Transforming a Field: The Critical Tradition in American Legal History

In his 1977 review of The Transformation of American Law, 1780-1860, John Phillip Reid likened Morton Horwitz to a "mute hierophant," who, along with his fellow "iconoclasts" Robert Cover and Jerold Auerbach, had "invaded the temple of legal history." Reid called on "legal historians and lawyers" to drive them out. "They have smashed the fetishes, blotted out the frescoes, and desecrated the tombs. If we do not force them to the evidence, they will even desacralize Clio."¹ As Reid lamented, Horwitz's brilliant first book marked the beginning of a new era for the field of American legal history. Analyzing antebellum judges' instrumental use of private-law decisions to make economic policy benefitting merchant and entrepreneurial groups, Transformation offered a powerful rebuke to legal history's orthodox high priests.

More than forty years later, the publication of Transformations in American Legal History: Essays in Honor of Professor Morton J. Horwitz, the first of two volumes of a festschrift edited by law professors Daniel W. Hamilton and Alfred L. Brophy, demonstrates how much the field of legal history has changed since Horwitz invaded the temple. This festschrift is a loving testament to Horwitz's impact as a scholar and teacher. The seventeen original essays by his students demonstrate that he has always cared deeply about history and historiography.

Charles Donahue, Jr.'s "Whither Legal History?" makes this point beautifully by placing Horwitz in the pedagogical context of his times. Donahue is the only author who is not a Horwitz student. He and Horwitz are colleagues at Harvard Law School, but in 1967 they were both on the law-school job market. Their generation sought to redefine the place of legal history in the law-school curriculum. They did not want to offer the standard required first-year course in legal history that "went from Aethelbert to Earl Warren," told a Whiggish story, and universally alienated students (p. 329). Instead, they believed legal history should be offered as an advanced elective that focused on a narrower period of time. This approach allowed them to demonstrate that "law is intimately connected with the economy of ideas, the politics, and the social structure of the society that produces it" (p. 329). This "externalist" approach allowed its practitioners to investigate the connections between law and society. Its proponents challenged the assumptions of traditional "lawyer's legal history" that viewed law as an autonomous realm. In a 1973 review essay, "The Conservative Tradition in the Writing of American Legal History," Horwitz critiqued this internal tradition and its leading American practitioner, Roscoe Pound.²

Horwitz not only wanted to introduce law students to historical methods, he also actively sought to train legal historians. As Daniel W. Hamilton notes in his contribution to the volume,

Mort Horwitz is one of the few and certainly one of the best law professors to bring this PhD model into the law school. Students at Harvard, in the History department and in the History of American Civilization Program, often came to Harvard to work with him. This is itself rare. While law professors frequently serve on PhD committees, it is still exceptional for a student in a humanities program to go to a university in order to work with a law professor as a primary advisor. There are of course exceptions, but Mort is at the head of a short list. The question is, why did we seek him out, and why did he seek us out?

(p. 392).

The quality of these essays answers the second question. The answer to the first is that Horwitz, much like J. Willard Hurst before him, convinced his readers that law mattered. To understand American history, one needed to understand legal history. But, as Reid's review of Transformation suggests, scholars disagreed on what "legal history" was. Reid characterized Horwitz as a neo-Marxist who saw law as epiphenomenal. He...