Contemporary Crises 10:201-208 (1986) © Martinus Nijhoff Publishers, Dordrecht - Printed in the Netherlands

Review essay

The new legal history: Prospects and perspectives

ALAN HUNT Middlesex Polytechnic, UK

The emergence of the 'new legal history' is one of the most significant trends in recent legal scholarship. It is provided with an excellent showcase in Rubin & Sugarman Law, Economy & Society. 1 It should be made clear that this essay is written from the stance of an 'interested observer' rather than a participant; my concerns are thus directed towards discussing the contribution of the new history to a theoretically and historically grounded analysis of law in modern capitalist societies.

The history of law has not been well served by legal historians. Legal history has been characterised by a narrow concern with the internal history of legal doctrine and institutions and has too often been preoccupied with pre-modern legal history giving little sustained attention to the place of legal change in the formative period of industrial capitalism. In the main, the legal historians within the common law tradition have focused attention on the medieval formation of the common law system and have seen subsequent legal history as the working out of this best of all systems.

The last decade has witnessed substantial volume of historical research that, both directly and indirectly, focuses attention on the role of law in the development of modern capitalism. This work has occured on both sides of the Atlantic but has exhibited somewhat different features. The present volume, whilst focusing on the new legal history in Britain, has the considerable merit of having a close familiarity with the new legal history being produced in the United States.

The volume opens with a very long essay by David Sugarman which is an overview of the fiel& Aside from its extensive range it provides an excellent bibliographical guide to the field as its footnotes run to 448 entries (footnote 4 may be something of a record as it covers over nine pages of text). The book deliberately focuses attention overwhelmingly on civil law as a counter-bal- ance to the trend of the opening phase of the new legal history's preoccupation with the history of criminal law. There are twelve essays covering a wide range of topics. Three essays focus upon strict settlements in their relationship to the growth and consolidation of landed estates. Three essays are concerned with aspects of the development of legal professionalisation during the nineteenth century. Two essays by Gerry Rubin focus on imprisonment for civil debt. The

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other essays cover the role of law in securing commercial expectations (Bob Ferguson), the interaction between the centralization of the legal system and the persistence of legal pluralism (Harry Arthurs), and the patterns of legisla- tive divorce (Stuart Anderson).

The majority of these substantive essays achieve a certain degree of unifor- mity through the adoption of a 'revisionist' approach. But this revisionism is rather widely drawn to cover any historical account which challenges some prevailing orthodoxy. The primary target is a Whig interpretation of legal history which perceives the past as the forebear of the contemporary legal system through a unilinear trajectory without any significant discontinuities conceived as the best possible culmination of this evolutionary historical process. But I must confess to a non-historian's frustration with the rather orthodox historians' caution of most of the authors who refuse to step outside the particular empirical object of inquiry to discuss or even comment on broader issues, problems or implications of their studies.

It is for this reason, reinforced by my own interest in development of theoretical perspectives in legal studies, that I focus the remainder of this review on David Sugarman's important introductory essay 'Toward a New History of Law and Material Society'. The essay operates at a number of different levels. It does much more than introduce the subsequent essays. Of wider significance is the intellectual history of the 'new legal history' which it presents, and beyond this it contributes to some of the broader theoretical and methodological problems currently confronting the new legal history.

The intellectual history of the new movement characteristically involves a number of reactions against the prevailing orthodoxies in the field of legal history. Orthodox legal history manifests, in varying combinations, two dis- tinct but related deficiencies. First, it has been predominantly concerned with the internal development of legal doctrine. The centality of judicial law- making in the formative period of common law systems has tended to reduce the scope of legal history to a preoccupation with the development of legal doctrine. The extra-legal economic, political and intellectual environment has generally been seen as providing the wider 'context' of legal development. Characteristically doctrinal development is not presented as being causally determined by this context. Rather it operates with an implicit assumption of an unexplained parallelism between legal development and general societal change. The second characteristic of orthodox legal history is its Whiggish character with its general assumption of a unilinear evolutionary model. This model is taken as positing the object of legal history as the study of the past as a means of explicating the evolutionary ascendence of the contemporary legal order which is generally uncritically accepted as, minor blemishes aside, the end point of legal development. There is an important sense in which this model sets up a straw man which functions to identify a position to be avoided

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rather than providing a developed analysis of the intellectual history of legal history scholarship.

Whilst orthodox legal history, which may be characterised as evolutionary doctrinalism, is the major tradition which the new legal history seeks to supercede, its engagement with this enemy is mediated through reactions to a number of more recent developments.

These more immediate preoccupations explain the distinctive characteris- tics of the new movement. There area number of distinct strands which in their combination and interaction form the new legal history. First, there is a conscious shift of focus from criminal to civil law in reaction to the historical criminology of the last two decades. Second, a specific focus on the relation- ship between law and economy involves a general concern for a group of questions about the causal role of the law in relation to economic develop- ment. In its simplest form this concern focuses on the issue of wether law is a passive reflection of economic change or wether it has any degree of autono- mous causal impact upon economic change. Third, in exploring the law- economy relationship there is an explicit anxiety to avoid the charge of economic determinism. It is in this context that the new legal history engages with the ghost of Karl Marx seeking the retain and to utilize some of the characteristic features of historical materialism whilst avoiding the associated intellectual vices of economism, reductionism and instrumentalism. Fourth, there is a concern to go beyond the assumption of a unitary system of state law; the focus is shifted towards a more general concern with the plurality of processes involved in social ordering. Attention is directed towards dispute settlement processes, adjudication of grievances and the identification and responses to injuries and accidents.

The fifth identifiable strand is a concern with the role of lawyers and judges which is rauch influenced by a sociological concern with the significance of professions and professionalisation in the formation of modern society. In particular, there is a marked concern with the production and dissemination of 'legal consciousness'. This concern is also linked to a sixth strand which focuses attention upon legal discourse and consciousness as ideology.

The relationship between iaw and economy

Not only is a concern with the relationship between law and economy high- lighted in the title, but more widely it can be seen as central to the concern of the new legal history. What will be explored is the manner in which the law- economy relationship is approached.

Sugarman's approach is dominated by one particular line of inquiry, made explicit in the opening section 'Was law important in the economy?'. 'Import-

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ance' is posed in terms of economic development and two general answers are offered as the framework within which the inquiry is to take place: law provided positive assistance in the transformation and development of the economy or, at the other pole, law impeded economic change. Sugarman eschews any general answer to his question; rather he insists that the question is only amenable to empirical investigation of the detailed operation of par- ticular facets of law.

In one important respect Sugarman does breach his own injunction against general solutions. He emerges as a disciple of the view that where law has no demonstrable instrumental effect it is probable that a symbolic role will be discovered. But in adopting this general formula he commits the same error as Edelman 2 and Gusfield 3, who have done so much to develop work in this field, of treating the instrumental and symbolic dimensions as alternatives. The general methodological injunction is to look first for instrumental conse- quences and, if these are not discovered, to consider possible symbolic man- ifestations. Yet one of the considerable contributions of Douglas Hay and E.P. Thompson - approaches which elsewhere in this essay Sugarman ex- plicitly endorses - has been to focus attention on the interacting role of instrumental and symbolic aspects of the criminal law, and by implication of all legal regulation.

Sugarman's denial of a general account of the law-economy relationship raises a more important problem. His thesis is that there is and can be no general pattern of connection between legal rules and practices, on the one hand, and social or economic practices on the other. Taken literally, this is a prescription for a collapse into a naive empiricism which reduces historical study to the ghetto of the ever more detailed study of particular events or situations. It is not Sugarman's intention to go down such a path, but he has not succeeded in elaborating a methodology which is attentive to historical specif- icity without abandonning the quest for interpretation and explanation that connects the particular with the general.

I suggest that the root of the difficulty is to be found in the view of causation which Sugarman employs. It is a mechanical concept of causation in which external agencies are seen as acting upon an otherwise self-contained system. The law-economy relationship is approached via the question: does 'law', as an external causal factor, have any discernable impact upon the economy? The criteria of 'impact' or 'effect' is viewed in terms of assuming some steady state in which the causal factor is absent and then to inquire wether the presence of that factor alters the steady state. This model of causation is that of nineteenth century mechanistic science.

The mechanical theory of causation is closely assoeiated with another distinctive feature of the way in which the law-economy relationship is posed. The economic system is assumed to be assessible in terms of criteria of

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efficiency; a positive causal role is played by factors which promote economic maximization (of output, profit or some other indicator). In this conceptual framework the question about the law-economy relationship becomes the one which Sugarman explicitly adopts: does the law assist or impede economic development? My suggestion is that a significant condition for escaping from a Whig interpretation of history, to which Sugarman and all his fellow contribu- tors aspire, is to break with this concern with efficient external causation.

One important dimension of the model of efficient external causation is the extent to which legal regulation is perceived as embodying a purposive dimen- sion.4 This introduces the causal inquiry: to what extent does the legal doctrine or enactment under consideration realise its purpose? But there are strong grounds for refusing to adopt a purposive perspective. It detracts from a recognition of the extent to which legal doctrine is a frozen record of the conflicts of interests and purposes. It further tends to blur the significant distinction between originating motives of legislative or doctrinal entre- preneurs and ex post facto rationalisations or legitimations of legal doctrine. This second objection is well illustrated by the near universal assumption in the discussion of the role of contract law that its 'purpose' is that of achieving predictability and certainty in commercial transactions. The problem is that such an approach slants the whole enquiry towards an unquestioning adoption of a central manifestation of legal ideology as if it were an active causal determinant. This ideological feature should itself be part of the problem to be investigated rather than its organizing hypothesis. It thereby excludes more fruitful approaches to the interrelation between legal ideology and legal practice.

The means of escaping from the model of external causation in the explora- tion of the law-economy relationship requires a different methodoiogical and theoretical framework. The starting point for such a theory is touched upon by Sugarman but is not developed. We may start with E.P. Thompson's oft- quoted formulations in discussing the role of law in 18th century England:

'Law' was deeply imbricated within the very basis of productive relations. 5

This formulation is fundamental to the exploration of the law-economy rela- tionship because it asserts that a legal element is itself constitutive of the most basic economic relations. In other words, economic relations do not, for Thompson, exist distinct from legal relations. It follows that law cannot be conceived as an external or independent causal facor which acts upon eco- nomic relations.

I take Thompson to be making the claim that economic relations are not logically separable from and independent of legal elements conceived of as superstructural. In addition, he insists that in so rar as law is constitutive of

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economic relations this has distinctive consequences for the way in which these relations are lived out and strugled over. It should be noted that Thompson's verbal formulation does not succeed in catching his intent as expressed above. 'Imbrication' conveys the image of an 'overlapping' between legal and eco- nomic dimensions, but things which overlap retain their distinctive identities and are separable. The stronger claim which I attribute to Thompson is that both legal and economic elements constitute relations in a way which involves interpenetration such that the relations are not resolvable into separable elements other than conceptually. Thus the concept property is at one and the same time an economic and a legal category but the form of combination of the elements is complex. For example, different forms or types of economic function may be embraced in the same legal form such that the legal form alone does not reveal the economic content and, conversely, a variety of legal forms can incorporate the same economic role or function.

The most developed and sophisticated challenge to this view of the integra- tion of legal and economic relations is that provided by Gerry Cohen who insists that it is both necessary and possible to articulate concepts of economic relations, in particular property relations, that do not invoke or depend upon legal concepts. 6 Cohen's argument for the possibility and indeed necessity for the separation of legal and economic relations is developed in the context of his defence of an economistic version of Marxism. I want to suggest that the issues raised by Cohen have wider ramifications for any theorisation of the law- economy relationship, and that they are not limited to theoretical issues within the Marxist tradition.

It is not my present intentation to engage in a detailed discussion of Cohen's argument; rather, I am concerned to draw attention to the implications of the contrast between Thompson's 'imbrication thesis' and Cohen's 'rechtsfrei economic relations' thesis. If it is not possible to construct a rechtsfrei concept of economic relat ions- that is, that law is necessarily and inescapably part of or a constituent of some, if not all, economic relations - then significant con- clusions follow. The most important of these, for the present discussion of the law-economy relations, is that law cannot be treated as an 'external' causal factor exercising some indepedent causal impact upon economic relations. It follows that the form in which Sugarman poses the law-economy relations is unnecessary and consequently misleading. From this it follows that it is necessary to identify a different way of posing questions about the law- economy relation which avoids positing law as external to the economy.

Before seeking to sketch such an alternative, I want to suggest that such project is close to Sugarman's own intellectual project and is not in conflict with his approach. If such a project succeeds it offers the possibility of escaping from some of the difficulties that attend its present formulation of the issues confronting the new legal history. That such a project is consistent with

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Sugarman's own is evidenced by his explicit concern with the relative auton- omy of law which he argues has the merit of

seeking to give due weight to both the power of economic interests in influencing the content of law and the power of legal thought and con- sciousness as a distinct but important influence in the evolution of the law and legal evolutions (p. 83).

The problem with this formulation emerges in his very next phrase

thereby transcending the either/orism implied by the reductionism versus autonomism debate (p. 83).

My reservation with this position is that far from 'transcending' either/orism a relative autonomy theory only succeeds in institutionalising it as an insoluble dilemma at the heart of legal studies. It institutionalises the tension because the relative autonomy thesis fails to address the really difficult question: under what circumstances does 'the power of economic interests' impose itself upon 'the power of legal thouhgt and consciousness' and vice versa. A presentation of the relative autonomy thesis which does not address this problem simply reproduces, albeit in more sophisticated form, the opposition between reduc- tionism/determinism and autonomism.

In the absence of a theoretical solution to the unresolved problem of relative autonomy there is an understandable, but not necessarily desirable, tendency to retreat into untheoretically self-conscious studies of instances of the law- economy relations. The boundary between theoretically-informed studies of concrete particulars is elusive. The papers presented in this collection repre- sent a cross-section of positions on this axis. Too few of the papers seek to relate their topics to wider debates, problems and controversies. For many readers who will come to this volume to sample the offerings of the new legal history this cautiousness is unfortunate, it generates a marginalisation through the overabsorption in the particularities of some historical moment.

The implications of the foregoing criticism of the relative autonomy thesis should be made clear. I do not advance any claim to offer an alternative theoretical model. Rather, I want to suggest that the relative autonomy model stipulates the nature and content of the problem, but does not contain its solution; it provides an outline of the agenda for future work. This is what constitutes the strength of Sugarman's exploration of the new legal history. My difference with his position is that he is perhaps more optimistic than I about the extent to which the broad theoretical and methodological basis already exists for the new legal history. But more important than this difference is the innovatory character of this new movement which will, it is to be hoped, not

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develop as a narrow sub-specialisation within legal studies but will contribute to and draw from the wider development of critical perspectives in the study of law.

Notes

1. Rubin, G.R. and Sugarman, David (eds) Law, Economy & Society: Essays in the History of English Law 1750-1914, Professional Books, Abindon, Oxon 1984.

2. Edelman, M. Politics and Symbolic Action, Markham, Chicago, 1971. 3 Gusfield, J. Symbolic Crusade, University of Illinois Press, Illinois, 19631 4. The purposive character of law is most explicitly theorised by Lon Fuller in inserting purpose

into his definition of law as 'the enterprise of subjecting human conduct to the governance of rules' Fuller, Lon The Morality of Law, 1969, p. 53.

5. Thompson, E.P., Whigs & Hunters, Allen Lane, London, 1975, p. 261. 6. Cohen, G.A. Karl Marx's Theory ofHistory: A Defence, Oxford UP, Oxford, 1978; see in

particular Ch. VIII.