'Law as . . .': Theory and Practice in Legal History

Some twenty years ago, the political scientist Karen Orren wrote an essay entitled “Metaphysics and Reality in Late Nineteenth-Century Labor Adjudication” that counterposed the “metaphysics” of the ancient common law of master and servant to the “reality” of the modern workplace over which it supposedly reigned. Orren’s essay celebrated the early twentieth century’s revolt against formalism in which, hand in hand, the labor movement and intellectuals fashioned a transformation of American politics and culture, a victory for latter-day materiality over antimodern metaphysics that would furnish the ideational bedrock for the coming century’s liberal politics and legalism, and for their insistence that all knowledge is historical and social. Twenty years after Orren’s essay and a century after the antimetaphysical revolution, “law as . . .” stands for a moment of reconsideration, a pause to contemplate what the theory and practice of legal history might gain by rejoining metaphysics to materiality. The objective of “law as . . .” is to use the past to confront the present. To do so, “law as . . .” rejects the sequestration of the past and the various histories that result from it. “Law as . . .” dwells instead on the conditions of possibility for a critical knowledge of the here-and-now: the moment, it might be said, when the origins of the present “jut manifestly and fearsomely into existence,” spirit into experience, metaphysics into materiality.