Robert W. Gordon mon law laissez-faire constitution of the market, turns out to be a gypsy bazaar of strange and wonderful variety. All this has been meant to convey in a brief space some of the drama and intensity of lawyers’ struggles over the history of their public and private law. Nowwe have to ask if any of this matters, whether it is not all wasted breath, the disputations of scholastics. Is it worth doing just because lawyers so often, we think, “get it wrong”, and should “get it right” instead? The answer cannot be, though it is the answer often given, that it profanes the past to get it wrong, as lawyers so often do, by the criteria of professional historical practice. After all, getting history “wrong”, distorting the past, relying on false analogies, wrenching verbal formulae fromtheir originating contexts and putting themto different uses, has been one of the great forces of creative innovation in the law. Justice Holmes, one of our greatest judges who was also a distinguished legal historian, once argued in fact that “ignorance is the best of law reformers” — those who do not remember the past have the least work to do unlearning it. Is the virtue of historical inquiry that it destroys myth-making — for exampie, that it makes it unthinkable to extract hard-and-fast legal rules fromthe study of “original intentions”? or that by exploding the fairytales of evolutionary progress it disabuses us of the notion that there is a simple linear progressive path of progress that we must adhere to? This was the hope of the Progressive modernists, that scientific history would rid the present of the dead weight of irrational survivals, leaving us free to purposefully refashion our futures. It is hard to believe any more in the possibility of this kind of release fromhistory: it is all too easy to historicize the modernists themselves, to see what a weight of unconscious inherited baggage they brought to the task of socialengineering, including their own set of mythic progressive narratives. Anyway, what historical experience suggests that people, including lawyers, disabused of myths of progress do any better than those under their spell? Of course those myths can induce a Panglossian complacency about the status quo as the most presumptively just and efficient set of arrangements on earth— or for that matter, a fanatic revolutionary fervor so confident that history is on its side that it will overlook any cruelties inflicted in the name of progress. Still, the narrative of liberal society as the gradual release of liberty from feudal restraints towards greater personal liberty and political inclusion has also been an immensely powerful force for emancipation: ask the abolitionists of slavery, or the civil rights lawyers, who knew that the actual historical Constitution was a “covenant with death and pact with hell” in its protection of slavery, and later of racial apartheid, but that nonetheless liberal-legality might be read to I am reminded here of Professor Paolo Grossi’s great study of nineteenth century Italian property regimes, Altro Modo di Possedere, translated by Lydia Cochrane as An Alternative to Private Property (Chicago: Univ. of Chicago Press, 1991). 200
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