Constitutionalism in Mexico, indeed in Latin America generally, has always posed a problem for interpreters, especially for Anglo-American interpreters. It is true that adherence to a written constitution and to constitutional order has been central to Mexican political liberalism since independence. As a state-building philosophy, liberalism has functioned both as an ideology, in combat with inherited colonial and Hispanic patterns of government, and as an all-embracing myth serving to unify contending self-defined liberal factions. In both instances, liberals fought for, debated, and on occasion were able to implement basic Western constitutional principles, namely, the preservation of individual liberty and legal equality within a representative government whose powers were set out and limited in the articles of a written document. The problem of interpretation arises because of a widespread view that constitutional government in Mexico has been ineffective or, at best, that the struggle to achieve it has been arduous.

Perhaps because Willard Hurst did not publish his first book, The Growth of American Law, until 1950, more than a decade after he entered law teaching, his readers have often found it hard to imagine him as other than a fully formed scholar. The pluralist politics of his major writings, their functionalist sociology, and their attentiveness to consensus in history have made Hurst seem so much a product of the 1950s that one can easily overlook the ways in which developments in law and politics in the preceding decades shaped his perspective on the American past.

Sometime in the later 1260s, Peter, the third abbot of the Cistercian monastery at Henryków in Silesia, wrote his remarkable history of the monastery's foundation and estate. The history is a series of stories about the individual holdings that the monastery obtained in the course of the thirteenth century. Apparently at a late stage of his life, Peter looked back at the preceding decades with considerable apprehension, and he explicitly cast his work as an exercise in reassurance.

Celebrations of the career of Willard Hurst tend to concentrate, quite understandably, on his scholarship in legal history. Most of those who now read and comment on his works are professional legal historians, and they tend to read and define Hurst according to that professional identification. This article takes a different approach, concentrating on Hurst's own role in the more general politics of legal scholarship. Hurst was not content with making a mark in legal history. He sought to challenge the legal establishment. We see the legacy of his efforts in the development of the field of law and social science, institutionalized in the mid 1960s in the Law and Society Association (LSA). Therefore, my focus is on the sociology and politics of scholarship rather than on intellectual history. I will not examine the relationship of Hurst's particular works to those who came before or after him, nor will I go through the exercise of suggesting what was good or lasting or useful about his work for present purposes.

Historians and legal theorists have suggested a range of sometimes complementary, sometimes contradictory reasons to explain why judges, prosecutors, and other officials of the German administration of justice proved willing both to persecute the various enemies of the Nazi state and to tolerate the many extralegal murders and lesser brutalities of other organs of the regime. One line of interpretation, dominant until the late 1960s, stressed the importance of the tradition of legal positivism. Believing themselves bound to the letter of the law, courts and prosecutors obeyed politically and racially repressive laws without asking moral questions. An alternative and opposing explanation emphasizes instead the justice administration's willingness to stretch the letter of the law to conform to “spontaneous popular sentiments of right.”

In an obscure aside, the well-known English working-class radical, Francis Place, remarked in his Autobiography that even when “in deepest poverty” he had tried to serve other artisans. Some he had helped to train up as small masters or foremen while others he aided by working to settle their problems and disputes. “I had many matters brought to me for adjudication, arbitration or arrangement,” he wrote. “I hardly know the time when for three months together I have been free from this kind of interference.” Most matters it seems had to do with debtors and their creditors, but others appear to have concerned the settlement of estates or even affairs “related to an association or large body of men.” While he may have been justly proud of his service to the working-class community, Place's comment provides an insight into working-class life that is rarely glimpsed. He did not choose the word arbitration accidentally. By the nineteenth century, life and work in England had been penetrated by forms of dispute resolution that were meant to secure “order without law.”

Law and the Conditions of Freedom in the Nineteenth-Century United States, the slim volume that emerged from Willard Hurst's 1955 Rosenthal Lectures at the Northwestern School of Law, has attained an iconic status in American legal history. In his 1994 interview of Willard Hurst, for example, Hendrik Hartog mentions that both he and Robert Gordon were led to legal history as a result of reading Hurst's little book. A good deal of the magic of Law and the Conditions of Freedom stems from its undeniable vitality. Certainly, Hurst was after vitality in legal history, surprising Hartog in the 1994 interview by his fondness for Albert Beveridge's life of John Marshall because of its “magnificent job of bringing history to life.”

When the State of Israel was established and the Supreme Court inaugurated in Jerusalem, dozens of Christian clerics implored President Smoira to allow the Supreme Court, as the successor of the Great Sanhedrin, the supreme Jewish court during the time of Roman rule, to retry Jesus Christ and thereby rectify the injustice caused to him.

The punishment prescribed by English law for murder in the first half of the twentieth century was death. A judge had to pronounce this sentence upon a person convicted of murder, except in two special classes of cases: persons under eighteen years of age at the time of the offense and pregnant women. He had no discretion to impose any less severe sentence. While retribution survived only in a symbolic form elsewhere in the criminal law, capital punishment, as Oxford criminologist Max Grunhut maintained, was a “powerful relic of retaliation in kind.” The law still reflected the ancient concept that every murderer forfeits his life becauce he has taken another's life: “He that smiteth a man, so that he die, shall be surely put to death.”

In eighteenth-century England the rule of law was “the central legitimizing ideology, displacing the religious authority and sanctions of previous centuries.” Arising out of struggles between the monarchy, Parliament, and the courts, the rule of law sought to protect individual liberty and private property by placing constraints on arbitrary authority. The ruling class used the rule of law ideology to enhance their power, but it also acted as a check on that power. All citizens from the monarch to the poorest citizen became bound by the rule of law and could settle their disputes in the courts presided over by judges, who were independent of manipulation.

Two legacies vie to take the measure of the work of Willard Hurst. The first understands Hurst primarily in his formal role as the “founding father” of an academic sub-specialty known as “American legal history”—the author of a canonical text Law and the Conditions of Freedom, and the coiner of interpretive phrases like “legal instrumentalism” and “the release of energy” that established the boundaries of disciplinary debate for two generations of acolytes and dissenters. The second legacy flows from the substantive range of Hurst's research and writing as a whole—the depth and breadth of an intellectual project that tears at and transcends the very disciplinary borders being constructed by his texts and phrases. In this essay, I will ignore the first perspective, which tends to dominate hagiographic and commemorative commentaries.

There has been a great deal of confusion in recent years in regard to what we mean by “truth.” Although confusion and debate over determining the truth is hardly novel for either philosophers or common folks, the issue of “truth” and how we might know it (or produce it) has been quite the rage these last twenty years among historians, legal scholars, and postmodern would-be theorists. Plausibility, coherence, elegance, and consistency over time and within a community are just a few among the current yardsticks. These have, in both their rule-bound and unfettered forms, nudged aside inherited liberal (and marxist) conceptions of “correspondence theory,” which held that there is something really true out there—our task being to get as close to it as we can.

Sir Henry Maine, the eminent Victorian jurist, once remarked, in frustration at being unable to secure his desired reforms of the Indian criminal law, that no one cared about the penal code except theorists and habitual criminals. This has been the recurrent lament of the English criminal lawyer. Repeated initiatives in the field of codification over the last 150 years have enjoyed little popular support or understanding, and as the most recent project stumbles forward into its fourth decade, an air of fatalism surrounds the entire question of the code. There are calls for a new political initiative to revive the project, and there have been more modest appeals for a reexamination of the principles of existing penal legislation, though neither seems likely to provoke much response. Yet, for all of the recent discussion of codes and codification, the question of the significance of codification to the modern law remains something of an enigma.

Though I corresponded with Willard Hurst over the last twenty-five years, I met him only once. Hurst did not often attend events or meetings outside of Madison, but in 1971 he appeared at a legal history conference at the Harvard Law School to herald the renaissance in the field of American legal history, a renewal in many ways directly traceable to Hurst's own work and influence. I had just graduated from law school and was beginning my apprenticeship as a legal historian. With great trepidation I walked up to him to introduce myself at a reception on the first day of the conference. I was surprised when he seemed to recognize my name (I think a list of conference participants may have been circulated in advance), but even more astonished when he said, “Let's go find a quiet corner, I want to talk to you about your father.” My father, Samuel J. Konefsky, had died less than a year before, and Hurst's brief conversation with me was the first of the many kindnesses of his that I experienced.

As Asher Maoz insightfully points out, governmental involvement in the ascertainment of historical truth—whether in court, by commission of inquiry, or in other ways—is directed at securing approval of a particular historical narrative, as a step toward imposing that narrative, to a greater or lesser extent, on those who disagree with it. This “official version” exists not only for the sorts of questions presented by the cases Maoz discusses, but also with respect to auto accidents, crimes of passion, and all the other historical reconstructions that form the substrate of “facts” upon which legal conclusions and enforceable judgments are predicated.

Anyone who lived and worked within range of Willard Hurst's benign, if also rather insistent, influence is necessarily somewhat disabled from detached assessment of his legacy. We owe him too much. Not just for the continuous rapid fire of comment, criticism, recommendation, and encouragement that rattled off the famous ancient typewriter; but also for his intellectual and moral example. He set himself long-range projects and finished them; he surveyed large themes and explored them to the bottom. He used his authority to try to get us both to read more broadly and get down into the details. We responded because we were touched that he thought our work might matter, and because he did not spare himself. Even when rebelling against that authority (as I for one often did), we wanted his attention and judgment even when we could not hope for his approval, and he gave them generously.

I am grateful to David Abraham and Eben Moglen for their thoughtful comments that illuminate several aspects of my essay. I agree with many of their remarks.

Formally, it is indeed history with which the courts deal. This is so as courts are usually called to rule upon past events. Nevertheless, most of the events that are dealt with by the courts, just like most occurrences in life, do not attract historical interest. I am willing to accept the significance criterion proposed by Moglen for screening events of historical importance, yet it is the appropriateness criterion that tells us which of these events fits the judicial process. As for commissions of inquiry, both criteria apply. The event must be of significance (“a matter of vital public importance”) to justify the establishment of a commission. At the same time it must fit the nature of a commission.