Robert W. Gordon 198 lated society”.Another has been to locate the regulatory doctrines at the heart of the common law rules themselves — customary rules governing contract, labor and tenancy relations, regulated commons in grazing or fishing grounds or riparian rights, doctrines of “public” rights limiting encroachments of private owners on public resources. In yet another strain of critique— also in some part borrowed fromProgressive and Legal Realist predecessors, in some part from classical social theory - critical historians try to challenge the claim that, in fact as well as in theory, the classical scheme is the optimal scheme for the maximizing of individual contractual liberty. One line of this critique emphasizes the authoritarian aspects of the classical scheme - all of the ways in which the legal systemin fact authorized regimes of near-despotic social control: especially in labor relations, family relations, and in the regulation of deviants and dependents. The laborer might be “free” to enter or not enter into the wage bargain, and theoretically to negotiate the terms of his wages and hours. But once in the relationship, he was subjected to a dense legal web of master-servant regulations, duties of obedience and loyalty imported without embarrassment from ancient English statutes of labor control.Indeed this supposedly optimally free society required an enormous amount of open, visible, public coercion to maintain it — especially against the instabilities promoted by an organized and politically mobilized agrarian movement and industrial labor force. The classical-liberal state threw away a lot of its legitimacy when - in order to protect its strict views of entrepreneurial property and liberty - it had so frequently to resort to rule by the labor injunction enforced by federal troops.'j'hemost elementary liberal-capitalist social order, as we discovered in the Reconstruction South and are discovering all over again in the Hobbesian conditions of post-Communist Russia, requires an enormous commitment of state force and capacity - the power and legitimacv to extract taxes to pay for security and justice, the protection of property and enforcements of contracts, and the bureaucratic capacity for monitoring and enforcement - to protect the basic institutions of property and exchange against force, fraud and corruption. The opposite but complementary critical strategy is to point out that in its actual historical practice, the classical scheme had elements that in comparison to those of today’s NewRight seempositively radical. For one thing, the clasWilliamNovak, The People’s Welfay-e: Lawand Regulation in Nineteenth Century America (University of North Carolina Press, 1996). See, e.g. Carol Rose, Property and Persuasion (Boulder, Co: Westview Press, 1994); Harry N. Scheiber, “Public Rights and the Rule of Law in American Legal History”, California Law Review 72 (1984); 217. See Karen Orren, Belated Feudalism (Cambridge: Cambridge Univ. Press, 1991); Victoria Hattam, Labor Visions andState Power (Princeton: Princeton Univ. Press, 1993). See WilliamForbath, Lawand the Shaping of the American Labor Movement (Cambridge, Mass: Harv'ard Univ. Press, 1991).
RkJQdWJsaXNoZXIy MjYyNDk=