Saturday, March 1, 2008

Law and the Conditions of Freedom

J. Willard Hurst was perhaps the most extraordinary scholar and teacher I have ever known. He was a gentleman -- soft-spoken, thoughtful, able to command quiet and attention from an entire lecture hall of students without ever raising his voice, calling on each of us as "Miss" or "Mr." but in a tone as if he were inviting us to chat with an ordinary person over tea, rather than asking us to answer questions posed by one of the finest legal minds we could ever hope to encounter.

I have been thinking of him a lot lately. He pioneered not just a theory or an approach to study but an entire discipline -- what some have described as historical sociology. Whatever one calls it, he revolutionized how legal history is conceived and, for many, taught. Instead of looking at what legal philosophers and jurists said the law was or should be, Hurst looked at would the law actually did, how the parties acted and responded in the context of their times.

This perspective revealed much about the history of the United States in the nineteenth and early twentieth centuries, not just in terms of the law -- the courts and the legislatures -- but the social, political, and economic fabric of society. Legal history revealed how people staked out and settled land, built roads, shared water and other resources. European legal concepts were transplanted and modified according to local conditions and pressing economic needs. American law was made by and helped shaped the new social and physical environment in which it grew.

I'll have more to say later on about how and why "freedom" as it evolved in American law was never, even or especially in the beginning, about untrammeled individual action but rather was about both flexibility and constraints in social and economic structures for the use and benefit of all. For now, however, let me just give this glimpse of how Hurst approached his subject.

From Law and the Conditions of Freedom, by J. Willard Hurst
The preamble of the Pike Creek Claimants Union reflects in miniature two working principles by which we organized the relations of legal order and social order in the nineteenth-century United States. I speak particularly of "working" principles, principles defined and expressed primarily by action. It is in this aspect that the Pike Creek document is most relevant to our purpose. For these essays seek to understand the law not so much as it may appear to philosophers, but more as it had meaning for workaday people and was shaped by them to their wants and vision. Of course, this is not the only viewpoint from which to appraise the legal order. Nor is law that is formed largely by the imperatives of action necessarily the best law. We are simply trying one angle of vision provided by history for the distinctive reality it may disclose. Whatever its limitations, it is a point of view warranted by the central principle of our legal order, that law exists for the benefit of people and not people for the benefit of law. Such a legal order cannot in the long run be true to itself and at the same time be better than the values or vision of its beneficiaries. Moreover emphasis on "working" principles seems peculiarly in point when we are trying to understand ourselves. Our history amply validates Tocqueville's observation that we have been a people not given to general theory; one usually senses that he is closer to apprehending the decisive faiths and beliefs of our nineteenth-century ancestors when he reads these out of what they did and said as they acted, rather than out of their self-conscious philosophizing.
Law and the Conditions of Freedom in the Nineteenth- Century United States. James Willard Hurst - author. Publisher: University of Wisconsin Press. Place of Publication: Madison. Publication Year: 1956. Page Number: 5. From text at

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