Making connections between history and the law to better understand the present.

It’s difficult to imagine a history of the United States that doesn’t mention law. From the drafting of the Constitution to contemporary debates in the courts, law and its interpretation are inseparable from the nation’s social transformations.

Among the scholars in the Division of the Social Sciences working to integrate legal questions and discoveries in their inquiries about social life are two professors in the Department of History, Amy Dru Stanley and Jonathan Levy. Both share an interest in the history of capitalism, particularly in the US. Stanley is especially interested in the legal and economic contexts of slavery and emancipation, and the historical experience of moral problems. Levy examines the relationships between business and economic history, political economy, legal history, and the history of ideas.

They first worked together when Levy was a graduate student at UChicago and Stanley was one of his dissertation advisers. Since Levy’s return as a faculty member, they’ve collaborated in new interdisciplinary ways that have helped expand the horizons of their research, including an ongoing project with professors Kimberly Hoang (Sociology) and Elaine Hadley (English) on “The Economy and its Boundaries”.

Dialogo sat down with Stanley and Levy to learn more about their scholarship, and the ways they work ideas about law into their historical research and teaching…

WHAT IS LAW, FROM A HISTORICAL PERSPECTIVE?
History professor Amy Dru Stanley

Stanley: I’m teaching a graduate legal history course this quarter, so I'm thinking about this question.  Law is critical  for historical inquiry because it’s a system of formal rules and principles that regulates social interaction, and at the same time it’s an arena of conflict, where differing groups contest the distribution of social goods and the organization of power. Law has been an enabling force for economic development. It has fueled, shall we say, creative destruction, but also inhibited some of the injuries that come from the unchecked play of the market. The paradoxes of the law make it a rich subject for historical inquiry. It has subjugated and it has liberated.

Levy:  I'm not a lawyer, I don't have a JD. I've always seen law as, instead of being a very specific or even narrow site of inquiry, actually allowing me to do really expansive kinds of work — where the different domains or different registers of experience that we chop up between economies, society, culture, ideas are all in play and interacting in legal sites of contestation, along the lines Amy suggested. It's a site for rule making and interpretation, but as far as the types of actors that are involved in that process, it's not only judges but also the individuals who find their way into courtrooms, and the circumstances that give rise to why different individuals enter the courtroom — the larger social, political and economic structures and contexts in which legal rules are asserted and are made.

Stanley: Right. Law is what legislatures do, it's what judges do, and it's also what people in the streets do, popular consciousness. A historical perspective means an expansive view of the domain of lawmaking.

DO HISTORIANS THINK DIFFERENTLY ABOUT LAW?
 

Stanley: Suppose we reverse the question? Thinking about law raises provocative questions for historians— about objectivity and truth, about how stories are constructed, about  motive. What is reasonable?  Who's an irrational actor? What is volition? Who are the subjects and what are the subjectivities involved in law-making? 

History professor Jonathan Levy

Levy: Lawyers or law professors often think normatively. They think about what a law should mean or how it should be interpreted or what the law should be. Historians are different. I don't see their first task as being normative. We think of ourselves as explaining what happened in the past, and why, and what it meant to different people at the time. We don't necessarily see ourselves as sitting in judgment of the past, but I find one of the reasons why I enjoy studying the law is that it allows me to historicize norms and how they evolve over time. That puts me in conversation with people who do think normatively, though — legal scholars, and political theorists as well. 

Stanley: Historians look at the past through the lens of the present. We eclectically borrow from and are provoked by and curious about research addressing the present.  How economists investigate the workings of markets or the causes of inequality… How anthropologists look at social practice and ritual… Contemporary questions, as examined by other disciplines, help us see the past with new eyes.

Levy: Historians tend to study context, and intellectual historians tend to try to draw out meaning from the context in which certain ideas or norms or rules were asserted. To me the reason to be a historian is to not be constrained. Just as Amy said, historians are eclectic, they're scavengers, they can find different methodologies, different approaches to help them answer the questions that they want of the past. … For me the law has been one way to do that… [it] allows me to discuss my subject with people who are not historians. [Law] is a place where the different disciplines that are housed in the social science division can interact with one another or talk to one another.

WHAT LEGAL AND HISTORICAL ISSUES ARE CURRENTLY GRABBING YOUR ATTENTION?
 

Stanley: In my work, the aspirations of freed slaves are as significant as the views of justices and legislators. The project that I'm currently working on explores how slave emancipation engendered new conceptions of human rights — it traces how the very notion of being human and the rights attaching to humanity  were transformed by the negation of chattel bondage; but it also illuminates how the legal guarantees of those rights have come paradoxically to be founded on the commerce clause of the Constitution, rather than the antislavery 13th Amendment. The commerce clause has become a framework for guaranteeing the rights of persons rather than simply regulating the traffic in commodities.

Levy: The work I'm engaged in now that speaks to legal history is on corporations. I'm interested in the categorization of for-profit and non-profit corporations, and how that binary classification emerges in the law in the late 19th century and through the 20th through legislative contestation and judicial interpretation of incorporation law and charters, through tax law, through the non-profit classification, and also constitutional law with respect to corporate personality. And actually my work is becoming more normative, and thinking about the constraints that the for profit, non-profit classification put on different kinds of business enterprise and different kinds of associational activity. And how we should think about the evisceration of the for-profit/non-profit distinction, which decisions like Citizens United and Hobby Lobby are in their own ways achieving.

ARE THERE ANY SOURCES YOU SEEK OUT MORE THAN OTHERS IN YOUR RESEARCH?
 

Stanley: I look at a motley set of sources—legal cases, slave narratives, treatises, letters, newspapers political tracts—all these offer insight into public and private life, and the wellsprings of law. And congressional debates. I find the debates to be a wonderfully rich source for studying the exercise of power by the nation-state. I approach them as political theory. I listen closely to the  arguments about governance and rules and justice and freedom and slavery and property, and what's right and what's wrong. I also tend to study statutes, how law was enacted, how it emerged from social conflict and mediated social transformation. I look at judicial rulings and constitutional doctrine, but I’m more interested in analyzing the making of statutory law, positive law— in seeing the nation exercising its sovereignty and creating rules.

Levy: One of the benefits of looking at legal cases and disputes that end up in a courthouse is you have a dispute, you have a struggle, you have some form of contestation that puts a certain dynamism in these everyday practices. And second, it drags a series of facts into public view, and creates a historical record that might not otherwise exist. A lot of the archival records I'd like to have are corporation records that don't exist. But when there's a legal dispute, that record gets generated. So it both allows me to analyze the law and the role the law plays in shaping the economy, but also gives me an evidentiary record about the history of economic life that I can use for other purposes as well.

IN WHAT WAYS DO YOU BRING LAW INTO SOCIAL SCIENCE CLASSROOMS? IS IT CHALLENGING?
 

Stanley: It's challenging to keep it out! To not make every class about the law. That's the challenge. I use legal cases in all my teaching. This helps to de-mystify the language of law while also showing its broad cultural power. The arcane terms can be challenging for students.  And they tend initially to view a judge’s opinion as the truth — so, learning to discover the values or assumptions underlying the opinion, to see what's unstated, to analyze competing notions of the public good, is essential to their grasp of legal history. 

One of Jon's favorite cases, Farwell v. Boston & Worcester Railroad, is about risk and liability, about the way law legitimates new market practices. I teach that in labor history, and I teach that in legal history. It's a classic case, with a decision by Justice Lemuel Shaw — who happened to be the father-in-law of Herman Melville!

Levy: A class that I've taught in the past (and I'm sure I'll teach again, it’s most relevant), is the History of Corporations in the United States. … The issue of corporate personality is a strong thread in the course — it relates to the evolution of the corporation as a unit of business enterprise, a unit of associational life, and also a history of the workplace as well. In that course I teach a number of cases. Legal questions really are the avenue through which I try to connect the history to the present for the students. We read Citizens United the first week because the decision actually talks about the history of corporations and it gets the history wrong. People in corporate law say that the true Supreme Court for corporate law is in Delaware, where most corporations are domiciled and where most business or commercial law takes place.  For the kind of legal scholars who have ended up on the U.S. Supreme Court, corporate law certainly hasn't been their subject of expertise. So that’s really an opportunity for the students to think about how important legal history itself can be in contemporary legal decisions or the mobilization of history in the law. But then also to think about the history of corporations and the legal history of corporations as being really important for shaping these contemporary debates.

YOU'VE BOTH COLLABORATED WITH FACULTY IN OTHER DISCIPLINES, EVEN OTHER DIVISIONS OF THE UNIVERSITY. HAVE YOU ALWAYS APPROACHED HISTORY FROM AN INTERDISCIPLINARY PERSPECTIVE?
 

Levy: When I was a grad student I studied under Amy Stanley. I remember one of the first books she suggested I read was a book by John Commons called The Legal Foundations of Capitalism, which makes an argument that economic activity, economic life, is constituted by legal rules, both formal and informal legal rules. … In my work, I always emphasize law as being constitutive of economic life and economic relationships. I think Amy's work is really showing how legal ideas are occurring bottom up. Amy's work on contract looks at all kinds of voices inside and outside of the legal domain shaping what we think is a narrow legal discourse. So, we're all in different ways trying to figure out the relationship between law and other domains.

Stanley:  A couple of essays were formative in my education too. I began to glimpse how law shapes very different realms of experience as I read the work of Douglas Hay on property and crime in 18th-century England alongside an essay by Eugene Genovese in Roll, Jordan, Roll: The World the Slaves Made called “The Hegemonic Function of the Law.” Both reveal how law legitimated authority, protected rights, and operated as ideology. Those are the sort of questions that have infused my work throughout... So I keep coming back to those essays again and again, and to the meaning of the rule of law. How does it  work as an ideal? How does it mask power?  How does it create obedience? How does it vindicate rights? Is that an interdisciplinary undertaking? Yes, because, as Jon said, you're engaging questions of political theory. You're engaging questions of economic distribution as well as of ethics. You're engaging questions of the organization of social life. So, it's inherently interdisciplinary.

Levy: I think it is hard. We're trained in different disciplines. It’s easy to talk about interdisciplinarity but often times there's real differences in approach that make conversation and collaboration difficult. So it takes focus, it takes effort, it takes a lot of commitment. And I think that when it goes well, as it often does at the University of Chicago, usually it's surprising. You learn something you didn't know before, you see connections that you didn't see before. It helps you think about your subject in fresh ways. So I think that one of the reasons we need [interdisciplinary] initiatives in the Division is to create structures that not just force us, but enable us to continue to talk to each other again, and again, and again, until common ground emerges. And it does.