Robert W. Gordon uinely progressive history, the Scottish Enlightenment’s four-stage theory of legal evolution, in which law evolved in ways that were functionally suited to each stage in succession, hunters, shepherds, agrarian and finally commercial society/ These dynamic themes — one specific to English history, the other a more general hypothesis of progressive social and legal evolution - were given a specifically national meaning, and destiny by the American republican experiment. The republic was supposed to preserve the static or timeless principles of English liberty, expressed in the common law, against any further corruptions; and also to carry the dynamic ones toward a more perfect realization than the world had ever seen. In this last theme we perceive, even in the inherent conservatismof legal discourse, traces of the millenarian dream, that in the New World the weight of history may be one day shed altogether, and men and women freed to natural liberty.^ Americans, of course, venerate their Federal Constitution and sacralize the moment of its making; and its text is their polity’s supreme law. The Founding period has the status of a Golden Age, and below the major themes of progress in American legal writing there has always been a strong minor subtheme of the jeremiad, lamenting declension from our origins. Nonetheless the basic narrative of American legal argument is not nostalgic but dynamic and progressive, the story of the hand-in-hand progress of commerce and liberty, of the gradual emancipation of individual freedomand reason fromthe shackles of feudal and mercantilist restraints on land, labor and capital, and from the tyranny and superstition of the rule of despots, nobles and established churches. This story in turn has effortlessly modulated in legal narrative into the generally-accepted paradigm of Western history as a movement “fromstatus to contract” or simply of “modernization,” and of legal history as the gradual evolution of forms functional to that modernizing process. The ancien régime and its incidents - primogeniture, established churches, seditious libel, imprisonment for debt and hostility to bankruptcy, customary monopolies, prosecutions of labor unions as criminal conspiracies, married women’s disabilities, indentured servitude, eventually even slavery itself, and after slavery legally mandated apartheid— gradually disappear under the modernizing pressures of commercial, political and scientific development. The master theme is the emancipation of the freely choosing self: the release of individual energy, the opening of opportunity, the removal of restrictions on choice, gradual progress to the point where virtually all social relations in which people may find themselves may be seen as instituted by their voluntary consent. More and more groups shed special incidents of status and become eligible to participate •' Peter Stein, Legal Evolution: The Story ofan Idea (Cambridge: Cambridge Univ. Press, 1980). ^ See Ernest Tuveson, Redeemer Nation: The Idea ofAmerica’s Millenial Role (Chicago: Univ. of Chicago Press, 1968); R. W. B. Lewis, The American Adam (Chicago: Univ. of Chicago Press, 1955). 186
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