Ryan M. Poe
Law & Society
Jedediah Purdy
Legal History Methodologies
What is the relationship between the law and society? What is the importance of law? These
are perhaps the defining questions of every new generation of legal methodology. The
triumph of legal formalism1 in the late nineteenth century left a legacy of law's transcendence
and internal consistency that the first legal historians tended to take for granted. This binary
portrayal of law and society—depicting law as an entirely separate structure above or outside
of society—is the foundation upon which subsequent generations of legal historians have
added or removed elements, such as politics, culture, and power. Some have depicted twoway exchanges between law and society, with interest groups, cultures, economics, lawyers,
and even the ontology emerging from the law itself acting as mediators and causal agents in
history. Others have subverted this dualistic paradigm altogether by incorporating alternative
means of rule-making into their narratives, challenging the seeming hegemony of law as a
modality of rule.
This paper is a survey of methodologies in legal history. I chart the various portrayals
of the relationship between law and society from the earliest generations of American legal
historians emerging from nineteenth-century legal formalist traditions to the present—from
the period when the law itself was depicted as the only site of historical change for legal
historians, to the present, when the interarticulations of law, society, custom, and nature (just
1
Legal formalism is a type of legal practice concerned with separating law from society so that judgments had
the veneer of neutrality. Law, according to formalist judges, “represented balance, sound values, a
commitment to orderly process,” wrote Lawrence Friedman, and judgments centered solely around legal
tradition, precedent, and doctrine. Lawrence M. Friedman, A History of American Law (New York: Simon &
Schuster, 2005 [1973]), p. 288. For more on the professionalization of the legal system which led to the
predominance of legal formalism, see Kermit L. Hall, The Magic Mirror: Law in American History (New
York: Oxford University Press, 1989), ch. 11, pp. 211-225. Recently, Brian Tamanaha has argued that any
era known for a triumphal reign of legal formalism may be overstated. See, Brian Z. Tamanaha, Beyond the
Formalist-Realist Divide: The Role of Politics in Judging (Princeton: Princeton University Press, 2009).
to name a few) contribute to the whole story of humanity. I discuss each major generation of
legal historians, one or two key players, and their contributions to the ongoing question of the
relationship between law and society. I also hope to incorporate observations about what each
generation tried to do with law, how they perceived its power to shape society (or vice versa),
and why their view was novel. Throughout, I incorporate observations about the implications
of each vision. To do so requires that some complex historical methodologies be
unfortunately reduced to their bear essentials. But in doing so I hope to demonstrate the clear
differences and contributions of the various methodological uses of the law.
Ryan Poe
Legal History Methodologies
Spring 2013
The first legal historians in the U.S. emerged out of a synthesis of American legal
formalism and imported English legal methodology. This early group of scholars is often
referred to as the “doctrinal legal historians.” They depicted law as a transcendent set of rules
and regulations for ensuring social order and harmony. In these narratives, the legal system
was shielded from culture, politics, and economics by impartial judges and lawyers, who
served as the legal shepherds of society, ensuring that the law was properly interpreted and
enforced. Change over time occurred within legal doctrines, and between certain judicial
interpretations of the law. But the legal system itself was a stable structure, relatively
unaffected by the outside world. Legal history, under doctrinal methodological examinations,
was a purely technical, scientific matter fit for the high mandarins of the late-nineteenth and
early-twentieth-century American legal system. As Lawrence Friedman once described
doctrinalist narratives of the past, theirs was a “history that tries to escape from history.”2
Originating at the University of Wisconsin, almost solely behind the relentless efforts
of James Willard Hurst in the 1950s and 1960s, the so-called “Wisconsin School” legal
historians depicted law as emerging out of the demands and needs of society. Nineteenthcentury lawyers and administrators were tightly bound up with American business classes,
and thus the history of law for these functionalist legal historians tended to center around the
ways law was crafted to increase profits and drive industrialization. Yet, Wisconsin School
functionalists tended to also be New Dealers or their allies, who sought to break from the
formalist view that law had (or should have) no direct connection to society. In functionalist
analyses, law was an instrument of state-building through development. In Hurst's own
2
Lawrence M. Friedman, "The State of American Legal History," The History Teacher 17, no. 1 (1983), pp.
103-105. For an example of this style of American legal history, see, William F. Walsh, A History of AngloAmerican Law (Indianapolis: Bobbs-Merrill, 1932).
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phrasing, law was formulated not for any single, clear philosophical end such as laissez-faire
capitalism, but to drive the “creative energies” of Americans. “Where legal regulation and
compulsion might promote the greater release of individual or group energies,” he wrote, “we
had no hesitancy in making affirmative use of law.”3
Hurst and his storm of acolytes depicted law and society in a two-way exchange,
drawing from Oliver Wendell Holmes' (perhaps now-cliched) remark that “this abstraction
called Law” is “a magic mirror” through which “we see reflected, not only our own lives, but
the lives of all men who have been!”4 To better examine these relationships, they shifted their
focuses from appellate and Supreme Court decisions to local courts and state and municipal
administrative bodies. Local matters, for Wisconsin functionalists demonstrated the ad hoc
formation of state economic and regulatory policy in facilitating economic development. The
shift from doctrinal issues also demonstrated the power of people previously considered
outside of the legal system. No longer did judges and lawyers single-handedly define the
character of law, but local planning bodies, politicians, and entrepreneurs all made significant
contributions.5
Hurst brought to legal history the popular historiographical methods of the consensus
school, a term for mid-twentieth-century historians who argued that change flowed from
common understandings about the shape of the future.6 Later scholars pushed legal
3 James Willard Hurst, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison:
University of Wisconsin Press, 1956), p. 7
4 Oliver Wendell Holmes, The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial
Opinions Edited by Max Lerner. (Boston: Little, Brown, 1943), pp. 29-30. See, e.g., Kermit L. Hall, "The
"Magic Mirror" and the Promise of Western Legal History at the Bicentennial of the Constitution," The
Western Historical Quarterly 18, no. 4 (1987): 429-435; Hall, The Magic Mirror.
5 Friedman, “The State of American Legal History,” pp. 106-107; Friedman, A History of American Law, pp.
9-15; Robert W. Gordon, "Critical Legal Histories," Stanford Law Review 36, no. 1/2 (1984), pp. 59-67; Hall,
The Magic Mirror, pp. 6-7.
6 A useful synthesis of twentieth-century American historiography is James T. Patterson, “Americans and the
Writing of Twentieth-Century United States History,” in Anthony Molho and Gordon Wood, eds., Imagined
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functionalism in exciting new directions by stressing conflict. Harry Scheiber, in his 1969
study of canal policy in antebellum Ohio, argued that Hurst's general statement that law
served development did not fully capture the conflict from which American policy emerged.
Scheiber identified three distinct theories of active government that drove the formation of
canal policy in Ohio, although other eras and contexts may have had many more or fewer.
Policy, he argued, emerged out of a constant jockeying between conflicting interests with
clear winners assuming primacy at certain times, and with no singular force or theory driving
change. Rather than envisioning law as emerging solely out of consensus, Scheiber argued for
a more sophisticated, conflict-laden functionalism.7
Yet, the conflict thesis did not take hold immediately. The 1970s and early 1980s
witnessed the steady popularity of evolutionary functionalism in legal history, which
manifested in a peculiar brand of consensus functionalism. Emerging principally from
economic accounts of the law, these historians surveyed legal change over long periods of
time, sampling opinion after opinion in an effort to understand which legal doctrines survived
and which fell by the wayside. Rather than view the American legal progress narrative as
driven by conflict between interests, scholars such as George Priest and Richard Posner
depicted legal change as the long march of efficiency in law—that is, legal precedent
minimizing conflict and maximizing development. Those doctrines, processes, and statutes
that survived the test of time, they argued, were the most efficient by the very fact of their
survival; those that were discarded were inefficient and relatively painless to discard; those
Histories: American Historians Interpret the Past (Princeton: Princeton University Press, 1998), pp. 185205, esp. pp. 190-192.
7 Harry N. Scheiber, Ohio Canal Era: A Case Study of Government and the Economy, 1820-1861 (Athens:
Ohio University Press, 1968), pp. xv-xvi, (on conflict) 88, (on historiography and methodology) 353-356.
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that lingered did so only because the Coasian8 transaction costs for discarding them remained
too high to justify the change. Even in the face of seemingly tyrannical judges and
lawmakers, these scholars maintained that the law and its changing interpretations inevitably
outlives any single person or regime, ensuring that individuals “are unable to influence the
content of the law to fully reflect their attitudes.” The legal system that resulted was thus the
most important body of law because it was, by their assumptions, the most efficient, conflictfree, rational body of law in world history.9
To evolutionary functionalists, law was the logical extension of every being's innate
rationality. Richard Posner, perhaps the method's most famous defender, later stated in
precise, if simple, terms what most efficiency theorists meant by rationality: “choosing the
best means to the chooser's ends,” which includes conscious and unconscious decisions, as
well as factors of cost (social, economic, and political). In the drive to construct a legal
system that mediates disputes fairly, and without costly, inefficient conflict, the general trend
toward rationality ensures the survival of the rules that best facilitate efficient conflict
resolution and economic development. Law, in other words, has no choice but to proceed
rationally in the long run because it emerges from rational actors.10
8 Ronald Coase was an influential American economist who formulated the idea of transaction costs for
institutional change that helped explain why certain changes toward rationality and efficiency happened or
did not happen. The cost for change, Coase argued, was missing in previous economic theorems, or applied
incorrectly. Economists thus had serious problems accounting for lingering inefficient, irrational institutions
in society that should have been replaced. Perhaps the most succinct starting place for Coase's influence is
Jeremy Adleman, “Property Rules or the Rule of Property? Carol Rose on the History, Theory, and Rhetoric
of Ownership,” Law & Social Inquiry 21.4 (Autumn, 1996), pp. 1044-1047. See also, Richard A. Posner,
"Nobel Laureate: Ronald Coase and Methodology," The Journal of Economic Perspectives 7, no. 4 (1993):
195-210.
9 George L. Priest, "The Common Law Process and the Selection of Efficient Rules," The Journal of Legal
Studies 6, no. 1 (1977), p. 65. For a longer list of evolutionary functionalist titles in this vein, see Gordon,
“Critical Legal Histories,” p. 69 fn. 28.
10 The precise ends of this rationality-centered, evolutionary functionalism was a moving target. Some,
specifically the earliest evolutionary functionalists like George L. Priest, argued that law evolved toward
efficiency. Richard Posner, in order to preserve evolutionary functionalism from damning criticism, argued
instead that law evolved instead toward “wealth maximization.” They are two sides of the same coin, and
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Critiques of this method, of course, resounded, with two full issues of Hofstra Law
Review devoted to debate over its merits and demerits. Morton J. Horwitz categorized it as a
vain attempt to reduce legal change to a truth, a pseudoscience of singular, mostly material
but often biological, answers. “Future legal historians,” he joked, “will need to exercise their
imaginations to figure out why so many people could have taken most of this stuff so
seriously.”11 His incredulity is merited given the implications of the method. Unlike
Wisconsin School functionalists, evolutionary functionalists began from the present, in a
seeming throwback to doctrinal legal history. But there was an added layer: they proceeded
from the present with the expressed assumption that the present was somehow more efficient
than the past. Every judicial opinion or legal change was either part of the efficient present or
eventually discarded because it did not live up to the rigorous standards of progress. There
was no room for dissent, no room for contingency or alternative causality and motivation.
Law is the way it is because society is comprised of rational actors, and rational actors make
rational law. By implication, the status quo was the best we could hope for.
It was, in a way, similar—though, of course, with opposite goals—to orthodox
Marxist depictions of law in society. Legal history, to Marxists, was a teleology of capitalist
domination. Marxists legal scholar set out in search of the role of law in the narrative of
capitalism. Scholars like G.A. Cohen, for example, argued that law did not necessarily drive
economic efficiency or emerge out of consensus or conflict, but out of a fact of class relations
that privileged the power of the bourgeoisie classes. Law created and perpetuated the class
structure, itself made up of legally defined property relations. Cohen, in his defense of
best described by Morton J. Horwitz, “Law and Economics: Science or Politics?” Hofstra Law Review
(1979-1980), pp. 910-12. See also, Richard A. Posner, "A Reply to Some Recent Criticisms of the Efficiency
Theory of the Common Law," Hofstra Law Review 9 (1980-1981): 775-794.
11 Horwitz, “Law and Economics,” p. 905.
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Marxist historical materialism, argued that law and the relations of production are inseparable
historical elements that produce the class structure. Power over productive forces—and thus
power over the resulting class system—is less secure when it is not explicitly legal. And
because those with power over the legal system have historically been the same or hold
similar interests as those with power over the mechanisms of production, they tend to use the
law to secure their hegemony over both. “Hence men fight, successfully,” Cohen wrote, “to
change the law so that it will legitimate the powers they either have or perceive to be within
their grasp, and lawmakers alter the law to relieve actual or potential strain between it and the
economy.”12 Law, to Marxist historians, was the instrument of capitalists to shape society for
their benefit at the expense of the proletariat. Powerful economic forces drove legal change in
order to ensure that they could continue to drive legal change.
But this line of reasoning is premised on the power of law as a validating instrument.
How does law assume so much power over the majority of people when it seems only to
serve their own exploitation to do so? Neo-Marxists such as Eugene Genovese and Douglas
Hay provided explanations. Hay's influential essay in the book, Albion's Fatal Tree (1975),
argued that criminal courts in eighteenth-century England offered clemency from the harshest
criminal punishments, conferring to judges, lawmakers, and lawyers the status of merciful
mediator to the law's sharper edges. Law thus seemed harsh, its shepherds just. The obvious
implication of this distance between statute and enforcement is that the English ruling class
created a draconian system of laws, then accepted a degree of self-limitation in doling out
punishments in order to rule effectively. As Eugene Genovese famously wrote, law must
“validate itself ethically in the eyes of several classes, not just the ruling class,” in order to
12 G. A. Cohen, Karl Marx's Theory of History: A Defence (Princeton: Princeton University Press, 2001), 231
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“become an instrument by which the advanced section of the ruling class imposes its
viewpoint upon the class as a whole and the wider society.”13 Law, in other words, was
slowly produced by the powerful to serve many ends, including those of the powerless, so as
to appear a just, apolitical force.
These Marxist scholars historicized the power of law in society, as well as its role in
class formation. But far from vulgar readings of law as purely a tool of the bourgeoisie, an
important element of their analyses would lay the groundwork for the next major
methodological intervention: law, in these neo-Marxist legal histories, ultimately transcended
its status as pure instrument. It eventually determined the ways people understood their
world, it set rules of behavior and patterns of thought, and defined future vernacular. As law
became a ubiquitous presence in everyday life, the bourgeoisie, argued Hay and Genovese,
lost control of it. Law took on a life of its own, and master became servant. In perhaps one of
the most important passages in legal history, Hay wrote that the “punctilious attention to
forms, the dispassionate and legalistic exchanges between counsel and judge, argued that
those administering and using the laws submitted to its rules. The law,” he continued,
“thereby became something more than the creature of a ruling class—it became a power with
its own claims, higher than those of prosecutor, lawyers, and even the great scarlet-robed
assize judge himself.”14 Society made law, then law became its despot.
This vision of law eventually found its American conduit in Morton J. Horwitz's
Bancroft Prize-winning, The Transformation of American Law, 1780-1860 (1977), which
13 Douglas Hay, “Property, Authority, and the Criminal Law,” in Hay, Peter Linebaugh, el al., eds., Albion's
Fatal Tree: Crime and Society in Eighteenth-Century England (New York: Pantheon, 1975), pp. 17-64;
Eugene Genovese, Roll, Jordan, Roll: The World the Slaves Made (New York: Pantheon Books, 1974), p. 27.
14 Hay, “Property, Authority, and the Criminal Law,” p. 33. See also Morton J. Horwitz's discussion of this idea
in his "The Rule of Law: An Unqualified Human Good?" The Yale Law Journal 86 (January, 1977), pp. 561563.
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served as an important transition point away from functionalism toward Critical legal history.
Functionalist legal historians generally portrayed law as evolving from less developmentaloriented or efficient policy measures to a more robust, wealth-maximizing legal system. For
Hurst and his students, this tended to benefit the majority of Americans, creating new
opportunities and providing for the continual creation of wealth. For Marxists, legal change
occurred along a similar path yet toward the unequal distribution of wealth and power.
Marxist historians, however, rarely lent full attention to law itself. Indeed, both functionalists
and Marxists viewed law almost as a bit player in the drama of human history, tidying loose
ends or aiding in the release of creative energies. Horwitz combined the methodologies of
Wisconsin functionalists with the contribution of neo-Marxist scholars in a compelling
account of the repressive power of law.15 Legal history, he argued, did not unfold for the
benefit of society at large, as functionalists presumed. Instead, over the course of the
nineteenth century, law “enabled emergent entrepreneurial and commercial groups to win a
disproportionate share of wealth and power in American society.” Once they took command
of the law, they rendered it “somewhat mysterious” through professionalization, to give it the
appearance of an ordered, ultimately just science. This trend toward legal formalism thus
shaped the whole of American legal discourse, “disguising and suppressing the inevitably
political and redistributive functions of law.”16
15 I liken Horwitz to Marx not in the pejorative like many of his critics after the publication of his 1977 book,
but in the sense that he viewed the trajectory of the law in the era he surveyed with a skepticism akin to
Marxist visions of the law. Horwitz probably did not have the goal of describing the necessary precondition
of capitalist domination before its eventual overthrow in mind when he wrote The Transformation of
American Law. For more about Horwitz's critics and accusations of Marxism, see Robert W. Gordon,
"Critical Legal Histories," p. 97, fn. 96.
16 Morton J. Horwitz, The Transformation of American Law, 1780-1860 (Cambridge: Harvard University Press,
1977), xvi, 266. Brian Tamanaha has recently argued that formalism itself may be severely exaggerated in
U.S. legal history. See fn. 1.
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With that insight, Morton Horwitz ignited Critical legal history, which sought to
recover the power and importance of law from functionalist accounts that depicted it as the
mere handmaiden of progress. Perhaps most famously articulated by Robert Gordon, in his
1984 article, Critical legal history departed decisively from functionalism by arguing that
legal forms can transcend the domain of law and shape society, rather than law being society's
servant. Critical legal historians examined the appellate decisions and doctrinal matters
(which Wisconsin functionalists outright eschewed) in search of the ways legal forms and
functions shaped society. This included analytical variety ranging from neo-Marxist
observations of legal hegemony to examinations of the symbols and rituals in law and legal
process that exerted considerable influence on patterns of thought and consciousness. Alltold, Gordon identified no fewer than seven variations of Critical legal history, some with
their own sub-variations. Despite their diversity, Critical legal historians, as Lawrence
Friedman described them, identified law's power as a “structure of legitimacy” for social
stratification, providing not only for inequality's structural basis, but also its “symbolic and
ideological support.”17
Critical legal studies revived the power and importance of law in shaping social
change, rendering society more flexible and susceptible to change than functionalists
accounts. Early Critical legal historians flipped the functionalist view of causality literally
180 degrees. Later Critical scholars, however, would trouble such an easy causal relationship.
Indeed, Robert Gordon's article represents perhaps the single most methodologically
sophisticated—and certainly the most complete—survey of Critical legal history. According
17 Gordon, “Critical Legal Histories,” pp. 71-100; Friedman, “The State of American Legal History,” p. 108
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to his reading, there are seven implications about the relationship between law and society
that emerged from Critical legal history:
1. History and social life do not unfold along any uniform path.
2. Thus, the relationship between law and society is also not uniform.
3. If this relationship is not uniform, law must be a product of conflict—law is, in other
words, political.
4. Despite being political in nature, not every new political regime creates a novel legal
regime, making legal structures eventually “relatively autonomous” structures.
5. This relative autonomy means that many legal structures cannot be explained by
external factors alone, and require explanations internal to the legal system.
6. Our ways of thinking about law and society—as two separate, causally-linked
factors—are also historically contingent.
7. Thus, the past must not always be so closely related to the present.18
Law and society, then, were not as separate as legal historians tended to assume. Law was
itself an arena of conflict, but it was also constitutive of consciousness. People tend to
internalize the forms taken in law—e.g., that which is illegal is often also construed as
immoral. “Our desires and plans tend to be shaped out of the limited stock of forms available
to us,” Gordon wrote, and “forms thus condition not just our power to get what we want but
what we want (or think we can get) itself.”19
However, in their quest to understand “how law has been imbricated in and has helped
to structure the most routine practices of social life,”20 critical legal scholars nakedly asserted
that law did in fact structure society. Ultimately, the same two relatively distinct objects, law
and society, structured their analyses. And in these portrayals, law was the most prominent
and most powerful subject. In the introduction to their influential sequence of articles in the
1985 issue of the Wisconsin Law Review, Hendrik Hartog, William Forbath, and Martha
Minow outlined the deficiencies in legal history as they saw them. The discipline's pervasive
positivism—the popular American contention that “law is an analytically distinct sphere of
18 These seven factors are paraphrased, from Gordon, “Critical Legal Histories,” pp. 100-102.
19 Emphasis mine. Quotation in Gordon, “Critical Legal Histories,” p. 111 (near bottom).
20 Gordon, “Critical Legal Histories,” p. 125.
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human activity”21—excluded those marginalized in the more formal arenas of law as
contributors. In fact, all historical subjects who were not “official interpreters of legal texts”
tended to be excluded from both functionalist and Critical legal histories. This trend led to
“wildly exaggerated dichotomies between things legal and non-legal.” Those without power
were thus either absent from their histories, or passive recipients of legal exploitation and
empowerment.22
Their contribution was legal history from below, or legal pluralism. Writing the year
after Gordon published his article breaking down the ways legal scholars used the categories
of law and society, this group demonstrated the very contingency of those categories by
finding alternative rule systems and demonstrating the incompleteness of most depictions of
society. Hendrik Hartog's article was the most relevant to this subject and has enjoyed the
most longevity. In 1819, the New York City quarter sessions court ruled that pig keeping in
the city was illegal. Hartog began his analysis of the ruling with a seemingly simple, yet
methodologically innovative question: “in what ways, if any, did that decision conclude the
inquiry?” He explored this question by comparing two readings of the 1819 ruling: first by
envisioning it as a “a text expounding and developing legal doctrine;” second, by visualizing
the case as “an instance or episode of conflict between contending normative orders.” In the
first telling, the custom of pig keeping was not entrenched long enough nor shown to be a
sufficiently widespread practice to warrant its inclusion in legal argumentation. The defense
21 Hendrik Hartog, Public Property and Private Power: The Corporation of the City of New York in American
Law, 1730-1870 (Chapel Hill: University of North Carolina Press, 1983), pp. 2-3, fn 3.
22 Hendrik Hartog, William Forbath, and Martha Minow, "Introduction: Legal Histories from Below,"
Wisconsin Law Review 1985 (1985), p. 762. The three articles in question are, William E. Forbath, "The
Ambiguities of Free Labor: Labor and the Law in the Gilded Age," Wisconsin Law Review 1985 (1985):
767-818; Martha Minow, "Forming Underneath Everything That Grows: Toward a History of Family Law,"
Wisconsin Law Review 1985 (1985): 819-898; Hendrik Hartog, "Pigs and Positivism," Wisconsin Law
Review 1985 (1985): 899-935.
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thus had no sound arguments, and, although the defendant's fine was limited due to the
prevalence of the pig-keeping custom, the clear end was the setting of a precedent that
ensured that “a distinctively bourgeois vision of a pig-free city had thus become a legal
reality in New York City.”23
The second telling, however, describes the life of the no-pig ruling after 1819. By the
first, widely popular methodology Hartog employed, the decision would have seemed to end
the dispute. But, in reality, pig keeping in New York remained a widespread practice at least
until an 1848 cholera epidemic, which coincided with “the unambiguous identification of
street pigs with harm to the public health.” The city attempted a campaign to enforce the law
against local pig keepers, but were constantly thwarted by organized challenges to municipal
attempts to eradicate the custom. Ultimately, the 1819 law was neither the beginning nor the
end of this conflict, but was a volley in an ongoing dispute between custom and law over
what was and was not a valid right. “The legal right to keep pigs in New York City's streets,”
Hartog wrote, “was constituted both by the activities of the right's defenders and by the
relative passivity and ineffectuality of its opponents.”24
The prospect of pig keepers as formative of legal change—even if they were
unsuccessful—allowed Hartog to present a new theory of law and society, one in which law
was “an arena of conflict within which alternative social visions contended, bargained, and
survived.”25 Criminalizing pig keeping only gave its opponents a degree of legitimacy, and
another tool with which to denounce and try to end the practice. But it did not significantly
undermine the culture of pig keeping. Custom, Hartog concluded, was thus a major source of
23 Hartog, “Pigs and Positivism,” quotations on pp. 899, 920; on the ruling as legal text, see pp. 906-920; on
the ruling as episode, see pp. 920-935.
24 Hartog, “Pigs and Positivism,” p. 933.
25 Hartog, “Pigs and Positivism,” p. 935
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power; often more powerful than law. “Legal authority,” he wrote, “may emerge from a
number of governmental and quasi-governmental institutions and practices.” The strict
distinction between law and society is inadequate for incorporating the values of both pig
keepers and lawmakers. The power of custom and a range of other authoritative, informal
institutions must be contextualized on level footing with the power of law. Legal pluralists
argue that law and society are not sufficient categories of analysis on their own, and that other
sources of rule-making gained authority at different times and in different places, which
contributed to the shape and and altered the trajectory of the legal system.26
This vision of law and society has shaped legal history for the past three decades. Of
course, scholars at times have borrowed elements from Critical scholars and Marxists;27
evolutionary functionalism proved remarkably resilient in the 1990s due to the long career of
Richard A. Posner and the influence of neoliberalism;28 and many Hurstian functionalists still
practice.29 Legal pluralism is more than just adding elements to law and society. It is
recognizing that some methodologies work better in some circumstances than they do in
others. Implicit in this understanding is a stance on the inseparability of the categories of law
and society. In the past decade, scholars seem to be not merely adding new elements to the
law and society paradigm, but are more fully integrating the many into one. Framed by a
recent symposium as simply “law as...,” this methodological shift signals not a break from
legal history from below as much as a full realization of its goals. By situating law within a
26 Hartog, “Pigs and Positivism,” p. 934-935. Hartog also discusses custom's role in the courtroom and
common law on pp. 912-919.
27 Margot Canaday, The Straight State: Sexuality and Citizenship in Twentieth-Century America (Princeton:
Princeton University Press, 2009).
28 Posner was defending evolutionary functionalism into the late 1990s in Posner, "A Reply to Some Recent
Criticisms of the Efficiency Theory of the Common Law." For the influence of neoliberalism on legal
methodology, see Adleman, “Property Rules or the Rule of Property?,” pp. 1044-1047.
29 Barak D. Richman and Dennis Schmelzer, "When Money Grew on Trees: Lucy v. Zehmer and Contracting
in a Boom Market," Duke Law Journal 61 (2012): 1151-1562.
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broad matrix of alternative institutions, Hartog, Minow, and Forbath historicized that realm of
authoritative knowledge we today call the law, reminding scholars of its contingency. In the
same way, framing “law as” social relations, economics, culture, or vice versa, situates law
within a human framework without ignoring the power law has been imbued with over
time.30
Of course, legal pluralism has not remained unchallenged. In their race to recover the
agency and rule-making systems of regular people, legal pluralists, argued Brian Tamanaha,
tend to essentialize law in a variety of ways, creating a “plurality of legal pluralisms.” Law, to
legal pluralists, can arise from anything, and thus law itself is nothing in particular. In their
implicit rejection of the importance of formal law, legal pluralists tend to minimize the
importance of law emerging from the courts and legislatures and tend to miss those functions
of the law that do not fit their particular definitions. Moreover, they unintentionally downplay
what their subjects considered the law. Tamanaha argued that legal historians should rather
focus on what our historical subjects considered law, to historicize the concept and ensure
that a pluralism really does exist before conducting a pluralist analysis. Legal pluralism, he
argues, can be found only where “more than one kind of 'law' is recognized through the social
practices of a group in a given social arena, which,” he submits, “is a relatively common
situation.” Tamanaha thus urges legal pluralists to revive the “law” in legal studies.31
The relationship between law and society in legal history changed enormously over
the twentieth century, from one viewing the law as interpreted and enacted by society, to
those who today view law as society and society as law. Scholars today rarely assume a clear
30 Catherine Fisk and Robert Gordon, "'Law As . . .': Theory and Method in Legal History," UC Irvine Law
Review 1, no. 3 (2012): 519-541.
31 Brian Z. Tamanaha, "A Non-Essentialist Version of Legal Pluralism," Journal of Law and Society 27, no. 2
(2000), p. 297. See also, Brian Z. Tamanaha, "The Folly of the 'Social Scientific' Concept of Legal
Pluralism," Journal of Law and Society 20, no. 2 (1993): 192-217.
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Ryan Poe
Legal History Methodologies
Spring 2013
causal relationship between the two, given that they are both not only mutually constitutive,
but that their relationship changes over time and space. This is a fundamentally critical
position in that it actively engages with as many assumptions as authors can hope to identify.
Is there a methodological turn in store after this generation of legal historians? It is a difficult,
probably impossible, question to answer. For the assumptions future scholars may uncover
about how we understand law and society may be so fundamental to modern ways of thinking
that, without them, our entire epistemology unravels and falls to pieces. Despite the risks, one
hopes, as Christopher Tomlins warns, “that there is never to be a position after critique.”32
32 Christopher Tomlins, "What is Left of the Law and Society Paradigm after Critique? Revisiting Gordon's
'Critical Legal Histories'," Law & Social Inquiry 37, no. 1 (2012), p. 157.
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