HURST, J. WILLARD (1911–1997)

James Willard Hurst was perhaps the outstanding twentieth-century figure in American legal historiography. Educated at the Harvard Law School, Hurst clerked for Justice louis d. brandeis on the U.S. Supreme Court, and then joined the faculty of the University of Wisconsin Law School in 1937, where he remained until his retirement.

In a series of path-breaking works, Hurst virtually created the field of American legal history. The little work done on the subject before he began to produce his own work had been written from the "internal" (lawyer's) standpoint—it was concerned with doctrines and case law almost exclusively, and had few points of contact with mainstream historical writing. Hence, The Growth of American Law: The Law Makers (1950) was a revolutionary book. It announced that the "most creative, driving, and powerful pressures upon our law emerged from the social setting"; and in chapters on the legislature, the courts, the bar, and the executive branch, proceeded to flesh out and illustrate this thesis through an examination of the institutions that actually made law in the United States.

In Law and the Conditions of Freedom in the Nineteenth-Century United States (1956), originally a series of lectures at Northwestern University, Hurst described nineteenth-century American law as essentially developmental—as animated by the desire to "release … individual creative energy," stimulating the economy and establishing a vigorous market system. Americans, in other words, used law instrumentally, to further agreed-upon or dominant goals, mostly economic. In his most elaborate work, Law and Economic Growth (1964), Hurst produced an exhaustive and fine-grained case study to illustrate his general approach, using the legal history of one industry (lumber) in one state (Wisconsin), in the period 1835–1915. Later works included A Legal History of Money in the United States (1973) and Law and Markets in United States History (1982).

Hurst was the founder of what came to be called the Wisconsin school of legal history. He influenced a whole generation of younger historians. He directed and inspired a series of monographic studies of Wisconsin law in the nineteenth century—an emphasis on the state and local, and on everyday processes of law, which helped to cement the relationship between legal history and the emerging fields of economic and social history.

Hurst himself was a member of the new deal generation; he deplored what he saw as aimlessness and drift in public life and public policy in the generations before the New Deal. His scholarly work, however, though strikingly original, was exceptionally rigorous and meticulous. It influenced not only legal historians, but also scholars in other fields who studied the relationship of law and society.

Lawrence M. Friedman
(2000)

Bibliography

Hurst, J. Willard 1950 The Growth of American Law: The Law Makers. Boston: Little, Brown.

——1956 Law and the Conditions of Freedom in the Nineteenth-Century United States. Madison: University of Wisconsin Press.

——1964 Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915. Cambridge, Mass.: The Belknap Press of Harvard University Press.

——1970 The Legitimacy of the Business Corporation in the Law of the United States, 1780–1970. Charlottesville: University Press of Virginia.