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Hurst Recaptured

Published online by Cambridge University Press:  28 October 2011

Robert W. Gordon
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Extract

Anyone who lived and worked within range of Willard Hurst's benign, if also rather insistent, influence is necessarily somewhat disabled from detached assessment of his legacy. We owe him too much. Not just for the continuous rapid fire of comment, criticism, recommendation, and encouragement that rattled off the famous ancient typewriter; but also for his intellectual and moral example. He set himself long-range projects and finished them; he surveyed large themes and explored them to the bottom. He used his authority to try to get us both to read more broadly and get down into the details. We responded because we were touched that he thought our work might matter, and because he did not spare himself. Even when rebelling against that authority (as I for one often did), we wanted his attention and judgment even when we could not hope for his approval, and he gave them generously.

Type
Commentaries
Information
Law and History Review , Volume 18 , Issue 1: Engaging Willard Hurst: A Symposium , Spring 2000 , pp. 167 - 176
Copyright
Copyright © the American Society for Legal History, Inc. 2000

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References

1. Landauer's excellent essay for this symposium on the social-science sources of the 1950s on which Hurst drew for his general ideas greatly helps to clarify why Hurst was inclined to portray the practical consciousness structuring the workings of the legal system as so general and uniform. Landauer tells us that he had adapted from contemporary cultural anthropologists and post-Freudians their theory of a “fully articulated cultural structure … in which the parts work perfectly together” as the governing value system of a society (80). As Landauer says, pieces of the “puzzle that did not quite fit” – for instance, Jacksonian anti-corporate sentiment, abolitionist and temperance societies, “controversies over Masonic lodges, Catholic convents and schools and Mormon communities” – Hurst set aside as marginal.

2. If I may use this occasion to continue an argument to which, alas, my friend can no longer respond: Hurst's critique of radical legal historians always seemed to me a bit indiscriminate. Hurst believed that those who focused on domination overstated the importance of villains, with conscious motives to oppress or subordinate others, to the routine operations of the legal system. Yet the aim of many of the “critical” legal historians he disparaged was not to moralize legal history by turning it into a struggle between virtuous victims and their evil oppressors but rather to produce a structural account, similar to Hurst's own, of legal ideology. They also aimed to use that account to explain how legal ideology had, relatively independently of the specific intentions and interests of the social actors involved in making and maintaining it, facilitated forms of domination. Nor was their point to condemn liberal-legal ideology as irredeemably oppressive; it was rather to argue that, since the ideology was crammed with contradictions and suppressed alternatives, it always presented progressive possibilities as well as conservative ones, some of which had actually been realized in historical and current social arrangements.

3. Hurst, James Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, Mass.: Belknap Press, 1964).Google Scholar

4. State ex rel. Owen v. Donald, 160 Wis. 21, 151 N.W. 331 (1915), analyzed in Hurst, Law and Economic Growth, 571–91.

5. Then again he might not. Alfred Konefsky is surely right to identify Hurst as a democrat in important respects, especially in his view of law as a field of democratic experimentation and of its major purposes as the channeling and holding accountable both public and private power to the service of enhancing the quality of lives for everyone. But he was not a populist: though he considered popular movements to be invaluable signals of social malfunction, he distrusted what he considered to be their limited vision and unreflective enthusiasms; and, like his contemporary Richard Hofstadter, he deplored their suspicion of trained intellect. For informed long-range policy, he looked as a good Progressive to expert (though preferably self-effacing, responsive, and accountable) administrators. Lawrence Goodwyn's work on the agrarian populists, however, converted Hurst from Hofstadterian distrust to respect for their sophistication on issues of money and credit.

6. Soifer, Aviam, “In Retrospect: Willard Hurst, Consensus History, and The Growth of American Law,” Reviews in American History 20, no. 1 (1992): 135, 136CrossRefGoogle Scholar, commenting on “Part V: The Bar,” in Hurst, James Willard, The Growth of American Law: The Lawmakers (Boston: Little, Brown, 1950), 249–375.Google Scholar