Herbert Hovenkamp, ‘Progressive Legal Thought’

A widely accepted model of American legal history is that “classical” legal thought, which dominated much of the nineteenth century, was displaced by “progressive” legal thought, which survived through the New Deal and in some form to this day. Within its domain, this was a revolution nearly on a par with Copernicus or Newton. This paradigm has been adopted by both progressive liberals who defend this revolution and by classical liberals who lament it.

We generally identify classical legal thought with efforts to systematize legal rules along lines that had become familiar in the natural sciences. This methodology involved not only simplification and arrangement, but also “formalism”, in the sense that it presented the law as a complete system. At the risk of some caricature, the “data” of this system were legal decisions – a model that reflected not only the penchant for classification but also devotion to the idea that law is essentially judge made and that it evolves over long historical development. Historicism became an important attribute of legal classicism. The authors held up as exemplars are people like Gilded Age Harvard Law Dean Christopher Columbus Langdell and Francis Wharton, the Episcopal priest and prolific legal writer who produced commentaries on many legal subjects. While classical legal thought was generally anti-statist on economic matters, it was not libertarian. In fact, it advocated heavy state regulation of morals even as it supported liberty of contract without state interference as a general matter. The anti-legislative bias of legal classicism readily accommodated doctrines such as economic Substantive Due Process, which originated mainly in the state courts and was an important part of Supreme Court doctrine during the first four decades of the twentieth century.

The classical-to-progressive model of historical explanation is far too narrow to account for the profound changes in American law that occurred during the decades straddling 1900. These changes were embraced by a wide spectrum of jurists and legal thinkers, not merely by the subgroup that styled themselves “progressive”. Classical legal thought would have collapsed even if progressives had never showed up.

This historical model persists, however, mainly because it serves the interests of both the defenders and opponents of the institutions we have come to associate with progressive legal thought – namely, the welfare state, increasing public involvement in economic development, the rise of regulatory agencies with broad quasi-judicial and quasi-legislative powers, deferential judicial review of economic legislation, and aggressive judicial review of government actions injuring underrepresented minorities.

Hovenkamp, Herbert J, Progressive Legal Thought (October 20, 2014).

First posted 2014-10-22 06:34:12

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