Syed on Morty's Two Testaments @BerkeleyLaw

Talha Syed, University of California, Berkeley, Law, has published Morty's Two Testaments. Here is the abstract.

Almost a half century after it was first launched, Morton Horwitz’s diptych on The Transformation of American Law remains a colossus on the landscape of American legal historiography. The reason lies not with any universal assent the books commanded, either then or now. Indeed, upon its publication, Book 1 was the target of more vociferous attacks than any work of American legal history since Charles Beard and today is often taken to have been decisively “refuted.” Book 2, meanwhile, although more respectfully received, has also had less of an impact, so muffled as to be muted. No, the reason for the Mt. Rushmore status of the two volumes lies in the virtuoso manner in which Horwitz combined in a single person two talents rarely brought together: the historian’s eye for deep context and the telling detail, and the theorist’s eye for large, even sweeping, themes. Yet three puzzles persist about the two volumes: First, has Book 1 really been refuted? Two, why has Book 2’s impact been so much more muted? Finally, can the two testaments be reconciled or must one choose between the Old and the New? The stakes of these questions are not limited to the reception and interpretation of Transformations. Rather, they go to some of the largest substantive and methodological issues in American legal history today: (1) the relation of legal doctrine to socioeconomic developments; (2) the relation of legal theory to social ideology; and (3) the relation of each to the other. The present Essay offers a revisionary account of Transformations that seeks to answer the three interpretive puzzles in a way shedding new light on the three substantive issues. It argues, first, that in contrast to commonly received wisdom, Book 1 was in fact less an exercise in Marxian than Beardian analysis, albeit one strongly inflected by Polanyi. So reconceived, its fundamental substantive and methodological lessons—regarding the relation of legal doctrine to socioeconomic transformations—still stand up quite well today, despite the dual onslaught of internalist legal scholars and externalists from law-and-economics. Second, and again in contrast to prevailing wisdom, Book 2 is in fact more, not less, Marxian than its predecessor, although here too with a Polanyian inflection. And so reconceived, its central substantive and methodological lessons—regarding the relation of legal thought to social ideology—now subject to the dual onslaught of critical legal scholars and those from law-and-society, also hold up well. Finally, not only can the central lessons of each book be integrated with the other, but such a synthesis is precisely what is needed to rejuvenate a critical legal historiography that, in the mode of law and political economy, seeks simultaneously to investigate law’s institutional with its ideological dimensions.

The article is not available for download from SSRN.