The Historicai. Argument in American Legae Cueture 197 statutory regulation. In these areas the NewRight lawyers have re-invigorated something resembling nineteenth centur^' classical common law as the “natural” legal regime. The more successful that effort at naturalization is, the more those who would justify departures fromit are put on the defensive to explain those departures as “redistributions”. So what I would guess to be the most important historical battles, though also the least visible ones, are being fought so low to the ground that almost nobody notices what is going on. The focus down there on the forest floor is on what common lawvers call custom, the routine doctrines and practices, common lawand statutory, that have made up the stuff of ordinary social relations, that have helped to constitute power, community, and meaning. Critical Responses It is to this debate about the optimal legal framework fcir liberal societies — which the NewRight claims is validated by having been encoded in American legal traditions and by actual experience in practice, that - I believe - the insights and techniques developed by critical approaches to history have most of interest to contribute. Since the New Right has been reassembling the classical-liberal system of legal thought of 1880-1920, a promising source of inspiration for critique should be the “New Liberals” (as they were called in England) or “Progressives” and “Legal Realists” (USA) who confronted and criticized that thought mIts own time. This strategy — which Morton Horwitz deploys in the second volume of hisTransformation of American — has paid handsome dividends. Critical scholars have found the Progressives most worthv of imitation for the techniques they used to de-naturalize the classical- legal constitution of the market or the private sphere — to expose its foundations as both as historically shifting and as theoretically incoherent. One set of techniques — borrowed from the older Progressive critics — is simply to document that the libertarian-laissez-faire rule-system is itself a myth: it never really existed at all. One can do this in part by detailing the myriad schemes of statutory and administrative regulation that are a constant throughout the 1 9th century. As older forms of public regulation - wage and price controls, statutory governance of the labor contract, governance of corporate enterprise through conditions and limitations on charters - faded out, new and even more extensive forms of state authority took their place. Even the USA, supposedly the most anti-statist of nations, was always (especially at the state and local level) what the historian WilliamNovak calls a “well-rcguMorton J. Horwitz, The Transformation of American Laze, 1S70-1960. The Crisis of Legal Orthodoxy (NewYork: Oxford Univ. Press, 1992). u
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