’Great Beyond His Knowing’: Morton Horwitz’s Influence on Legal Education and Scholarship in England, Canada and Australia.
TRANSFORMATIONS IN AMERICAN LEGAL HISTORY – LAW, IDEOLOGY AND METHODS: ESSAYS IN HONOR OF MORTON J. HORWITZ, vol. 2, Daniel W. Hamilton and Alfred L. Brophy, eds., Harvard University Press, December 2010
5 Pages Posted: 16 Jan 2011
Date Written: June 1, 2009
This essay describes and assesses Morton J. Horwitz’s contribution to the broadening of legal education and scholarship in England, Canada, and Australia. It argues that Horwitz’s work (principally The Transformation of American Law, 1780–1860 (1977) - Transformation I) provided an important stimulus at a critical time in the late 1970s and 1980s when legal education, legal scholarship, and legal history avowedly oriented toward anti-formalism and law and society were struggling to be legitimized beyond the United States. For a short but crucial period that subsequently appears as law’s tipping point - manifested in the move from an obsession with legal doctrine and legal institutions to the treatment of law in its larger socioeconomic context - Horwitz was an inspiration to those seeking to treat law as part of society, to transcend both the traditional chasm between law and justice and the dominant ahistorical tendencies in law schools, and to challenge legal history’s almost exclusive preoccupation with the law and legal institutions of medieval England. It is also contended that the questions that Horwitz asked have in some ways increased rather than diminished in importance since they were first posed in the 1970s and 1980s.
In order to understand Horwitz’s significance, the essay surveys the condition of English legal education, legal scholarship and legal history prior to the publication of Transformation I, briefly contrasting the situation in England with that in Continental Europe and the United States. Relative to their continental European and U.S. counterparts, English law faculties were small and poorly resourced and failed to attract a fair share of the best talent among university students and from within the legal profession. In England, approaches to the law informed by the human sciences, which involved analysis of the policies embodied in the law and the way law operated in practice (in addition to doctrinal analysis), met with little encouragement from the profession, from law schools, or from universities. The centrality of private law, legal doctrine, courts, and cases was strenuously defended for its practical and educational virtues and for its objectivity, and it was claimed that the development of the social sciences threatened objectivity and law’s singular claims to respect. This reflected England’s failure to embrace an American-style legal realist revolution and the prevalence of legal formalism and legal positivism. Within legal scholarship and education as a whole, the ahistorical “analytical” legal theory of Bentham, Austin, and Hart and its doctrinal analogue constructed by jurists such as Dicey, Anson, Holland, and Salmond prevailed over those who sought to historicize the law.
The sociological aspects of Maitland’s historical writings did not bear fruit, nor did the melding of legal and economic history exemplified by Vinogradoff’s Villainage in England or advocated by Holdsworth. The project to construct a historical jurisprudence rapidly ran into the sand. English legal history became increasingly preoccupied with the origins of legal doctrine and institutions, emphasizing continuity and de-emphasizing change and contingency. Legal history treatises and law school courses generally devoted minimal space to developments occurring after 1688, almost invariably focussing on the medieval origins of the law.
Law and legal institutions continued to be central to medievalists, although beyond this, the relationship between law and history was often one of estrangement. The professionalization of law and history as academic disciplines, and the ensuing rivalry between them, meant that each was more preoccupied with policing the boundaries of its respective enterprise than exploring the potential for engagement and interaction. Moreover, Maitland became one of the most influential authorities for the view that the “legal mind,” the professional approach to the past of the lawyer, was basically opposed to that of the historian. Thus, the uneasy relationship between law and history.
This is not to say that some historians were not interested in law and legal institutions. But these were exceptions to the more general tendency, which treated law and legal institutions as largely peripheral to the discipline of English history. Outside medieval history, the law and legal institutions enjoyed little more than a walk-on part. Historians for the most part shared the prevailing wisdom that treated law as mere superstructure.
The predominant tendency in progressive reformist literature on English (and British Commonwealth) law and law reform, at least from the 1940s onward, was resolutely ahistorical. This hostility to legal history - especially the model of legal history as medieval legal history - was symptomatic of a larger trend in the British Commonwealth. Insofar as the study of legal history was seen as a brake on progress, an antiquarian and conservative force more concerned with justifying the world as it is than with building a better world, legal history was suspect. Gradually, legal history was increasingly expunged from legal scholarship and the legal curriculum during the period circa 1940-75.
After 1970, and particularly during the decade 1975-85, there was a renewed interest in legal history, especially modern legal history, among legal scholars, historians, sociologists, and criminologists. By contrast, the three-and-a-half decades between 1940 and 1975 were a period when the model of English medieval legal history was increasingly rejected without the development of any new approach to legal history to supersede it - save that offered by the new social history of crime that burst onto the scene in 1975 and the new history of private law exemplified by Transformation I.
But in order for Transformation I to be favorably received, England and the English law school had to change. It is argued that the reception of Horwitz’s work was sustained by a distinctive ideological moment - the 1960s, a period when change, and the possibility to effect political, cultural, and social change, was in the air, and that this change embraced law, law schools and legal scholarship. Both institutionally and in terms of ideas, law schools and academic law gradually became more diverse and more prepared to employ the methods of the humanities and social sciences to study legal phenomena empirically or to use social theory to understand law. English legal education and thought were on the cusp of radical change, although that change was neither immediate nor uncontested.
Horwitz’s reception in England is considered, drawing in part on communications with leading legal scholars, within and beyond the world of legal history. It is argued that Horwitz provided vital ammunition and inspiration at a key moment in the struggle to broaden legal education and thought. It was doubly timely, appearing as it did when theory and history were in the ascendancy, and when new perspectives on leftist politics that took law more seriously were being forged. Horwitz’s importance stemmed partly from English, Canadian, and Australian perceptions of Transformation I as providing the private law analogue to the new social history of crime and the new (critical) criminology.
The essay also and more briefly considers the condition of legal history in Canada and Australia prior to the publication of Transformation I. In particular, it examines the important role played by David Flaherty (in Canada) and Bruce Kercher (in Australia) in transmitting and championing Horwitz’s work, Horwitz’s reception in Canada and Australia (drawing upon the observations of Canadian and Australian scholars) and the ways in which Horwitz’s scholarship contributed to the metamorphosis of Canadian and Australian legal history.
The essay concludes that Horwitz’s scholarship, notably Transformation I, was recognized beyond the United States of America as groundbreaking and inspirational (as well as controversial) at a significant juncture in the struggle to enlarge legal scholarship and education in England, Canada, and Australia. However, its impact became limited in duration and extent as it filtered through domestic priorities and sensibilities. Its influence in England, Canada, and Australia has been largely confined to Transformation I, and to the period of time from the late 1970s to the mid-1980s; and the reasons for this limited influence are discussed. The strands of Horwitz’s work that are of continuing importance are elaborated, and it is argued that they, and the passion and commitment to justice that sustained them, are in some ways even more significant now than in their 1970s and 1980s heyday.
This essay makes extensive use of interviews and correspondence with leading figures in England, Canada and Australia. It is published in the second volume of the recently published Essays in Honor of Morton J. Horwitz, the other contributors being: Constance Backhouse; Jack M. Balkin; Felice Batlan; Yochai Benkler; Barbara Aronstein Black; Elizabeth Borgwardt; Alfred L. Brophy; Christine Desan; Robert A. Ferguson; William Fisher; Owen Fiss; William E. Forbath; Tony A. Freyer; Lawrence M. Friedman; Robert W. Gordon; Thomas A. Green; James R. Hackney Jr.; Hendrick Hartog; Laura Kalman; Alfred S. Konefsky; Pnina Lahav; Sanford Levinson; Frank I. Michelman; Martha Minow; William E. Nelson; Edward A. Purcell; William H. Simon; Robert J. Steinfeld; Katherine V.W. Stone; Allison Brownell Tirres; Christopher Tomlins; Mark Tushnet; G. Edward White.
Keywords: legal history, legal education, law school, legal scholarship, history, Horwitz, professions, law and society, law in context, critical legal studies, England, Canada, Australia, E.P. Thompson, Douglas Hay, Atiyah, legal formalism, legal realism, positivism, universities, Maitland, Milsom, Elton
Suggested Citation: Suggested Citation