Robert Gordon became the pioneering scholar of the history and historiography of American law with the publication of his first essays in the 1970s. His research and teaching have stimulated and guided the dramatic growth of American scholarship in legal history during the past four decades, much of it written by his own students and the many others whose work he has generously encouraged and engaged. Taming the Past combines the classic essays he has published in various journals and edited collections throughout his distinguished career alongside lectures that are printed here for the first time. Brief introductory notes place the essays in the context of their original appearance and often cite subsequent relevant scholarship. Gordon has also added a general introduction that provides a useful overview of the entire collection. The whole is much more than the sum of its impressive parts.
Gordon is a graceful, often witty, stylist who wears his vast erudition lightly. He has the rare gift of conveying genuine respect for scholars even while making astute criticisms of their work. The essays are grouped into three parts. Part I, “The Common Law Tradition in Legal Historiography,” contains two essays. The first analyzes “internal” legal history: the study of distinctively legal phenomena that dominated the historical study of law in the United States until the middle of the twentieth century. The second is a highly original treatment of the uneasy juxtaposition of history and theory in Oliver Wendell Holmes's famous book, The Common Law. Part II, “Legal Historians,” focuses on J. Willard Hurst and Morton Horwitz. It also incorporates a fascinating reflection on the contributions of E.P. Thompson to legal history, and an essay that uses the volume on the Fuller Court by Owen Fiss in the The Oliver Wendell Holmes Devise History of the Supreme Court of the United States to challenge oversimplified accounts of the “Lochner era” of classical liberalism in the late nineteenth and early twentieth centuries, particularly its idealization by modern conservatives. The essays in Part III, “History and Historicism in Legal History and Argument,” comprise more than half of the book and most explicitly convey its main themes. This part includes Gordon's enormously influential “Historicism in Legal Scholarship” and “Critical Legal Histories,” his most cited essay on legal historiography.
The phrase “taming the past,” the title of the book and of one of the essays in Part III, derives from the most memorable comment about the use of history in legal analysis by Holmes in “The Path of the Law.” History, Holmes wrote, helps “you get the dragon out of his cave on to the plain and in the daylight, you can count his teeth and claws, and see just what is his strength. But to get him out is only the first step. The next is either to kill him, or to tame him and make him a useful animal” (4). By either killing or taming the dragon of history, Gordon believes, Holmes ultimately wanted to free law from the burden of inherited custom and to base it instead on legislation informed by the utilitarian reason of the new social sciences (331). Gordon, by contrast, maintains that “history does not make a good domestic pet” (360). It is too unruly to be tamed (360), and it cannot be killed or “shaken off ” (357). Yet Gordon, like Holmes, wants to get the dragon of history out of the cave, see how it looms over the present (11), and make it useful by helping legal analysis escape the authority of the past.
Gordon claims that lawyers traditionally have tried to “tame the past in order to normalize the present” (7). Rather than taming history, Gordon invokes what he calls “critical historicism” to challenge the dominant tradition of American legal scholarship, whose optimistic treatment of legal development as an inexorable “process of gentle and efficient adaptation to changing needs” (360) he sees as typically conservative and apologetic (283, 288). He associates this “evolutionary functionalism” (229) with the “common law tradition in American legal historiography.” Even more importantly and originally, Gordon maintains that other schools of legal thought, conceived by their proponents and treated by subsequent scholars as reformist challenges to the common law tradition, perpetuated evolutionary functionalism.
Gordon endorses the critical use of history “to liberate the mind from the dead weights both of inertia and of complacent modernism, the normative force of the actual” (379). History reveals that there was not one past but many pasts (357). Through its demonstration that the present is not determined by the past, history can shock both the complacent and the resigned who unnecessarily accept the rationalizations of existing law (5, 359). History at its best is unsettling and destabilizing by opening the way to new possibilities (5). Always emphasizing the contingency of current law, critical historicism may undermine conventional narratives of continuity, recover the perspectives of history's losers, and consider how history might have developed differently (8). Gordon identifies critical historicism as a more specific variant of historicism, an “elastic” term that recognizes the extent to which the meaning of words and actions depend on their historical context (183 n.1).
In his essay on “critical legal histories,” Gordon canvasses multiple partial critiques of evolutionary functionalism and generalizes three main themes: (1) blurring the lines between law and society (261), (2) revealing that law is constitutive of consciousness (267), and (3) demonstrating that law is fundamentally indeterminate because in any particular social context the same body of law can produce contradictory results (271). Scholarship that provides “thickly described accounts of how law has been imbricated in and has helped to structure the most routine practices of social life,” he concludes, is the greatest promise of critical legal history (281).
At times, Gordon recommends aspects of the American past as inspiration for alternatives to the liberal individualism that, he believes, continues to prevail in the United States. He bemoans the neglect of the civic humanism associated with the republican ideology of the American founding generation which, while occasionally resurgent, is currently absent from normative reasoning (218). And he invokes the great American ideals of legal, political, and economic equality reflected in major social movements throughout American history (380).
Gordon characterizes the common law tradition as a form of internal historiography (20), which treats law as autonomous from the larger society it inhabits (19) and limits legal history to the history of the common law (24). He stresses that this tradition views the history of the common law as a continuous process of evolution that provides normative authority for current law (27, 37). I agree with Gordon that the common law tradition influenced all American legal scholarship in the late nineteenth century, but my own reading of these scholars, as explored in my Law's History: American Legal Thought and the Transatlantic Turn to History, reveals much less formalism and conservatism, much more historicism, and much more variety in numerous other respects than Gordon's account conveys. For example, although virtually all endorsed the “Teutonic-germ theory” that traced the evolution of Anglo-American law from Teutonic sources, many emphasized that this history was often discontinuous, and urged the reform of current law by eliminating dysfunctional survivals from the past, a position Gordon identifies as “critical-historicist” (288).
Gordon stresses that legal scholars associated with legal pragmatism, in which he includes sociological jurisprudence and the many varieties of legal realism (34, 34 n.58), adhered to the common law tradition even as they highlighted external influences on law and stressed that law should be used to reconcile conflicting social interests. Their goal of freeing the present from the harmful effects of surviving law, Gordon observes, was potentially very radical because it “repudiated the whole concept of tradition.” These scholars wanted to connect legal history to social history, which could demonstrate that much current law did not function well because it arose in the very different circumstances of the past (36). In the introductory paragraphs of The Common Law, Holmes seemed to express a historicist challenge to the common law tradition in this vein. He endorsed experience over logic, and emphasized that the meaning of legal forms is contingent on changing views of social policy (52–53, 59–60). Throughout the book, moreover, Holmes occasionally maintained that the antiquarian origin of a surviving legal rule disqualifies it for current use. But most of the book's historical examples and analysis followed the common law tradition of justifying a current rule by tracing the logic or teleology of its evolutionary development from its origins to the present (62–63). Roscoe Pound, the founder of sociological jurisprudence in the decades before World War I, became an advocate for “the taught legal tradition” in his later writings. In a wonderful example of harnessing his wit to his argument, Gordon points out that “Pound had been one of the first to venture outside the law box” of internal legal history. “After a while he did not like what he saw, so he went back in and slammed the door” (41). Gordon characterizes the retreat into internalism by Pound and other pragmatists as a “loss of nerve in the face of the implications” of their own thinking (35). While describing this process as “something of a mystery” (42) whose causes are “hard to tell” (36), he persuasively suggests that abandoning the common law tradition threatened the “ideal of the law-giver who derives his authority from sources independent of the dominant forces in society,” an ideal represented by judges rather than by government administrators (42). Gordon credits Hurst with the great achievement of finally breaking the hold of the common law tradition by developing “external” legal history: the study of the relationship between law and society.
Yet, Gordon convincingly maintains, evolutionary functionalism continued to dominate American legal thought. While disagreeing over many important issues, such as the autonomy of law, American legal scholars shared the fundamental assumption that law should facilitate progressive adaptation to the natural evolution of society toward liberal individualism (223, 227, 229). This “core narrative of liberal progress” (335) continued through the “rights revolution” of the 1960s and 1970s (334), conservative challenges to it since the election of President Reagan (335), and the response to this “new right” by “progressive liberals” (350). Throughout these periods, disagreements arose about the course of this evolution. Some saw a betrayal of liberal principles; others claimed that progress toward them was too slow. But most remained committed to the core narrative (335). The great contribution of critical historicism, Gordon believes, was to escape from this evolutionary functionalism by demonstrating that no particular legal rule is required by any social context (273). Beyond challenging the core narrative, critical historicism enabled us to realize that we are not stuck with the law and society we currently have (303).
Although Holmes wanted to reform law “without the slightest regard to continuity with the past,” he also recognized how much the perception of continuity “limits the possibilities of our imagination, and settles the terms in which we shall be compelled to think.” In one of his most famous aphorisms, Holmes acknowledged these limits by declaring that “continuity with the past is only a necessity and not a duty” (Oliver Wendell Holmes, Collected Legal Papers, 1921, 211).
Much more optimistic than the cynical Holmes, Gordon believes that continuity with the past is not a necessity; that history, properly practiced, can itself demonstrate its own lack of authority. Although not as cynical as Holmes, I am not as optimistic as Gordon. Even if some critical historians are able to imagine a very different and better future, I am skeptical that their visions would be able to stimulate social change. Has scholarship by critical historians had any influence on politics or beyond the academy in other ways? Gordon does not specify the liberating potential of critical legal history even as an academic exercise. For example, while urging the recovery of the republican ideology of civic humanism and the ideals of equality advanced by major social movements in the past, he does not provide details about how they could be deployed in the present to advance an alternative law and society.
Consistent with his preference for critical historicism, Gordon disparages originalist theories of law, especially the version asserting that the specific intentions of the framers or ratifiers of legal texts, including most importantly the United States Constitution, should govern current interpretation (298). He is most critical of the revival of originalism by the “new right” in the 1980s. But he also chastises the “progressive liberals” who “unfortunately” responded to this revival by developing an alternative originalism of their own, often based on the political ideology of republican civic humanism. As Gordon points out, this tradition, while containing impressive aspects that he himself invokes as an alternative to liberal individualism, had many “inconvenient features” for modern progressives that an originalist theory logically would have to accept, such as military arms bearing, patriarchal authority within families, severe limits on citizenship, and extreme cultural homogeneity (350–51). Although he occasionally refers to “first-rate” work on originalism within “populist legal scholarship” (301–2)—praise he never extends to originalism on the right—he generally rejects this entire “Babel of contending originalisms” (352).
Gordon differentiates “professional legal history” from “mainstream legal scholarship,” acquitting most professionals of the evolutionary functionalism that he criticizes in the mainstream (184, 223 n.6). Other than his essays on specific legal historians, Gordon does not devote much attention to professional legal history, although he does provide a valuable overview of the history of the field. The “classical period” of American legal scholarship that coincided with the professionalization of law schools after the Civil War was “saturated in historical thinking” (327; see also 214, 222–23). He identifies the publication of Essays in Anglo-Saxon Law by Henry Adams and his students in 1876 as the beginning of “professional legal historiography” in the United States. For the rest of the nineteenth century, American legal historians, especially at Harvard Law School, made enormous scholarly contributions to the study of English legal history (22–23). Legal historians, like historians generally during this period, shared evolutionary assumptions about historical development. Gordon attributes the decline of legal history in American law schools to the subsequent rejection of these evolutionary assumptions by historians (214). Whereas evolutionary history supported the aspirations of law schools to use the common law tradition as a source of professional authority, the new history that superseded it in the early twentieth century emphasized social and economic influences on law that made it a field of conflicting interests rather than the reassuring expression of gradual evolution (23–29). American law schools, Gordon concludes, “ejected legal history when it betrayed them by abandoning evolutionism” (214).
The consequences of this ejection extended to Gordon's own generation. In 1969, when he was a student in Morton Horwitz's first seminar in American legal history, the field was still in its “slumbering winter” with not more than twenty or thirty books and articles worth reading (97–98). Writing in 1981, Gordon claims that legal history remained a marginal subspecialty in American law schools (214). He concludes his 1984 article on “critical legal histories” by observing that they “are still a long way” from carrying out their program (281). He occasionally cites works by professional legal historians, but he typically does so without differentiating them from others in the critical legal studies movement who write about history, and he never treats any of this historical work in any detail. He focuses instead on summarizing and clarifying the main debates among the varieties of critical legal history (222). It would have been easier to understand and evaluate these debates had Gordon provided fuller treatment of scholarship written within each variety.
Yet Gordon does intersperse intriguing comments about professional legal history throughout his essays. He quotes F.W. Maitland, considered by many to be the best legal historian ever to have written in English, on the “sheer thrilling interest” of the subject, observing that this may be the most significant motivation for legal historians, even as he identifies his own focus on “the pragmatic payoffs from history” (354). He cites approvingly some American legal historians whose only conspicuous agenda is to rescue the past from the distortions of the present and to emphasize how law was embedded in its historical context. Other legal historians, he points out, have “a political as well as an intellectual purpose,” wanting, like Gordon himself, to invoke history as a tool to escape the constraints of the present (303). Here, too, Gordon does not elaborate on his brief references to the work of these legal historians.
The promise of these intriguing comments and references ultimately left me frustrated by the absence of more detailed treatment of professional legal history in Gordon's historiographical essays, a frustration exacerbated by Gordon's extremely insightful, sophisticated, and balanced analysis of Hurst and Horwitz. Gordon praises Hurst for leading the movement from internal to external legal history, which lowered the “drawbridge over the moat isolating American legal from general historiography” (86). But he also criticizes him for relying too heavily on the promotion and regulation of economic activity by the American state in the nineteenth century as a model for the general interaction of law and society (85), and for neglecting social conflict, the history of subordinated groups, and dissent from mainstream consensus (87–88). Gordon calls the two volumes on the transformation of American law by Morton Horwitz “path-breaking work” that stimulated the revival of legal history in the United States (109). They became the starting point for future scholarship, raising questions and making arguments that others must debate (134). Yet he analyzes how these books are “elusive” (110), criticizes Horwitz for failing to deliver on his promise to connect the intellectual history of legal ideas with their social effects (98–99, 121), and complains that his descriptions of “classical” and “progressive” legal thought are “problematic or incomplete” (121). Hurst and Horwitz merit Gordon's detailed attention. Each was the leading legal historian of his generation, but it would have been valuable to learn more from Gordon about the subsequent legal historians he mentions briefly throughout the book.
In contrast to his comments about the dearth of legal history when he was a student and young scholar, Gordon opens his introduction by stressing the enormous recent growth of the field. A bibliography that could have fit on a page or two in 1975 would now include thousands of entries. Far from a marginal subspecialty suffering through a “slumbering winter,” legal history has become a vital part of American legal education and scholarship, attracting highly capable scholars, whose training often includes both a PhD in history and a JD (1–2). With typical generosity, Gordon lists scores of legal historians who have made the decades since 1975 “a Golden Age of legal history.” He writes that his essays celebrate these scholars (12). But these essays do not provide comprehensive analysis of their work or of the current field of legal history produced by this awakening.
What are Gordon's reactions to this explosion of legal history? How far has critical legal history come from its modest beginnings in 1984? Have different genres of legal history arisen? If so, do they have characteristic strengths and weaknesses? What recent work in legal history does Gordon most admire and why? To what extent does the history currently written by legal historians differ from the history written by other law professors? Have mainstream historians paid more attention to legal history since 1981, when Gordon noted their lack of interest in the field (215 n.132)? If so, do their approaches to legal history differ from those of legal historians? I do not reproach Gordon for ignoring these questions in Taming the Past, whose analysis of the uses of history in American legal scholarship established a new field and sustained the growth of legal history that he celebrates, but there is no scholar better able to answer such questions and, more generally, to evaluate the current state of legal history. I hope he does so in future work, which would wonderfully complement the classic essays in this collection.
