Another Trial of Another Century: The Case of Historians Versus the "Economic Paradigm" in Nineteenth-Century Law

Abstract

The call for trial as means of settling contested issue-even the sexual habits of president or the mystery of Dr. Martin Luther King's death-has become increasingly common. Peter Karsten's Heart versus invokes this judicial metaphor when it announces that it will 'bring to trial' the reigning paradigm (p. 12) in nineteenth-century legal history. It stands accused of having wrongfully charged nineteenth-century jurists with promoting market-oriented vision of expansion by instrumentally replacing relatively protective and paternalistic common-law doctrines-principally in the areas of contract, property, and tort-with a colder, impersonal set of rules that ultimately served 'the juggernaut of growth,' at the expense of those crushed in its path( pp. 2-3).1 Innocent or Guilty? Unfortunately for those who might want clear-cut outcome, scholarly trial, much like its courtroom counterpart, can often produce an inconclusive verdict. This kind of result, in large part, is built into the judicial form of historical writing. The type of univocal, scholarly trial being conducted in book such as this requires the historian-author to perform (too) many roles: jury; trial judge; chief prosecutor; attorney for the defense; and the appellate judge who writes the final opinion in the form of lengthy, footnoted text. And if these burdens are not enough, trial-by-historian, as here, can end up resembling case out of the files of Perry Mason and become search for the another, alternative truth. In fact, the trial mounted by Professor Karsten does re-interrogate the sources that allegedly support the economic paradigm and does offer competing meta-narrative that is signified by its own, trial-like title. What begins, then, as the case of historians versus paradigm ends up as new cause, Head versus Heart. The first party to this reconfigured controversy is the Jurisprudence of the