Legal history and intellectual history 59 publicanism.'The goal - and, to some degree, the effect - of this argument was to reveal the contingency of Americans’ current commitment (grounded in a classical liberal worldview) to the principle that property may not be “taken” for public use without just compensation.* Structuralism and Contextualismare unpromising methodologies, however, for historians interested in enhancing in the second way readers’ sense of the options available to them. Indeed, they are worse in this respect than the methodologies in vogue before the “linguistic turn.” The reason is that, by emphasizing the power of conceptual systems to limit people’s imaginations, they often leave the impression that historical actors had no real choices; they could not have thought - and thus they could not have acted - any differently. In Foucault’s early work, for example, people are depicted as the “captives” of the “epistemes” of their times.Legal histories constructed on Structuralist premises often leave a similar impression. Consider the following passage by Duncan Kennedy: The notion behind the concept of legal consciousness is that people can have in common something more influential than a checklist of facts, techniques, and opinions. They can share premises about the salient aspects of the legal order that are so basic that actors rarely if ever bring them consciously to mind. Yet everyone, including actors who think they disagree profoundly about the substantive issues that matter, would dismiss without a second thought (perhaps as “not a legal argument” or as “simply missing the point”) an approach appearing to deny them. I 19 This formulation seems to imply that, in periods on which a stable “legal is mplace, the intellectual freedom of individual lawyers is draon - in the article from which this excerpt is » * consciousness matically limited. Kennedy goes taken and in his other work - to acknowledge that both the imperfections in a legal consciousness and the persistence of residues of older paradigms accord See William Treanor, “The Origins and Original Significance of the Just Compensation Clause of the I'ifth Amendment,” Yale La-'o; Journal 94 (1985); 694; Morton Eiorwitz, “History and Theory,” Yale Lau' Jouryial 96 (1987): 1833. See also Stephen Siegel, “Understanding the Nineteenth-Century Contract Clause: The Role of the Property-Privilege Distinction and “Takings” Clause Jurisprudence,” Southern California Lais: Revieis- 60 (1986): 8; Carol Rose, Property and Persuasion: Essays on the History, Theory, and Rhetoric of Ownership (Boulder, Colo.: Westview Press, 1995), 84. For a skeptical assessment (unrelated to the methodological point made in the text) of this account of the origins of the just-compensation principle, see William Fisher, “Ideology, Religion, and the Constitutional Protection of Private Property,” supra n. 57, 95—107. For indications that the argument had some impact (albeit not enough to sway a majority of the United States Supreme Court), see Lucas v. South Carolina Coastal Council, 112 S.Ct. 2886 (1992) (Blackmun, J., dissenting). Flavden White, “Foucault Decoded,” supra n. 12, 27—29. Duncan Kennedy, “Toward an Historical Understanding of Legal Consciousness: The Case of Classical Legal Thought in America, 1850-1940,” Research in Law and Sociology 3 (1980): 6. I lb 117 1 19
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