Fried, Barbara, The Progressive Assault on Laissez Faire: Robert Hale and the First Law and Economics Movement (Cambridge, Mass.: Harvard University Press, 1998).

51. A few externalist legal histories were undoubtedly written before Hurst in the U.S. and even in Britain, but these were the exception. A number of manifestos calling for a new approach to legal history were published in the early 1940s. See Boorstein, Daniel, “Tradition and Method in Legal History,” Harvard Law Review54 (1940): 424–36, who mounts a straightforward criticism of lawyers' legal history; and James Hurst, Willard, “Legal History: A Research Program,” Wisconsin Law Review (1942): 323–33, for a more constructive program for an alternative approach.

52.Reid, John Philip, “Legal History,” Annual Survey of American Law (1962): 742–55; Gordon, Robert W., “Introduction: J. Willard Hurst and the Common Law Tradition in American Legal Historiography,” Law and Society Review10 (1975): 9–56; Horwitz, Morton, “The Conservative Tradition in the Writing of American Legal History,” American Journal of Legal History17 (1973): 275–94.

53.Hurst, James Willard, The Growth of American Law (Boston: Little, Brown, 1950).

54.Hurst, James Willard; Law and the Condition of Freedom in the Nineteen Century United States (Madison: University of Wisconsin Press, 1956); Hurst, James Willard, Law and Social Process in the United States History (Ann Arbor: University of Michigan Law School, 1960); and Hurst, Law and Economic Growth.

55. Reid, “Legal History,” 742–55.

56.Ernst, Daniel R., “William Hurst and the Administrative State: From Williams to Wisconsin,” Law and History Review18 (2000): 1–36.

57. In a recent article, Christopher Tomlins examines law's encounters with social science from the late nineteenth-century American Social Science Association to the 1970s CLS. One of the sites of encounters he examines is the law and society field. Hurst and Wisconsin are considered the greatest success of the field, at least with respect to the encounter between law and sociology. When discussing the greatest success of the most promising encounter, Tomlins concludes: “There, however, the field did not ‘return’ to law: law had been its central focus from the start.” Tomlins, Christopher, “Framing the Field of Law's Disciplinary Encounters: A Historical Narrative,” Law and Society Review34 (2000): 911–72 at 958. For a different view of Hurst's encounter with sociology, see Novak, William, “Law, Capitalism, and the Liberal State: The Historical Sociology of James Willard Hurst,” Law and History Review18 (2000): 97–145.

58. Compare Hurst, James Willard, Law and Markets in United States History: Different Modes of Bargaining among Interests (Union, N.J.: Lawbook Exchange, 1982) that has no reference to North, or to cliometricians, to North, Structure and Change in Economic History, that cites Hurst, Horwitz, and Scheiber.

59. The most extensive and influential of Hurst's historical studies is his Law and Economic Growth. Here one would expect most the implementation of a two-sided model of change. The model is presented in brief in the preface, vii–xv, and the theme of reciprocity echoes throughout the book. An outline of the various interactions between the law and the economy with respect to money can be found in Hurst, James Willard, A Legal History of Money in the United States: 1774–1970 (Washington D.C.: Beard Books, 1973). The outline appears in the widest and most elaborated, but also synthetic and abstract, form in Hurst, Law and Markets in United States History.

60. The following criticism relies partly on Scheiber, Harry N., “At the Borderland of Law and Economic History: The Contribution of Willard Hurst,” American History Review75 (1970): 744, 754–56; Tushnet, Mark, “Lumber and the Legal Process,” Wisconsin Law Review114 (1972): 121–23; Gordon, “Introduction: J. Willard Hurst and the Common Law Tradition,” 52–54.

61. Lawrence Friedman's 1973 book and Morton Horwitz's 1977 book are often cited in order to demonstrate the rise of the functional model in the 1970s. Friedman, Lawrence, History of American Law (New York: Simon and Schuster, 1973); Horwitz, Morton, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977). This is not to say that either Friedman or Horwitz were strictly functional; they had more complex models of change and responded to changing contexts and to historical records. Later critics often relied on provocative statements that the two made in an attempt to shake the older lawyers' legal history autonomous model of change. In other places, the two presented more complex and less functional models of change. See Friedman, Lawrence, The Legal System: A Social Science Perspective (New York: Russel Sage Foundation Publication, 1975), particularly chap. 10. But on the whole, their work in the 1970s was closer to the functional end of the spectrum than was earlier and later work (their own later work included).

62. For the ideological and methodological characteristics of this critical school see Hay, Douglas, “Property, Authority and the Criminal Law” in Hay, Douglas et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (Harmondsworth, Middlesex: Penguin Books, 1977), 17–63; Langbein, John, “Albion's Fatal Flaws,” Past and Present98 (1983): 96–120; Linebaugh, Peter, “(Marxist) Social History and (Conservative) Legal History: A Reply to Professor Langbein,” New York University Law Review60 (1985): 212–43. For research that combines this critical social history approach to legal history with economic history see Johnson, Paul, “Class Law in Victorian England,” Past and Present141 (1993): 147–69. For a review that laments the desertion by CLS scholars of E. P. Thompson's tradition and their loss of interest in material history and in Capitalism see Ireland, Paddy, “History, Critical Legal Studies and the Mysterious Disappearance of Capitalism,” Modern Law Review65 (2002): 120–40).

63. For the connection of these groups to the CLS movement, see below, 333–34.

64. For a seminal work that maps the terrain and groups together as functionalist much of modem legal history scholarship, liberal as well as Marxist, see Gordon, Robert, “Critical Legal Histories,” Stanford Law Review36 (1984): 57–125. For an English oriented map see Sugarman, David and Rubin, G. R., “Towards a New History of Law and Material Society in England: 1750–1914,” in Law, Economy and Society, 1750–1914: Essays in the History of English Law, ed. Rubin, G. R. and Sugarman, David (Abingdon: Professional Books, 1984), 1–123.

65.Getzler, Joshua, “Theories of Property and Economic Development,” Journal of Interdisciplinary History26 (1996): 639–69.

66.Crespi, Gregory S., “Does the Chicago School Need to Expand Its Curriculum?” Law and Social Inquiry22 (1997): 149–69 and the following responses.

67.Ulen, Thomas, “Firmly Grounded: Economics in the Future of the Law,” Wisconsin Law Review (1997): 449–55.

68. See Duxbury, Patterns of American Jurisprudence, 421–91; Schlegel, John Henry, “Notes towards an Intimate, Opinionated, and Affectionate History of the Conference on Critical Legal Studies,” Stanford Law Review36 (1984): 391–411.

69. A sign of this trend can be found in the shift between Horwitz's first and second book— Horwitz, Morton, The Transformation of American Law, 1870–1960 (New York: Oxford University Press, 1992). The author in his preface acknowledged the greater weight of the cultural and intellectual in his account, and reviewers found this shift as indicative of more general trends in the field. See Ernst, Daniel, “The Critical Tradition of American Legal History,” Yale Law Journal102 (1993): 1019–76; Moglen, Eben, “The Transformation of Morton Horwitz,” Columbia Law Review93 (1993): 1042–59; Kloppenberg, James T., “The Theory and Practice of American Legal History,” Harvard Law Review106 (1993): 1332–51. For a survey of recent trends in intellectual legal history, see Fisher, William, “Text and Context: The Application to American Legal History of the Methodologies of Intellectual History,” Stanford Law Review49 (1997): 1065–1110; for distinguishing cultural legal history from Wisconsin legal history and critical legal history, see Grossberg, Michael, “Social History Update: ‘Fighting Faiths’ and the Challenges of Legal History,” Journal of Social History25 (1991): 191; Tomlins, Christopher, “A Mirror Crack'd? The Rule of Law in American History,” William and Mary Law Review32 (1991): 353–97.

70. Dan Klerman conducted recently a broad quantitative study of the use of economics and statistics in legal history. He found very few regressions and references to leading economists, including law and economics and NIE scholars, in legal history journals, law review journals classified as legal history, and legal history books. He found a trend toward more resort to economics and statistics in most recent articles and books. Klerman's study did not aim at measuring interest in the economy as such or in non-cliometric economic history. Klerman, Dan, “Statistical and Economic Approaches to Legal History,” University of Illinois Law Review (2002): 1167–76.


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