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“Glimmers of Life”: A Conversation with Hendrik Hartog

Published online by Cambridge University Press:  18 August 2010


In January 1994, the Law and History Review published an interview of Willard Hurst by Hendrik Hartog. Michael Grossberg, as editor, introduced the interview as the first of “an occasional series of discussions with legal historians.” Over a decade has elapsed since that conversation. Willard Hurst was known both for his scholarship and his commitment to mentoring. Planning for the 4th Biennial Hurst Summer Institute at Madison in June 2007, I could think of no better way to conclude an Institute focused on nurturing legal historians at the beginning of their careers than with a conversation focused on a life in legal history.

Legal History Dialogues
Copyright © the Board of Trustees of the University of Illinois 2009

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1. Hartog, Hendrik, “Snakes in Ireland: A Conversation with Willard Hurst,” Law and History Review 12 (1994): 370–90CrossRefGoogle Scholar , < journals/lawhst12&id=1&size=2&collection=journals&index=journals/lawhst>.

2. Hartog, Hendrik, “Pigs and Positivism,” Wisconsin Law Review (1985): 899935, < ze=2&collection=journals&index=journals/wlr>.Google Scholar

3. 2007 Hurst Summer Institute Fellows: Joshua Barkan, Nandini Chatterjee, Roman Hoyos, Anne Kornhauser, Sophia Lee, Lisong Liu, Masako Nakamura, Steven Porter, Honor Sachs, Stelios Tofaris, Laura Weinrib, and Diana Williams.

4. Hurst, James Willard, Law and the Conditions of Freedom in the Nineteenth-Century United States (Madison, 1956).Google Scholar

5. “The Properties of the Corporation: New York City and its Law, 1730 to 1870” (Ph.D. diss., Brandeis University, 1981)Google Scholar . This became Hartog's first book , Public Property and Private Power: The Corporation of the City of New York in American Law, 1730 to 1870 (Chapel Hill: University of North Carolina Press, 1983Google Scholar ; paperback edition Ithaca: Cornell University Press, 1989).

6. For a brief overview of the history of the job market for historians, placing the 1970s in broader perspective, see Grafton, Anthony and Townsend, Robert B., “Historians' Rocky Job Market,” The Chronicle of Higher Education (July 11, 2008)Google Scholar , < free/v54/i44/44b01001.htm>.

7. The question is by Raymond Solomon, a longtime member of the ASLH who, as a chair of the Hurst Fellow Selection Committee, had joined us for the final day of the Hurst Institute.

8. Holmes, Oliver Wendell Jr, “The Path of the Law,” Harvard Law Review 10 (1897): 457–78Google Scholar , < hlr10&div=55&collection=journals&set_as_cursor=2&men_tab=srchresults&terms=Law| and|History|Review&type=matchall>.

9. Boland, Eavan, “Domestic Violence,” American Poetry Review 36 no. 2 (March/April 2007): 33.Google Scholar

10. Hartog was unable to find an exact source for this “shaping image.” He refers readers to the paintings of Jan Steen and David Teniers the Younger.

11. Consider, for example , Ladurie, Emmanuel LeRoy, The Peasants of Languedoc, trans. Day, John (Urbana: University of Illinois Press, 1974)Google Scholar ; Thernstrom, Stephan, The Other Bostonians: Poverty and Progress in the American Metropolis, 1880–1970 (Cambridge, MA: Harvard University Press, 1973)CrossRefGoogle Scholar ; and Laslett, Peter, The World We Have Lost (New York: Scribners, 1965)Google Scholar.

12. See Hartog, “Pigs and Positivism.” Hartog notes, “In a way, these two understandings represent the tensions between the Critical Legal Studies movement and the Law and Society Association, both circa 1984 or 1985. For clear and comprehensive articulations of the conflict between those two understandings, as well as attempts to reconcile them, see two essays from the Stanford Law Review's famous symposium on Critical Legal Studies : Trubek, David M., “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stanford L. Rev. 575 (1984)Google Scholar , < journals/stflr36&id=1&size=2&collection=journals&index=journals/stflr>; and Gordon, Robert W., “Critical Legal Histories,” 36Google ScholarStanford L. Rev. 57 (1984)Google Scholar , < journals&index=journals/stflr>.

13. I began the 2007 Hurst Institute with “Pigs and Positivism” for several reasons. First, it is the most accessible consideration I know of fundamental questions of what is law and who decides. Though I don't believe much in canons, it is certainly a work that I think any young scholar beginning work in legal history ought to read. Moreover, it is written in such a way, it seems to me, to spark and invite discussion. One of the goals of the Institute is to form an intellectual and social community among the Fellows—I hoped (as it turned out, correctly) that “Pigs and Positivism” would serve this goal. I also appreciate its tone. Though pigs were no doubt a serious issue for New Yorkers in the early nineteenth century (more serious than the article's humor perhaps suggests), the subject matter of the piece is sufficiently distant and unproblematic to a modern day reader to enable the reader to engage with the fundamental questions at the heart of the piece. Another reason for using the article was its focus on law in everyday life—this is an interest that Dirk and I have in common and that I wanted represented in the readings for the Institute. And, finally, there was also the symmetry of beginning with a piece by Dirk since he would be joining us for the final day of the Institute for this conversation.

14. Forbath, William E., “The Ambiguities of Free Labor: Labor and the Law in the Gilded Age,” Wisconsin L. Review (1985): 767818Google Scholar , < edu/HOL/Page?handle=hein.journals/wlr1985&id=1&size=2&collection=journals&index= journals/wlr> ; Minow, Martha, “Forming Underneath Everything that Grows:' Toward a History of Family Law,” Wisconsin L. Review (1985): 819–98Google Scholar , <http://www.heinonline|. =journals&index=journals/wlr>; Hartog, “Pigs and Positivism,” < =journals&index=journals/wlr>.

15. Forbath, William E., Hartog, Hendrik, Minow, Martha, “Introduction: Legal Histories from Below,” Wisconsin Law Review (1985): 759–66Google Scholar , < index=journals/wlr>.

16. See, in particular , Frug, Gerald, “The City as a Legal Concept,” 93Google ScholarHarvard L. Rev. 1059 (1980)Google Scholar . It is reprinted in City Making: Building Communities Without Building Walls (Princeton: Princeton University Press, 1999)Google Scholar.

17. See, in particular , Bourdieu, Pierre, The Logic of Practice (New York: Cambridge University Press, 1990)Google Scholar ; and Certeau, Michel de, The Practice of Everyday Life (Berkeley: University of California Press, 1985)Google Scholar . See also several articles by the legal anthropologist Barbara Yngvesson. For example , Mahoney, Maureen A. and Yngvesson, Barbara, “The Construction of Subjectivity and the Paradox of Resistance: Reintegrating Feminist Anthropology and Psychology,” Signs: Journal of Women in Culture and Society 18 (1992): 4473CrossRefGoogle Scholar , <–1361 –49ae-b07b-38c924187dd5%40SRCSM2>; and Yngvesson, , “Negotiating Motherhood: Identity and Difference in ‘Open’ Adoptions,” Law & Society Review 31 (1997): 3580CrossRefGoogle Scholar , <http:// size=2&collection=journals&index=journals/lwsocrw>.

18. Welke, Barbara Y., Recasting American Liberty: Gender, Race, Law, and the Railroad Revolution, 1865–1920 (New York: Cambridge University Press, 2001).Google Scholar

19. notes, Dirk, “As I remember it, we all turned to “hegemony” by way of Eugene Genevose's Roll Jordan Roll: The World the Slaves Made (New York: Pantheon, 1974)Google Scholar . Then came, quickly, David Brion Davis's second volume of his history of antislavery , The Problem of Slavery in the Age of Revolution, 1770–1823 (Ithaca: Cornell University Press, 1975)Google Scholar . And then we all began to read Gramsci directly. In my own case, I had read a bit of Gramsci earlier, but it had not had that much impact on me until after I had read Genovese.”

20. Examples in recent work of the point Hartog is making here include “Junction: Truth, Legal Storytelling, and the Performance of Injury,” in Welke, , Recasting American Liberty, 235–46Google Scholar ; and Gross, Ariela J., “Litigating Whiteness: Trials of Racial Determination in the Nineteenth-Century South,” Yale Law Journal 108 (1998):109–88CrossRefGoogle Scholar . See also White, Lucie E., “Subordination, Rhetorical Survival Skills and Sunday Shoes: Notes on the hearing of Mrs. G.,” 38Google ScholarBuffalo L. Rev. 1 (1990)Google Scholar , < buflr38&id=1&size=2&collection=journals&index=journals/buflr>.

21. Hartog was referring here to a conversation he had with Keller. For an expression of something of this view in Keller's published work, consider Keller, Morton, Regulating a New Economy: Public Policy and Economic Change in America, 1900–1933 (Cambridge, MA: Harvard University Press, 1990), 16Google Scholar.

22. Hartog, , “Pigs and Positivism”; “Mrs. Packard on Dependency,” Yale Journal of Law and the Humanities 1 (1988):79104Google Scholar , < Page?handle=hein.journals/yallh1&id=1&size=2&collection=journals&index=journals/ yallh> ; The Constitution of Aspiration and ‘The Rights that Belong to Us All,’” Journal of American History 74 (1987)Google Scholar , < &Search=yes&term=%22constitution+of+aspiration%22&list=hide&searchUri=%2Factio n%2FdoAdvancedSearch%3Fq0%3D%2522constitution%2Bof%2Baspiration%2522%26 f0%3Dti%26c0%3DAND%26q1%3D%26f1%3Dall%26c1%3DAND%26q2%3D%26f2% 3Dall%26c2%3DAND%26q3%3D%26f3%3Dall%26wc%3Don%26Search%3DSearch%2 6ar%3Don%26sd%3D%26ed%3D%261a%3D%26jo%3Djournal%2Bof%2Bamerican%2B history&item=1&ttl=1&returnArticleService=showArticle>, reprinted in The Constitution and American Life, ed. Thelen, David P. (Ithaca: Cornell University Press, 1988)Google Scholar.

23. Tomlins, Christopher L., Law, Labor, and Ideology in the Early American Republic (New York: Cambridge University Press, 1993), 1934.CrossRefGoogle Scholar

24. Hartog, Hendrik, Man and Wife in America, A History (Cambridge: Harvard University Press, 2000).Google Scholar

25. Hartog's current book project focuses on the legal culture from the mid-nineteenth through the mid-twentieth centuries in which legal battles over inheritance promises flourished in American courts and is tentatively titled, “Someday All This Will Be Yours: Aging Parents, Adult Children, and Inheritance in the Modern Era.”

26. Elizabeth (“Betsy”) Clark was the first Legal History Fellow at the University of Wisconsin Law School. Before her untimely death after a long battle with cancer, she published a number of pathbreaking articles and was an important member of the legal history community.

27. Grossberg, Michael, Governing the Hearth: Law and the Family in Nineteenth-Century America (Chapel Hill: University of North Carolina Press, 1985).Google Scholar

28. Hartog, Man and Wife in America ; Cott, Nancy F., Public Vows: A History of Marriage and the Nation (Cambridge, MA: Harvard University Press, 2000)Google Scholar ; Basch, Norma, Framing American Divorce: From the Revolutionary Generation to the Victorians (Berkeley: University of California Press, 1999)Google Scholar.

29. The reference here is to Genovese, Eugene D., Roll Jordan Roll: The World the Slaves Made (New York: Pantheon Books, 1974)Google Scholar.

30. Johnson, Walter, Soul by Soul: Life Inside the Antebellum Slave Market (Cambridge, MA: Harvard University Press, 1999).Google Scholar

31. Horwitz, Morton J., The Transformation of American Law, 1780–1960 (Cambridge, MA: Harvard University Press, 1977)Google Scholar ; Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Athens, GA: University of Georgia Press, 1975)Google Scholar.

32. Reference is to the discussion in week 1 of the Hurst Summer Institute of Hurst's Law and the Conditions of Freedom.

33. Pound, Roscoe, The Formative Era of American Law (Boston: Little, Brown and Company, 1938).Google Scholar

34. Pocock, J. G. A., The Machiavellian Moment: Florentine Political Thought and the Atlantic Republican Tradition (Princeton, N.J.: Princeton University Press, 1975).Google Scholar

35. Horwitz, The Transformation of American Law, 1780–1960 ; Hurst, J. Willard, Law and Economic Growth: The Legal History of the Lumber Industry in Wisconsin, 1836–1915 (Cambridge, MA: Belknap Press of Harvard University Press, 1964)Google Scholar.

36. See the introduction to the first edition of Friedman, Lawrence M., A History of American Law (New York: Simon and Schuster, 1973)Google Scholar.

37. Wilentz, Sean, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2000).Google Scholar