Another Trial of Another Century: The Case of Historians Versus the "Economic Paradigm" in Nineteenth-Century Law

The call for a trial as a means of settling a contested issue—even the sexual habits of a president or the mystery of Dr. Martin Luther King’s death—has become increasingly common. Peter Karsten’s Heart versus Head invokes this judicial metaphor when it announces that it will “‘bring to trial’ the reigning paradigm” (p. 12) in nineteenth-century legal history. It stands accused of having wrongfully charged nineteenth-century jurists with promoting a market-oriented vision of economic expansion by instrumentally replacing relatively protective and paternalistic common-law doctrines—principally in the areas of contract, property, and tort—with “a colder, impersonal set of rules” that ultimately served “‘the juggernaut of economic growth,’ at the expense of those crushed in its path”( pp. 2–3). ¹ Innocent or Guilty?

Unfortunately for those who might want a clear-cut outcome, a scholarly trial, much like its courtroom counterpart, can often produce an inconclusive verdict. This kind of result, in large part, is built into the judicial form of historical writing. The type of univocal, scholarly trial being conducted in a book such as this requires the historian-author to perform (too) many roles: jury; trial judge; chief prosecutor; attorney for the defense; and the appellate judge who writes the final opinion in the form of a lengthy, footnoted text. And if these burdens are not enough, a trial-by-historian, as here, can end up resembling a case out of the files of Perry Mason and become a search for the another, alternative “truth.” In fact, the trial mounted by Professor Karsten does re-interrogate the sources that allegedly support the “economic paradigm” and does offer a competing meta-narrative that is signified by its own, trial-like title. What begins, then, as the case of “historians versus economic paradigm” ends up as a new cause, “Head versus Heart.”

The first party to this reconfigured controversy is the “Jurisprudence of the Head.” It is found to have only “occasionally” and “inadvertently” served the interests of capitalists. Although its jurisprudential “voice”—what might also be called its style or mode of judicial discourse—is found to be grounded more securely in the historical record than the “economic paradigm,” Karsten’s study hardly places the jurisprudence of the head in a favorable light, especially when it is pitted against its adversary, the “Jurisprudence of the Heart.”

The nineteenth-century jurists who embraced the jurisprudence of the head, according to Karsten’s alternative paradigm, generally looked backward and eastward. They were not reworking common-law rules so as to construct “a kind of Jurisprudence of Growth” (p. 38). Instead, they were doctrinal conservatives, steeped in the tradition of the common law, who were more concerned with preserving rules that had been crafted by colonial and English courts than with promoting entrepreneurial liberty. Their contract-law opinions “reeked of doctrinal thought and reasoning and gave no hint of utilitarianism or instrumentalism” (p. 63). Similarly, their tort-law decisions displayed a much greater concern for seeking continuity with English and colonial doctrines than for changing the rules of tortious liability for anyone’s benefit.

After examining more than seventy rules and hundreds of cases, Karsten’s study concludes that relatively few legal doctrines were changed during the nineteenth century and that these innovations cannot be linked to any desire “to spur economic growth or aid entrepreneurs. Rather, almost all of the new rules were designed to aid those who had been hurt by the course of economic growth, those who lay wounded in its wake” (p. 294).

In Karsten’s view, then, the innovators turn out to be those nineteenth-century judges who espoused the jurisprudence of the heart. They even can claim credit for creating the doctrinal and jurisprudential base upon which their twentieth-century successors would ground sweeping, progressive legal innovations such as the strict product liability...