The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937

The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937

The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937

The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937


This book examines the ideology of elite lawyers and judges from the Gilded Age through the New Deal. Between 1866 and 1937, a coherent outlook shaped the way the American bar understood the sources of law, the role of the courts, and the relationship between law and the larger society. William M. Wiecek explores this outlook--often called "legal orthodoxy" or "classical legal thought"--which assumed that law was apolitical, determinate, objective, and neutral.

American classical legal thought was forged in the heat of the social crises that punctuated the late nineteenth century. Fearing labor unions, immigrants, and working people generally, American elites, including those on the bench and bar, sought ways to repress disorder and prevent political majorities from using democratic processes to redistribute wealth and power. Classical legal thought provided a rationale that assured the legitimacy of the extant distribution of society's resources. It enabled the legal suppression of unions and the subordination of workers to management's authority.

As the twentieth-century U. S. economy grew in complexity, the antiregulatory, individualistic bias of classical legal thought became more and more distanced from reality. Brittle and dogmatic, legal ideology lost legitimacy in the eyes of both laypeople and ever-larger segments of the bar. It was at last abandoned in the "constitutional revolution of 1937", but--as Wiecek argues in this detailed analysis--nothing has arisen since to replace it as an explanation of what law is and why courts have such broad power in a democratic society.


A comment about the origins of this study may help the reader place it in a larger interpretive framework. This book is the first installment of a work-in-progress on the history of the United States Supreme Court from 1941 to 1953. It is what historians call a prolegomenon, or an introduction, to that parent study.

In late 1994, the Permanent Committee for the Oliver Wendell Holmes Devise and Stanley N. Katz, the general editor of the History of the Supreme Court of the United States series, offered me the magnificent opportunity of preparing the Holmes Devise volume covering the years 1941–1953. I projected two introductory chapters for the Holmes Devise book, one situating the Court in the context of American society on the eve of Pearl Harbor, and the other summarizing the state of constitutional doctrinal development at that time. I hoped thereby to re-create for the reader the world as it might have appeared to a Justice of the United States Supreme Court at the start of October Term 1941.

Approaching the book that way, it became apparent to me that one of the Stone Court's most important responsibilities was its search for a jurisprudential paradigm that would replace the recently abandoned ideology that I refer to in this book as “legal classicism.” One of the defining characteristics of the Roosevelt Court was the fact that a hitherto dominant way of thinking about law and the role of courts in American society had been discarded in 1937–1938. By 1941, nothing had emerged to take its place. There seemed to be a modern scholarly consensus about the origins, content, vogue, and weaknesses of the abandoned ideology. So I thought it would be a simple matter to summarize that consensus, note the challenges to it posed by recent revisionist writings, and present that doctrinal-historical sketch as the entrée to the story of the Roosevelt and Truman Courts.

But then that introductory doctrinal chapter took on a life of its own. I found myself in the position of an author of fiction who sits at the word processor observing his characters as they come to life. They tell their own story, and the author merely records it as their amanuensis. So it was with my introduction to legal classicism. As soon as I began writing, interpretive questions presented themselves in ways that I could not ignore. Many questions remained unanswered or even unasked about this . . .

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