The Great Alliance: History, Reason, and Will in Modern Law

Abstract

This article offers a new way to understand the intellectual origins of contemporary law. Analyses of law and legal thought tend to emphasize rupture and change. These analyses fail to account for how much of present law and jurisprudence is the continuation of a jurisprudential settlement that occurred in the second half of the nineteenth century. The aim of the settlement was to bring the will of the masses under the control of authoritative legal categories and conceptions of political morality. The principal mechanism of the settlement was the convergence between rationalism and historicism in law. In the nineteenth century, after a period of polarization around the time of the American and French revolutions, rationalism came to see historical events as the outcome of the operation of reason in the world and historicism came to appeal to the rationalizations of legal reasoning in order to endow historical facts with both conceptual stability and intellectual authority. Contemporary law, including the main schools of jurisprudence, remains bound to this convergence of reason and history. Modern law is therefore as much about preservation as it is about change.