The origins of Hale’s ideas

While it is difficult to establish conclusively the true origins of an individ­ual’s ideas, certain facets of Hale’s experiences appear instructive. It is known that Hale grew up in a very politically conscious family environment during a period of time in which fundamental socioeconomic questions and political policy issues were being widely debated.

As a graduate student in economics at Columbia University, Hale’s ideas were partly shaped by three prominent Columbia professors.² He attended the seminars of E.R.A. Seligman, who was then a professor of economics and a proponent of the ideas set forth by the German Historical school. Like many young American economists of his day, Seligman had gone abroad and stud­ied in Germany. Upon their return, these scholars tried to convince both the public and their conservative, laissez faire-oriented colleagues that there was much to be gained by giving the state an enhanced role in the management of economic affairs and, in particular, that the way to achieve a more efficient allocation of resources was through collective action. Seligman, along with others (especially Richard T Ely), formed the American Economic Associ­ation in 1885 as part of an intellectual rebellion against the self-satisfied domination of orthodox economics (Seligman, 1963, p. 615).

Hale also attended courses given by John Dewey, a professor of philos­ophy and member of the American pragmatic school of philosophy. Like the other pragmatic philosophers, Dewey recognized the uncertainty inherent in understanding and looked to philosophical methods for a means of estab­lishing the meaning of concepts and beliefs. The pragmatists argued that the analysis of social phenomena should be conducted within systems of relationships among individuals in their empirical settings, necessitating the replacement of a priori abstract reasoning with empirical studies.

Finally, Hale also attended the courses of Thomas Reed Powell.³ Powell received his LLB from Harvard Law School in 1904 and his PhD in political science from Columbia University in 1913. During his tenure at Columbia, where he was the Ruggles Professor of Constitutional Law, and later at Harvard Law School, where he moved to take up the Langdell Professorship in 1925, Powell’s teachings and writings evidenced a blending of law and political science. While a prolific writer (of some 400 articles, reviews and comments), it is generally accepted that Powell probably had his most significant impact through his teaching.

Like the realists, Powell often criticized the courts, teaching his students that judicial decisions were influenced, even if not always consciously, by judges’ social, economic and psychological biases (Braeman, 1988, p. 145). As a pro­fessor of constitutional law and a critic of the court, Powell was sympathetic to legal realism, yet he avoided identification with the realist movement, believing that, while social and economic factors exercise a potent influence in human affairs, so too do ideas. For Powell, the realists came too close to perceiving law as some judicial whim or fiat, a position that he felt had nihilistic implica­tions.

The major focus of Powell’s interest was the study of the constitutional problems arising out of the federal system and, in addressing these problems, he was always working to explicate the determinative role of judges’ personal values and attitudes. He admonished the judges to stop taking refuge behind abstractions and to instead examine the real-world practical consequences of their legal decisions. As described by the dean of Harvard Law School, Irwin Griswald, in 1956, ‘In his writings and teachings, Powell laid down the intellectual foundations for the developments in constitutional law which have been seen in the past twenty years’ (quoted in Braeman, 1988, p. 146).

Beyond these three professors, Hale was also influenced by the work of Wesley Newcomb Hohfeld. Like John R. Commons, a leading institutionalist economist of the time, Hale was influenced by Hohfeld’s articulation of ‘fundamental legal conceptions’, which, in Hohfeld’s mind, were the ‘lowest common denominators of law’ (Cotterrell, 1989, p. 88). Hohfeld’s model of fundamental legal concepts was stated in terms of jural opposites and correlatives that identified one individual’s position or condition vis-a-vis that of another with respect to (i) right-no-right, (ii) privilege-duty, (iii) power­disability and (iv) immunity-liability (Hohfeld, 1923). For Hale, the Hohfeldian scheme of opposites provided a structure from which to describe the legal relations between persons with respect to advantage and disadvantage and thus with a mutually coercive capacity to act.

The ideas and writings of Oliver Wendell Holmes Jr also had an influence upon the work of Hale. Hale fully concurred with Holmes’s famous dissent in Lochner v. New York, where the majority of the US Supreme Court struck down a New York State statute that set the maximum number of working hours for confectionery and bakery workers at ten hours per day or 60 hours per week. The Supreme Court held that the statute violated the due process clause of the 14th Amendment and stated:

The [legislative] act must have a... direct relation, as a means to an end, and the end itself must be appropriate and legitimate, before an act can be held to be valid which interferes with the general right of an individual to be free in his person and in his power to contract in relation to his own labor. (Lochner v. New York 198 US 45 (1905) at 57-8)

The case began what has come to be known as ‘the Lochner era’, a period in time (from 1905 to the early 1930s) during which the judiciary relied heavily upon the due process clause of the Constitution to invalidate what were held to be unduly restrictive (and hence arbitrary and capricious) eco­nomic regulations. Hale supported Holmes’s dissent in Lochner (a dissent Holmes later restated in Tyson & Bro v. Banton⁴), praising it as a ‘literary masterpiece’ (Hale, 1934a, p. 415). Holmes’s famous dissent constituted a critique and rejection of classical economics - specifically, the so-called Spencerian ‘natural’ phenomena of capitalist economies. Essentially, Holmes’s pro-regulation argument, which Hale advocated, was that the legislature may forbid or restrict any business when it has sufficient force of public opinion behind it (Tyson & Bro v. Banton, 446).

One year before Holmes’s dissent in Lochner, Thorstein Veblen, the founder of American institutional economics, published The Theory of Business Enterprise (1904), which contained a critique of the classical principles of natural liberty and freedom of contract - a critique that had a profound influence on Hale’s thinking.

Given these influences, it is not surprising that Hale’s work represented a challenge to legal and economic orthodoxy - in particular, the dominant tradition of laissez-faire capitalism. It was in the merging of these legal and economic influences that his own work achieved its distinctive flavour.