Legal History
Introduction
I have been writing about the history of legal thought since the 1970’s, when it was a very new field. I began with an exclusive focus on the United States, but in my recent work I am trying to write about legal thought as a global phenomenon. For an overview, the best place to start is probably Two Globalizations of Law and Legal Thought: 1850-1968.
It seems only fair to warn the reader in advance that I have no formal academic training in the field, and that my reasons for writing legal history have little to do with those that characterize the United Statesean post-60’s academic mainstream in this area. I have been mainly interested in exploring three ideas:
- the “death of reason” narrative of aesthetic and critical modernism/post-modernism as it might apply to law;
- the notion of “legal consciousness,” understood as a “structure,” to be approached “phenomenologically,” and
- the hypothesis that legal discourse is one of the modes in which Western elites have pursued diverse political agendas, while denying that that was what was going on, with the effect (and often the unconscious or semi-conscious intention) of legitimating the status quo broadly conceived.
In the course of pursuing these three agendas, I’ve found myself sometimes taking positions about questions that do interest the historiographical mainstream, and I’ll note these as I try to summarize my main endeavors.
I began my legal academic career, as an Assistant Professor at Harvard Law School, with the notion of writing a history of American legal thought that would combine these three themes. In the summer of 1975, I produced, as the main element in my tenure file, a long manuscript called The Rise and Fall of Classical Legal Thought. I kept working on the manuscript for a number of years, and produced a new first chapter, which I published separately as The Structure of Blackstone’s Commentaries, but then abandoned the project. The 1975 version, which circulated quite widely in typescript, is available on this website, as an archival item, in a new format. I did, however, publish the original first chapter in 1980, separately, as Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940 (available here as part of the full manuscript and also in its published format). The published first chapter contains most of the themes I’ve pursued since, but with relatively little on the political functions of legal discourse. It is unfortunately a fairly difficult read.
A number of colleagues and students found the approach of Rise and Fall suggestive, and they produced in the late seventies and early eighties a substantial body of law review literature, most of it in a distinctly not-professional-legal-history mode, that advanced the project. The pieces that seem to me to fit in this category are listed on the OTHER AUTHORS sub-page within this topic. A number of colleagues, including Robert Gordon, Thomas Grey, Morton Horwitz, Gregory Alexander and Cass Sunstein, found the narrative of conceptual transformation useful and incorporated parts of it into their own work, while rejecting the methodological and theoretical orientation that inspired it.
It is worth noting that, as far as I know, Rise and Fall is still the only attempt at a comprehensive history of the changes in the categories of American legal thought over the 19th and early 20th centuries.
The “death of reason” narrative
The death of reason narrative can be summarized in the phrase “we live in a post-classical age of disintegration.” After The Rise and Fall, I developed early versions in the opening pages of The Structure of Blackstone’s Commentaries (1979), The Stages of the Decline of the Public/Private Distinction (1982), and The Role of Law in Economic Thought: Essays on the Fetishism of Commodities (1985). A later but not radically dissimilar version can be found in A Critique of Adjudication [fin de siècle] (1997) (particularly chapters 4, 5, 13 & 14), From the Will Theory to the Principle of Private Autonomy: Lon Fuller’s “Consideration and Form” (2000), Legal Formalism (2001) (a mercifully short article), Two Globalizations of Law and Legal Thought: 1850-1968 (2003) and The Disenchantment of Logically Formal Rationality: Max Weber’s Sociology of Law in the Genealogy of the Contemporary Mode of Legal Thought (2004).
It seemed to me when I began, that the main defect of the conventional historiography of legal thought was its underestimation of the innovative, indeed revolutionary power of late nineteenth century thinkers, then dismissed as “formalists.” I proposed to rename the period “classical legal thought” in order to emphasize the extent of the break from the past and the extent to which what we do today is merely “post-classical legal thought,” rather than representing transcendence and a new synthesis.
In the last few years, it has seemed to me equally important that sociological jurisprudence (in America, especially Pound and Cardozo; in Europe, Gény, etc.) represented a distinct phase, which I have been calling “the social.” In this picture, legal realism is important not as a critique of classical legal thought (or legal formalism) but as a critique of the social. The upshot, in the US, of the realist critique of the social, was “contemporary legal thought” (including but by no means limited to the Legal Process school) characterized by the combination of legal reasoning through conflicting considerations (balancing, proportionality) and public law neo-formalism. This theme is first sketched in From the Will Theory, above. I developed it in various phases and with varied emphasis in all the works in the Legal History ESSAYS list published after 2000. The transnational spread, from their Western European origins, of classical legal thought and the social is the theme of Two Globalizations of Law and Legal Thought: 1850-1968.
I see classical legal thought as critique and reconstruction vis à vis its predecessor, and the social as a critique and reconstruction vis à vis classical legal thought, and legal realism as a critique of the social followed by another reconstruction, with each stage representing a weaker version of legal reason. This is a “death of reason” narrative because it holds out no hope that yet another critique will lead to a reconstruction that satisfies more than momentarily the hunger for uplifting meanings that is as prevalent in law as everywhere else.
Legal consciousness
The idea of legal consciousness is that people who practice legal reasoning do so within a pre-existing structure of categories, concepts, conventionally understood procedures, and conventionally given typical legal arguments (“argument bites”). The structuralist ideas of Saussure, Piaget and Levi-Strauss, along with the realist analytics of Karl Llewellyn, allow a quite detailed analysis of what might be called the mechanically linguistic dimension of legal reasoning. But in order to account for the alternating experiences of being “bound” and “having room for maneuver,” and for the transformation of these experiences through legal work, it seems to me that we need the help of phenomenology (in my case, the influences are Marcuse, Hegel, Sartre, and, later, Husserl, but one could reach the same point as easily via Bourdieu).
I developed these ideas in the course of doing historical work, while pursuing them simultaneously in the field of legal theory proper, so if this aspect is of interest you might want to consult the Legal Theory topic. My first attempt, which as I said above contains most of the basic ideas, was in the first chapter of The Rise and Fall. I think it makes a difference to most kinds of legal history with what implicit legal theory we approach the task, but for the history of legal thought, the practitioner’s orientation to legal theory is likely to have a very large impact on the story that gets told. But the choice of an intellectual historical narrative was, in my case, an influence on the legal theory as well.
The inquiry into legal consciousness is closely related to the death of reason narrative, through the idea that one might get to loss of faith in legal reason in part by, first, mastering its mechanical linguistic structure, and, second, coming to doubt the knowability of the “behind” of the experience of legal compulsion. I tried to bring together these strands in the context of contemporary legal theory and contemporary American politics in A Critique of Adjudication, chs. 13 & 14. The death of reason narrative could be understood as a history of the peculiar experience of legal compulsion, meaning not the experience of the people who are objects of legal discipline, but that of the practitioners of legal discourse.The history of legal thought, as I try to do it in these essays, is not the history of the theories of law that characterize different periods (e.g., natural law, natural rights, legal positivism, legal process). Or rather, the legal theory or legal philosophy of a period is just one aspect, and likely not a particularly important aspect of the period’s legal consciousness, understood as the ensemble of categories, concepts, typical arguments, argumentative techniques, and so forth, that characterize the work of lawyers, judges and scholars of that period.
The political understanding of legal discourse
Many of these essays try to show for various historical periods that apparently “merely legal,” apolitical, objective, neutral legal discursive productions are well understood as related to political agendas, without (contrary to the view of some critics) reducing the legal to the political. It is more difficult than at first appears to demonstrate, for run of the mill legal discourse rather than for the occasional spectacular case, that legal projects are well understood as also political projects. The attempt is always open to challenge as implausible or based on misreading or factual mistakes. In other words, that “we all know that law is political” is of no use when the question is whether and in what precise way some particular discursive production should be thus understood. Each attempt has to stand on its own in relation to its target.
In this category, I would put The Structure of Blackstone’s Commentaries, The Stages of the Decline of the Public/Private Distinction, The Political Significance of the Structure of the Law School Curriculum, The Role of Law in Economic Thought, Law and Economics from the Perspective of Critical Legal Studies, Legal Formalism, The Critique of Rights in Critical Legal Studies, and The Disenchantment of Logically Formal Legal Rationality.
Each of these “historicizes” a theory or a doctrinal structure by reinterpreting it as consciously or half consciously or unconsciously intended to further a particular, historically specific political project. In some of the essays, the project is “legitimation of the status quo,” and in others it is a more “partisan” project, such as conservatism, liberalism, promoting “the social” or the “free” market.
My own political agenda in doing this work is leftist but in a particular sense. I don’t think there is any necessary tendency for the teasing out of the politics of law to move people to the left (nor do I think, be it noted in passing, that it has a tendency to “demobilize”). But it is part of the historic agenda of the left to re-appropriate the role of human agency against all kinds of efforts to represent the merely actual as natural, necessary and just. For the modernist/post-modernist current within the left, it is just as important to do this within the left as against the right.
Duncan Kennedy 