Morton Horwitz Wrestles with the Rule of Law

Transformations in American History: Law, Ideology, Politics, and Method, Daniel W. Hamilton and Alfred L. Brophy, eds. (Harvard University Press, 2010).

22 Pages Posted: 9 Apr 2016

See all articles by Sanford Levinson

Sanford Levinson

University of Texas Law School

Jack M. Balkin

Yale University - Law School

Date Written: July 20, 2009

Abstract

In 1976, in the early years of the critical legal studies movement, the distinguished legal historian Morton Horwitz famously criticized E.P. Thompson for describing the rule of law as "an unqualified human good." Consistent with his more general skepticism about rights discourse, Horwitz argued that the rule of law tended to promote substantive inequality. Rule of law worship formed part of an ideology that supported and apologized for injustices by separating law from politics, means from ends, and processes from outcomes.

This essay describes Horwitz's changing views about the rule of law — in his magisterial two volume work, The Transformation of American Law; in his studies of the jurisprudential foundations of the administrative state; and in his historical work on the Warren Court, in which he comes to accept the need for judicial protection of rights to ensure democracy.

By the early twenty-first century, skeptics of the rule of law had to contend with the consequences of the Supreme Court's unpersuasive decision in Bush v. Gore, which settled the 2000 election; as well as the legally dubious tactics employed in the subsequent Bush Administration's War on Terror. Horwitz's scholarly evolution shows his growing recognition that, even if the rule of law is not an unqualified good, undervaluing the rule of law may undermine other important political values as well.

The challenge for contemporary American legal scholarship — which has inherited a deeply instrumental conception of law from legal realism — is whether legal scholars can find an adequate language to synthesize that realist and critical conception with the affirmative political values that lie at the heart of the rule of law. Morton Horwitz’s struggles with the rule of law are also our own.

Keywords: Morton Horwitz, Rule of Law, Administrative State, Critical Legal Studies, Legal Realism, Legal History

JEL Classification: K10

Suggested Citation

Levinson, Sanford V. and Balkin, Jack M., Morton Horwitz Wrestles with the Rule of Law (July 20, 2009). Transformations in American History: Law, Ideology, Politics, and Method, Daniel W. Hamilton and Alfred L. Brophy, eds. (Harvard University Press, 2010).. Available at SSRN: https://ssrn.com/abstract=2760321

Sanford V. Levinson

University of Texas Law School ( email )

727 East Dean Keeton Street
Austin, TX 78705
United States
512-471-3273 (Phone)

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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