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THURMAN ARNOLD, SOCIAL CRITIC
The Satirical Challenge to Orthodoxy, by Edward N. Kearny
INTRODUCTION
Thurman Wesley Arnold (1891-1969) was a state legislator, a small town mayor, a law
school dean, a professor of law at Yale University, an Assistant Attorney General, a federal
judge, and a prominent big city lawyer. He was also a highly gifted writer and thinker.
Richard Hofstadter, in The Age of Reform, has referred to Arnold’s writings as “the most
advanced of the New Deal camp.” He believes that Arnold wrote “better books ... than any of the
political criticism of the Progressive era.” It is somewhat surprising, in the light of this
assessment, that Arnold has received only the briefest mention in most texts and broad treatises
on American political thought. It is also surprising that there are no published secondary
materials dealing comprehensively with Arnold’s social and political thought. The purpose of
this study is to provide a comprehensive survey of Arnold’s writings and, in so doing, to focus
attention on his contribution to American social and political thought.
Few modern social thinkers are as puzzling and at the same time as interesting as
Thurman Arnold. Those who remember his courageous defense of government employees during
the McCarthy period consider him a libertarian. Others—after reading portions of Arnold’s
Folklore of Capitalism (1937) or his Symbols of Government (1935)—find dangerous totalitarian
tendencies in his writings. Arnold persuaded many scholars that he was a tough-minded realist
who laughed at taking ideals seriously. To many conservatives who observed his antitrust
campaigns, however, he seemed to be a single-minded and dangerous crusader.
Not being inclined toward self-analysis, Arnold did nothing to unravel the many
contradictory images he managed to create for himself Instead of apologizing for inconsistencies,
he cheerfully admitted them and seemed to revel in being a puzzling personality. Unfortunately,
students of American social thought have done little to dispel the confusion. The reason, I
believe, is that evaluations of Arnold have been too hastily drawn from a cursory inspection of
his two major works, Symbols and Folklore. These books are highlighted by a series of dramatic
overstatements used by Arnold to drive his points home. To emphasize the irrational nature of
political persuasion, for example, he suggested that the best form of government is that found in
an insane asylum. Such statements are the first to be picked up by quotation collectors seeking to
enliven secondary sources. A picture of Arnold as a cynical manipulator emerges, while his
humanitarianism, social tolerance, and the consistent subthemes—such as gradual and nonviolent
social change and peaceful coexistence of social interests—that point to his most enduring moral
commitments are overlooked.
This study is based on the premise that a deeper understanding of Thurman Arnold as a
social theorist can be gained by a careful presentation and analysis of more than three decades of
his writings and speeches. In executing this task I have not attempted to present Arnold as a
systematic thinker. I have, however, tried to organize the various elements of his writings in such
a way as to show relationships which have been largely ignored by most of those who have
commented on his books and articles.
The relationships within Thurman Arnold’s writings are not the only focus of this study.
It also examines Arnold’s kinship to a group of late nineteenth- and early twentieth-century
American thinkers to discover which elements of his thought were shared by earlier dissenters
and which were sui generis. Common elements are stressed in the first two chapters and those
which are unique are discussed in chapters III through VI. My intent throughout this study has
been to convey as accurately as possible the content and flavor of Arnold’s many observations
on American society. In so doing, I hope to provide a foundation for future evaluations of him as
a perceptive and provocative American critic. I have taken the first step toward evaluation here. I
hope there will be others.
INTELLECTUAL DISSENT IN THE AGE OF ARNOLD
The philosophy of Thurman Arnold is not an isolated phenomenon. It is part of a larger
American intellectual tradition of revolt against established systems of thought. Arnold’s
contribution to American political thought can be best understood in the context of this dissident
tradition. From the late nineteenth century to the 1930s (when Arnold’s most important writings
appeared) criticism of both the methods and conclusions of traditional social thought was
growing in extent and influence. The prominent intellectuals in all fields who formulated this
criticism were rarely if ever identical in their approaches or conclusions. There was almost
always an aspect of uniqueness in their contribution. Nevertheless, they were bound together,
however loosely, by certain common characteristics which set them apart from established
systems of thought.
The dissenters attacked the notion of absolute, universal, and unchanging ideas in all
fields of social theory. They insisted, moreover, that these fields (law, economics, politics, and so
forth) must be studied as inseparable parts of a larger social whole. The beliefs and practices of
society were not logically derived from absolute principles, but were historical products of
human experience. Historical analysis led them to the conclusion that the ideals of American
society had not kept pace with its technological and organizational growth. The dissenters were
proud of their detachment from the prevailing norms of society. Their writings, as Thurman
Arnold expressed it, were intended to disturb the attitude of religious worship with a few
practical observations.
It is not surprising that the formulation of new assumptions and approaches in social
studies was accompanied by an emphasis on social criticism and reform. By destroying the
insulation of traditional social ideas from the perspectives of history and a wide variety of other
disciplines, dissenting thinkers opened new avenues for social criticism. By attacking the validity
of universal and eternal ideas, the dissenters provided a more hospitable environment for social
change and reform. They believed that reform could best be achieved by applying the scientific
method to social problems.
The origin of these new ideas cannot be attributed to any one man or to any single area of
social thought. A general reorientation in philosophy was needed to provide a framework as well
as a stimulus for unorthodox thinking in particular fields. Such a reorientation began to
crystallize in the early 1870s and culminated in the social philosophy of John Dewey. As it
developed, this philosophical movement—which came to be known as “pragmatism”—mounted
a general attack on absolute a priori ideas and became the most important expression of
philosophical relativism in late nineteenth- and early twentieth-century America.
William James publicly credited his friend Charles Peirce (a mathematician and
philosopher of logic) with the authorship of the doctrine of “practicalism or pragmatism.” Peirce,
however, insisted that pragmatism began, not with any single thinker, but with a group of
thinkers. In the early 1870s, he recalls, “a knot of us young men in Old Cambridge” (including
Peirce, William James, Chauncey Wright, John Fiske, and Oliver Wendell Holmes, Jr.) met
frequently “to discuss fundamental questions.” The group called itself “The Metaphysical Club.”
“It was there,” states Peirce, “that the name and doctrine of pragmatism saw the light.” 1
The historical source of Peirce’s definition of pragmatism was Kant’s Critique of Pure
Reason. A passage from his work illustrates the element in Kant’s thought which appealed not
only to Peirce but to the other members of The Metaphysical Club as well. Kant uses the term
“pragmatic belief” to describe the probabilistic knowledge used by a doctor as his basis of action
in diagnosing and treating a disease. In Kant’s words, it is a “contingent belief which ... forms
the basis of the use of means for the attainment of certain ends.” The great difference between
the precursors of American pragmatism and Kant was the denial by the former of transcendent,
rational, and absolute ideas existing over and above contingent pragmatic beliefs.2
The conception of ideas as contingent and changing, tied to scientific observation and
geared to action, was a direct challenge to the notion of self-evident, unchanging, and absolute
ideas. Even physical laws such as gravitation, Peirce contended, could not be considered
immutable and eternal. They should be conceived as continuous with natural life-forms which
are constantly evolving.3 Peirce was talking about physical not social laws. Yet he was clearly
eroding the foundations of orthodox social thought which was accustomed to demonstrating the
immutability of established social ideas by comparing them to natural or physical laws. Peirce
struck closer to the heart of conservative thought by stating that human ends are even more
changeable than natural ends and more susceptible to conscious control. Although he was not
attempting to fashion a liberal social philosophy, Peirce was providing an inviting framework for
other pragmatic thinkers who wished to do so.
William James, through his writing and particularly through his extensive lecturing,
became the great popularizer of pragmatism. Like Peirce, however, he had no strong interest in
social theory. He credited his friend with starting him in the right philosophical direction—one
which insisted that the effective meaning of any idea can always be brought down to some
particular consequence in our practical experience.4 Moreover, “truth” for James was too great
for any one mind to comprehend, even if that mind is labeled “the absolute.” The facts of life
require many observers to take them in. For this reason, no point of view could be absolutely
1
1 Philip P. Wiener, Evolution and the Founders of Pragmatism (Cambridge: Harvard University Press,
1949), p. 20. Wiener, however, has documented the curious fact that none of the other club members except James
ever used the term “pragmatism” in print until 1898. Holmes later did not recall the term used in club discussions
despite Peirce’s recollection that he mentioned it frequently on these occasions (pp. 21, 22). After subjecting
Peirce’s assertion to critical scrutiny, Wiener is still able to conclude that “Peirce brought together in his account of
the genesis of pragmatism a historically important group of persons who . . . moved in the same intellectual
atmosphere, and influenced each other in ways that shaped . . . ideas current in our thinking today” (pp. 25, 26).
2
Ibid., p. 23
3
p. 94.
4
Ralph Barton Perry, The Thought and Character of William James (Boston: Little, Brown & Co., 1935),
vol. 2, p. 408.
public and universal.5 James did not extend his pragmatism to social theory because he looked to
the individual rather than to legal, political, or economic institutions for social betterment. When
he protested against big business or imperialism, it was as a morally indignant individualist,
poorly informed about complex social conditions and the possible means of institutional change.6
The full-fledged application of the pragmatic method to social philosophy awaited the seminal
contribution of John Dewey.
The state of academic philosophy in 1879, when Dewey was an undergraduate, was
bleak. Philosophers distinguished themselves as defenders of those traditional principles existing
“prior to and independent of experience.” G. Stanley Hall recalls that there were no more than
half a dozen colleges and universities in America where philosophy was not tied to some
theological formula.7 Dewey was fortunate enough to undertake his graduate studies in one of
these, Johns Hopkins University. Its faculty included Charles Peirce who had already formulated
the outlines of his pragmatic position.
Unfortunately for intellectual historians who search for clear and neat philosophical
connections, Dewey did not discover Peirce until twenty years later. His development was
largely independent of the early “pragmatists” who exchanged ideas as members of The
Metaphysical Club in Old Cambridge. At Hopkins, Dewey was drawn not to Peirce but to
George S. Morris, a devotee of the Hegelian school of German idealism. The development of
Dewey’s pragmatic logic and his complete break with idealism took place between 1891 and
1900 as a result of his work in many fields outside philosophy—including ethics, psychology,
and education. During this period, the concept of universal mind completely dropped out of
Dewey’s writings and was replaced by the notion of ideas as theoretical instruments for solving
human problems.8
Reconstruction in Philosophy, written by Dewey in 1920, evidences the author’s intent to
use pragmatic logic as a tool to transform social philosophy. The task of philosophy, he
contended, must be transferred from the pursuit of fixed and universal ends to the detection of
ills that need remedy in a special case. Abstract philosophy has solved only abstract issues,
leaving concrete problems exactly as they were before. Thus, elaborate conceptions of “the state”
and its relationship to “the individual” have contented philosophers while completely ignoring
the problems of particular groups of individuals suffering in particular social situations. Because
intelligence has failed to come to grips with these particular situations, the resolution of social
problems is left to the crudest empiricism, shortsighted opportunism, and the matching of brute
forces.9
Dewey insisted that until social ideas were judged by their consequences rather than
celebrated as universal truths, intelligent social action and relief of social ills would be
5
Merle Curti, The Social Ideas of American Educators (Paterson, N.J.: Pageant Books, 1959), pp. 454-55.
Wiener, Evolution and the Founders of Pragmatism, pp. 125-26. See also Curti, Social Ideas of American
Educators, p. 457.
7
Morton G. White, The Origins of Dewey’s Instrumentalism (New York: Octagon Books, Inc., 1964), p. 4.
In some colleges, Hall adds, faculty members were hired and fired by the founders as if they were day laborers.
Other colleges were constantly falling under the control of state legislatures and ward politicians.
8
Ibid., pp. 6-8, 32, 82, 95, 103-04.
9
John Dewey, Reconstruction in Philosophy (Boston: Beacon Press, 1957), pp. 190-92. Original edition by
Henry Holt & Co., 1920.
6
impossible. “I should indeed not hesitate to assert,” he said, “that the sanctification of readymade antecedent universal principles as methods of thinking is the chief obstacle to the kind of
thinking which is the indispensable prerequisite of steady, secure and intelligent social
reforms...” 10
The experimental method, which is the scientific judge of consequences, must be
extended to social studies. The physical sciences, noted Dewey, were freed from the bondage of
preconceived universal truths by the philosophers of the seventeenth century. The present need
was to give similar freedom to social studies by extending the experimental method to them.
The implications of Dewey’s philosophy were pervasive. In all fields of social study—
economics, political science, sociology, law, or religion —he emphasized empiricism rather than
absolutism, change rather than permanence, social reform rather than social apologetics. Eric
Goldman has ably summarized Dewey’s impact across the many fields of social science as
follows:
From Henry George to Charles Beard, reform thinkers had been
feeling their way toward specific pragmatisms in their own fields
... each had denied that the prevailing ideas could be eternally true,
fixed by the nature of man and of the universe. Each had insisted
that conservatism be tested by its political and economic results. ...
And now John Dewey had swept all their specific pragmatisms
into a system from which each reformer, working away in his own
field, could draw comfort and strength.11
Since the 1870s, a group of young economists had been feeling their way toward a more
pragmatic conception of their own field. Some had received their doctorates from German
universities where the classical economics prevailing in England and America was roundly
criticized from a historical viewpoint. For Richard T. Ely, graduate study in Germany provided
an “exhilarating atmosphere of freedom” which he had not experienced as an undergraduate in
America. Economics at Columbia College (his alma mater) was regarded as a finished product.
An undergraduate could become an economist by reading a single volume-Mrs. Fawcett’s
Political Economy for Beginners. The text emphasized the unchanging economic laws governing
production and distribution. Free competition was the most important law. If left alone by state
and society, free competition would bring all economic relations into harmony. By Mrs.
Fawcett’s lights, the humanitarian relief societies which had been set up in Lancashire to aid
jobless and starving Englishmen were “a most striking example of the harm that may be done by
interfering with competition.” 12
Having tasted the “new and living economics” taught in the German universities, Ely and
other young scholars were “depressed with the sterility of the old economics which was being
taught in the American colleges ... [and] determined to inject new life into American
economics.” The youthful determination expressed by Ely was to find concrete expression in
1885, when he and other reform-minded economists met in Saratoga Springs, New York, to form
10
Ibid., “Logical Method and Law,” Cornell Law Quarterly, vol. 10 (December 1924), p. 27.
Eric F. Goldman, Rendezvous with Destiny (New York: Vintage Books, 1956), pp. 122-23.
12
Richard T. Ely, Ground Under Our Feet (New York: Macmillan, 1938), pp. 124-26.
11
the American Economic Association. The Saratoga meeting produced a statement of principles
which is a significant landmark in the development of American economics. It read in part:
1. We regard the state as an agency whose positive assistance is
one of the indispensable conditions of human progress. ...
2. We believe that political economy is still in an early stage of
development ... and we look, not so much to speculation as to
historical and statistical study of actual conditions of economic
life for the satisfactory accomplishment of that study.13
Several significant implications of this statement should be noted. It begins by a frontal
assault on the laissez faire conclusions of orthodox economics and, by so doing, clears the way
for acceptance of social reform. The second part of the statement constitutes a clear break with
the assumptions and methods of orthodox economics. Political economy is not viewed as the
secular manifestation of eternal economic laws, but as an ongoing process growing out of a
concrete historical situation. Abstract speculation is distrusted as a method of study, while the
perspective of history and the detachment of statistics are strongly recommended.
While the principles of the American Economic Association signified an important
challenge to self-satisfied orthodoxy in economics, they were fairly mild compared to the
devastating critique formulated by one of America’s most eccentric and original thinkers—
Thorstein Veblen.
As an undergraduate at Carleton College (1874-80) Veblen’s introduction to economics
was in much the same vein as Ely’s experience at Columbia. All courses were taught as slightly
variant branches of moral philosophy. Instructors were deemed capable of teaching any subject
as long as “the light of godly example” radiated from their life and work. Students in economics
used Reverend A. L. Chapin’s 1878 “revision” of Bishop Francis Wayland’s popular text of
1837. Economic principles being more or less permanent, Chapin could confidently state that
“scarcely any changes have been made in the (earlier) opinions presented.” The text conceived of
economics as a “business science,” man as an “exchanging being,” and competition as a
“beneficent, permanent law of nature.” The higher principles of political economy were selfevident to those with common sense and an ability to understand the English language.14
Veblen, although a social and intellectual misfit, managed to graduate from Carleton in
1880. He proceeded to drift from institution to institution, teaching and studying. He earned his
Ph.D. in philosophy at Yale in 1884, but his difficulties in securing and retaining teaching
positions kept him drifting for the rest of his life. Between 1898 and 1900, Veblen put his critical
intelligence to work in a series of articles published by The Quarterly Journal of Economics. He
addressed himself to “The Preconceptions of Economic Science” and asked “Why is Economics
not an Evolutionary Science?” His conclusions were an open challenge to economic orthodoxy.
Man’s view of life, contended Veblen, is a composite of two incompatible habits of thought. One
13
Ibid., pp. 132, 140. Although united against the sterility of orthodox economics, the members of the
Saratoga group had some important differences among themselves. Simon Patten asserted that the principle of
competition must give way to a more efficient, planned economy. John Bates Clark, on the other hand, continued to
believe in the value of free competition and wished only to remedy its deficiencies. The ability of the group to agree
on an unorthodox statement of principles despite individual differences was a notable achievement.
14
Joseph Dorfman, Thorstein Veblen and His America (New York: Viking Press, 1934), pp. 18, 22.
is that of modern science which adheres to an impersonal cause-and-effect sequence and is
materialistic and evolutionary in viewpoint. The other is the animistic point of view based on
some preconceived form of natural law which is thought to determine the course of events, but
which in reality simply reflects the dominant, commonsense ideals of conduct. The latter
viewpoint prevails in American economics with its emphasis on the idea of an invisible hand of
competition guiding economic relationships in a timeless continuum.15
Herbert Spencer’s historical school of economics appears to be scientific but is actually
prescientific in outlook. Like classical or orthodox economics, it identifies the normal state of
affairs with the ideal. Spencerians employ a “conjectural history” narrating “what should have
been” to buttress the preconceived ideal shared by classical economics; i.e., that there should be
no interference with competitive struggle in the economic order. It is no accident, concluded
Veblen, that classical economists tend to be Spencerians.16
Orthodox economics in Veblen’s day was truly a “business science” in the sense that its
conclusions, with minor exceptions, gave strong support to the laissez faire ideology of
America’s industrialists. Spencer’s “conjectural history” supplied the complementary doctrine of
“survival of the fittest” in a competitive world. Veblen’s reply was his own brand of
anthropological history which had the effect of turning Spencer upside down. Whereas Spencer
pictured the businessman as the vanguard of a progressive future, Veblen described him as the
relic of a predatory past.
Veblen’s critique appeared in 1899 with the publication of The Theory of the Leisure
Class—widely regarded as his most important work.17 The author concentrated on tracing what
he considered to be the two basic features of modern society—industry and business—to their
origins at the dawn of cultural history. In the earliest savage societies, observed Veblen, labor
was divided into drudgery and exploit. These evolved, respectively, into industry and warfare in
the barbarian world and finally into industry and business in the modern world. From the earliest
era of drudgery to the modern era, industry has concerned itself with the productive and creative
task of shaping inert materials for human use. However, because such work was relegated to
women at the outset and because it lacked an adventurous show of strength, it never achieved the
social prestige that was awarded to exploit, i.e., the hunt, war, and finally business.
The implication of Veblen’s theory was that social prestige and control have been
historically divorced from the quiet sources of human progress. He elaborated further on this
theme in The Theory of Business Enterprise (1904).18 In modern society technicians and
engineers are responsible for and interested in industrial efficiency. Those engaged in business
are far more concerned with obtaining control through buying, selling, and otherwise
manipulating financial securities. The engineer becomes an expert in the methods of production,
while the businessman becomes an expert in the movements of the securities market.
Technicians are the creators of the material basis of prosperity, while businessmen are the
masters of controlling it. The businessmen’s control, however, tends to be erratic. Financial
15
Ibid., p. 155
16 p. 156.
17
Thorstein Veblen, The Theory of the Leisure Class (New York: Modern Library, 1934). First published
16
in 1899.
18
Ibid., The Theory of Business Enterprise (New York: Charles Scribner’s Sons, 1904).
manipulations for profit frequently disrupt the steady process of industrial production, causing
unpredictable depressions.
In this fashion, Veblen diametrically opposed the economic logic of Herbert Spencer. To
Spencer, the businessman was the creator of a prosperous economic system. To Veblen, as
Robert Heilbroner has aptly expressed it, the businessman becomes the saboteur of the
system.”19
Although Veblen’s writing was perhaps the most devastating critique of capitalism ever
penned by a prominent American intellectual, he did not consider himself a social reformer. His
motive, as he professed it, was “idle curiosity.” It cannot be doubted, however, that the results of
this eccentric professor’s “idle curiosity” provided reformers with a very powerful intellectual
weapon. As John Maurice Clark has observed, “[Veblen] more than any other man altered the
course of American economic thought until the orthodoxy of yesterday is today the theory
everyone is trying to overthrow, replace or modernize.. .. He may be taken as the largest personal
impulse behind the modern critical movements. ...” 20
Veblen’s denial of personal involvement in the issues he was discussing exemplifies his
use of the anthropological-detached approach as a literary device. This detachment was not
expressed in the patient collection of facts (as was the case with another prominent institutional
economist, John R. Commons) or in the use of sophisticated statistical techniques (as was the
case with Veblen’s foremost intellectual heir, Wesley C. Mitchell) but in a speculative
philosophy which dissected society without concern for offending prevailing social norms.
Joseph Dorfman contends that “One of the most important facets of Veblen’s character was his
anthropological objectivity, which sharpened while it deepened his insights. He generally
managed to write in the terse and impersonal manner of a man from another planet and
prosaically dissected the pecuniary foundations of modern society. 21
Veblen’s original work provided a broad theoretical framework within which able
colleagues and followers pursued “more intensive and tamer inquiries,” as Wesley Mitchell
phrased it. For this reason, Veblen is considered the originator of the “institutional” school of
economics. Members of this school were bound together by the sharpness of their break from
19
Joseph Dorfman’s definitive biography is extremely valuable in understanding the origins of Veblen’s
“invidious distinction” between the disruptive businessman and the creative producer. Veblen was raised in a small
Norwegian farming community during a period of rising agrarian bitterness toward business. Veblen was later to
recall those days in bitter terms. The Scandinavian immigrants, by his account, settled as tillers of the soil while
Americans from the East scattered over the same regions in the towns. The immigrants did the work of reclaiming
the land while the native born in the towns carried on the business (described by Veblen as “prehensile” in nature,
i.e., “directed to getting something for nothing at the expense of the immigrants). . . . The presumption in the mind
of the honest businessmen was on the side of their own pecuniary advantage, leaving any doubts to be settled by
litigation . . . brought by the foreign immigrants —who could be relied on to avoid all litigation under a system of
law with which they had no acquaintance, before legal magistrates (businessmen) whom they had no reason to trust,
in a language they could not understand.” See Thorstein Veblen, Imperial Germany and the Industrial Revolution
(New York: Viking Press, 1954), p. 335. Originally published in 1915. See also Dorfman, Thorstein Veblen and His
America, p. 7.
20
John M. Clark, “Recent Developments in Economics,” Recent Developments in the Social Sciences
(Philadelphia: Lippincott, 1927), p. 250.
21
Joseph Dorfman, The Economic Mind in American Civilization (New York: Viking Press, 1949), vol. 3,
p. 446.
orthodoxy and by a broad similarity of approach. Professor Allan G. Gruchy has made a
comprehensive study of the similarities uniting six leading institutional economists: Thorstein
Veblen, John R. Commons, Wesley C. Mitchell, John Maurice Clark, Rexford G. Tugwell, and
Gardiner C. Means.22 All these men moved toward philosophical relativism by rejecting fixed or
universal economic ideas, were interested in the problem of philosophical lag, favored the
holistic method of investigation, and used an anthropological approach to formulate social
criticism and recommend reform.
The philosophic basis of American economics in the early twentieth century was derived
largely from the assumptions of eighteenth-century physics. The universe was assumed to be an
unchanging order whose operations could be reduced to a number of universal laws. 23 Orthodox
economics in America adopted a similar assumption that the economic universe was an
unchanging order governed by static universal laws. Institutional economics rejected this
fundamental tenet by insisting that rapid change was the most prominent characteristic of the
modern American economy.
In the static world of orthodox economics, there was little recognition of the lags between
unchanging ways of thinking and rapidly evolving economic conditions.24 The institutional
economists, however, were acutely aware of the problem of philosophical lag. This awareness
led them to abandon rationalistic economics in favor of an economics of adjustment. Habit, not
reason, was to them the primary characteristic of human thought and action. Habitual responses
so often fell behind technological realities that man’s central problem became adjustment to new
circumstances. The institutionalists noted that economic problems were accumulating at a rate
which far exceeded the rate of psychological adjustment on the part of the general population.
They hoped, by their writings and participation in public affairs, to facilitate the process of
adjusting ideas to rapid economic change.
Holism is such a prominent aspect of institutional economics that Professor Gruchy
prefers to use the term “holistic economics” to describe this school. Its members insisted that
economic events must be considered as a part of a social and cultural whole. They urged
economists to assimilate the findings of related disciplines to broaden their own studies.
John R. Commons, for example, brought extensive legal and historical knowledge to bear
on his analysis of the economic system. In Legal Foundations of Capitalism, 25 he traced the
changing conceptions of law and property during the evolution of the British economy from
feudalism to modern capitalism. His analysis demonstrated that the public law of England was
not static but a product of the changing practices of businessmen, guilds, and landlords.
Commons proceeded to demonstrate the equally dynamic relationship between American law
and property. His careful investigations of court decisions were not intended to master their legal
logic but to understand the economic theories of judges who made decisions involving the
allocation of millions of dollars.26 Commons’ theory of collective economic action was also
22
Allan G. Gruchy, Modern Economic Thought—the American Contribution (New York: Prentice-Hall,
Inc., 1947).
23
Ibid., p. 11
24
pp. 560-61.
25
John R. Commons, Legal Foundations of Capitalism (New York: Macmillan, 1924).
26
Kenneth H. Parsons, “Institutional Economics—Discussion,” American Economic Review—Papers and
Proceedings, vol. 47 (May 1957), pp. 22-23.
holistic in approach, being based on impressive knowledge of the new thinking in a variety of
fields. As Gruchy has observed, “It was not until he had assimilated much of the social
philosophy of William James, the pragmatic psychology of John Dewey and the legal theories of
the sociological jurists that Commons felt prepared to embark upon an exposition of ...
‘collective economics.’ ” 27
The institutional economists attempted to view the American economy through the eyes
of an anthropologist who would be unaffected by preconceived economic ideas. By moving the
economic and cultural ideal of free competition to one side before observing the economy, the
economists reached conclusions quite different from those of economic orthodoxy. At the center
or core of the American economy, they found monopolistic or predominantly monopolistic
enterprises. Business became more and more competitive as one moved toward the outer limits
of the economy. The general character of the economy was influenced most by its monopolistic
core which acted as a vortex drawing toward its center more and more of the nation’s economic
life.
The institutionalists observed that in the peripheral competitive areas of the economy
there was a high degree of correspondence between money making and goods making, i.e.,
between profit and production. In the monopolistic areas of the economy, however, profit was
less a reward for producing goods than for restricting output, creating artificial scarcities, and
securing protection from the leveling influences of competitive forces.28 Thus, by detaching their
observations from the ideal of free competition, they were led to reject the orthodox notion of
natural harmony between profit and production.
The followers of Thorstein Veblen were much more willing than he was to make
proposals for reform. John R. Commons and Wesley Mitchell, in different ways, set the most
important precedents in both action and thought for later reform-minded economists such as
Rexford Tugwell. Commons’ major social concern was with legally secured rights for
workingmen. This led him to serve on numerous public bodies including President McKinley’s
Industrial Commission, the Wisconsin Industrial Commission, and the U.S. Commission on
Industrial Relations. His reform interests, however, ranged far and wide. In 1923, with Professors
Ripley and Fetter, he represented four Western states before the Federal Trade Commission in a
case involving price discrimination by the U.S. Steel Corporation. He organized and directed the
Bureau of Economy and Efficiency of the City of Milwaukee from 1911-13. Another reform
outlet for Commons was his frequent appearance before Congressional committees. Perhaps his
most important testimony was in support of Senator Robert La Follette’s bill for the physical
valuation of the railways by the Interstate Commerce Commission. Commons’ cooperation with
La Follette had begun in 1905 when the latter was governor of Wisconsin. At the governor’s
request, Commons drafted a civil service law and later a public utility law for the state of
Wisconsin.29
The importance of John R. Commons as a reformer was enormously increased by his
ability to inspire outstanding students. Kenneth Boulding has observed that through these
27
Gruchy, Modern Economic Thought, p. 240.
Ibid., pp. 568, 590.
29
Selig Perlman, “John Rogers Commons: 1862-1945,” Wisconsin Magazine of History, vol. 29
(September 1945), pp. 25-27.
28
students “Commons was the intellectual origin of the New Deal, of labor legislation, of social
security, of the whole movement in this country towards a welfare state.” Although his
operations were mostly confined to Wisconsin, he was “the first brain truster ... setting a pattern
of great importance for the next generation.” 30
Like Commons, Wesley Mitchell was an early brain truster with extensive service to
government as researcher, consultant, and planner. As early as 1918, Mitchell was urging the
national government to improve its statistical and planning operations so that policy might be
more closely tied to quantitative knowledge. He served on a series of national planning agencies,
beginning with President Hoover’s Committee on Social Trends. The recommendations of this
committee helped pave the way for other planning agencies established after 1933, including the
National Resources Planning Board on which Mitchell served in 1934-35. 31
Wesley Mitchell’s conception of reform was heavily influenced by the pragmatism of John Dewey. It is
doubtful that any of the dissenting intellectuals of the late nineteenth and early twentieth centuries made a more
faithful attempt to implement Dewey’s concept of applied social intelligence than did Mitchell. He took the lead
among the dissenters in developing sophisticated statistical techniques for the purpose of creating and sharpening
social intelligence. His participation on various national planning agencies reflects an effort to apply scientific
intelligence to social problems—to give concrete expression to Dewey’s ideal of social intelligence at work.
Mitchell shared Dewey’s preference for planned reconstruction over piecemeal reform. Other dissenters, notably
Thurman Arnold, were more inclined to adjust the pragmatic method to the conflicting currents of politics, where
piecemeal changes seemed a more realistic objective.
The character and impact of institutional economics were accurately described by John
Maurice Clark when he compared Veblen’s work with orthodox economic theory. The latter, he
thought, was a “deductive static economics” which was erected on the “assumption of
contentment.” Veblen’s economics sought to explore the process of economic change and, unlike
orthodox theory, was an economics of discontent.32
Dissident economics in the late nineteenth and early twentieth centuries was closely
related to the newly developing field of sociology. The birth of sociology as a separate field of
study was largely an expression of the desire to broaden the perspective of established
disciplines, particularly economics. Charles Horton Cooley, for example, received his doctorate
in economics in 1894. Soon afterward, he moved into sociology, then in its infancy, to subject
his economic notions to a broader type of criticism. 33
The treatment of economics in standard textbooks, Cooley thought, was narrowly
confined to an elaboration of economic mechanism with scant attention given to the wider social
and economic significance of the mechanism. He attempted to make economic concepts more
realistic by subjecting them to a broad social analysis. The concept of “demand,” for example,
could not be uncritically accepted as a starting point of economic analysis. Viewed from a social
perspective, demand was “an expression of economic power . . . as determined by all the existing
conditions.” Viewed from a historical perspective, it was part of man’s inheritance, flowing into
the present like “a turbid stream, bearing with it all those struggles and compromises that make
30
Kenneth E. Boulding, “A New Look at Institutionalism,” American Economic Review—Papers and
Proceedings, vol. 47 (May 1957), p. 7.
31
Forest G. Hill, “Wesley Mitchell’s Theory of Planning,” Political Science Quarterly, vol. 72 (1957), pp.
101-02.
32
Gruchy, Modern Economic Thought, pp. 395-96.
33
Dorfman, The Economic Mind in American Civilization, vol. 3, p. 402.
up human history.” Uncritical acceptance of “demand” as a starting point of economic analysis
led to uncritical acceptance of the economic system, for, as Cooley noted, “All the evils of the
economic system, except those which are added in the market process, are already implicit in
demand, and of course are transmitted to production and distribution.” 34
Cooley’s broad holistic approach was an important influence on a rising group of liberal
economists who read his writings and came into personal contact with him. Walton Hale
Hamilton, an institutional economist who later became a colleague of Thurman Arnold’s on the
Yale Law School faculty, noted that Cooley “... led us away from an atomistic individualism,
made us see ‘life as an organic whole,’ and revealed to us ‘the individual’ and ‘society’ remaking
each other in an endless process of change.” 35
A second sociologist who was also closely related to the new trends in economics was
Edward A. Ross. He had done his graduate work at Johns Hopkins among the German-trained
rebels in economics including Richard T. Ely. Ross’s development is a clear example of pioneer
sociology growing out of a discontent with orthodox economics, both classical and Spencerian.
Ross began his teaching career using Spencer’s Sociology. From the beginning he doubted the
author’s distinction between the voluntarism of business and the compulsory nature of the state.
After three years, Ross informed Lester Ward, “I have finally cut loose from Spencer for he has
become so unsatisfactory it is no pleasure to put him in the hands of students.” 36 One year later,
Ross was beginning to feel the excitement of being part of a sociological movement against
economic orthodoxy: “The interest in Sociology is certainly growing among economists... Think
of it. The other day I found myself (referring to Spencer) compelled to use the phrase ‘classical
sociology.’ Soon we shall have the ‘old school’ and the ‘new school’ and all the rest.” 37
Ross’s opinion of the classical economics of Adam Smith and Ricardo was also critical.
“Neither of these men,” he observed, “make any declarations about social philosophy. They
confined themselves in the most rigid way to a study of wealth. They did not compare
competition with cooperation because ... there was so little of the latter that they could- conceive
of nothing else than competition.” 38 After eleven years of pioneering in sociology, Ross was
more aware than ever of the challenge his developing field was posing to the champions of
economic orthodoxy:
I am beginning to see that the campaign in disparagement of
sociology and the reluctance of some of the big institutions to meet
the demand for sociological instruction is not due entirely to the
errors of the sociologists but in part to the deadly enmity of
sociology to the laissez faire, “natural rights,” “freedom of
34
Charles H. Cooley, “Political Economy and Social Process,” Sociological Theory and Social Research
(New York: Henry Holt, 1930), p. 253. First published in 1918.
35
Walton H. Hamilton, “Charles Horton Cooley,” Social Forces, vol. 8 (December 1929), p. 185.
36
Bernhard J. Stern, “The Ward—Ross Correspondence 1891-96,” American Sociologial Review, vol. 3
(1938), p. 386.
37
Ibid., p. 391
38
p. 377.
contract” philosophy which is one of the bulwarks of vested
interests.”39
Ross fully shared Cooley’s holistic conception of sociology. The notion that society
could be neatly divided into separate fields of study was based on false assumptions. If it were
true, argued Ross, that each human craving generated in society certain creeds, activities, and
institutions which remained unmixed with the collective manifestations of other cravings, then
there could be separate independent bodies of knowledge, each representing a particular human
craving. Economics would explore the craving for wealth; politics, the craving for power;
jurisprudence, the craving for justice, and so on. Unfortunately, this assumption, so often made
by orthodox theory, is incorrect. “So far as specific cravings exist,” contended Ross, “they react
upon and modify one another.. . . They are trimmed and adjusted to fit into a plan of life.” 40
Progress cannot be expected in fields which start from outworn assumptions: “The disciples of
the abstract political economy, the unhistorical jurisprudence, the a priori ethics, and the
speculative politics make no headway because they shut their eyes to the interdependence of
dissimilar social facts.” 41
“Society,” concluded Ross in a holistic vein, “no longer falls apart into neat segments like
a peeled orange. State, law, religion, art, morals, industry, instead of presenting so many parallel
streams of development, are studied rather as different aspects of one social evolution.” 42
Cooley and Ross shared a broad general approach, but they differed widely in both
emphasis and personality. Cooley concerned himself primarily with the relationship of the
individual to society. He strongly emphasized the subjective aspects of this interaction, e.g.,
individual motives, attitudes, and self-consciousness. In sharp contrast to Cooley’s subjectivism,
Ross concentrated on social forces, e.g., public opinion, law, ceremony, and social suggestion.
Moreover, he was far more interested in social problems and social reform than was Cooley.
These differences largely reflected the personalities of the men. Cooley was a quiet, introspective
scholar; Ross was a confident, combative extrovert possessing a formidable 6-foot-6-inch, 250pound frame.43 Ross was not at all out of character when he rose and proclaimed to a quiet
meeting of the American Sociological Society that there might “come a time in the career of
every sociologist when it is his solemn duty to raise hell.”
Edward Ross actually played two roles, that of the detached sociological theorist 44 and
that of the social critic and reformer. He never, however, advocated a rigid separation of these
roles. The aim of sociology, he asserted, “should be to bring to bear upon the outstanding social
difficulties of our time the best possible techniques of inquiry.” 45
39
Bernhard J. Stern, “Ward—Ross Correspondence III 1904-1905,” American Sociological Review, vol.
13 (1948), p. 93.
40
Edward A. Ross, Foundations of Sociology (New York: Macmillan, 1905), pp. 10-12.
41
Ibid., p. 15
42
pp. 13-14.
43
See Jessie Bernard’s review of Ross’s autobiography in American Sociological Review, vol. 2 (April
1937), pp. 273-75. See also J. 0. Hertzler, “Edward Alsworth Ross,” American Sociological Review, vol. 16 (1951),
p. 598.
44
See Edward A. Ross, Social Control (New York: Macmillan, 1929). Widely considered Ross’s most
impressive work as well as a solid contribution to the foundations of American sociological theory.
45
Ibid., Seventy Years of It (New York: D. Appleton Century Co., 1936), p. 180.
One great difficulty of the times at the turn of the century was the lag between the ethical
ideals of society and modern social conditions. In response to this problem, Ross wrote a small
but influential book entitled Sin and Society. His central thesis was that Americans were vividly
aware of the old traditional sins but failed to recognize the new ones that had accompanied social
change. “They do not see that ... tax- dodging is larceny, that railroad discrimination is treachery,
that the factory labor of children is slavery, that deleterious adulteration is murder.” 46 Ross
proudly identified his book with the muckraking literature of the time. Without “the literature of
exposure,” he contended, America would have suffered a “futile blowup ... followed by iron
military repression.” Instead, thanks to the muckrakers, America got a healthy dose of reform
legislation” 47
William F. Ogburn, a younger sociologist, had much in common with Cooley and Ross.
As a teacher of economics, history, political science, statistics, and sociology, he could not help
but share their interdisciplinary interests. Ogburn’s earliest publications, including his doctoral
dissertation, were in the field of social legislation and the politics of democracy. Concentration
on these topics reflected his early interest in social action and reform. However, academic
training inculcated a more detached stance that led him to appraise the difficulties of achieving
reform by direct legislation. An activist interest in social reform evolved into a scientific interest
in social problems. This change, however, did not remove him from the scene of public service
which included assignments as consultant to the National Recovery Administration, the National
Resources Committee, and the Bureau of the Census. 48
One of Ogburn’s most important contributions to sociology was his concept of “cultural
lag.” This phenomenon occurs when one part of two correlated parts of culture changes before or
in greater degree than the other part does, thereby causing social maladjustment. Ogburn cited as
an example the maladjustment between the static laws dealing with industrial accidents and the
rapidly changing machinery used in industry. He noted that, before the factory system, machines
consisted of simple tools to which the common law of accidents was well suited. The industrial
revolution, however, introduced whirling machinery with rapidly moving parts. Despite
increased danger to the worker, accidents continued to be dealt with under the old common law.
The result was social maladjustment observable in the form of frequent accidents followed by
long delays in settlement and small compensation for workers injured or killed, leaving fatherless
families. It was not until about 1910 that employers’ liability and workmen’s compensation laws
were adopted in America, ending a cultural lag that had spanned four decades. 49
46
Ibid., Sin and Society (Boston and New York: Houghton Mifflin Co., 1907), p. 15.
Ibid., Seventy Years of It, p. 111. Ross’s deep interest in developing attitudes hospitable to social reform
is also evidenced by his authorship of a crisp, provocative high school text entitled Civic Sociology (New York:
World Book Co., 1930). The author begins with a challenge: “Since the citizen will have to face such lively issues as
personal liberty, commercialism, sectionalism, sectarianism, and class struggle, this book introduces the youth to
them.” Ross concludes with some general guidelines for young citizens including a call for alertness against highly
organized special interests. “Unless many citizens are so shrewd that they recognize a special interest and . . . oppose
it whenever it clashes with the general interest, we have a fight between a whale and a swordfish with the odds on
the swordfish.” p. 353.
48
William F. Ogburn, On Culture and Social Change—Selected Papers, edited by Otis D. Duncan
(Chicago: University of Chicago Press, 1964). See Dun- can’s introduction, pp. viii—x.
49
Ibid., pp. 86,90.
47
Ogburn’s illustration of cultural lag indirectly depicts a failure of social ideas to keep
abreast of technological change. When illustrating cultural lag, Ogburn almost always featured
technological change as the independent variable and nontechnical phenomena (ideas, laws, and
so forth) as the lagging dependent variables. This characteristic makes it appropriate to consider
his concept of cultural lag as another expression of the interest shown by many other dissenting
thinkers in philosophical lag. 50
Sociology and economics were not the only fields in which new developments were
occurring. During the early twentieth century, the critical anthropological method was applied to
the study of politics and government. The very frame of government, the Constitution, came
under critical scrutiny. To conservatives who viewed the document as the embodiment of an
immutable higher law, such scrutiny was almost sacrilegious. In 1879, E. J. Phelps, the newly
elected president of the American Bar Association, proclaimed to his colleagues that the
Constitution was too sacred to be discussed by nonlawyers. He did not think it was meant to be
“hawked about the country, debated in the newspapers, discussed from the stump, elucidated by
pot-house politicians and dunghill editors, scholars in the science of government who have never
found leisure for the grace of English grammar …” 51
An explosion inevitably occurred in 1913 when younger defenders of the Phelps doctrine
were informed of the publication of Charles Beard’s An Economic Interpretation of the
Constitution of the United States. The author had produced the most controversial work of his
generation by asserting that the men who wrote America’s higher law “were, with a few
exceptions, immediately, directly, and personally interested in, and desired economic advantages
from, the establishment of the new system.” 52
Charles Beard’s career as a history professor at Columbia coincided with the progressive
era in national politics. The muckrakers had popularized exposure of misdeeds in high places,
and Theodore Roosevelt had used the White House as a “bully pulpit” to issue denunciations of
the “malefactors of great wealth.” 53
Beard rode the tide of muckraking and progressivism, but his purpose was broader than
those of the indignant journalists and progressive politicians of his day. He hoped to introduce a
new mode of critical thinking to replace the old habits of uncritical reverence. As Hofstadter has
observed, Beard was part of an emerging critical intelligentsia in the United States—men who
rebelled against absolute ideas by asserting “that all things are related, that all things change, and
that all things should therefore be explained historically rather than deductively.” 54 “Beard’s
particular passion was for searching out the hard realities which lie beneath lofty theories and
ideals, the national ideal of the U.S. Constitution not excepted.
50
Ibid., p. 90. Despite the emphasis of his examples, Ogburn did not mean to preclude the possibility that
cultural lag could be produced by a society’s nontechnical features, e.g., literature, philosophy, or the arts, advancing
beyond its technical development.
51
Quoted in Charles E. Merriam, The Role of Politics in Social Change (New York: New York University
Press, 1936), p. 65.
52
Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York:
Macmillan, 1935), p. 324. First published in 1913.
53
See Richard Hofstadter, The Progressive Historians (New York: Alfred A. Knopf, 1968), pp. 181-82.
54
Ibid., p. 185.
Although Beard became the most controversial critic of the Constitution and its revered
authors, he was not the first. In 1907, J. Allen Smith had depicted the Constitution as a document
designed to frustrate democracy, written by men with little sympathy for popular government. 55
Smith’s book was widely read, particularly by progressives, but he revealed very little that was
new or surprising. Conservatives since the Federalist era had agreed with Smith’s conclusions
and applauded the Founding Fathers for their healthy distrust of democracy. Smith was simply
restating a time-worn generalization, hoping in a reform-minded era to produce a negative
reaction. His book was almost entirely a political critique of the Constitution, leaving the area of
economic interpretation wide open. 56
With the predictability of a knee reflex, socialist historians A. M. Simons and Gustavus
Myers reacted by placing great emphasis on the economic class interests of the framers. Liberal
scholars, however, were not enthusiastic about criticisms tainted by associations with Marxist
theory. 57 Beard was no doubt encouraged by the fact that his Columbia colleague, E. R. A.
Seligman, had published a nonsocialist Economic Interpretation of History in 1902. The author
dissociated his work from Marx’s specific doctrine of the inevitable destruction of capitalism
while at the same time asserting that economic forces are central to historical development. 58
Professor Seligman’s thesis seemed to Beard “as nearly axiomatic as any proposition in social
science can be.” 59
The sociological jurisprudence of Roscoe Pound helped to focus critical attention on the
judicial process. A Columbia colleague of Beard’s, F. J. Goodnow, further delimited the target of
scrutiny in his book Social Reform and the Constitution (1911). Beard noted in the first chapter
of his Economic Interpretation that “almost the only indication of a possible economic
interpretation to be found in current American jurisprudence is implicit in the writings of a few
scholars like Roscoe Pound and Professor Goodnow, and in occasional opinions rendered by Mr.
Justice Holmes...” 60 In Goodnow’s view, a virtually unamendable eighteenth-century
Constitution interpreted by wholly unamenable judges blocked the passage of badly needed
twentieth-century reforms. 61
Beard undoubtedly shared Goodnow’s contention that blind Constitution worship had
joined hands with stand pat conservatism in a holy war against reform. It seems likely that a
strong dose of progressive indignation, combined with a desire to encourage critical objectivity,
was the driving force behind Beard’s controversial interpretation of the Constitution.
In the first chapter of his book, Beard opens with an attack on Bancroft’s thesis that the
adoption of the Constitution represented “the movement of the divine power which gives unity to
the universe... .” 62 The whole people of the nation, without reference to economic interests,
prepared the new document “by calm and friendly councils . . . in the happy morning of their
existence. ...” They had “chosen justice for their guide . . . [and] all the friends of mankind
55
J. Allen Smith, The Spirit of American Government (New York: Macmillan, 1907).
See Hofstadter, Progressive Historians, pp. 192-93.
57
Ibid., pp. 196-97
58
p. 199.
59
Beard, Economic Interpretation of the Constitution of the United States, pp. 1, 15.
60
Ibid., p. 9.
61
Hofstadter, Progressive Historians, pp. 202-03.
62
Beard, Economic Interpretation of the Constitution of the United States, p. 1.
56
invoked success on their endeavor as the only hope for renovating the life of the civilized
world.” 63
In place of Bancroft’s inspiring prose, Beard presented “economic biographies” (based
largely on U.S. Treasury records formerly ignored) of each of the fifty-five members attending
the Constitutional Convention in 1787. Beard’s data detailed the property holdings of each
delegate—showing how these holdings would rise in value as a result of the adoption of the new
Constitution. The great majority of the framers, he concluded, stood to gain financially from the
new government they were creating.
Beard’s economic interpretation of the Constitution diametrically opposed Bancroft’s at
every point. According to Beard, the Constitution was
(1) An economic document, supported mainly by bankers, holders of public securities,
land speculators, merchants, and manufacturers. The opposition came mainly from small farmers
and debtors who saw the new document as a threat to their economic interests.
(2) Not ratified by the “whole people.” About three-fourths of the adult males failed to
vote due to indifference or disfranchisement because of property qualifications. 64
The tone of dogmatic certainty in Beard’s book represented a departure from the less
dogmatic approach of other dissenting intellectuals. In view of the more perceptive criticisms of
his work—including those from sympathetic historians—Beard would have done well to qualify
his bold assertions.65 In other respects, however, Beard’s writing had much in common with
other American dissenters. Like Thorstein Veblen, he wrote with the dispassionate air of
scientific objectivity which nevertheless—and not by accident—made deep cuts into
conservative ideology. Just as the institutional economists had undermined the notion of
unchanging economic laws, so Beard had cast doubt on the belief that the Constitution was an
immutable higher law unaffected by changing economic interests.
The anthropological approach was not confined to the study of the Constitution, but
extended across the entire area of government and politics. The new political scientists shared
Beard’s passion for casting aside abstractions and studying the realities so often obscured or
ignored by them. Political philosophy had been moving in two equally fruitless directions which
they had no desire to follow. One was the path of pure speculation leading to supernatural or
metaphysical theories of the state. The other was legal analysis which placed political theory
under the bondage of lawyers. Both approaches gave to the political state an “air of abstraction
and unreality” by ignoring the historical forces and social pressures underlying it. 66
Dissenters in political science contended that close observation of the operations of
government and politics was far more valuable than abstract theories of the state. Their studies
led them from rational philosophy to irrational public opinion; from metaphysical notions of the
state to party organizations, patronage systems, political bosses, and pressure groups. Arthur F.
63
Ibid., p. 10
pp. 324-25.
65
See Hofstadter, Progressive Historians, pp. 230-37.
66
See Ellen D. Ellis, “Political Science at the Crossroads,” American Political Science Review, vol. 21
(November 1927), pp. 773-76.
64
Bentley, a prominent figure among the early dissenters, insisted that a priori ideas be banished
from the study of politics: “If we start with a theory about ideas and their place in politics, we are
destroying our raw material even before we take a good peep at it. We are substituting something
else which . . . will certainly color our entire further progress, if progress we can make at all on
scientific lines.” 67
Bentley proclaimed a thoroughgoing philosophical relativism in political science. Just as
Karl Marx had given meaning to ideas only as expressions of class interest, so Bentley gave
meaning to ideas only as expressions of group interest. As he boldly put it: “Indeed the only
reality of the ideas is their reflection of the groups, only that and nothing more. The ideas can be
stated in terms of groups; the groups never in terms of the ideas.” 68 Bentley’s self-assured,
monistic explanation of politics in terms of group conflict resembles Charles Beard’s unqualified
interpretation of the Constitution in terms of conflict between economic classes. Both men
tended to replace traditional dogmatisms with new ones of their own making. In this respect,
they were different from John Dewey and the institutional economists who avoided new as well
as old dogmatisms.
Little was left of the notion of a fixed “law above men” after its dissection by Bentley. It
was possible, he said, to cut through the dialectics of the Supreme Court’s legal reasoning “till
we get down to the actual groups of men underlying the decisions and producing the decisions
through the differentiated activity of the justices.” 69
Other characteristics of the new political science appeared in the writings of Charles
Merriam, a contemporary of Bentley’s. He shared the broad holistic perspective of the
institutional economists viewing institutions as “action patterns reaching into psychology,
biology, sociology, philosophy, ethics, anthropology, economics, geography, science, and
technology. . . .” 70 Leonard White later recalled Merriam leading his students “through a bold
and persistent effort to marry political science with biology, anthropology, psychology,
sociology, economics and medicine. This polygamous venture repelled many of the profession,
but it intrigued the younger generation.” 71 Merriam was attempting to free political science from
its exclusive moorings in law and history. This did not imply an intention on his part to minimize
the historical dimension of government and politics. “The study of government,” he said, “might
be based-upon observation and analysis of current manipulations of various sorts, but a deeper
study requires attention to the evolutionary quality of political effort and achievement. . . .” 72
Like dissenters in many other fields, Merriam was disturbed by the failure of social
thought to keep abreast of scientific advance. In the field of machine technology, he observed,
“tradition is cast to the winds . . . there is no boasting . . . that a machine is old, but that it is the
67
Arthur F. Bentley, The Process of Government (Bloomington, Ind.: Principia Press, Inc., 1935), p. 181.
First published in 1908.
68
Ibid., p. 206
69
p. 205.
70
Charles E. Merriam, Systematic Politics (Chicago: University of Chicago Press, 1945), p. viii.
71
Leonard D. White (ed.), The Future of Government in the United States: Essays in Honor of Charles E.
Merriam (Chicago: University of Chicago Press, 1942), p. vi.
72
Merriam, Systematic Politics, p. ix. Emphasis mine.
newest and latest to be found. . . .” American industry had quickly accepted new ideas in
technology, but held fast to an older (laissez faire) ideology to protect itself from regulation. 73
To remedy modern economic and political maladjustments which he considered to be “of
the most formidable and menacing type,” Merriam took part in a long series of reform
movements for responsible and efficient municipal government, zoning, party reform, the direct
primary, the merit system, state constitutional reform, school reform, and national and regional
planning. At the age of thirty-six, he was a candidate for mayor of Chicago. He served as an
elected member of the City Council for six years.74
Merriam’s philosophy of social reform was strongly pragmatic in spirit, emphasizing the
application of scientific intelligence to social problems. “The finger of science,” he asserted,
“does not tremble as it points in the direction of conscious control of evolution.” 75 Scientific
control implied comprehensive social planning at all levels of government. Merriam denied that
this would be an arbitrary or autocratic process. He envisioned democratic planning as a general
scheme of regulation recognizing and protecting “areas of self-activity into which the state will
not ordinarily penetrate.” Merriam hoped to coordinate national and local policies, public, quasipublic, and private plans, instead of allowing them to drift apart or pull against each other.76 As a
strong advocate of social planning, it is not surprising that Merriam’s public career coincided at
several points with that of economist Wesley Mitchell. Both served on President Hoover’s
Research Committee on Social Trends in 1930, and, four years later, on President Roosevelt’s
National Resources Planning Board.
Dissenting intellectuals in the legal profession joined political scientists in the social
dissection of law, the Constitution, and the Supreme Court. Oliver Wendell Holmes, Jr., was an
early and prominent member of this group. Just as the institutional economists had rejected the
notion that economic reality could be logically deduced from unchanging universal principals, so
Holmes rejected the similar notion of the logical derivation of law. As early as 1881 he stated:
The life of the law has not been logic: it has been experience. The
felt necessities of the time, the prevalent moral and political
theories, intuitions of public policy . . . even the prejudices which
judges share with their fellow-men, have had a good deal more to
do than the syllogism in determining the rules by which men
should be governed.77
The law, in other words, is mainly an expression of the practical experiences and
changing beliefs of a people. To view it as pure logic or as something eternal ignores the obvious
fact that law, like other secular phenomena, evolves in history. It “embodies the story of a
nation’s development through many centuries, and it cannot be dealt with as if it contained only
the axioms and corollaries of a book of mathematics. In order to know what it is, we must know
73
Ibid., Role of Politics in Social Change, p. 92.
White, Future of Government in United States, pp. vii, 14-15.
75
Merriam, Role of Politics in Social Change, p. 101.
76
Ibid., p. 132.
77
Oliver Wendell Holmes, Jr., The Common Law (Boston: Little, Brown & Co., 1923), p. 1. First
published in 1881.
74
what it has been.” 78 When Holmes emphasized the importance of understanding law from a
historical perspective, he was not encouraging reverence for tradition but critical evaluation of it.
The official theory of law, he observed, regarded precedents with reverence. Yet viewed
historically, they frequently resemble the “clavicle in the cat” surviving long after the use they
once served is ended. 79
Holmes’s most serious sin against orthodox legal theory was his determination to unveil
the role of human bias in what was traditionally regarded as the impersonal process of judging,
i.e., the task of mechanically applying, by impersonal logic, the dictates of a higher law to
concrete cases. Holmes countered this view with a very unsettling assertion: “. . . the growth of
the law is legislative . . . what the courts declare to have always been the law is in fact new. The
very considerations which judges most rarely mention are the secret root from which the law
draws all the juices of life. I mean, of course, considerations of what is expedient for the
community concerned.” 80
Holmes did not abandon his penchant for detached analysis of the judicial function when
he reached the august bench of the United States Supreme Court. His famous dissenting opinion
in Lochner v. New York cut through the dialectics of the majority opinion to expose its economic
foundation. “The case,” he said, “is decided upon an economic theory which a large part of the
country does not entertain.” He reminded his fellow justices that it was not their duty to enact the
laissez faire economics of Herbert Spencer into constitutional law.81
Like the prominent dissector of economic institutions, Thorstein Veblen, Holmes was not
a social reformer. Nevertheless, his writings provided a powerful intellectual weapon for the
reform minded. Holmes was an inspiration for many other socioeconomic thinkers, realists, and
iconoclasts who, in diverse ways, called for legal reform.
Perhaps the most prominent of these was Roscoe Pound, the father of what came to be
known as “sociological jurisprudence.” Pound’s image as a dissenter blossomed in what
unexpectedly became a historic address before the American Bar Association in 1906. Pound,
then in his early thirties, was the first law teacher to address the association. 82 Professor
Wigmore, who was in the audience, recalls that the legal profession in 1906 “was a complacent,
self-satisfied, genial fellowship of individual lawyers—unalive to the shortcomings of justice,
unthinking of the urgent demands of the impending future . . . unaware of their collective duty. . .
.” In such a contented atmosphere, the very topic Pound had chosen was disturbing—“The
Causes of Popular Dissatisfaction with the Administration of Justice.” Many of the old-timers
scanning the program murmured, “Do we not give them a good enough justice? Whose idea can
it be that things are wrong? Well, we are here; so we might as well stay and listen politely.” 83
As Pound began to speak, most of the lawyers sensed that they were listening to “a
reform-wolf in sheep’s clothing.” Suspicion turned to alarmed indignation when the speaker
hammered away at specifics: “Our procedure is behind the times. . . . The court’s time is frittered
78
Ibid.
p. 35
80
Ibid.
81
Lochner v. New York. 198 U.S. 45,75 (1905).
82
Pound was then teaching and serving as Dean of the Law School at the University of Nebraska.
83
Paul Sayre, The Life of Roscoe Pound (Iowa City: State University of Iowa Press, 1948), p. 148.
79
away on mere points of legal etiquette. . . . Putting the courts into politics has almost destroyed
the traditional respect for the Bench.” 84 Most reactions to Pound’s address were predictably
hostile. “A more drastic attack upon the system of procedure,” commented James Andrews of
New York, “could scarcely be devised.” Our system of procedure, he insisted, “is the most
refined and scientific system ever devised by the wit of man.” 85
One year before Pound gave his unsettling address to the American Bar Association,
Foundations of Sociology by Edward A. Ross had been published. The author predicted the
inevitable decline of isolated, self-sufficient fields of social study and advocated a master science
of society drawing on and integrating the significant findings of all the other social sciences.
Pound and other legal thinkers became convinced that these ideas had much to offer the science
of law.86 The jurist’s conviction of the self-sufficiency of jurisprudence had brought bad results.
Among them, according to Pound, were: “the backwardness of the law in meeting social ends,
the tardiness of lawyers in admitting or even perceiving such ends, and the gulf between legal
thought and popular thought on matters of social reform which was so marked in the first decade
of the present century.” 87
The subject matter of law in Pound’s opinion had been confined too long to legal cases
and judicial opinions. It must be broadened, he thought, to include a scientific understanding of
the relationship of law to society—its interests and its problems. Pound described “sociological
jurisprudence” as a pragmatic philosophy of law, stressing “the adjustment of principles and
doctrines to the human conditions they are to govern rather than to assumed first principles.” 88
While the skeptical Holmes had left the process of adjustment to a clash of wills under
democratic rules, Pound argued that the judges must creatively shape law to the social needs of
the day. This “social engineering” aspect of Pound’s thought was eagerly seized upon and
employed more boldly by a group of thinkers who came to be known as “legal realists.” Karl
Llewellyn, a leading exponent of legal realism, acknowledged that Pound’s writings formed “the
basis of our forward- looking thought of the ‘20’s and ‘30’s and . . . provided half of the
commonplace equipment on and with which our work since has builded.” Unfortunately, he
added, Pound’s “brilliant buddings have in the main not come to fruition.” 89 The realists made it
clear that they expected more from sociological jurisprudence than moderate reforms. They
embraced the notion of judicial legislation with few qualms and faulted Pound for not accepting
it unreservedly as the means of implementing his own ideas. 90
84
Ibid., p. 149
p. 150.
86
Pound states that his adoption of “sociological jurisprudence” was mainly due to the influence of
sociologists Edward A. Ross and Albion Small. See Roscoe Pound, “Sociology of Law,” Twentieth Century
Sociology, edited by Georges Gurvitch and W. E. Moore (New York: Philosophical Library, 1945), p. 335.
87
Ibid., p. 334.
88
Ibid., “Mechanical Jurisprudence,” Columbia Law Review, vol. 8 (December 1908), pp. 609-10.
89
Karl N. Llewellyn, Jurisprudence-Realism in Theory and Practice (Chicago: University of Chicago Press,
1962), pp. 496-97. See also Wilfred Rumble, “Legal Realism, Sociological Jurisprudence and Mr. Justice Holmes,”
Journal of the History of Ideas, vol. 26, pp. 547-66.
90
As Rumble suggests (see note 89), Pound’s dispute with the realists was probably related to a difference
in political persuasion. Pound, a practicing Republican and a moderate reformer, was less eager to carry out a
sociological revolution in law than were the realists, many of whom were liberal Democrats inspired by early New
Deal hopes for social reconstruction. Both disputants claimed Holmesian ancestry. Perhaps the hard-headed
85
A closely related dispute between Pound and the realists concerned their respective
attitudes toward established legal rules. Pound, who had attacked uncritical adherence to rigid
rules regardless of social considerations, still retained a large measure of respect for rules and
precedents as guides for judges and stabilizers of the judicial process. The realists, on the other
hand, regarded the judge’s personal reaction to the facts of the case as the all-important
determinant of its outcome. Rules were mainly rationalizations for preexisting biases. Accurate
prediction of judicial behavior would be achieved only by emphasizing the extralegal factors
influencing the decision.
The legal realists, therefore, turned eagerly to the social sciences for a true understanding
of the judicial process. Professor Underhill Moore of the Yale Law School attempted to correlate
cultural modes of behavior with judicial behavior.91 Jerome Frank and Edward S. Robinson
analyzed legal institutions from a psychological standpoint. William 0. Douglas emphasized the
impact of social and economic facts upon legal doctrines.92 Leon Green viewed legal philosophy
as “a philosophy of the total social organism of which law is only one phase.” 93
The link between Thurman Arnold’s philosophy and the school of legal realism is clear
and direct. Professors Underhill Moore, Edward S. Robinson, and William 0. Douglas were all
Arnold’s colleagues at the Yale Law School. Arnold has stated that his Symbols of Government
was an outgrowth of a seminar for law students given by himself and Professor Robinson.
William 0. Douglas interested Arnold in serving briefly as a trial examiner for the Securities and
Exchange Commission. This experience provided the basis for Arnold’s second important book,
The Folklore of Capitalism.
A fourth colleague of Arnold’s at the Yale Law School, Walton Hale Hamilton, is
difficult to classify as a member of a particular school. His career united the tradition of legal
dissent with the critical perspective of institutional economics. Before his appointment as a
professor of law at Yale, Hamilton was a distinguished teacher and writer in economics, and a
strong advocate of the institutional approach. At Yale he did a great deal to give substance to the
effort of the law school to integrate the study of law with the other social sciences.94
Hamilton, representing a confluence of dissenting forces, and being a colleague of
Arnold’s, can be viewed as a concluding link in the loose chain of dissent that leads to Arnold.
The common characteristics of the thinkers within this dissenting tradition—philosophical
relativism, anthropological perspective, historicism, holism, interest in philosophical lag and
ideology, conclusions couched in terms of social criticism and reform—are closely interrelated
and mutually reinforcing. The combined impact of all these new ways of thinking about society
posed a serious challenge both to the methods and to the conclusions of established systems of
social thought.
skepticism of Holmes (leading to his distinction between law and morals) was the father of legal realism while
Pound’s reformist sociological jurisprudence was its mother. The distinctive qualities of each parent were combined
and exaggerated in such a way that neither spouse would be eager to claim the offspring.
91
Fred V. Cahill, Judicial Legislation (New York: Ronald Press, 1952), p. 119.
92
Harold G. Reuschlein, Jurisprudence—Its American Prophets (Indianapolis: Bobbs-Merrill Company,
Inc., 1951), p. 233.
93
Ibid., p. 208
94
p. 288.
Recent dissident thought in America cannot be fully understood in terms of its scholarly
methods and conclusions alone. The emotional and normative forces which impelled dissent
must also be considered. The impelling force most commonly found among the dissenting
thinkers considered in this chapter is an ethical-humanitarian impulse, frequently religious in
spirit. This impulse, while common, is by no means universally found among the dissenters.
There is little evidence of it, for example, in the “tough-minded” philosophies of Holmes and
Bentley. On the other hand, there is abundant evidence of it in the philosophy of Thurman
Arnold, who was also sometimes referred to as “tough minded.”
The humanitarian impulse was an important motivating force behind the “new school” of
economics. It was no mere coincidence that the group of scholars who met at Saratoga Springs in
1885 to form the American Economic Association included Washington Gladden, a pioneer in
the social gospel movement. Richard T. Ely, one of the founders of the association, was also a
noted writer for church audiences. He authored Social Law of Service in which he asserted that
“our exaltation is the exaltation of our fellows, their elevation is our enlargement.” The ideal of
social solidarity was not viewed as an accommodation of individual interests, but a unity whose
expression was human brotherhood. In Ground Under Our Feet, Ely applied religious ethics to
concrete situations such as child labor, female labor injurious to family life, Sunday labor, public
corruption, and the need for recreational facilities in the cities. The author estimated that most
Methodist ministers of his generation were influenced by these books to some degree.95 Ely
joined with another prominent dissenter in economics, John R. Commons, to organize the
American Institute of Christian Sociology in 1893. The purpose of the institute was to encourage
Americans to study social questions from both the scientific and the Christian standpoint.96
The ethical-humanitarian spirit of Ely and Commons was shared by the prominent
sociologist, Charles H. Cooley. He criticized established economic theory for ignoring the
important role of philanthropy and ethics. A social science which was not also “an ethical
science,” he said, “was unfaithful to its deepest responsibility.” 97 Humanitarianism appears even
more strongly in the sociology of Edward A. Ross. The pragmatic Ross had no enthusiasm for
theology which he described as “a sky-scraper founded on cobwebs.” Yet he retained a deep
respect for the ethical message of Christianity. “Will the social idea ever again be so beautifully
set forth as it is in the Gospels? . . . The great churches,” he said, “embody too much time-tested
humanism not to take a hand in our own inescapable struggle against the unfolding . . . knaveries
of capitalism.” 98
Ross considered “social religion” to be the noblest—if not the dominant or the most
widespread—mechanism of social control. It is a product of spontaneous sympathy, not of
intellect, force, or illusion. As expressed by Jesus, it proclaims “the union of all men in the bonds
of an ideal brotherhood.” 99 Social religion would always be a necessary element in reform.
Social science might suggest directions, but the stimulus for reform must come from spontaneous
sympathy. Social religion, Ross believed, could withstand theological revolutions—which do not
95
Ely, Ground Under Our Feet, pp. 87-91.
Dorfman, Economic Mind in American Civilization, vol. 3, p. 282.
97
Ibid., p. 404.
98
Ross, Seventy Years of It, pp. 116-19.
99
Ibid., Social Control, p. 204.
96
strike at its humanistic foundations. “The only deadly and implacable foe of religious
anthropology,” he concluded, “is a positive or naturalist’s way of looking upon man.” 100
The ethical humanitarian impulse in social thought was not confined to men like Ely,
Commons, Cooley, and Ross, who openly expressed it, but also played an important, if
disguised, part in shaping the thought of Thorstein Veblen. The ethical aspect of Veblen’s
thought appears most clearly in his theory of “instincts.” He spoke of four instincts, two of which
he labeled the “parental” instinct and the “acquisitive” instinct. The first of these originates with
parental concern for one’s offspring, and broadens to include a desire for the well-being of the
tribe, the nation, and even mankind in general. The “parental” instinct is the opposite of the
“acquisitive” instinct which leads the individual to take thought of his own personal welfare as
contrasted with the welfare of others.101
Community definitions of status, thought Veblen, determine which human instincts will
be most encouraged. He predicted a future struggle for dominance between the serviceable view
of status (encouragement of the parental and workmanship instincts) and the predatory view of
status (encouragement of the acquisitive instinct). The dominance of the former will foster
technological progress and raise the living standards of the masses. The dominance of the latter
will result in retardation of these goals.102
It is difficult to believe that a man who was morally indifferent, as Veblen claimed to be,
could formulate an essentially ethical question in such an imaginative way. Perhaps one aspect of
Veblen’s genius was his remarkable ability to disguise his central interest in social ethics
(perhaps even from himself) beneath the nonethical language of anthropology and psychology.
Morton White has perhaps best characterized the puzzling personality of Veblen by referring to
him as “the amoral moralist.”
The moral ambiguity of Veblen’s writings is also characteristic of many of the dissident
thinkers discussed in this chapter, including Thurman Arnold. Generally, these were men of
moral sensitivity who decried moralism, principled men who attacked universal principles. The
meaning of their position is less ambiguous when considered primarily as a criticism of
established systems of thought. The principles and moral inferences of these systems had drifted
away from humanitarian values into a world of abstractions. Moreover, they had failed to take
account of the “tumbling stream of events” which constitutes social change. The dissenters were
revolting not against moral principle itself, but against socially uninformed principles which had
ceased to be concerned with immediate human needs.
It is within this context of intellectual dissent, with its new methods of social study and
its more or less avowed humanitarian impulse, that the philosophy of Thurman Arnold must be
considered.
100
Ibid., pp. 213, 215-16.
Gruchy, Modern Economic Thought, pp. 64-65.
102
Ibid., pp. 75-76.
101
CHAPTER II
THE BACKGROUND, METHODS, AND VALUES OF ARNOLD
“No one,” said Arnold in the preface to Symbols of Government, “escapes the constant
necessity of dressing himself in a series of different uniforms or silk hats and watching himself
go by.” This is certainly a fitting theme for a man who played so many different roles in public
and private life. His public career included service at the local, state, and national levels. At one
time or another, he served in the legislative, executive, and judicial branches of government.
Arnold’s private career was no less diversified. He was a small town lawyer in Laramie,
Wyoming, a senior partner in one of Washington’s most successful law firms, Dean of the West
Virginia Law School, and a professor of law at Yale. Arnold’s social thought was characterized
by methods and values accrued from these personal experiences.
Arnold was born in Laramie, Wyoming, in 1891, the son of Peter Arnold, a prosperous
lawyer and rancher. Thurman’s grandfather, Franklin Arnold, had been a missionary in Africa
and later became a Presbyterian pastor in Laramie. Arnold remembered him as a “kindly man”
who, nevertheless, had a few “foibles peculiar to the Presbyterian faith of those times.” On the
Sabbath, which lasted from six o’clock Saturday evening until Monday morning, Franklin
permitted no levity, games, or amusements. Thurman remembered his grandfather refusing to let
him enter his pony in a race at the county fair. Franklin associated racing with gambling which
went against his Presbyterian “foibles.” The grandson was bitterly disappointed. “This incident,”
he recalled, “planted the seeds of skepticism about the old-time religion that have plagued and
tormented me ever since.” 1 Thurman Arnold was learning to call dogmas and creeds into
question at an early age.
At the age of sixteen, he left Laramie to attend Princeton University where he
encountered a dull and irrelevant approach to education. “Ancient texts were studied as if they
existed in a vacuum, wholly apart from the culture of the civilizations that created them.” 2 The
Princeton student of Arnold’s day was not given a broad understanding of social and political
processes, but was sent on a quest for abstract truth. As Arnold recalls: “We read extracts from
the philosophers from Plato to William James, though we read them not as part of the thinking or
the values of the time in which they wrote but as seekers for abstract truth which had no relation
to time or place.” 3
Hegel and Spinoza were considered “top drawer truth seekers” while the pragmatism of
William James was considered suspect “because it seemed to deny fundamental truths.” 4
Princeton in the 1960s, commented Arnold, is entirely different from the Princeton of his student
days: “Just as the old Princeton reflected an age of certainties and conventions, so the new
Princeton and other educational institutions reflect an age of questioning and discovery.” 5
Arnold somehow managed to master the abstract formulas of the Princeton curriculum
and graduated in four years with Phi Beta Kappa honors. He entered the Harvard Law School in
1
1 Thurman Arnold, Fair Fights and Foul (New York: Harcourt, Brace & World, Inc., 1965), pp. 5,6.
Ibid., p. 17
3
p. 18
4
Ibid.
5
p. 19
2
the fall of 1911. Although Harvard professors “seemed intellectual giants” when compared with
the Princeton faculty, “the world of the Harvard Law School was as much a world of eternal
verities and absolute certainties as it had been at Princeton.” 6 Law and economics were
considered the principal fields. Dabblers in sociology or psychology were suspect. Legal training
stressed the “narrow logic of the law, the building of legal principle on the solid basis of a long
line of precedents, and the analysis of cases in class by the Socratic method.” 7
After graduating from Harvard Law School in 1914, Arnold practiced law in Chicago
until 1917 when the United States declared war against Germany. During the war, Arnold served
in Europe as an artillery officer. He remembered his life at the front as an exciting but
uncomfortable experience and that he was mercifully spared the worst horrors of war: “There
was the noise of shells exploding and gas attacks too frequent to recite in detail here. But the
artillery was far enough behind the front lines for our casualties to be relatively light. The chief
discomforts were the cold and the wet, which I will never forget.” 8
After the war, Arnold returned to Laramie to practice law and to dabble successfully in
local politics. In 1920, he was elected to the Wyoming House of Representatives, distinguishing
himself as the only Democrat to survive the Harding landslide of that year. Quick to perceive the
humor in his situation, Arnold announced to the assembled legislature which was in the process
of electing a Speaker: “Mr. Speaker, the Democratic Party caucused last night, and when the
name of Thurman Arnold was mentioned, it threw its hat up in the air and cheered for fifteen
minutes. I therefore wish to put his name in nomination for Speaker of this House.” 9 Noting that
the Speaker was confused at this unexpected departure from his carefully prepared agenda,
Arnold rose again and said, “Mr. Speaker, some irresponsible Democrat has put my name in
nomination and I wish to withdraw it.” 10 The ability to perceive and deftly exploit the comical
aspects of a situation was later to become a hallmark of Arnold’s social and political writing.
When his legislative term ended, he ran for mayor of Laramie and was elected by a
narrow margin. Unlike the philosophical Arnold of later years, he was something of a crusading
politician. “At the time I ran,” he said, “for reasons obscure to me at the present time, I was an
ardent Prohibitionist.” 11 As mayor, he annoyed many of Laramie’s good citizens by actually
enforcing the prohibition laws.12
The years in Laramie, practicing law and dabbling in local politics, were happy ones for
Thurman Arnold. He participated in, and enjoyed, many of the middle-class activities that
Sinclair Lewis so deftly debunked in his portrayal of George Babbitt. Arnold sang inspirational
songs at Lion’s Club lunches, was a vestryman of his church, a leader in Elks Club festivals, a
member of the Chamber of Commerce, and a speaker on each Memorial Day.13 His decision to
leave Laramie in 1927 was made with deep regret. On the day before his departure, Arnold
6
p. 20.
Ibid.
8
p. 28
9
p. 33
10
Ibid.
11
p. 32.
12
Joseph Alsop and Robert Kintner, “Trustbuster: The Folklore of Thurman Amold,” Saturday Evening
Post, vol. 212 (August 12, 1939), p. 30.
13
Ibid.
7
lunched with his wife, mother, and father at the downtown hotel, and from the next room
Arnold’s fellow Lions burst forth with “For He’s a Jolly Good Fellow.” His wife was so moved
that she began weeping on the bosom of the hotel waitress. When the Arnolds finally departed,
fifty cars escorted them to the Divide of the Rockies. 14
The happy years in Laramie were not unrelated to Arnold’s later vigorous attempts to
enforce the antitrust laws. During the 1920s, he contended, the antitrust laws were ignored. Giant
corporations, mostly in the East, absorbed local industries in the West and the South. Because the
decline of locally based industry meant the decline of locally based law practices, Arnold
concluded in 1927 that there was no future in Laramie for the local lawyer.15 He had learned
from personal experience that unchecked economic concentration destroys widespread economic
opportunity.
Fortunately, a new professional opportunity was made possible by Dean Roscoe Pound of
the Harvard Law School, who remembered Arnold as an original scholar. On Pound’s
recommendation, Arnold was offered the deanship of the law school at West Virginia
University.16 Arnold gratefully accepted the offer, and by so doing, launched himself into what
was to become a prominent academic career. During his dean- ship at West Virginia, Arnold
developed a habit of prodigious writing. He authored nineteen book reviews and articles in the
West Virginia Law Quarterly over a period of three years. In 1930, Arnold accepted an
appointment to the law faculty of Yale. “The years that followed,” he recalled, “were among the
most interesting and exciting of my life.” 17 Dean Charles E. Clark had assembled a formidable
faculty including William 0. Douglas, Walton Hale Hamilton, Arthur Corbin, Wesley Sturges,
and Underhill Moore. The general attitude of the faculty was against dogma of all kinds.18
During the 1930s, the Yale law faculty was busy eliminating old courses and introducing
new ones thought to be better adapted to the realities of judicial institutions. The new emphasis
was centered not on legal theory but on the actual operations of business and legal institutions.19
Specialists from other disciplines, including economist Walton Hamilton and psychologist
Edward S. Robinson, were employed to provide a broader perspective for the study of these
institutions. Arnold’s first book, The Symbols of Government, grew out of a seminar given by
him and Professor Robinson on the psychological foundations of the law. As a professor, Arnold
approached the law from a variety of nonlegal perspectives. Some students found his broadranging lectures difficult to follow: “He frequently started on a set topic, wandered off into the
mythical aspects of economics, progressed to the mores of politics, and so on until lost at last, he
brought himself up short with a genial, Now what the hell am I supposed to be talking about?’ ”
20
Arnold fitted well into the intellectual environment of the Yale Law School with its sharp
14
p. 33.
Arnold, Fair Fights and Foul, pp. 33-35.
16
Alsop and Kintner, “Trustbuster,” p. 30.
17
Arnold, Fair Fights and Foul, p. 35. Arnold’s writings at West Virginia dealt mainly with technical or
specialized topics, e.g., “The Collection of Judicial Statistics in West Virginia,” West Virginia Law Quarterly, vol.
36 (February 1930), pp. 184-90; “Contempt-Evasion of Criminal Process as Contempt of Court,” West Virginia Law
Quarterly, vol. 34 (February 1928), pp. 188-92. His broad philosophy of law emerged in his writings at Yale.
18
Ibid.
19
pp. 37-68.
20
Alsop and Kintner, “Trustbuster,” p. 30.
15
distinction between the ideals and the actual operations of institutions, its broad interdisciplinary
approach to the law, and its general distrust of all dogmatisms.
During the summer of 1933, Arnold had his first experience in government service. His
assignment was to assist Jerome Frank, then general counsel of the Agricultural Adjustment
Administration, on problems concerning the constitutionality of the new Agricultural Adjustment
Act. The Department of Agriculture was “in a perfect bedlam” when Arnold arrived.
“Everything that was being done was unconventional and unheard of, and, therefore,
unconstitutional.” 21 The task of the legal section was to demonstrate that the new governmental
programs aimed at relieving distress did not violate “the sanctity of such magic phrases as
‘proper delegation of powers’ . . . and ‘due process of law.’ ” 22 Certainly Arnold’s brief
experience with the Department of Agriculture strengthened his conviction, expressed later in
The Folklore of Capitalism, that practical humanitarian measures, to be accepted, must be draped
in the prevailing economic and legal symbols of the day. His job, in the summer of 1933, was to
find an acceptable constitutional symbolism to accompany unconventional public efforts to
relieve economic distress.
Arnold’s next summer vacation was spent as a legal advisor to Frank Murphy, then
governor general of the Philippines, assisting him in the administration of the Sugar Control Act.
From 1935, until his sabbatical leave from Yale in 1937, Arnold spent his summer vacations in
Washington as a trial examiner for the Securities and Exchange Commission chaired by William
O. Douglas, who was then investigating corporate reorganizations.23 This experience provided
the basis for Arnold’s brilliant and witty chapter on corporate reorganizations which appeared
later in The Folklore of Capitalism.
During his sabbatical leave from Yale, Arnold served as assistant to Robert Jackson, who
was then head of the Tax Division of the Department of Justice.24 He used his spare time to
complete Folklore, which became a best seller and is probably his most important contribution to
American political and social thought. Soon after the publication of Folklore, Arnold was
appointed assistant attorney general in charge of the Antitrust Division of the Justice
Department. Yale University, after having granted its absentee professor a two-year leave
following his sabbatical and finding him still engrossed in antitrust work, announced that he had
resigned.25 Arnold reluctantly accepted the fact that he could not carry on his antitrust work and
have his academic tenure too.
His term as chief trustbuster lasted from March 1938 to March 1943. There was a great
deal of early skepticism about Arnold’s attitude toward the antitrust laws among those who had
read Folklore. The author had stated in that book that the antitrust laws were little more than a
ceremony to celebrate the ideal of rugged individualism, and that they had actually been a barrier
to effective regulation of large corporations. “I wondered,” Arnold reminisced, “just how . . . I
was going to explain my present enthusiasm for the antitrust laws in the light of what I had
written just a year before.” 26 His answer, he decided, was that in writing the book he was merely
21
Arnold, Fair Fights and Foul, pp. 131-32.
Ibid., p. 132
23
pp. 134-35
24
p. 135
25
pp. 135-36
26
p. 136.
22
observing the faulty operation of the antitrust laws during the 1920s. Once in office, he would try
to improve the situation.
Any doubts about the sincerity of Arnold’s avowed intention to enforce the antitrust laws
were dispelled soon after he took office. By the end of his five-year term, Arnold had instituted
44 percent of all antitrust suits which had been brought by the Justice Department since the
passage of the Sherman Act in 1890. Appropriations for the Antitrust Division were about
$473,000 in the fiscal year 1938. Five years later, they had risen to $l.8 million Over the same
period, the Division’s personnel increased from 111 to 496.27 Perhaps Arnold’s most important
contribution was the revival of the antitrust laws as a basis for public policy. As one student of
Arnold’s trust-busting career has observed: “When he took office it was common, and when he
left office rare, to encounter the view that the policy of the antitrust laws was out of date, that
offenses under the laws were merely technical, and that the protection of the public interest must
be sought exclusively in government regulation of business and in the public spirit shown by
business men.” 28
After five stormy years in the Antitrust Division, Arnold found himself attracted to a
much more peaceful and serene career. In March 1943, President Roosevelt appointed him judge
of the United States Court of Appeals for the District of Columbia. “. . . when I accepted the
judgeship,” Arnold recalled, “I confidently expected to spend the rest of my life in a position of
great dignity, with long vacations in the summer, in an atmosphere where the wicked cease from
troubling and the weary are at rest.” 29
In spite of his hopeful expectations, Arnold soon discovered that he was not
temperamentally suited to what he had earlier described as the “priestly function” of the judge.
His preference for partisan argument rather than for impartial decision made him doubt whether
he could ever be “an ornament to the bench.” The role of a judge was simply too restricted for a
vigorous advocate like Thurman Arnold: “I was impatient with legal precedents that seemed to
me to reach an unjust result. I felt restricted by the fact that a judge has no business writing or
speaking on controversial subjects. A judge can talk about human liberties, the rule of law above
men, and similar abstractions. All of them seemed to me dull subjects.” 30
For these reasons, Arnold resigned from the bench in the spring of 1945 to resume the
private practice of law. There was no bitterness toward judicial institutions in this decision. In his
earlier book, The Symbols of Government, Arnold had pointed out the social necessity of judicial
symbols such as the impersonal rule of law above men. A judge, to play a moving part in the
judicial ceremony, must believe in its symbols. Judge Arnold’s discovery that he was
temperamentally unsuited for this role did not lead him to debunk the role itself or the robed
figures who gave it life.
Arnold’s first law partner after he resigned from the Court of Appeals ‘was Arne C.
Wiprud, a former associate in the Department of Justice 31 Wiprud was an expert in
27
Corwin D. Edwards, “Thurman Arnold and the Antitrust Laws,” Political Science Quarterly, vol. 58
(September 1943), p. 339.
28
Ibid., p. 353.
29
Arnold, Fair Fights and Foul, p. 156.
30
Ibid., p. 159.
31
Louis Cassels, “Arnold, Fortas, Porter and Prosperity,” Harper’s, vol. 203 (November 1951), p. 65.
transportation, and returned to government service when the new firm’s expectation of
transportation business did not materialize. Arnold then asked Abe Fortas, who was planning to
resign as Under Secretary of the Interior, to enter into a law partnership. The firm of Arnold and
Fortas was launched in January 1946. Arnold considered this “the smartest decision I ever
made.” 32 One of the original associates in the new firm was Walton Hale Hamilton, the brilliant
institutional economist and former professor at the Yale Law School.
Arnold and Fortas had been in practice together for less than two years when they asked
Paul Porter, who had just returned from ambassadorial duties in Greece, to join them as a third
partner. Arnold, Fortas and Porter proved to be a viable combination, and the three men
remained together until August 1965 when Abe Fortas was appointed by President Johnson to
the United States Supreme Court.
One of the characteristics which came to distinguish the firm of Arnold, Fortas and Porter
was its courageous involvement in civil liberties issues. Soon after Porter joined the firm, seven
State Department employees who had been summarily dismissed from their jobs on loyalty
grounds came to the office seeking legal counsel. Their stories convinced the partners that,
unlike other summary dismissals in time of stress, dismissals carrying the stigma of disloyalty
must not take place without a fair trial complete with sworn testimony, cross-examination of
witnesses, and other evidence acceptable in court. The firm’s attorneys, with the aid of publicity
given to the case by the New York Herald Tribune, managed to persuade the State Department
to remove the “disloyalty” notations from the records of the ousted employees.33
The firm’s practice of giving free legal aid to innocent employees dismissed on loyalty
grounds soon brought a flood of requests for help. To relieve the pressure, the attorneys sought a
test case through which they hoped to settle the broad issues that were at stake. They chose the
case of Dorothy Bailey who had been dismissed from the United States Employment Service on
the ground that an informant claimed to have seen her at a Communist meeting. The Loyalty
Board which upheld the charge refused to disclose the identity of her accusers or even the time
and place of her alleged disloyal acts.34
To the bitter disappointment of Arnold, Fortas and Porter, the District of Columbia Court
of Appeals held that Miss Bailey’s dismissal raised no constitutional issues and that judicial
intervention was therefore unwarranted. The partners appealed the case to the Supreme Court
which split 4-4 on the issue, leaving the lower court decision unimpaired. After the Bailey case,
Arnold, Fortas and Porter concluded that they had carried the legal struggle as far as possible
under present court rulings, and sharply reduced their “loyalty practice.” 35
The firm, even after the disappointment of the Bailey decisions, continued to take
exceptional cases. The most publicized of these was the case of Owen Lattimore, a professor of
Johns Hopkins University, who was accused by Senator McCarthy of being a Communist. The
firm provided counsel for Lattimore throughout the hearings before a Senate subcommittee
chaired by Senator Pat McCarran. Arnold described these hearings as a psychological ordeal
32
Arnold, Fair Fights and Foul, p. 190.
Cassels, “Arnold, Fortas, Porter and Prosperity,” pp. 65-66.
34
Ibid., p. 66
35
p. 67.
33
designed to trap the witness rather than a fair procedure to obtain the truth from him.36 After the
hearings, the Justice Department charged that Lattimore had perjured himself when he testified
that he had never been a “promoter of Communist interests.” 37 As Arnold pointed out, the
meaning given this phrase by the government was broad enough to include anyone who favored
aid to Russia during the Second World War or aid to Tito’s Yugoslavia. After a bitter struggle,
Arnold, Fortas and Porter were able to get a dismissal of the charges against Lattimore in the
courts.
The economic risks taken by the firm in defending Lattimore and others suspected of
disloyalty did not materialize. Arnold, Fortas and Porter remained one of Washington’s most
successful law firms. Its clients have included such large and prestigious corporations as the
Coca Cola Company, Pan American Airways, Lever Brothers, Western Union Telegraph, the
Sun Oil Company, and the American Broadcasting Company.38
Arnold continued to be actively engaged in his private law practice until his death in
November 1969. During the last years of his life he was a strong supporter of the Johnson
Administration. In 1967 he gave public support to the President’s increasingly unpopular
Vietnam policies by joining the Citizen’s Committee for Peace with Freedom in Vietnam, along
with other prominent figures such as Dean Acheson, Paul Douglas, Omar Bradley, and Harry
Truman.
The following year Arnold crossed political swords with Senator Sam Ervin (D., N.C.) in
a debate published by the Washington Post (September 15, 1968) on the “Pros and Cons of the
Abe Fortas Nomination.” Ervin charged that Fortas lacked the judicial “self-restraint” necessary
for a Chief Justice of the United States Supreme Court. Arnold replied in behalf of his long-time
friend and law partner: “As for Justice Fortas’s personal capacity for restraint, that was
demonstrated beyond cavil during the recent hearings by the calm patience with which he
withstood the widely condemned abuse visited upon him by one senatorial inquisitor” [Senator
Strom Thurmond (R., S.C.)]. Arnold continued to support Fortas even after the damaging
charges of financial impropriety were brought against him. The Fortas controversy was the last
of many “fair fights and foul” in the varied career of Thurman Arnold. His contribution to
American social thought has certainly been enhanced by a background as diverse as the life
experiences of five interesting and successful men.
Thurman Arnold’s methods of social study have much in common with the methods of
the dissenting intellectuals of late nineteenth- and early twentieth-century America. These
methods, discussed in Chapter I, were characterized by philosophical relativism, detached
perspective, historicism, holism, interest in philosophical lag and ideology, and conclusions
couched in terms of social criticism and reform.
Arnold’s philosophical relativism is found in his attack on the notion of absolute,
universal, and unchanging ideals. “The world,” he contended “will never see a permanently valid
philosophy until science discovers a method of making time stand still.” 39 Changes in
fundamental values are, to Arnold, a function of life; these values come not from above but from
36
Arnold, Fair Fights and Foul, pp. 215-16.
Ibid., p. 217.
38
Cassels, “Arnold, Fortas, Porter and Prosperity,” p. 62.
39
Thurman Arnold, The Symbols of Government (New Haven: Yale University Press, 1935), p. 267.
37
human organizations “which can no more help producing principles than a hen can keep from
laying eggs.” 40
Because principles are relative to organizations, they should serve organizations, not
cripple them. When organizations are forced to conform to principles that are deemed to be
universal and unchanging, they can no longer carry on practical humanitarian activities. Arnold
observed that in the Middle Ages the Church was not judged by its effectiveness as an
organization, but by whether its creeds conformed with standards of universal truth. The
missionary activities of most modern churches show a complete change of attitude. Medical
attention to underprivileged groups is now thought to be more important than creedal services.41
Unlike the missionary activities of the churches, the practical humanitarian activities of
modern government are crippled by the strictures of universal principles. The new economic
measures of the 1930s, observed Arnold, were heartily condemned before they were even tried
because they were said to violate unchanging legal and economic principles. Where these
principles are not threatened, the government can take steps to alleviate human problems with
dispatch and confidence. The attempted rescue of the American heroine, Amelia Earhart,
provided Arnold with an example. Here there was no conflict with spiritual principles because
“the doubts about spending every available national resource in the rescue . . . were confined to a
very few people.” 42 In an amusing passage, Arnold imagined how difficult it might have been to
initiate the rescue operation had the defenders of universal economic principles deemed it
unsound: “Everyone would have agreed that people in distress must be rescued. They would
have insisted, however, that the problem was intimately tied up with balancing the national
budget, improving the character of people lost at sea, stopping the foolhardy from adventuring
and at the same time encouraging the great spirit of adventure and so on ad infinitum.” 43
When universal economic principles are threatened, government finds itself powerless to
take practical action. Arnold illustrated his point by reference to a shanty colony in New York
City which was being removed to make way for a new building. The newspaper reports of
impoverished people leaving their makeshift dwellings evoked sympathy, but nothing could be
done about it. To give them a dole would have a tendency to undermine the principle of rugged
individualism. After the demolition work began, two unconscious men were found under one of
the dwellings. As if by magic, Arnold said, principles were forgotten and “pure benevolence took
charge.” The most expensive medical equipment was employed without delay. The objective was
to get the men to the hospital, not to discuss abstract philosophy. 44
Arnold believed that adherence to universal principles has always been the chief obstacle
to social experimentation and discovery. To those who fear social experiments, he replied: “. . .
the human race has caused itself more suffering because of its theories than by all the
experiments ever conducted. Revolutions are not carried on by experimentalists, but by people
who believe in theories with a fanaticism which allows them cheerfully to kill anyone who
40
Ibid., p. 30.
Ibid., The Folklore of Capitalism (New Haven: Yale University Press, 1937), pp. 16-17.
42
Ibid., p. 156
43
p. 157.
44
Ibid., Symbols of Government, pp. 47-48.
41
disagrees with even the details of their abstract formulae.” 45 According to Arnold, there are no
absolute or universal principles. Principles grow out of and must serve organizations. When
accepted and followed literally, universal ideals tend to impose unnecessary sacrifices on human
beings by crippling practical organizations.#
Arnold’s philosophical relativism was reinforced by his historical perspective. It is
primarily from history that Arnold learned to doubt the literal truth of today’s universal
principles. He pointed out that ideals thought to be universal truths in past historical epochs are
today widely recognized as folklore or superstition. Some of Arnold’s most brilliant and amusing
passages describe the similarities between yesterday’s folklore and today’s universal principles.
His discourse on the introduction of quinine as a medicinal agent is a good example of his witty
and revealing use of history.
When the Jesuits discovered quinine in 1638, its use as a drug was viewed as an alarming
departure from established healing methods such as the bleeding process. Since quinine did not
relieve the “noxious vapors” in the blood, it was only an “artificial panacea” despite the patient’s
delusion that he felt better. The leading thinkers of the day were convinced that the relief of a
few sufferers could never be worth the overthrow of all the medical principles of the past.46
Moreover, the Jesuits were regarded as “the most dangerous religious bureaucrats of the time.. .
.” Their remedies could not be adopted without adopting their pernicious religious principles.
“And so,” Arnold concluded, “the dreaded spector of Jesuitism hung over the use of quinine, as
Communism and Fascism hang over soil conservation and crop insurance today.” 47
How then, did quinine ever come to be accepted? “Fortunately,” said Arnold, “the
unlearned people of the time, like those of today, were constantly forgetting the great moral
issues of the future for the practical comfort of the moment.” Even so, quinine “had to be
introduced by a quack who concealed it in a curious compound of irrelevant substances.” 48
Arnold’s discourse on quinine throws both satire and historical perspective
simultaneously on the philosophical opposition to the New Deal relief measures. It also
demonstrates Arnold’s conviction that controversial social and economic measures must be
dressed up in irrelevant economic and legal symbols to gain public acceptance.
Two additional examples illustrate Arnold’s skillful use of historical satire against the
august legal and economic philosophers opposing the New Deal. He pointed out that during the
Middle Ages, the learned scholars of the University of Paris occupied an authoritative position in
medicine similar to the position of the United States Supreme Court in government. The attitudes
of these medieval scholars, he noted, were similar in many ways to those of the Supreme Court
justices:
They spent their lives studying those fundamental principles, the
violation of which brings ruin. Their logic was as unassailable as
the economic and legal logic of today. They had the same distrust
45
Ibid., “Theories about Economic Theory,” Annals of the American Academy of Political and Social
Science, vol. 172 (March 1934), p. 36.
46
Ibid., Folklore of Capitalism, pp. 56-57.
47
Ibid., p. 57
48
Ibid.
of immediate practical advantage, and the same fear of . . .
impending moral disaster lying in wait to destroy the national
character of a people who deserted fundamental principles to gain
present ends.49
Arnold satirized the conservative economists of the New Deal period in a similar fashion
by comparing them to the Roman augurs who “studied the flight of birds and examined the
entrails of geese.” When the Roman proconsuls proposed objectionable legislation, the augurs
would make their studies and discover bad omens for the future. 50
Arnold’s philosophical relativism, reinforced by historical perspective, was closely
related to his dislike of elaborate logical systems built on universal principles and formal
definitions. He disputed the notion that careful definition produces clarity in thinking. “It is not
generally recognized,” he argued, “that the more we define our terms the less descriptive they
become and the more difficulty we have in using them.” 51 Arnold asserted that the analyst of
social institutions should never try to define anything, and that he should attempt instead “to
choose words and illustrations which will arouse the proper mental associations with his
readers.” Max Lerner, in reviewing The Folklore of Capitalism, noted Arnold’s preference for
exposition by illustration. “The book,” he commented, “grows not by a series of syllogisms, but
by an aggregation of examples.” 52 Arnold believed that attempts at formal definition not only
make description difficult, but create a set of abstractions which become values in themselves:
“The actual result of dialectic definitions of social values is only to create a group of words like
fascism, communism, regimentation, bureaucracy, etc., which impede practical methods of
distributing goods.” 53
The purpose of logical definition, concluded Arnold, is not clear exposition but the
resolution of contradictory ideals within vague abstractions. “The law,” he observed, “which is
above all a method of reconciling conflicting ideals, becomes so heavy with definitions that it is
almost unintelligible.” 54 Arnold’s distrust of formal definitions and formal logic led him to
concentrate on a “series of observations” rather than the formulation of an integrated, logically
consistent philosophical system.
Although Arnold gave no precise definitions for his central concepts, his gift of clear
rhetoric rescued them from obscurity. Institutions are described as human organizations which
give prestige, morale, and purpose to their members. Institutions may be engaged in “practical”
functions like the production and distribution of goods, or in “ceremonial” functions which honor
the cherished ideals of society, or in both simultaneously. Ideals and Folklore are used
interchangeably; they are principles believed to be objectively true, but in actuality are
ideological supports for the prestige and morale of institutions. Symbols are given a broader
49
p. 55.
Thurman Arnold et al., The Future of Democratic Capitalism (Philadelphia: University of Pennsylvania
Press, 1950), pp. 1-2.
51
Arnold, Folklore of Capitalism, p. 180.
52
Max Lerner, “The Shadow World of Thurman Arnold,” Yale Law Journal, vol. 47 (March 1938), p. 689.
53
Thurman Arnold, “The Folklore of Mr. Hook-A Reply,” University of Chicago Law Review, vol. 5
(April 1938), p. 353.
54
Ibid., Folklore of Capitalism, p. 179.
50
connotation including both “ideals” (or “folklore”) and the many ceremonies by which society
dramatizes these ideals.
Another important characteristic of Arnold’s approach to social studies was his refusal to
be bound by the traditional boundaries of a single academic discipline. He believed that social
phenomena cannot be understood unless all their interrelated aspects are considered together.
Thus, Arnold described “political dynamics” as: “A science about society which treats its ideals,
its literature, its principles of religion, law, economics, political systems, creeds and mythologies
as part of a single whole and not as separate subjects, each with its own independent universe of
principles.” 55 He quoted approvingly from Charles H. Cooley’s Social Process wherein the late
professor of sociology asserted: “In social inquiries we are not dealing, usually, with distinct and
measurable forces but with a complex of forces no one of which can be understood and
measured apart from the rest.” 56
Arnold was of the opinion that the rigid separation of insulated disciplines prevents the
study of institutions as they actually operate. Thus, schools of economics blithely ignore political
implications. Arnold cited as an example an economist who opposed the gold purchase plan of
the New Deal period. When asked if he had considered the effect of the - plan on the farm strike,
he replied that this was a political consideration outside the realm of economic judgment.57
Arnold demonstrated that the artificial separation of economics, law, and sociology
enables these disciplines to base their principles on contradictory conceptions of human nature.
Economic man is an “automatic fellow” who operates on the principle of intelligent selfishness.
He does not need to be preached to because his sins automatically cancel each other. This is all
assured by economic laws which he cannot help following. 58 Legal man, on the other hand,
needs “to be preached to in order to save him from sin. He is capable of being trained by judicial
parables and statutory exhortation.” 59 Arnold explained that economic man usually operates in
larger affairs, while legal man is confined to minor ones. Thus, economic man justifies the
failure of the law to deal with matters of broad economic scope. 60
Selfish economic man and moral legal man, however, left practical humanitarian values
unrepresented in the academic world. To fill this gap a new discipline called sociology was
created, and the sociologist “represented a sort of humanitarian man, intent to discover ways and
means for the alleviation of human misery.” 61 The creation of sociology was a benefit to all
concerned because the philanthropists now had a separate logical domain of their own and
“would not interfere too much with legal or economic ways of thinking.” 62
Arnold’s broad holistic approach to social studies went beyond criticism of isolated, selfcontained disciplines. Polite chatting across established disciplinary lines is not what Arnold
55
Ibid., p. 349.
Ibid., “Review of Conflicting Penal Theories in Statutory Criminal Law by Mabel A. Elliot,” Illinois
Law Review, vol. 26 (February 1932), p. 722.
57
Ibid., “Theories about Economic Theory,” p. 28.
58
Ibid., Symbols of Government, pp. 77-78.
59
Ibid., p. 77
60
p. 81
61
p. 89
62
p. 88.
56
meant by broad-ranging social analysis. “Broad points of view,” he believed, “are not congenial
to the attitude which has departmentalized our institutions of learning.” The academic world has
been divided into “little irregular patches of domain.” The separate groups occupying these
scholarly dominions “have spent endless effort building books and articles on these properties”
and will not have them “taken away without due process.” For this reason, talking across
established boundaries is tolerated by academicians while crossing over them is not: “It is all
right for the neighbors to get together now and then for a housewarming or for a cooperative
effort. . . . But when one man crosses to his neighbors domain . . . as if he contemplated changing
the boundaries, he is greeted with suspicion and alarm.” 63
It is probably more accurate to describe Arnold’s broad-ranging approach to social
studies as “transdisciplinary” rather than “interdisciplinary.” Instead of talking across
boundaries, he believed in making the boundaries themselves less distinct. Specialists are needed
to view the social whole from a certain perspective. However, when scholars attempt to detach a
part from this whole and study it in isolation, distortion results. The pooling of resources by
specialists from such isolated disciplines is likely to produce “cross sterilization.”
Arnold combined a broad holistic approach to social studies with the perspective of an
anthropologist. This perspective is characterized by detachment from the prevailing norms of the
society under consideration. The first obstacle which confronts the anthropological observer is
the artificial separation of learned disciplines which prevents the study of institutions as they
actually operate. Arnold realized, however, that the fragmentation of the academic world has
deep psychological roots and will not yield to any simple reorganization plan. It is precisely
because insulated disciplines do not describe the actual operations of institutions that they can
continue to provide rational proofs of the prevailing legal and economic faiths. “Therefore,”
concluded Arnold, “he who seeks to unite the legal and the social sciences fails to recognize that
the climate of opinion which created them compels them to be kept apart. 64 Conventional
approaches to law and economics must, therefore, remain unchanged until the climate of opinion
changes.
Rather than destroying traditional approaches, Arnold recommended the introduction of a
new approach which he hoped the academic community would learn to tolerate along with the
old ones. He called this a “science about society” which is distinguished by its detachment from
prevailing mores and its study of society as “a single whole.” During his teaching years at Yale,
Arnold participated in introducing this new approach into the law school curriculum. He believed
that the inspirational study of law could coexist with the anthropological study about law.
Arnold contended that academicians, being mainly concerned with inspirational
philosophies of what society ought to be, leave to the politicians the task of dealing with society
as it is: “It is, I think, this habit of the philosophical mind of first determining what they want to
look for, before they actually look, which makes them inept in actual organization.” 65 This is the
reason, Arnold concluded, that “we always find politicians running the actual day-to-day
government while the intellectuals are writing its songs and poetry.” 66
63
Ibid., “The Jurisprudence of Edward S. Robinson,” Yale Law Journal, vol. 46 (June 1937), p. 1282.
Ibid., Symbols of Government, p. 103.
65
Ibid., “The Folklore of Mr. Hook-A Reply,” p. 351.
66
Ibid.
64
Arnold’s main interest was in the detached study of the ideals or folklore of
contemporary society. From such a study, one comes to recognize that “these ideals may have
little to do with conduct and yet much to do with acceptance and power.” The dissector of ideals
learns “what to expect of these values . .. in action” and to predict “the verbal expression of any
reform which gives it the best chance of public acceptance.” 67
The anthropological study of social folklore, in Arnold’s view, can loosen the
stranglehold of universal principles over practical organizations. By understanding the social
impact of ideals, organizers can manipulate them to gain acceptance for practical humanitarian
measures. Although Arnold confined philosophers to the cheerleading section of society, he
maintained that they are nevertheless essential. Society cannot live on practical organization
alone; it will always need its philosophical bards to provide the inspiration and the mystery that
all men, including the practical organizers, need.
Like Thorstein Veblen, Arnold used the anthropological approach as a subtle method of
social criticism. Max Lerner has observed that the writings of Arnold and Veblen are
characterized by “corrosive detachment” rather than overt social protest or utopian schemes.
Arnold’s Folklore of Capitalism, he concludes, “belongs in the category of corrosive books,
which eat away the past complacencies without the removal of which future constructions are
impossible.” 68 The spirit and style of Arnold’s social criticism are perhaps best captured in one
of his own terse comments. “Nothing disturbs the attitude of religious worship,” he said, “so
much as a few practical observations.” 69
Yet Arnold considered his primary purpose to be constructive rather than corrosive. His
objective was to fashion social reform out of a context of irrational folklore, for he believed more
firmly in the inevitable irrationality of politics than did most of the dissenting American
intellectuals of the late nineteenth and early twentieth centuries. John Dewey, John R. Commons,
Wesley Mitchell, and Charles Merriam, for example, were as acutely aware of the important role
of irrational symbols in politics as was Arnold. However, their primary concern was to lay a
reliable empirical foundation for more rational and scientific politics. Arnold, on the other hand,
concentrated on the political manipulation of irrational symbols for the purpose of social reform.
This aspect of Arnold’s thought has been noted by Max Lerner who distinguishes him from other
members of the school of “legal realism.” The realist, he points out, believes there is something
more “real” than the symbols of the law and goes off in pursuit of that something. Arnold, on the
other hand, became fascinated with the symbols themselves. “For he sees that the ritual holds a
subjective sway over men’s minds, largely because of its correspondence with their desire for the
dramatic and the symbolic.” 70
Arnold’s emphasis on the expedient use of irrational symbols and ceremonies also
distinguished him from Thorstein Veblen who, in many ways, can be considered his intellectual
predecessor. Veblen’s ideal was the rational productive engineer, while his scorn was reserved
for the ceremonial and ritualistic aspects of society. Arnold shared Veblen’s admiration for the
67
Ibid., “Law Enforcement-An Attempt at Social Dissection,” Yale Law Journal, vol. 42 (November 1932),
pp. 23-24.
68
Lerner, “The Shadow World of Thurman Arnold,” p. 688.
Arnold, Folklore of Capitalism, p. 30.
70
Lerner, “The Shadow World of Thurman Arnold,” p. 695.
69
productive technician, but, as one observer has noted, he also believed “. . . that irrationality
often serves social purposes, that men live by ideals and dreams, and not logic, and that the
ceremonies of law and business are often necessary if the institutions of law and business are to
retain men’s allegiances.” 71
Arnold’s advice to the social reformer was not to make politics more rational, but to learn
to use irrational symbols for practical purposes. “When institutions fail to function,” he asserted,
“reforms must be attempted with something like the same point of view with which a trained
psychiatrist reforms an individual.” 72 Such a point of view recognizes the importance of
irrational impulses in human behavior and attempts to direct those impulses into constructive
channels. The psychiatric viewpoint, applied to society, “recognizes that drama and ceremony
are as important as food and shelter and overemphasizes neither.” 73
Arnold shocked many of the readers of his Symbols of Government by boldly suggesting
that the art of government was similar to running an insane asylum wherein the opinions and
beliefs of the inmates are not taken literally but treated clinically.74 Arnold was suggesting, in
other words, that the attitudes of the public be psychologically manipulated by scientific methods
to make people more comfortable. The political scientist, he asserted, “may try to learn how to
harness the emotional reactions of people to words, and make them a tremendous source of
motive power.” 75
Arnold’s writings during the 1930s strongly urged politicians to make expediency, not
principles, their guide to action: “The idea that there are principles above political expediency
and that political expediency can never be a principle, [sic] is common to nearly all
governmental philosophy except that of Machiavelli.” 76 This idea, Arnold concluded, “lies
beneath our fear of taking any unprecedented action in an emergency.” Moreover, it stops
experimentation, “which is man’s greatest road to discovery.” 77
There is an apparent moral ambiguity in Arnold’s writings during the 1930s, for, while
counseling political expediency, he was also clearly committed to humanitarian principles. In
evaluating rising organizations, he contended that the observer needs only to worry about “the
character of the people who are gradually coming into power. Does he think that they are good
organizers and at the same time tolerant and humanitarian?” 78
Arnold’s humanitarianism was also manifest in his 1935 prediction of the social creed of
the future. He admitted that in making such speculations he had “deserted the objective position .
. . and become a preacher and an advocate, rather than an anthropologist.” 79 The fundamental
creed of the past was that man works only for his personal profit. This basic tendency, while its
excesses must be curbed by society, was considered part of nature’s great plan. The new creed,
71
Joseph Featherstone, “The Machiavelli of the New Deal,” New Republic, vol. 153 (August 7, 1965), p.
23.
72
Arnold, Folklore of Capitalism, p. 138.
Ibid.
74
Ibid., Symbols of Government, pp. 232-33.
75
Ibid., “Theories about Economic Theory,” p. 36.
76
Ibid., p. 29
77
Ibid.
78
Ibid., Folklore of Capitalism, pp. 341-42.
79
Ibid., Symbols of Government, p. 259.
73
said Arnold, will state that man works only for his fellowman, and this tendency, when properly
curbed, is the great plan of society.80 Arnold did not regard the humanitarian creed as any more
true or false than the vital, morale-building creeds of the past, e.g., that man works only for the
love of pure women, a future life, or personal profit.81 Arnold’s speculations on the social creed
of the future seemed to represent a value preference. Under the old economic creed, he observed,
there was incidental acknowledgment of the humanitarian, but the place of honor was given to
the man who worked for personal gain. Under the new creed, these roles are reversed,82 leaving
the very strong impression that Arnold preferred an ethical creed and a social system which puts
the humanitarian in society’s driver’s seat and the moneymaker in the rumble seat.
Arnold did not attempt to enshrine his humanitarian values in formal definition, but he
did give them a simple operational meaning in terms of maximum production and distribution of
goods in society. Institutions, he said, “are to be judged by their utility in the distribution of
physical comforts and in the development of an attitude of spiritual peace.” 83 The last phrase
constituted, for Arnold, a second value which puts certain limitations on humanitarianism itself.
“Spiritual peace” is related to tolerance. When a society marches single-mindedly to the tune of
one creed, spiritual peace and social stability are lost in suppression: “Fanatical devotion to this
single (humanitarian) ideal is such that it makes human liberty an unimportant value, and even
kindness is stifled for purely humanitarian motives. There are explosive dangers to world peace
and security in such fanaticism.” 84
The apparent moral ambiguity created by Arnold’s commitment to political expediency
above principle, and to humanitarian principle at the same time, becomes less puzzling when
viewed in the context of the Depression. Prevailing principles and ideals during the 1930s had
become intolerably at odds with humanitarian considerations. In 1930, for example, President
Hoover approved a Congressional appropriation to save the livestock of stricken Arkansas
farmers, but he opposed an additional appropriation to feed the farmers and their families. Relief
money from the government, he noted, “would have injured the spiritual responses of the
American people . . . we are dealing with the intangibles of . . . ideals.” 85 President Hoover’s
statement suggests that, during the early 1930s, acts of political expediency were the only way to
break the crust of traditional moral principles and to make way for humanitarian action.
The ideological spirit of the times largely explains how Arnold came to view moral
principles as anathema to humanitarian benevolence. The word “humanitarian” is associated in
his early writings with the word “practical” and with expedient action. Arnold’s rejection of
ideals as guides for political action represented his reaction to the growing disparity between
respectable legal and economic ideals on the one hand and humanitarian ideals on the other. Like
many dissident intellectuals during the late nineteenth and early twentieth centuries, Arnold was
revolting, not against moral principle itself, but against socially uninformed principles that had
become indifferent to human needs. As one observer has noted, “Like most great debunkers, he
80
Ibid., p. 263
p. 266
82
p. 263.
83
Ibid., Folklore of Capitalism, pp. 137-38.
84
Ibid., Symbols of Government, p. 264.
85
Richard Hofstadter, The American Political Tradition (New York: Vintage Books, 1961), p. 307.
81
[Arnold] seemed to attack all morality, but he was really only concerned to destroy any morality
that thought people should starve on principle.” 86
In later years, when Arnold observed the skillful use of psychological manipulation for
pecuniary purposes on the one hand and the growth of moral principles with humanitarian
purposes on the other, he came to trust expediency less and principles more. Max Lerner
anticipated the first of these developments by observing in 1938 that Arnold’s opportunistic
emphasis on effective techniques “if torn out of the context of Arnold’s own pattern, could be
fitted into a pattern that would begin to look sinister.” 87
Eighteen years later, in 1956, Arnold commented that “the new conception of governing
people by the manipulation of symbols and attitudes” had not brought pleasant results. It had
brought the psychological manipulations of modern advertising in place of the financial
manipulations of Wall Street. It had, moreover, “led to the belief of the Communist that he may
manipulate men’s minds with conscious hypocrisy.” 88 Arnold concluded that psychological
manipulation “has not been a unifying force and I have now come to the belief that moral
principles firmly believed in as a matter of faith are essential to freedom in any society.” 89 This
change of attitude toward moral principles is also evident in Arnold’s recently published
autobiography in which he commented on the “realistic” attitude of British and American
businessmen who felt it necessary to establish ties with Hitler’s economic cartels. “Realistic
thinking that conflicts with moral principles,” he asserted, “always leads to the wrong
conclusion. Such realistic thinking is not realistic at all.” 90
In recent years, Arnold also witnessed the growth of moral principles with humanitarian
purposes. He saw in President Johnson’s Great Society platform a “moral principle which, if
followed, will make us rich.” This principle “consists in the assertion that it is the duty of the
government to follow an economic policy that requires the full use of the productive capacity of
the nation.” 91 Arnold regarded the Great Society programs, and the expansionary economics on
which they were based, as a moral commitment to his long-standing humanitarian goal of
maximum production and distribution of goods in society.
Moreover, this moral commitment does not, like the creeds of the 1930s, impose
impossible standards on human nature and practical organizations. “Economic sacrifice,”
contended Arnold, “is something that cannot be expected in an economy based on private
enterprise in time of peace. But the policy announced by the President [Johnson] requires no
economic sacrifice. It will add to the profits of private enterprise instead of taking them away.” 92
Arnold seemed to have reached the conclusion that moral principles expressed in terms of human
need, and taking account of the imperfections of human nature, can be formulated and followed.
During the 1930s he doubted that such ideals would be formulated and, therefore, conceived of
all ideals as symbols to be manipulated rather than precepts to be followed. He later learned to
86
Featherstone, “The Machiavelli of the New Deal,” p. 24.
Lerner, “The Shadow World of Thurman Arnold,” p. 702.
88
Thurman Arnold, Selections from the Letters and Legal Papers of Thurman Arnold, collected by Victor
H. Kramer (Washington, D.C.: Merkle Press Inc., 1961), p. 55.
89
Ibid.
90
Ibid., Fair Fights and Foul, p. 84
91
Ibid., p. 285
92
pp. 284-85.
87
trust ideals more and the manipulation of symbols less. The evolution of Arnold’s attitudes
toward moral values marks a substantial change but not a reversal of his earlier views. He
retained the greatest admiration for a political leader who could get results by manipulating
symbols, of which Lyndon Johnson’s political skill in securing domestic legislation was a perfect
example. However, Arnold no longer accepted manipulation as a positive value in its own right;
it is a serious danger unless controlled by humanitarian purposes and social tolerance. The most
accurate conclusion is that Arnold’s early enthusiasm for opportunistic manipulation has proven
to be less important in his scheme of values than commitment to humanitarian principles.
Although committed to certain principles, Arnold saw no point in constructing elaborate
philosophical definitions of “the good.” Rather, he professed a simple humanitarian creed
expressed in terms of maximum production and distribution of goods in an atmosphere of social
tolerance. When asked in 1962 what philosophy he would recommend to a young man getting
started in today’s world, he replied with his usual clarity and simplicity, “A philosophy might
consist in not being too selfish in his efforts, not too materialistic, recognizing that there are great
humanitarian objectives in society.” 93 The philosophically inclined have always found it
impossible to obtain pontifical moral pronouncements from Arnold. If asked where one should
look to find moral truth, he would probably have replied, “At the bottom of a well, I would say.
That’s where truth lies.” 94
.
93
94
Ibid., “Advice to a Young Man,” Changing Times (June 1962), p. 20.
Ibid.
CHAPTER III
SYMBOLS AND INSTITUTIONS
Thurman Arnold’s most important contribution to American social and political thought
was his theory of the interrelationships between social symbols and institutions. By institutions,
Arnold meant human organizations that give prestige, morale, and purpose to their members.
Social symbols refer both to social ideals and to the many ceremonies by which society
dramatizes these ideals.
Arnold did not view ideals in terms of transcendence, but in terms of human
organizations. He asserted that “philosophies have no meaning apart from organizations.” It is
fruitless, he believed, to argue about whether the philosophy or the organization comes first. It is
sufficient to say that “they grow up together and each molds the other.” 1 Arnold described
institutions and their ideals as “living organisms” similar in many ways to human personalities.
They are “. . . molded by habit, shaken by emotional conflicts . . . constantly making good
resolutions . . . and never quite understanding themselves or the part they are actually playing
because of the necessary illusions with which they must surround themselves to preserve their
prestige and self-respect.” 2
Men engaged in continuous cooperative activity, Arnold contended, develop
organizations. These are held together by discipline, habits, and morale which taken together
may be described as the organization’s “personality” or “character.” Once it is formed, the
personality of an organization “is as difficult to change as the habits of an individual.” 3
Moreover, institutional personalities, like human personalities, are made up of “a whole bundle
of contradictory roles.” Thus a business corporation is supposed to make money for its
stockholders by hard bargaining and at the same time is supposed to represent the best in morals
and ethics.4
Just as ideals hold human personality together, so social symbols maintain cohesion
within institutions. A commonly accepted creed, a set of institutional habits by which men
cooperate automatically and unconsciously, and a mythological tradition are absolutely
necessary. Without them, “organization can be maintained only by force, and force cannot be
continued long because it is too exhausting.” 5
Arnold compared social symbols to folklore or superstition. When institutions are
functioning effectively it is the power of superstition rather than the power of reason which holds
them together.6 The cohesive and morale-building functions of folklore, however, depend on its
being accepted literally. In 1937, Arnold noted that no one thought of sound principles of law
and economics as folklore. They were considered inescapable truths, as the only method of an
1
Arnold, “The Folklore of Mr. Hook—A Reply,” p. 353.
Ibid., “Law Enforcement—An Attempt at Social Dissection,” pp. 3-4.
3
Ibid., Folklore of Capitalism, pp. 350-51.
4
Ibid., p. 355 5 pp. 24, 26 6 p. 136 7 p. 46.
5
pp. 24, 26
6
p. 136
2
ordered society. All vital folklore must be so accepted. The moment it is recognized as folklore,
it “descends to the place of poetry or fairy tales which affect us only in our romantic moments.” 7
Although ideals and institutions are related in common development, they remain
separate in two important ways: ideals do not describe or guide the actual workings of
institutions. Arnold limited the function of ideals to building morale and confidence in human
organizations. An efficiently organized society, he asserted, is one where “ideals protect its
institutions from criticism and permit them to function with confidence without either guiding
them or interfering with them.” 8 This requires the development of separate institutions which do
not collide with each other. One of these institutions is concerned with “the practical
organization of men into productive groups. The other is concerned with the embodiment of
spiritual ideals. “Where the spiritual government allows the practical institutions the most
freedom, there we find the greatest progress and development.” 9
“The logical content of creeds,” Arnold argued, “never realistically describes the
institutions to which the creeds are attached.” 10 Moreover, creeds do not control the actual
workings of institutions. Men in control of political or business organizations do not use the
philosophical literature of law and economics in their daily operations. “They, nevertheless, take
great comfort in the fact that it is being produced in order to give stability to the . . . ideals on
which their prestige is based.” 11
Whereas most thinkers would agree that institutions seldom live up to their ideals, few go
as far as Arnold in consigning theory and practice to separate categories. Arnold’s position
should not be confused with the more commonly held belief that although institutions cannot
completely live up to their ideals, they can approach those ideals with effort. Arnold’s
contention was that effective institutions must find ways to keep their theories conveniently
separated from their practices: “Social institutions require faiths and dreams to give them morale.
They need to escape from these faiths and dreams in order to progress . . . governing institutions
must pretend to symmetry, moral beauty, and logic in order to maintain their prestige and power.
To actually govern, they must constantly violate those principles in hidden and covert ways.” 12
For this reason, Arnold believed that devotion to consistency is harmful to practical
organizations. Those who try to make institutions live up to their ideals have a destructive rather
than a constructive effect. “The history of human organization,” he observed, “is strewn with the
wreckage caused by people who tried honestly and sincerely to follow the logical implications of
accepted doctrine.” 13
Because Americans have more difficulty than, for example, the British in living with the
inconsistencies between ideals and institutions, it has been necessary to create the appearance of
consistency. Sometimes a “simple ceremony” is all that is required to reconcile ideals with
institutional practice. For example, equality and democracy in hierarchical industrial
7
p. 46.
Ibid., Symbols of Government, p. 123.
9
Ibid. Emphasis mine.
10
Ibid., Folklore of Capitalism, p. 33.
11
Ibid., p. 84.
12
Ibid., Symbols of Government, p. 229.
13
Ibid., Folklore of Capitalism, p. 378.
8
organizations are represented by employer-employee banquets and by literature in the Horatio
Alger tradition. 14
Simple ceremonies will not suffice when disparities between theories and practice
become too obvious to be concealed easily. In such times of spiritual confusion there is a
proliferation of philosophical literature that seeks to reconcile inconsistencies: “When symbols
or beliefs have no relation to what men see before them . . . men must drown their observations
in doctrine and philosophy . . . mystical literature increases by leaps and bounds, becoming more
and more abstract as it grows.” 15 Thus, Justice Sutherland’s philosophical doctrine that
minimum wage legislation for women destroyed their freedom of contract was a natural
outgrowth of a period of spiritual conflict. 16
The ceremonies and doctrines of the conservatives, however, are seldom convincing to
the radicals who develop their own set of ideals to justify change. Philosophical learning, and the
public debate that accompanies it, serves each side by creating enthusiasm and quieting doubt.
Such debate is ceremonial in nature and “can have nothing to do with the actual practical
analysis of facts.” 17 Political debate, Arnold concluded, “is in reality a series of cheers in which
each side strives to build up its own morale.” 18
It is clear that Arnold was sharply at odds with the libertarian-Jeffersonian assumptions
concerning the function of public debate in a free society. According to these assumptions,
public debate informs citizens, develops their capacity for critical thought, and influences their
final decisions. Arnold’s view attacked these assumptions. Political opinions, he believed, grow
out of loyalty to organizations, which, in turn, is a product of habit and custom, not of reason and
deliberation. Public debate, therefore, neither informs citizens nor determines their political
preferences. These are predetermined by habitual loyalties to organizations which give their
members prestige and morale. Public debate does not operate to inform the public, but rather to
“reconcile the spiritual conflict within an organization and to attract followers to that
organization by appealing to their prejudices.” 19 Paradoxically, although Arnold decried the
assumptions of the libertarian-Jeffersonian tradition, he was a strong supporter of the freedoms
of speech and press. This derived partly from his commitment to a tolerant humanitarian society
(see Chapter II) and partly from his conviction that ceremonial philosophy and debate are as
inevitable in the drama of human existence as are fancy clothes and tablecloths.
Arnold’s conception of the relation between ideals and institutions was derived largely
from his observations of American society in the period preceding the Depression. He noted that
the prevailing economic creeds gave business organizations freedom of action and at the same
time protected them from their enemies. Although businessmen could use the doctrine of laissez
faire to ward off governmental regulation, they were not required to follow the doctrine to its
14
Ibid., p. 358
p. 192
16
p. 150.
17
Ibid., p. 379
18
p. 359
19
p. 380
15
logical conclusions. Thus, while laissez faire economists preached international free trade,
laissez faire businessmen insisted on letting protective tariffs alone. 20
The prevailing doctrines of free trade provided a safe context within which public debate
could take place. Reformers usually limited themselves to demands that business organizations
live up to their own ideals which, observed Arnold, was “an essentially impossible task.” The
battle over principles, therefore, remained at a level which did not “permit the spiritual
government seriously to interfere with the operation of the great temporal institutions.” When
reformers succeeded in passing antitrust laws and other measures, business institutions easily
adapted themselves “leaving older reformers disillusioned . . . and a newer set carrying on the
banner.” 21
Probably the most important creed supporting business supremacy in the pre-Depression
period was the notion that private corporations were individuals. These organizations were
known to dominate the distribution of necessities such as light, heat, housing, and transportation;
yet economic and legal theory viewed them as “rugged individuals” rather than private
governments.22 In actual practice, contended Arnold, business organizations were much more
like disciplined armies than individuals. Business discipline was expressed in terms of hard
work, instant obedience, and loyal cooperation with superior officers. “The penalty for lack of
obedience and loyalty was discharge from the business army.” 23 Although the ideal of the
corporation as a “rugged individual” did not describe the actual workings of private
organizations, it vested them with power and prestige: “The ideal that a great corporation is
endowed with the rights and prerogatives of a free individual is as essential to the acceptance of
corporate rule in temporal affairs as was the ideal of the divine right of kings in an earlier day.”
24
Men come to believe that their personal freedom is tied up with the freedom of private
corporations from regulation. Similarly, men in the Middle Ages believed that their salvation
depended on reverence and support of great ecclesiastical organizations. 25
The ideal of individualism, Arnold said, grew out of our pioneer civilization which both
practiced and preached the independence of the free man from central authority. The subsequent
growth of corporate organizations in which most men were employees and a few at the top were
dictators contradicted the individualistic pioneer philosophy. Yet new mechanical techniques
demanded new organizations in which work became specialized so that no man could operate by
himself. To reconcile this contradiction, the philosophical doctrine was developed that
corporations were individuals. Thus, the pioneer ideal became the “mystical philosophy that put
the corporate organization ahead of the governmental organization in prestige and power, by
identifying it with the individual.” 26
Arnold cited the theory behind the antitrust laws as a leading example of the
personification of corporations. The theory was that corporations were not organizations to be
controlled but individuals who must be punished if they did not compete fairly. Like individuals,
20
p. 112.
Ibid., Symbols of Government, p. 124.
22
Ibid., Folklore of Capitalism, pp. 107-08.
23
Ibid., p. 215
24
p. 185.
25
Ibid.
26
Ibid., pp. 185-87
21
some monopolies were reasonable while others were unreasonable. This misconception led to
great confusion in enforcement of the antitrust laws. The result, Arnold said, “was the same as if
the courts in time of war should lay down and clarify the principles of what were reasonable and
unreasonable combinations of troops.” 27 Effective regulation of large combinations of
corporations was impossible as long as the folklore of the times conceived of them as individuals
rather than as disciplined organizations. The antitrust laws actually became “the great bulwark of
defense of these organizations against any regulation whatever.” They offered an “escape valve”
through which the energies of reformers might be spent and, at the same time, allowed the great
corporations to go on undisturbed. 28
Viewed from another perspective, the antitrust laws were an example of a ceremony
which reconciles the conflict between an ideal and a practical need. The ideal of rugged
individualism conflicted with the growing need of Americans for mass-produced goods. It
became necessary to develop a procedure to attack bigness on moral grounds and, at the same
time, not seriously to interfere with the large corporations needed for mass production. The
antitrust laws provided the answer for Americans who “felt the need of great organizations, and
at the same time had to deny them a place in the moral and logical ideology of the social
structure.” 29
In times of prosperity the antitrust laws reinforced the image of corporations as
competing individuals. In times of economic adversity the same function was performed by what
Arnold referred to as the “ritual of corporate reorganization.” Arnold became familiar with the
reorganizations which accompanied corporate insolvency as a trial examiner for the Securities
and Exchange Commission during the mid-1930s. The central idea of the ritual, according to
Arnold, was the personification of corporations as individuals who must pay their debts or atone
for not paying by giving up all their property. Of course, the great corporations were not
“property” that could be bought or sold. Their value consisted of their organization, discipline,
and morale. These institutional habits, commented Arnold, could no more be “bought” as
tangible property than the Republican party in New York could “buy” the successful Vare
machine in Philadelphia so that they could beat Tammany Hall. 30
Corporate reorganizations actually had little to do with individuals paying their debts or
atoning for not paying them. They were in reality political struggles between contending groups
for the control of great organizations. The contenders planned their campaigns in accordance
with the accepted symbols of debts, credits, and sales. The drama of reorganization was played
before a court. On the judicial stage, “no one was permitted to talk naturally about the facts of
financial life and politics.” 31
But if one looked behind the judicial drama of an execution sale, he discovered a struggle
between sub rosa political machines “using patronage, demagogic appeals, and all the favorite
devices of such machines to influence and control the vast unorganized mass of individual
creditors.” 32 As in most political campaigns, said Arnold, the “ins” had the advantage over the
27
p. 215
p. 216
29
p. 211
30
p. 235.
31
Ibid., p. 237
32
p. 239
28
“outs.” The “outs” used the same symbols in their campaigns as are found in a national election;
they charged the “ins” with corruption, failure to balance the budget, and dominance by selfish
financial interests. The “ins” replied by charging the “outs” with being radicals and advancing
“unsound” economic schemes. And both parties always expressed intense concern for the “little
fellow.” As soon as the creditors had elected their leadership (usually the “ins”), the contenders
stopped attacking each other and accepted the chosen administration. “The voter had about the
same knowledge of what was going on as in the ordinary municipal election.” 33
The “ritual of corporate reorganization” was significant in that it gave the sub rosa
machines within private organizations great freedom to maneuver. The folklore that personified
corporations also gave them great freedom of action in taxing and spending.
The folklore of the day, Arnold said, protected private expenditures, no matter how
fantastic, from criticism or investigation. Such spending was considered that of a free individual
spending his own money. The same folklore hampered government spending by associating it
with the unpleasant symbol of the tax gatherer.34
One method by which private organizations collected revenue was by offering
opportunities for investment. When an investor lost his money it was not considered a tax but a
lesson to him to listen to the advice of sound bankers. When the public generally lost money, it
was still not considered a tax but rather “a regrettable lack of judgment on the part of the public.”
35
By means of this folklore, business activity came to be associated with the pleasant
symbol of the individual buying freely in the market place. Government activity became
associated with the unpleasant symbol of compulsory taxation. So odious were the symbols
surrounding government spending that the collection of income taxes “became a combat .. . in
which 45,000 registered lawyers and tax accountants were pitted against some 2,800 persons
employed by the government.” A respected business leader like J. P. Morgan could remark, “If
the government cannot collect its taxes a man is a fool to pay them.” No respectable person,
however, could make the statement that if a bank is unable to collect its notes, a debtor is a fool
to pay them. 36The prevailing folklore caused people to prefer the services of the great industrial
organizations and to distrust those provided by the government. Rents, light, heat, and
transportation were regarded as services purchased voluntarily while police protection, libraries,
and parks were paid for involuntarily by taxes. The real danger to the income of the small man
was, therefore, taxes—not prices.37
The folklore of the pre-Depression period, Arnold concluded, operated to produce two
kinds of institutions: one called “business” concerned itself with the practical matters of building
cities, distributing -goods, and holding control over the lives of millions; the other called
“government” was concerned with the embodiment of spiritual ideals. Government was limited
33
pp. 240-41
p. 263
35
pp. 264-65.
36
Ibid., pp. 322-24
37
pp. 267-68
34
to its spiritual role by the judicial system, which reflected the view of most Americans that the
government should confine itself to preaching. 38
The neat separation of practical and spiritual institutions worked extremely well before
the Depression. “This philosophy,” observed Arnold, “gave enough freedom for opportunistic
action to our temporal industrial government to make it one of the marvels of the world in
productive efficiency.” 39 Arnold was deeply impressed with what practical organizations could
achieve with the aid of a favorable set of ideals. The folklore of capitalism, he said, made
businessmen the least hampered group, and therefore the group with the highest morale in
American society. “It is out of that group that our discoveries and achievements in human
organization have come.” 40
For this reason, private government “was impregnable from the attacks of reformers so
long as it continued to keep order in the industrial world.” 41 Privately maintained order and
prosperity broke down with the advent of the Depression. A large gap appeared between the
needs of the American people and the ability of private government to fill them. Men were no
longer assured of jobs, housing, food, and clothing —much less a high standard of living. When
government moved to fill this gap, it was met by the mighty impact of prevailing ideals which
cramped all its attempts to develop new organizations and techniques. Creeds that had made
possible the creation of mighty business organizations now obstructed the development of new
governmental organizations struggling to fill social and economic gaps. Arnold stated that his
purpose was not to attack the “folklore of capitalism,” but to explain the ideological difficulties it
creates for new organizations attempting to provide the security no longer provided by “the
industrial feudalism.” 42
The great difficulty, according to Arnold, is that the mythical ideals which allowed
business to be practical and efficient behind the scenes make it exceedingly difficult for
government to be efficient at all. During times of spiritual confusion like the Depression,
unrealistic ideals become standards by which new organizations are judged. In such an
atmosphere, it is impossible to make evaluations in terms of practical performance.
The great battle in the 1930s did not concern the practical effects of governmental
programs, but whether or not capitalism was worth preserving. Practical plans had to be tested by
economic theorists “who looked at each practical measure through the spectacles of economic
abstractions in order not to be confused by immediate objectives.” Child labor laws had to be
debated, not on the basis of the desirability of children working but in terms of “its effect on the
American home in ten years, if it were followed to its logical conclusion.” 43 A choice among
practical alternatives was made impossible by “the holy war between Capitalism, Communism,
and Fascism.” Soil conservation and crop insurance programs could never be judged practically
so long as they were viewed in terms of the alien creeds of Communism and Fascism.
38
p. 110
p. 108.
40
Ibid., Symbols of Government, p. 238.
41
Ibid., p. 240.
42
Ibid., Folklore of Capitalism, p. 205.
43
Ibid., p. 61
39
During the spiritual confusion of the Depression period, it was assumed that principles
were more to be trusted than organizations. Organizations might stray, but principles endured
forever. Such a philosophical climate made it exceedingly difficult for new organizations to get
started. “The greater the philosophical learning of the time,” said Arnold, “the more difficult it is
for new organizations to find a place in the logical structure of government.” 44
The emphasis on principles rather than the practical performance of organizations causes
an ideological rigidity which makes gradual and orderly change more difficult. The rise of
revolutionary theorists, said Arnold, “is generally a direct result of a devoted belief of
conservatives that there should be no compromise with principle.” 45 Compromise becomes more
difficult when debate is shifted from the uncertainties of practical affairs to the certainties of
opposing schools of learning.- Learned philosophical discourses rarely change opinions. Rather,
they give greater certainty and rigidity to existing ideological divisions.
A central part of the “holy war” between principles in times of stress is what Arnold
referred to as the myth of “the thinking man.” “The thinking man,” he observed, is “the
gentleman who accepts sound and rejects unsound principles.” Education, a free press, and
unlimited public discussion are aids to his unemotional and unbiased decisions. 46 The modern
symbol of “the thinking man” responding to reason has replaced the medieval symbol of “the
believing man” responding to faith. These different symbols, however, represent the same social
phenomenon: the application of universal principles as weapons against new forms of social
organization. In both cases a Devil is discovered who is leading the righteous away from sound
principles. In the Middle Ages, -the “heretic” was the incarnation of the Devil; in modern times,
the role is played by the “demagogue.” A Hell is also invented as punishment for accepting
unsound principles. The eternal fire and brimstone of the Middle Ages served the same purpose
as the specter of inflation, destruction of individual initiative, and bureaucratic controls serve in
America. Finally, a priesthood is needed to prescribe sound principles to which righteous men
will respond. The clergy of the Middle Ages served this purpose as do the respectable lawyers
and economists of modern capitalism. 47
The spiritual conflict between the practical needs of a people and their prevailing ideals
shapes the new organizations which arise to fill in the gaps left by old organizations. Where a
practical need is not accepted as moral or legitmate, undercover or sub rosa organizations will
arise to meet the need. These organizations “will be . . . tolerated as a necessary evil, in the same
way that the Church accepted the existence of the Devil.” 48 During the prohibition experiment,
for example, a vast organization of bootleggers became necessary to meet the demand for liquor.
These organizations were publicly denounced and a few of their leaders put in jail; however, the
moral censure never went so far as to stop the supply of alcohol. 49
Arnold explained the existence of political machines in a similar fashion As long as the
provision of a certain amount of material security was not considered a legitimate function of
government, the task was performed by sub rosa political machines run by relatively
44
p. 90.
Ibid., p. 92
46
pp. 6-7
47
pp. 4-5
48
pp. 365-66
49
p. 113.
45
unscrupulous persons. Arnold cited the following comment by a member of a corrupt, large city,
political machine who dispensed favors to some thirty families: “These people do not want to
vote for gangsters. But they know that if I am out of power they will be turned over to a cruel
system of charity. Can you blame them if they . . . (do not) vote for an administration which . . .
(tells) them that they should willingly suffer indignity for the sake of decreasing the burden on
large taxpayers. . . .” 50 “It is therefore natural,” concluded Arnold, “that the country whose
theories of government are the most unrealistic in the world should develop the greatest and most
powerful sub rosa political machinery.” 51 When a governmental function finally comes to be
accepted as legitimate, undercover organizations disappear and a more scrupulous class of
people comes to power.
New organizations must necessarily be nonrespectable at first, yet they are the most
important force generating social change. “Probably the only way in which mythologies actually
change,” observed Arnold, “is through the rise to power of a new class whose traditional heroes
are of a different mold.” 52 When a ruling class associated with older institutions ceases to
distribute goods according to the demands of a people, a new class appears to meet the demand.
The new class is looked down upon at first, but gradually creates a mythology of its own.
Finally, this new creed comes to be accepted as the standard of respectability 53
During the Middle Ages, for example, merchants and bankers had no prestige in a society
based on feudalism and chivalry. When the practical need for banking and credit began to be felt,
only the despised Jewish moneylenders could fill it. Later the ideals and practices of this
nonrespectable class became the standard of respectability embodied in the successful
businessman. The governmental organizations of the 1930s, said Arnold, found themselves in the
position of the medieval moneylenders. They were under pressure to fill practical needs
neglected by the older social order, but met with the same “theological opposition” which
confronted the growth of private banking in the Middle Ages. 54
Not only must new organizations pass through a period of nonrespectability, they must
also pass through a period of confusion and fumbling; and private business organizations are no
exception. United States Steel, said Arnold, “is a gradual development from complete anarchy.. .
.” 55 These organizations, however, were protected in their growing stages by a set of symbols
which allowed them to make mistakes. Corporations were individuals who could do as they
chose with their property, whereas the new governmental organizations of the 1930s had no set
of symbols to protect them from criticism. When they erred, it was considered a tax on posterity.
The standards of the day, said Arnold, required “that a governmental organization should be
mature when it is born.” 56
New organizations must go through a difficult period of self-justification before they can
make practical management their chief concern. Legislation which creates these new
organizations must be a kind of political platform which authorizes a new program. Its purpose is
50
Ibid., p. 370
p. 115
52
pp. 37-38
53
p. 38
54
pp. 2-3.
55
Ibid., p. 329
56
Ibid.
51
not to provide a detailed blueprint for the future, but to get a new idea accepted and a new
organization started: “The first function of such legislation can be only to give an organization a
respectable place in which to begin the necessary fumbling which all growing institutions have to
go through with.” 57 When the new activity is finally accepted as a commonplace thing for
government to do, “management becomes more important than logic, and the inherent organizing
ability of a people gradually gets under way while intellectual conservatives and radicals battle
over something else.” 58
Arnold’s emphasis on the confusion and fumbling of new organizations is closely related
to his theory of social change. He is strongly committed to gradual orderly change as opposed to
violent revolutionary change. “The only path of orderly social change,” Arnold commented,
“leads through a confusion of principles.” 59 The sudden imposition of clearcut and logical
principles is usually accompanied by violence. When a nation becomes so devoted to a single
ideal that it rejects all competing values, it becomes cruel and intolerant. “Thus, it appears that
the more illogical the process of social change is, the less disorder and repression accompany it.
By proceeding in different directions at the same time, the ancient habits of thought are
preserved while molding them to new needs.” 60
The operation of conflicting ideological forces in times of social change, observed
Arnold, is reflected in the confused picture of the New Deal legislation. The National Recovery
Act, for example, “unified under its slogans more of the contradictory ideals which were
generally accepted than any other piece of legislation.” 61 The Social Security Act also
represented all of the conflicting ideals of the time. The Act was like a pension; it was like
insurance; it recognized the doctrine of states rights, and the notion that government should not
interfere with business. 62 The Act was based on the assumption that “we could afford to go
through the period of confused bookkeeping necessary while the new institution . . . struggled to
get itself into working order.” The importance of the Social Security Act was “its
acknowledgment of a social obligation dressed in the ideas of a time before such a social
obligation was recognized.” 63
Arnold contended that when new governmental programs are initiated they must be
dressed in the prevailing symbols of the time, even though these symbols do not accurately
describe the operations of the programs. Thus, when the national government undertook new
programs for the distribution of food, power, or the financial support of businesses in economic
distress, it had to pretend that it was an individual buying and selling in a competitive market.
This symbolism was necessary for it to obtain freedom of action. 64
Arnold believed that the development of institutions involved both technical and
psychological problems. His chief concern was with the latter. Institutional reform, he
maintained, “must be attempted with something like the same point of view with which a trained
57
p. 330
p. 331.
59
Ibid., Symbols of Government, p. 114.
60
Ibid., p. 247
61
p. 112.
62
Ibid., Folklore of Capitalism, p. 380.
63
Ibid., Symbols of Government, p. 122.
64
Ibid., p. 235.
58
psychiatrist reforms an individual.” 65 This point of view recognizes that institutions have what
Arnold liked to call a “subconscious mind.” By this he meant that the moralistic rationalizations
of institutions rarely describe or explain their actual workings. Arnold was of the opinion that the
psychiatric approach to institutional reform avoids the misconception that caused reformers to
fail in the past, i.e., that government must be logical and consistent. Reformers must come to
accept the irrational motive forces of politics just as psychiatrists have come to accept the
irrational motive forces of the human personality.
The acceptance of irrational creeds and symbols opens the door for the objective study of
these powerful forces and their eventual use as a means of social control: “Men are coming to
realize that political government is necessarily a dramatic spectacle, that games are really
important in the growth and development of institutions, and that these games can be controlled.”
66
Arnold wished to exert social control for the purpose of widespread distribution of the
nation’s wealth. If, by the manipulation of symbols, Americans could become as enthusiastic
about achieving this goal as they have been about achieving victory in war, their
accomplishments would be unprecedented.
Many of the psychological problems afflicting new institutions, Arnold thought, are
directly traceable to the attitudes of the more educated segment of the American population,
although there is no doubt about the intelligence and good intentions of this group. Moreover, it
constitutes “the only class from which orderly change without violent social dislocation can be
hoped,” yet it is this class which is most enslaved by prevailing symbols: “. . . they are the very
ones who are most readily prevented from reacting in a common-sense or humanitarian way,
because they are the group which has been doing the reading and thinking, i.e., worshiping in
connection with existing organizations.” 67
These educated, respectable people, believing in consistency of principle and practice, are
repelled by the opportunistic use of symbols. Control of these techniques, therefore, falls into the
hands of less scrupulous people called “politicians.” When respectable people learn to accept and
use irrational symbols, the quality of political leadership improves. Grosser and more unpleasant
forms of political chicanery disappear. 68 Arnold concluded that if more members of the
educated, respectable class in America would learn to appreciate the psychiatric approach to
symbols and the political techniques that go with it, the process of social change would become
more orderly and humane.
Arnold denied that his psychiatric approach is a universal truth in which all men should
believe. He saw it as a desirable attitude only for those who study and manage governmental
institutions. Most citizens will continue to think in terms of a religion of government rather than
a science of government. Neither of these viewpoints, insisted Arnold, is more “true” than the
other; both are needed at different times. “When . . . a person needs cheer or decoration it is well
to call in an artist. When he requires a diagnosis, he needs a physician.” 69 Thus, Arnold believed
65
Ibid., Folklore of Capitalism, p. 138.
Ibid., pp. 343-44.
67
Ibid., Symbols of Government, pp. 251-53.
68
Ibid., Folklore of Capitalism, p. 44.
69
Ibid., Symbols of Government, p. 229.
66
that the inspirational ceremonial orientation is just as “real” a part of life as the objective
practical orientation. He does not wish to unite these two spheres but rather to bring them into a
kind of peaceful coexistence. In Great Britain, Arnold pointed out, relatively peaceful
coexistence between these two spheres allows royal ceremonies to be carried on enthusiastically
while practical men are free to direct state affairs behind the scenes.
Because creeds and ceremonies play such an important part in human affairs, new
institutions must develop a mythology of their own if they are to gain a respectable place in
society. This mythology cannot be a new and unfamiliar formulation. It must be “selected out of
the mass of conflicting ideals which exist in the culture by a process not unlike the development
of language.” 70
Arnold’s writings over the years are not explicit or consistent concerning the content of
the new creed that organizations of the future will employ. This is partly because he believes that
no one can accurately predict the creeds of the future, and partly because creeds must be
opportunistically adapted to the practical needs of the times. In The Symbols of Government,
however, Arnold did allow himself to speculate concerning the creed of the future. A new
humanitarian creed, he observed, whose axiom is that man works for his fellowman is appearing
all over the world. This creed is no more descriptive than the capitalistic creed that man works
for his own selfish interests. The important point is that it promises to bring order and morale to
new organizations. In America, new nonprofit organizations are “arising out of confusion rather
than revolution” and are rapidly growing in prestige as new governmental obligations are
recognized in areas that were formerly reserved to private charity. Writing in 1935, Arnold noted
that “the greatest employer of labor in the country is not an industrial baron, but Harry Hopkins,
a social worker.” 71
Writing two years later in The Folklore of Capitalism, Arnold was must less explicit in
describing the creed of the future. A new creed was being born, he said, which had no formulas
but was represented vaguely by the personality of Franklin Roosevelt. It expressed “. . . the
current distrust of old myths and the belief that the government has a new role to play in
providing for security of individuals in their jobs and in the distribution of goods.” 72
Three decades have passed since Arnold made his trenchant observations concerning
symbols and institutions in his two major works, The Symbols of Government and The Folklore
of Capitalism. The vast economic changes which occurred over this period caused him to modify
some of these observations substantially.
The ideals and symbols which stood in the way of government regulation of business,
Arnold noted not long before his death, have all but disappeared. He felt that his observations on
“the personification of corporations” and “the ritual of corporate reorganization” were “largely
obsolete today.” The vast regulatory bureaus of government had “lost their radical tinge” and had
“obtained an almost invulnerable place in the hierarchy of our institutions.” 73
70
Ibid., Folklore of Capitalism, pp. 161,162.
Ibid., Symbols of Government, p. 264-65.
72
Ibid., Folklore of Capitalism, p. 391.
73
Ibid., “The Folklore of Capitalism Revisited,” Yale Review, vol. 52 (December 1962), p. 193.
71
Nevertheless, Arnold pointed out that many of the psychological problems faced by
government bureaus in the 1930s remained to plague them in the 1960s. In The Folklore of
Capitalism, he observed that institutions, like human personalities, “become very much like the
little pictures which men have of them.” Thus, if a government organization is viewed as a
“useless bureaucracy,” those who work for it will come to resemble that image. 74 In 1965, he
noted that these negative public attitudes about bureaucracy and bureaucrats remain as a
“psychological millstone” around the neck of government operations. Only at the top echelons of
government service does an “atmosphere of dignity and prestige” exist. Below this level,
government career men are regarded as “mere bureaucrats.” Arnold observed that the housing
provided for government workers remains a symbol of the public’s disrespect for bureaucracy.
“Artistic decoration of these stark, boxlike structures is absolutely prohibited.” He concluded that
“An atmosphere of respect and dignity, in which the government servant can hold up his head,
must be . . . created.” 75
Although the symbols which prevented the acceptance of government regulation of
business have largely disappeared, Arnold acknowledged that nineteenth-century economic
symbols still cause confusion in the area of monetary and fiscal policy. These symbols center
around the idea that the wealth of a nation consists of its money supply rather than its productive
capacity. This idea has made educated voters the “prisoners of an obsolete bookkeeping system”
based on the notion that “the production of goods should be cut down to fit the supply of money
and credit instead of increasing the amount of money and credit to fit the expanding industrial
capacity of our productive plants.” 76 Under such a system of bookkeeping, the government is
prevented from effectively using the nation’s resources for a wide variety of badly needed public
services. The old system of bookkeeping was well suited to the nineteenth century when our
productive capacity was not great enough to support public projects without the danger of
inflation. It is, however, badly outmoded in the 1960s “when our productive capacity is so great
that only 75 per cent of it can be absorbed by the purchasing power created by private credit.. . .”
77
The huge expenditures of the Vietnamese war did not alter Arnold’s conviction that our
inadequate supply of public services is not due to a physical lack of capacity but to a
psychological lack of determination. 78
The tendency of contemporary symbols to regard national wealth in terms of money
supply not only blinds Americans to their unused productive capacity but also prevents them
from recognizing that things without a dollar value on the marketplace are nevertheless assets of
incalculable value. Thus, the government can help finance vast private housing projects because
future rents or purchase installments will pay for them. But the government “cannot build
schools and hospitals, preserve our water supply, improve recreational areas, or train doctors,
because such programs are not self-liquidating in money terms.” Spending for items whose
return cannot be expressed in dollars is considered “an economic sin and a burden on the
taxpayer and leads hell-bent to inflation.” 79
74
Ibid., Folklore of Capitalism, p. 334.
Ibid., Fair Fights and Foul, pp. 153-55.
76
Ibid., p. 274.
77
Ibid., “The Folklore of Capitalism Revisited,” p. 202.
78
Personal interview with Thurman Arnold, October 9,1966.
79
Arnold, Fair Fights and Foul, pp. 103-04.
75
To free our monetary and fiscal policy from nineteenth-century symbols, Arnold wrote,
“We need a set of words that will convey the idea that the wealth of a nation consists of its
capacity to produce goods, that programs for the public welfare that cannot be translated into
monetary terms are nevertheless assets of incalculable value.” 80 He believed that the slogan of
balancing the economic budget rather than the fiscal budget conveys these ideas. The slogan
means that our national productive capacity should be balanced against our demands for
necessities such as schools, public works, water conservation, and health. Legislative programs
should be based on this formula which makes money supply a means rather than an end. 81 The
Full Employment Act of 1946 embodies the policy of balancing the economic budget while the
Federal Reserve Board champions the traditional and restrictive policy of balancing the fiscal
budget. 82
According to Arnold, the presidential elections of 1960 and 1964 were historic landmarks
in the evolving relationships between symbols and institutions. He saw the 1960 election as a
vindication of his prediction in 1935 that symbols would come to be viewed less as logical truths
and more as objects for manipulation. The two presidential candidates in 1960 devoted all their
efforts to projecting images, and the voters did not object. Arnold believed that “The cynical
psychiatric attitude of the voters toward the issues represented a growing distrust of the
fundamental economic faiths that had been so powerful a source of frustration during the Great
Depression.” 83
In 1964, however, the Republican party decided to have done with campaigns based on
images and advocated a return to the fundamental principles of the past. Johnson, in the style of a
“devout country preacher,” advocated the principle of a moral obligation to the future. 84 The
election of 1964, unlike that of 1960, was a contest over principles, and Johnson’s victory
represented the “rededication of America to a new principle. . . .” 85
Arnold concluded that the election of 1960 was a “necessary phase” standing between
disillusionment with old principles and acceptance of new ones. It proved to be a temporary
thing “because government by public relations cannot be a dignified and inspiring form of
government.” 86 Arnold regarded the public’s acceptance of President Johnson’s Great Society
and War on Poverty slogans as a historic turning point: “The old gods are dead and new gods
have taken their place. The ideological warfare between the business community and the
administration is ended. In the future, what conflicts may arise will be conflicts about practical
matters and not about philosophical differences.” 87
80
Ibid., p. 277.
Ibid., “The Folklore of Capitalism Revisited,” p. 198.
82
Ibid., Fair Fights and Foul, p. 80.
83
Ibid., pp. 279-80. In this description of the “cynical psychiatric attitude” of the American voter in 1960
Arnold provides a strong hint of the source of his own cynicism during the 1930s.
84
Ibid., pp. 280-81.
85
Ibid., p. 284. Arnold does not mean by this passage that Lyndon Johnson dealt only in principles, leaving
the political manipulation of symbols to lesser men. He believes that all Presidents manipulate symbols for political
purposes. His point is that the Goldwater nomination inescapably made the presidential election of 1964 a contest
between principles of government whereas the election of 1960 had been more a contest between the personal
images projected by the two candidates.
86
Ibid.
87
p. 282
81
The possibility of public acceptance of a new set of humanitarian symbols clearly
brought about a significant change in Arnold’s earlier views concerning the relationship between
ideals and institutions. Arnold stated, “President Johnson . . . has given us a moral principle
which, if followed, will make us rich.” 88 During the 1930s Arnold’s advice was to manipulate
principles, not to follow them. The cynicism on which this advice was based seemed to have
moderated in recent years. Arnold thought he had found a set of practical and publicly acceptable
principles which would not be disastrous if followed. He did not insist that these principles must
inevitably mislead the voter concerning the actual workings of the economy. Rather the idea
expressed in President Johnson’s program “enables the educated voter to look at the economy of
the scientific revolution without the preconceptions of the past that have prevented him from
seeing what is there.” 89
Arnold’s unacknowledged but evident abandonment of some of his earlier observations
raises the question of whether his major writings during the 1930s are simply tracts for the times,
or whether they contain lasting contributions to American social thought. The reader is tempted
to adopt the former conclusion upon discovering that Arnold’s confident and unqualified
generalizations about “principles” turn out to apply only to those principles which are not
statements of his own humanitarian values.
Despite their exaggerations, Arnold’s early writings made an important contribution to
American thought by applying European perspectives to a troubled American society during the
1930s. The perspectives were those of Marx, Mannheim, Pareto, Mosca, and Michels—all of
whom viewed social and political philosophy as ideology supporting a ruling group or class (or a
challenging group or class), and all of whom related ideological change to the struggle among
social groups or classes for dominance. As Sidney Hook has noted, Arnold’s description of
political behavior is particularly important for America “whose intellectual life has been
comparatively unaffected by the writings of Pareto, Michels, and the Marxian critique of
ideology.” Hook concludes: “Even if he [Arnold] has rediscovered truths that were already
known, to have rediscovered them in the context he did—American folkways in economics, law
and politics—is a genuine contribution to realistic stocktaking.” 90
Arnold followed the lead of these seminal European thinkers by finding the meaning of
political philosophy and debate in the conflicting aspirations of social groups, and by discussing
social change, not in terms of specific reforms but in terms of the rise in American society of a
new class with new organizations and a new ideology. Using this approach, Arnold was able to
give penetrating insights into the significance of a decade in American life characterized by
unprecedented challenge to the dominance of business groups and unprecedented opportunity for
new social departures.
Arnold is not the only American thinker who has described political philosophy and
debate in terms of a group struggle. Arthur F. Bentley made this approach central to his science
of politics. Bentley’s critique of Marx applies equally to Arnold, i.e., that upon close observation
his broadly conceived social “classes” dissolve into a number of smaller groups whose purposes
88
p. 285. Emphasis mine.
Ibid.
90
Sidney Hook, “The Folklore of Capitalism: The Politician’s Handbook-a Review,” University of Chicago
Law Review, vol. 5 (April 1938), p. 342.
89
and ideologies are frequently in conflict. 91 Close observation of what Arnold refers to as the
“business class,” for example, reveals a melange of individual firms, a wide variety of trade
associations, and a number of national business groups including the National Association of
Manufacturers, the U.S. Chamber of Commerce, the National Federation of Independent
Business, and the Committee for Economic Development. 92
Bentley, however, levels his criticism from a perspective glued to the immediate present.
If a broad historical perspective is applied, including in its sweep a comparison of feudal and
capitalistic institutions, or a more limited comparison of pre-industrial and post-industrial
American institutions, the concept of a business class and ideology assumes greater coherence
and social significance. Using such a perspective, Arnold is able to explore the content and
impact of a historically derived and generally accepted social ideology that forms part of the
limiting context within which group conflict occurs. He describes the way in which this context
kept American reformers within the safe confines of business ideals, and reduced their crusades
to picturesque but futile episodes.
Bentley ignores the broad historical context of political and social life, except for a brief
mention of the “habit background” which conditions the rules of the political game. 93 This selfimposed limitation renders him less helpful than Arnold in explaining certain characteristics of
contemporary American society which grow out of generally accepted values and, therefore,
remain largely unmoved by group conflict.
One such characteristic of contemporary America has been described in John Kenneth
Galbraith’s widely discussed book, The Affluent Society. 94 The author maintains that “The line
which divides our area of wealth from our area of poverty is roughly that which divides privately
produced and marketed goods and services from publicly rendered services.” 95 Galbraith notes
the mounting evidence to support his thesis. While consumption of private consumer goods rises,
the needs of large cities for adequate public schools, police protection, internal transportation,
clean air, and water become increasingly desperate. Los Angeles provides a “near classic”
example of the imbalance between the private and public sectors of the American economy:
“Magnificently efficient factories and oil refineries, a lavish supply of automobiles, a vast
consumption of handsomely packaged products, coupled with the absence of a municipal trash
collection service which forced the use of home incinerators, made the air nearly unbreathable
for an appreciable part of each year.” 96
Bentley’s group-conflict theory leaves much to be desired in explaining the kind of social
situation Galbraith describes. This is partly because of Bentley’s assumption that the end result
of the clash of interest groups is a state of balance or equilibrium, 97 and partly because he
91
Arthur F. Bentley, Process of Government, pp. 467-68.
R. Joseph Monsen and Mark W. Cannon, The Makers of Public Policy- American Power Groups and
Their Ideologies (New York: McGraw-Hill, 1965), pp. 24-26.
93
Bentley, Process of Government, pp. 218-20.
94
John Kenneth Galbraith, The Affluent Society (Boston: Houghton Mifflin Co., 1958).
95
Ibid., p. 251
96
p. 256.
97
Myron Q. Hale, “The Cosmology of Arthur F. Bentley,” The American Political Science Review, vol. 54
(December 1960), p. 958.
92
chooses not to explore the problem of social imbalance generated, at least in part, by ideological
forces transcending the arena of group conflict.
Arnold, on the other hand, provides some important insights into the genesis of the
imbalance between public and private wealth in contemporary America. He contends that
business organizations achieved social dominance by the ingenious ideological tactic of
identifying private corporations with the pioneer ethic of the free individual. The American
public came to have a strong psychological preference for privately produced goods over
services rendered by governmental institutions (pictured as coercive agencies impelled by
“politics”). Arnold’s observation helps explain why Americans have never taken the pride in the
public sector of their society that they have taken in the private sector, and why their
accomplishments lie so disproportionately in the private sector.
A second American thinker who joins Arnold in approaching political philosophy and
debate in terms of a group struggle is Charles Beard. In his view, the framing and adoption of the
Constitution was carried out by a propertied group of men who sought first and foremost to
further their own economic interest. The notion that the Constitution was adopted for the
“common good” of the “whole people” was simply a rationalization of an underlying economic
motive. 98
Both Beard and Bentley assume that ideology is a dependent variable, arising logically
and directly from an underlying group interest. Neither gives proper attention to the possibility
that ideology, once generated by group interest, may acquire an independent force of its own, so
that it actually shapes social events in a way not directly related to group interests.
Arnold does not overlook this aspect of the complex relationship between groups and
ideology. He describes the indignation expressed by a group of bankers, businessmen, lawyers,
and professors upon learning that the Interstate Commerce Commission had decreed a drastic
reduction of rates for a bankrupt railroad. He notes that none of the men were stockholders of the
company, and all would directly benefit from the reduced rates. Their gloom “had its roots not in
selfishness nor in the pursuit of the profit of the moment, but in pure idealism.” 99 According to
Arnold, the ideology or folklore of capitalism grew out of the successful struggle of business
groups for social dominance. But in time it became a widely accepted religion whose precepts
were often followed in spite of social and personal discomfort.
A comparison of Arnold with Bentley and Beard indicates that he is not the only
American thinker who appreciates the insights of seminal European thinkers into the group or
class genesis of political philosophy. Arnold’s contribution lies in the fact that he applies these
insights in a unique way. Unlike Bentley and Beard, Arnold is chiefly interested in the character,
content, and impact of ideology as a social force in its own right, and directs his attention to the
dominant ideology of post-industrial America.
98
99
Charles Beard, Economic Interpretation of the Constitution of the United States, pp. 16-18.
Arnold, Folklore of Capitalism, p. 48.
Arnold has made a second contribution to American thought by dramatically
emphasizing, through satire, the facts of the corporate revolution uncovered by the original
research efforts of John R. Commons, A. A. Berle, and Gardiner Means. 100
Commons was one of the first to observe that in the age of large corporations, bargaining
transactions (characterized by equality of parties and ‘individual discretion) were increasingly
giving way to rationing and managerial transactions (characterized by inequality of parties and
the displacement of individual discretion by corporate authority). Arnold dramatized Commons’
thesis by poking fun at the folklore which pictured corporations as competing individuals in an
age when they had assumed the functions of “private governments” and developed the discipline
of “armies.”
Berle and Means carefully documented the remarkable extent of concentrated corporate
power in America. They found in 1930 that two hundred of the nation’s 300,000 nonfinancial
corporations controlled half of the nation’s nonfinancial corporate wealth. 101 They also
demonstrated that the most important facet of modern corporate organization was control rather
than ownership. The stockholders of large corporations had become too numerous, and their
power too dispersed, to retain control of the organizations which they collectively “owned.”
Management had thus become separated from stock ownership and was a power unto itself.
Arnold added an observational footnote to Berle and Means’s findings in his witty
account of corporate reorganizations as political struggles for control conducted behind the
deceptive symbols of property ownership. Although Arnold provided no new knowledge
concerning the corporate revolution, his engaging style succeeded in stimulating thought where
the prolix style of John R. Commons or the statistical data of Berle and Means might succeed in
inducing drowsiness. Moreover, while others deserve credit for bringing the facts of the
corporate revolution to light, Arnold deserves credit for placing these facts in the context of a
national ideology which denies them and for grappling with the political problem of reconciling
the conflict. Arnold’s defense of politics as a reconciling force depending on unifying symbols
and ceremonies was a significant contribution to our appreciation of an indispensable profession.
.
100
John R. Commons, Institutional Economics (New York: Macmillan, 1934) and Legal Foundations of
Capitalism (New York: Macmillan, 1924); Adolf A. Berle and Gardiner Means, The Modern Corporation and
Private Property (New York: Macmillan, 1933)
101
Berle and Means, Modern Corporation and Private Property, p. 28.
CHAPTER IV
THE IDEAL OF A FREE ECONOMY
In March 1938, the year after The Folklore of Capitalism was published, Thurman
Arnold was appointed by President Roosevelt as the new head of the Antitrust Division of the
Justice Department. The Yale professor who had devised a strategy for politicians in his recent
book found himself in a political position of power and importance.
There was more than a little irony in an appointment which placed the author of The
Folklore of Capitalism in charge of the enforcement of the antitrust laws. In that book, Arnold
had described the antitrust laws as “no more than a ceremony of atonement” which had actually
protected large combinations by dissipating the energies of reformers in futile efforts. Arnold’s
remarks in Folklore presented him with the formidable task of explaining his present enthusiasm
for the antitrust laws to a Senate committee considering the merits of his nomination. He
explained to the committee members that his comments in Folklore were not attacks on the
antitrust laws themselves, but on their ineffective enforcement in the past. “Suppose,” said
Arnold using a graphic example, “that I would write a book on the pathology of teeth—the
cavities, the decay, the various ills that happen to teeth—and then, suppose my critics would say,
‘This man is attacking teeth. . . ’ ” 1 Arnold’s examples were persuasive, as indeed they had to
be. An influential member of the committee was Senator Borah of whom Arnold had written: “
Men like Senator Borah founded political careers on the continuance of such (antitrust) crusades,
which were entirely futile but enormously picturesque.” 2 When Arnold took his seat before the
committee, Senator Borah had a copy of Folklore displayed conspicuously before him. Arnold
recalls that the senator began reading from the paragraph in which his (Borah’s) name appeared
and asked the author what he meant. Then Borah skipped the sentences which mentioned his
name and read the concluding sentence of the paragraph. “He knew I was worried,” Arnold
recalled, “and his eyes twinkled. But to my relief, he voted for my confirmation, and thereafter
we became friends.” 3
Arnold’s discomfort before the Senate committee was part of his adjustment to a new
role. As an author, he had been an anthropological observer of social institutions. In 1938, he
became a participant in the political drama he had described only a year before. A better
understanding of Arnold’s philosophy can be gained by an exploration of the relationship
between his writings as a detached anthropologist; and his writings, speeches, and actions as an
advocate of vigorous antitrust enforcement.
Arnold’s basic values did not change when he assumed his new role. In The Folklore of
Capitalism, he formulated a standard with ideals that could be judged: “For the time being we
are adopting the standard that it is a good thing to produce and distribute as much goods as the
inventive and organizing genius of man makes possible.” 4 The achievement of this goal was
Arnold’s fundamental objective during his vigorous campaigns to enforce the antitrust laws.
1
Edwards, “Thurman Arnold and the Antitrust Laws,” p. 339.
Arnold, Folklore of Capitalism, p. 217.
3
Ibid., Fair Fights and Foul, p. 137.
4
Ibid., Folklore of Capitalism, p. 177.
2
To secure public support for vigorous antitrust enforcement, Arnold became a spirited
advocate of a free, competitive economy. This economic ideal had developed in connection with
American business organizations and had supported their prestige. Arnold recognized the ideal
as a part of America’s “vital folklore” and set out to use it for the maximization of production
and distribution of goods. This strategy was quite in keeping with Arnold’s earlier observation
that effective politicians do not try to formulate a new philosophy. Instead, they must select a
creed “out of the mass of conflicting ideals which exist in the culture.” 5
Although Arnold’s basic purpose and strategy was consistent with his earlier writings, his
emphasis shifted as he undertook to enforce the antitrust laws. Before 1938, he envisioned new
nonprofit organizations with a new nonprofit creed rising to fill in the gaps left by the older
business organizations. 6 After 1938, he asserted that business organizations motivated by the
profit creed could best fill in these gaps providing that the antitrust laws were vigorously
enforced.
Arnold was just as willing to use profit-making business organizations and creeds as
nonprofit organizations and creeds to attain humanitarian purposes. In 1935, he stated that “the
symbols of capitalism are just as adapted to humanitarian distribution of wealth as any others
provided we have the will so to use them.” 7 This thought seems to have been uppermost in his
mind as he earnestly advocated the ideal of a free economy. He described this ideal just as
businessmen described it, in terms of a competitive race which fosters private initiative. The
most efficient production and distribution of goods, said Arnold, “will come from private
initiative in a free market.” 8 He described a free market as one in which “every man in America
must be free to take a chance, to gamble on his abilities or on the efficiency of his organization,
and to win or lose.” 9
Arnold understood that the word “security” had a negative connotation under prevailing
beliefs which stressed risk and private initiative. He used this negative symbol to attack private
monopolies: “America cannot build a dynamic and expanding economy out of cushions against
insecurity. That ideal is the antithesis of the psychological forces which built a dynamic America
in the past.” 10 The “economics of security,” he said, “is based on the assumption that a few men
in control of established business institutions must hold control of production and distribution . . .
as benevolent trustees for the common good of all.” 11
Ten years after his retirement from the Antitrust Division, Arnold was still espousing
competitive slogans. “The economic philosophy behind the antitrust laws,” he wrote in 1953, “is
a tough philosophy.” The laws “recognize that competition means someone may go bankrupt.
They do not contemplate the game in which everyone who plays can win.” The ideal behind the
antitrust laws “remains opportunity for all and security for none.” 12 Arnold did not neglect to
5
Ibid., pp. 161-62
p. 347.
7
Ibid., Symbols of Government, p. 235.
8
Ibid., Democracy and Free Enterprise (Norman: University of Oklahoma Press, 1942), p. 46.
9
Ibid., Cartels or Free Enterprise? Public Affairs Pamphlet No. 103 (New York: Public Affairs
Committee, 1945), p. 4.
10
Ibid., p. 27
11
p. 4.
12
Ibid., “The Sherman Act on Trial,” Atlantic Monthly, vol. 192 (July 1953), p. 38.
6
praise Adam Smith, the great intellectual champion of the competitive ideal: “The Wealth of
Nations expresses better than any other book the ideal of the antitrust laws. It became the
economic bible of the nineteenth century, the greatest period of economic expansion the world
had yet known.” 13
Arnold’s shift of emphasis in 1938 from nonprofit creeds and institutions to profit creeds
and institutions was accompanied by a shift in his concept of the relationship between ideals and
institutions. In 1935, Arnold observed that reforms in stable times “are directed only at making
an institution conform to its own ideals, an essentially impossible task. . . .” 14 Two years later he
asserted that “we who try to make institutions live up to their pretensions are the worst of
executives.” 15 These statements reflected Arnold’s view that ideals can never describe or guide
the actual workings of institutions. However, when Arnold became head of the Antitrust
Division, he operated under the assumption that business institutions should be required to live
up to their own competitive ideals by vigorous enforcement of the antitrust laws.
This view is illustrated by his comments on a brochure issued by a large oil company
praising the competitive ideal. One caption read: “Man Never Runs as Fast Against Time as in a
Race.” The conclusion was, “Competition is the one incentive discovered so far that keeps him
constantly striving to improve his products and lower his costs.” 16 Arnold noted that the very oil
company which issued the pamphlet had attempted to keep competing producers out of the
market by refusing to sell its products to any filling station which carried the products of a
competing company. Arnold considered this a good example of “our present confusion between
our economic ideals and our business practice.. . . Never in our history has so much been said in
praise of free competitive enterprise. Yet never in our history has there been a greater
concentration of economic power in a few hands.” 17 As head of the Antitrust Division, Arnold
was not content to accept disparity between business ideals and practice as an inevitable fact of
life. He realized that competitive ideals could never be fully realized in practice, but he was
sincere in his attempt to make them as much a reality as possible.
Although Arnold took competitive slogans seriously as guides for business practice, he
was also aware of their powerful force as symbols and used them simultaneously as devices to be
manipulated for purposes of public acceptance and as tools for achieving practical economic
results. Arnold did not forget his observation in 1937 that an effective creed must be based on a
simple and understandable ideal capable of personification. 18 He repeatedly used the figure of
Henry Ford to illustrate the competitive ideal and to support his campaign against monopoly.
When businessmen accused Arnold of promoting cutthroat competition and attacking profits, he
answered that he was doing nothing more than maintaining conditions under which
nonconformists like Henry Ford, who was considered a menace by the leading automobile
manufacturers of his day, could freely enter the market. It is true, said Arnold, that Ford
disrupted the automobile industry by mass production and price cutting. But it was because of
13
Ibid., p. 40.
Ibid., Symbols of Government, p. 124.
15
Ibid., Folklore of Capitalism, p. 378.
16
Ibid., Cartels or Free Enterprise?, p. 1.
17
Ibid., pp. 5-7.
18
Ibid., Folklore of Capitalism, p. 139.
14
the competitive struggle which Ford initiated that inexpensive automobiles were made available
to the average consumer. 19
Arnold’s appreciation of the importance of symbols in gaining public acceptance was
manifest in his use of colorful language and dramatic tactics to strengthen the enforcement of the
antitrust laws. He described the responsibilities of the Antitrust Division as being similar to the
duties of a traffic policeman. “The maintenance of a free market,” he said, “is as much a matter
of constant policing as is the flow of free traffic on a busy intersection.” 20 He pictured private
restraints of trade as exorbitant toll charges: “A number of new economic toll bridges are being
erected at various stages of the distribution process . . . they are based upon deliberate
agreements in restraint of trade, entered into with a view to what the traffic will bear.” 21 On
other occasions, he spoke of private monopoly as “an economic disease which is endemic in all
commercial civilization—the disease of cartelization, or the hardening of the arteries of
commerce.” 22
Arnold utilized grand jury investigations and criminal indictments in such a way as to
achieve a dramatic as well as a practical effect. He would choose a certain industry in which
practices in restraint of trade were flagrant, and launch a massive investigation of all the
distribution points between the producer and the consumer. Such a show of activity, contended
Arnold, “causes businessmen and consumers who have been the victims of improper practices to
take heart and offer their active cooperation.” 23 He was well aware, as he had been in his earlier
writings, of the importance of drama in building morale. “It takes the shock of indictments,” he
observed, “to clean up a bad situation in the distribution of a product. But after that shock is
over, it takes only slight supervision to keep the market free.” 24 As one student of Arnold’s
antitrust program concluded: “Arnold set out to dramatize the issues, ‘manipulate the symbols,’
and enlist popular support. His use of public statements, criminal indictments, and mass
investigations was part of the dramatizing process. The appeal to the revered traditions of the
Sherman Act was another part. The colorful language in which he outlined his program was still
another.” 25
The most important symbol in Arnold’s campaign to enlist popular support was the
Sherman Antitrust Act and the competitive tradition which it represented. Although writing as an
advocate in 1940, Arnold reiterated many of his earlier anthropological observations in the
process of recommending the Sherman Act as a tool for economic regulation. Social institutions,
he observed, are like human personalities, responding to pressure rather than to logical thinking.
Adjustment to these pressures is made easier and less painful by avoiding methods which attack
traditional ideals. 26 New governmental programs which depart from tradition face a long
spiritual struggle which prevents their efficient administration for years. For this reason: “A new
idea must appear to be an old idea before it will work at all . . . the easiest remedies for
19
Ibid., The Bottlenecks of Business (New York: Reynal & Hitchcock, 1940), pp. 119-21.
Ibid., p. 122
21
p. 219.
22
Ibid., Democracy and Free Enterprise, p. 30.
23
Ibid., Bottlenecks of Business, p. 201.
24
Ibid., p. 204.
25
Ellis W. Hawley, The New Deal and the Problem of Monopoly (Princeton, N.J.: Princeton University
Press, 1966), p. 431.
26
Arnold, Bottlenecks of Business, p. 92.
20
democracy to apply are those which do not depart too far from tradition.” 27 The strength of the
Sherman Act, concluded Arnold, is that it “is a symbol of our traditional ideals.” 28
The Sherman Act had the additional advantage of being associated in the public mind
with the revered judicial process. In 1935, Arnold had distinguished between the “spiritual
government” of the courts, representing the ideal of law above government, and the “temporal
government” of the administrative agencies, representing the ideal of governmental regulation of
business. 29 The latter, he contended, were struggling for acceptance in an atmosphere which
accorded the greatest prestige and honor to the courts. When Arnold became head of the
Antitrust Division three years later, he took pains to associate his activities with the spiritual
government of the courts and to dissociate his organization from the image of an administrative
agency. Many reformers, he observed, preferred “a shiny new administrative machine” to the
judicial process which appeared “clumsy and covered with barnacles. . . .” However, the public’s
deep distrust of administrative tribunals renders them ineffective instruments of economic
regulation. 30
Arnold’s strategy was to use revered judicial symbols, which he had earlier associated
with “spiritual” resistance to economic regulation, for the purpose of gaining acceptance for
such regulation. He described the Antitrust Division as standing with the courts above political
pressures. “Legislative measures,” he said, “are too close to pressure groups immediately
affected to perform the necessary function of breaking up capitalized restraints of trade.” 31 “This
makes it all the more essential that the organization which attacks the bottlenecks of business be
removed from these political pressures or its efforts will fail.” 32
Arnold’s alliance with the “spiritual government” of the courts resulted in some
important legal victories. He succeeded in bringing the medical profession within the scope of
the antitrust laws. 33 He initiated a successful antitrust suit against monopolistic practices in the
motion picture industry. 34 He successfully attacked a local monopoly in the dairy industry by
establishing that it was not exempted from the antitrust laws by the Agricultural Adjustment Act.
35
By continuing a suit initiated by his predecessor, Robert Jackson, he obtained a Supreme Court
ruling that patents could not be used by the patentee to dominate resale prices and methods of
marketing products after the patentee had sold them. 36 Perhaps Arnold’s most dramatic
achievement was the host of indictments he obtained during a nationwide investigation of the
building and construction industries.
Arnold was a very important “middle man” in the government’s famous antitrust battle
with the Aluminum Company of America (better known as Alcoa). He inherited the case from
Robert Jackson and kept the legal battle going for some three years. His contention that Alcoa
27
Ibid., p. 96
p. 92.
29
Ibid., Symbols of Government, pp. 127, 194.
30
Ibid., Bottlenecks of Business, pp. 99-100.
31
Ibid., p. 291
32
p. 289.
33
United States v. American Medical Association. 28 F. Supp. 752 (1939).
34
United States v. Paramount Pictures. 70 F. Supp. 53 (1947); 334 U.S. 131 (1948).
35
United States v. Borden Co. et al. 308 U.S. 188 (1939).
36
United States v. Ethyl Gasoline Corp. 309 U.S. 436 (1940).
28
was a monopoly in restraint of trade was rejected in 1941 by a New York district court. 37 After
Arnold retired, Solicitor General Fahy succeeded in obtaining an important reversal of the
district court’s decision. The Second Circuit Court of Appeals held, in 1945, that the acquisition
of monopolistic power per se was illegal, even where there was no act of aggression against
existing competitors. The fact that a business practice placed potential competitors at an
overwhelming disadvantage was sufficient to make the practice illegal. 38 One of the many
charges made in Arnold’s unsuccessful suit in the district court clearly anticipated the 1945
ruling. The government contended that Alcoa’s complete monopoly over the production and sale
of “virgin aluminum” in the United States put potential competitors “at the mercy of a single
powerful corporation controlling essential raw materials.” This arrangement had the direct effect
of “suppressing and preventing substantial competition which would otherwise arise.” 39
Ten years after his retirement from the Antitrust Division, Arnold was still defending the
Sherman Act with a “spiritual” appeal remarkably similar to the conservative arguments he had
satirized before 1938. In The Folklore of Capitalism, for example, he humorously described the
invocation of elevated principles, usually associated with the Constitution, to defend existing
economic arrangements. He satirized the tendency to invent a future economic Hell, frequently
associated with alien political systems, as a punishment for deserting those principles. 40 In 1953,
however, he was ardently defending the antitrust laws as “our economic constitution, our charter
of commercial freedom.” Because the courts of justice have enforced this charter, he contended,
American business institutions have not followed the noncompetitive path of business
institutions in Western Europe. 41 Arnold warned Americans that they could not safely abandon
the principles of the Sherman Act: “The permanent abandonment of our economic constitution
represented by the Sherman Act would have had incalculable consequences for free enterprise in
our economic future.” 42 The present danger, concluded Arnold, is that “we are frightened of
economic freedom and too ready to exchange our birthright for a ration of security.” 43
Arnold’s rhetoric linked the Sherman Act, not only with judicial institutions, but also
with the cherished ideals of freedom and democracy: “The only type of economic structure in
which government is free and in which the human spirit is free is one in which commerce is free.
. . . The suppression of democratic freedom always follows the suppression of the free exchange
of goods. . . .” 44 Arnold observed that commercial civilizations which have allowed
experimentation in industry and production have also encouraged new experiments in art and
literature. “Free commercial enterprise,” he concluded, “breeds free dissemination of ideas.
Freedom from intellectual tyranny is impossible without freedom from commercial tyranny.” 45
37
United States v. Aluminum Co. of America. 44 F. Supp. 97 (1941).
United States v. Aluminum Co. of America. 148 F. 2d, 416, 431 (1945). Alcoa had expanded its
productive capacity to meet all anticipated future demand when it was already the sole supplier of aluminum in the
United States.
39
United States v. Aluminum Co. of America. 44 F. Supp. 97, 150-51 (1941).
40
Arnold, Folklore of Capitalism, pp. 4-5, 14-15.
41
Ibid., “The Sherman Act on Trial,” p. 39.
42
Ibid.
43
p. 40.
44
Ibid., Bottlenecks of Business, p. 283.
45
Ibid.
38
The great threat to “industrial democracy,” according to Arnold, is the private seizure of
economic power by secret means. Public grants of economic power are made in the open by
democratic processes, and can be terminated by those processes. Private seizure of industrial
power, however, is “veiled in the mystery of meetings and boards of directors. . . .” Such power
is not subject to public debate or to periodic elections and recognizes no public responsibility. 46
Arnold was convinced that opposition to the private seizure of economic power by sub rosa
agreements was a widely shared sentiment which gave ideological impetus to the Sherman Act:
“It is the fact that the Sherman Act bars the way to private seizure of industrial power that
gives it its continuing force and its constant public acceptance.” 47
Arnold used the positive symbol of “industrial democracy” in contrast to the negative
symbol of “socialism” to gain public support for antitrust enforcement. He contended that when
private parties are allowed to build industrial empires in violation of the competitive ideal,
socialism eventually follows. This is because prices set by private agreements rather than by
competitive forces lose touch with consumer purchasing power, and the government is forced to
take control to avert economic chaos. 48 Arnold was employing familiar rhetoric in arguing that
private monopolies would lead America down the road to socialism. He described his antitrust
program as a safeguard against that grim future.
The adept use of competitive symbols was the first distinctive characteristic of Arnold’s
antitrust campaign. The second was his emphasis on practical economic results. Arnold’s
program combined the symbolic and the practical in an effort to use revered economic slogans to
obtain tangible economic benefits for the consumer. He recently compared Franklin Roosevelt’s
antitrust policies, with which he was identified, to those of Theodore Roosevelt. The comparison
illustrates his appreciation of both the symbolic and practical aspects of the antitrust laws.
Arnold contended that Theodore Roosevelt never used the Sherman Act as a practical
instrument. His achievement “was to enshrine the ideal of the act as a part of our national
folklore.” He made the policy of the Sherman Act “an economic religion and its violation an
economic sin. . . .” Although he did not prevent large concentrations of economic power, he did
prevent such concentrations from gaining a legitimate place in our national values. 49 Franklin
Roosevelt proved to be a more effective trustbuster than Theodore Roosevelt. He treated the
antitrust laws as a practical instrument for maintaining competition across the nation. 50
During his first year as head of the Antitrust Division, Arnold delivered a speech in
which he colorfully described his strategy for bringing the economic ideals of America into
peaceful coexistence with its practical needs: “We must first make obeisance to the ideals, the
mystery, the romance and magic which give our social organizations the flavor and character
which we revere and then emerge from the church to the backyard where wood needs to be
sawed.” 51
46
p. 110
p. 97
48
p. 112.
49
Ibid., Fair Fights and Foul, p. 128.
50
Ibid., p. 139.
51
Edwards, “Thurman Arnold and the Antitrust Laws,” p. 340.
47
Arnold explained that by “sawing wood” he meant the full utilization of productive
capacity. This could be achieved by adjusting prices to income. “My hope is,” he said, “that the
adjustment between prices and incomes may be made within the limits of our competitive ideal
of free and independent producers, buyers, and sellers.” 52 In another address, Arnold spoke
again about the practical economic problem of unused capacity and its relation to the consumer.
He cited a Brookings Institution study which estimated that over a ten-year period America could
have produced $248 billion more of goods and services had its productive facilities been used to
full capacity. Consumer-minded Arnold did not neglect to point out that this would have
amounted to $8,000 per family over the ten-year period. 53
Arnold was determined to transform the antitrust laws from mere preaching devices to
practical tools for improving production and distribution. The only sensible way to apply the
antitrust laws to an industrial combination, he thought, was to determine whether the
combination increases the efficiency of production or distribution and passes the savings on to
the consumer. Businesses should not be attacked simply because they are large. If they can
demonstrate that their great size contributes to the efficiency of mass production and distribution,
they do not violate the purpose of the antitrust laws. 54
Arnold’s strategy for obtaining practical economic results was to concentrate on one
industry at a time. He chose industries of practical importance to the consumer where there was
strong evidence of practices impeding the efficient distribution of a product. Once an industry
was chosen, Arnold’s plan was to “. . . investigate every step from the raw material to the
consumer, and prosecute simultaneously restraints which .put an artificial obstacle on the
distribution of that product.” 55 The purpose of Arnold’s strategy was to remove the Sherman Act
from the realm of abstract law and make it a highly visible protector of the consumer’s
pocketbook.
Arnold had been convinced before 1938 that no practical results could be achieved
without an effective organization. He observed in The Folklore of Capitalism that antitrust
campaigns were “well supplied with orators and economists, but . . . lacked practical organizers.”
56
Arnold’s hope that the antitrust laws might be forged into a practical tool rested on his
determination to back his program with an effective organization: “The question arises whether
this is just another sporadic crusade like those of the past, or whether it is the beginning of a
nationwide organization which is actually adequate to protect the interests of the consumer.” 57
Arnold noted that during the famous trust-busting crusade of Theodore Roosevelt, the
personnel of the Antitrust Division consisted of five lawyers and four stenographers. 58 Arnold
insisted that he needed more funds and personnel to organize antitrust proceedings into
purposive programs capable of bringing economic results, and he was successful in obtaining
both. During his five years as head of the Antitrust Division, appropriations rose from about
52
Ibid.
Thurman Arnold, “Free Trade Within the Borders of the United States,” South Carolina Bar Association:
Transactions of the 47th Annual Meeting, April 1940, p. 94.
54
Ibid., Bottlenecks of Business, p. 125.
55
Ibid., “Free Trade Within the Borders of the United States,” p. 97.
56
Ibid., Folklore of Capitalism, p. 220.
57
Ibid., Bottlenecks of Business, p. 282.
58
Ibid., pp. 170-71.
53
$473,000 to $l.8 million, and personnel increased from 111 to 496. 59 Part of Arnold’s efforts to
build an effective organization consisted of training new personnel in practical techniques: “New
staff members were subjected to intensive instruction in psychological devices, business
structures, grand jury investigations, and the proper methods of building a case.” 60 These efforts
resulted in a competent and effective organization with high morale and a new sense of purpose.
Arnold relied on the consumer consciousness of the American people to provide grassroots support for his organization. He felt that consumers were becoming increasingly aware that
unregulated business institutions could not satisfactorily distribute goods and provide jobs. He
was convinced that the consumer movement had become strong enough to support an adequate
antitrust enforcement organization. 61
Despite his effectiveness as an organizer, Arnold’s program fell short of the practical
achievements he had hoped for. With the coming of World War II, the arguments for economic
controls and a planned economy gained momentum. Arnold replied with arguments for vigorous
enforcement of the antitrust laws couched in the slogans of national defense: “Industrial
democracy . . . can defend itself. It is only economic feudalism masquerading under the name of
democracy that is unable to unite to serve a common national end.” 62 Despite Arnold’s
arguments, influence within the Roosevelt Administration shifted from the antimonopolists to the
business-oriented directors of the new defense agencies.
The antitrust program lost momentum as more and more concessions had to be made in
the name of national defense. 63
Arnold’s program had other practical difficulties in addition to those caused by the war.
His emphasis on the courts and the maintenance of tradition meant, in practice, an emphasis on
litigation rather than economic reconstruction. The Antitrust Division frequently had trouble
translating its legal victories into economic results. 64 Moreover, the potent consumer movement
on which Arnold relied for grass-roots support did not materialize. Americans, for the most part,
tended to remain producer conscious. The immediate interests of many Americans as producers
outweighed their less immediate interests as consumers. 65 This was especially true because
Arnold was attacking not only restraints of trade by business but also by labor unions.
Because of the practical difficulties that confronted Arnold’s program, it achieved only
limited economic results. It accomplished a number of localized changes but failed to bring an
overall economic recovery. This is not to say that Arnold’s efforts were in vain. His vigorous
investigation and prosecution policies succeeded in making businessmen more cautious about
what they attempted. Moreover, his imaginative program paved the way for a broader
interpretation of the antitrust laws after the war. 66
59
Edwards, “Thurman Arnold and the Antitrust Laws,” p. 339.
Hawley, New Deal and Problem of Monopoly, p. 432.
61
Arnold, Bottlenecks of Business, pp. 261, 281.
62
Ibid., p. 78.
63
Hawley, New Deal and Monopoly, p. 442.
64
Ibid., p. 450. See also Walton H. Hamilton and Irene Till, “Antitrust—the Reach after New Weapons,”
Washington University Law Quarterly, vol. 26 (December 1940), pp. 1, 7.
65
Hawley, New Deal and Monopoly, p. 447.
66
Ibid., p. 454
60
Perhaps the practical limitations of Arnold’s program are partially explainable in terms of
Arnold’s own analysis of the political process in his writings before 1938. He observed that
political institutions rarely move in a single, logically consistent direction. Rather, they move in
different and frequently contradictory directions at the same time to reconcile conflicting ideals
within society. The New Deal was a perfect example of this process, and the early New Deal
marched to the tune of the National Recovery Act. This legislation, as Arnold observed,
represented many different ideals. Its dominant ideal, however, was economic planning, and its
practical effect was to fortify private monopolistic arrangements.67 When Arnold launched his
antitrust program in 1938, he found himself faced with monopolies that had been fortified by
earlier New Deal programs.
The conflicting ideals within the New Deal reflected the attitudes of the public at large.
Americans desired a high standard of living, which necessitated a high degree of planned
industrial organization; at the same time, they wished to preserve the individualistic ideal of
competition and protection of the “little fellow.” These two inconsistent ideals were so
intermixed in the philosophy of the average man that any administration wishing to retain power
had to make concessions to both of them. For this delicate political task, Franklin Roosevelt was
ideally suited: “His mixed emotions so closely reflected the popular mind that they were a
political asset rather than a liability.” 68
The revival of the antitrust laws in 1938 represented a change of emphasis from
economic planning to regulated competition. Yet so deeply ingrained were both of these
approaches in the ideology of the New Deal that it is doubtful if one could ever have entirely
displaced the other. 69 Franklin Roosevelt, more than Arnold himself, resembled Arnold’s earlier
description of the “humanitarian politician” opportunistically trying to obtain economic results
within a context of conflicting ideals. Roosevelt initially responded to economic distress by
emphasizing the ideal of planning. With the failure of the National Recovery Act and the
recession of 1937, his emphasis shifted to the competitive ideal of the antitrust laws. As the
Second World War approached, he moved back toward the ideal of planning.
The distinctive characteristic of Arnold’s approach, with its successes and failures, was
the utilization of competitive symbols to obtain practical economic results. Persons familiar with
Arnold’s earlier writings may have expected him to become something of a cynical manipulator
viewing the competitive ideal as hokum to be opportunistically exploited. However, once Arnold
had shaped the ideal of a free economy into a force for practical action, he came to believe in it,
not as a cynical manipulator, but as a sincere and ardent advocate. As a recent student of
Arnold’s career has concluded: “In spite of all his nonconformity . . . and in spite of his sly
ridicule of the capitalist system, Arnold was apparently an intense believer in a competitive
economy and in the idea that such an economy had never had a real chance.” 70
After his resignation from the Antitrust Division in 1943, Arnold continued his ardent
advocacy of the ideal of a free economy in his new judicial position of associate justice on the
Circuit Court of Appeals for the District of Columbia. In The Folklore of Capitalism and in his
67
p. 479.
Ibid., pp. 475-76
69
pp. 489-90
70
p. 423.
68
statements as head of the Antitrust Division, Arnold had called attention to the use of the patent
privilege by large corporations to gain monopolistic control of various markets. Perhaps his most
distinctive contribution as judge on the Court of Appeals was a series of opinions in which he
assailed the use of the patent laws for monopolistic purposes. 71
Speaking for the court in Potts v. Coe, Judge Arnold in a joint opinion with Judge Miller,
held that gradual advances in scientific knowledge made possible by the funds and research
organizations of large corporations could not be considered an “invention” within the meaning of
the patent laws. Patents, he said, are intended as rewards for inventive genius on the part of an
individual, not “as a reward for the collective achievement of a corporate research organization.”
Judge Arnold noted that in the present case, an expert employee had been required to assign in
advance all his future patent rights to the Teletype Corporation. Such an arrangement, he
observed, “reflects the respective contributions of the organization and the individual to these socalled inventions.” To give patents for such routine experimentation by large organizations,
concluded Arnold, is to use the patent law to create corporate monopolies rather than to reward
men of inventive genius. 72
Seven months later, the court considered a motion to vacate its decision in the Potts case.
Judge Arnold wrote a second opinion for the court in which he stated more fully the ideal of a
free economy as applied to technological discovery: “The patent law is designed to encourage
competition among inventors by giving a patent to the ingenious individual who wins in a race
for discovery. The modern corporate research laboratory is a negation of this principle because it
is compelled to suppress competition between individuals.” 73
A court which ignores this fact when applying the patent law, said Judge Arnold, is
“promoting a fiction which inevitably leads to the monopoly grants to corporations on the
technical education of our time.” Judge Arnold’s comment brings to mind his earlier
observations concerning the “personification of the corporation.” In The Folklore of Capitalism,
he described the many ways in which corporate power was legitimized by the fiction that
corporations were individuals and thus entitled to the rights and privileges of individuals. His
judicial opinions in the Potts case were clearly intended to prevent this fiction from influencing
the operation of the patent law.
Arnold continued to be a strong advocate of the ideal of a free economy after he
terminated his brief judicial career in July 1945 to return to a private law practice. Perhaps his
most fervent defense of the Sherman Act appeared in the Atlantic Monthly in 1953. 74 This
inspirational article, written eight years after Arnold had left the political and judicial stage, and
aimed at a sophisticated audience, suggests the sincerity of his belief in the competitive ideal.
71
Potts V. Coe, 78 U.S. App. D.C. 297, Decided Jan. 18, 1944; Special Equipment Co. v. Coe, 79 U.S.
App. D.C. 133, Decided June 19, 1944; Monsanto Chemical Co. v. Coe, 79 U.S. App. D.C. 155, Decided June 26,
1944; Potts v. Coe, 79 U.S. App. D.C. 223, Decided August 7, 1944.
72
Potts v. Coe. 78 U.S. App. D.C. 297, at 301.
73
Potts v. Coe. 79 U.S. App. D.C. 223, at 227.
74
Arnold, “The Sherman Act on Trial,” pp. 38-42.
Seven years later, he was still defending the Sherman Act as “The Law to Make Free Enterprise
Free.” 75
From 1938 to 1943, Arnold made a bold and vigorous attempt to bring the antitrust laws
abreast of modern economic conditions. His antitrust philosophy had the avowed purpose of
serving consumers by making more goods available at lower prices. He operated on the
assumption that a nationwide restoration of competition would cure most of the economic ills of
the Depression.
The purely economic achievements of the antitrust laws since Arnold’s departure from
the Antitrust Division in 1943 have fallen far short of his optimistic expectations. One reason for
this may be that Arnold overestimated the extent to which monopolistic practices reduced the
living standards of Americans. A study published in 1954 by Arnold Harberger concludes that
the elimination of resource misallocation resulting from monopolistic practices in American
manufacturing during the late 1920s would have brought with it an improvement in consumer
welfare of just a little more than a tenth of one percent or, in present values, about $2 per capita.
76
David Schwartzman similarly concluded, on the basis of a study of Canadian and American
manufacturing firms, that the misallocation of funds by way of “monopoly profits” had been
overestimated. 77 Another scholar interested in the antitrust laws draws the broader conclusion
that “if economic tests alone are applied there is little reason to believe that 75 years of antitrust
have done the country more good than ill.” 78 Some observers go even further by charging that
recent applications of the antitrust laws by the courts and enforcement agencies have sacrificed
the consumer’s interest in productive efficiency to protect smaller, less efficient firms which
cannot benefit from the economies of large-scale operations. 79
Recent studies and observations by specialists concerned with antitrust cast considerable
doubt on Arnold’s central trust-busting rationale, i.e., that vigorous enforcement of the antitrust
laws would result in a dramatic increase in production and a significant improvement in living
standards.
Contemporary students of antitrust are more inclined to emphasize the social and political
impact of the antitrust laws than their effect on economic performance. Blake and Jones, for
example, defend the antitrust laws by contending “that economic efficiency, in terms of short-run
adjustments, may on occasion be less important to public policy than the diffusion and control of
economic power.” 80 Without this diffusion of power, the authors conclude, bureaucratic control
or public ownership would become necessary.
75
Ibid., “The Law to Make Free Enterprise Free,” American Heritage, vol. 11 (October 1960), pp. 52-55,
92-94.
76
Arnold C. Harberger, “Monopoly and Resource Allocation,” American Economic Review, vol. 44 (May
1954), p. 84.
77
David Schwartzman, “The Effect of Monopoly on Price,” Journal of Political Economy, vol. 67 (August
1959), pp. 360-61.
78
Donald Dewey, “The Shaky Case for Antitrust,” Challenge, vol. 14 (January/February 1966), p. 19.
79
Robert H. Bork and Ward S. Bowman, “The Crisis in Antitrust,” Columbia Law Review, vol. 65 (March
1965), pp. 363-76.
80
Harlan M. Blake and William K. Jones, “In Defense of Antitrust,” Columbia Law Review, vol. 65 (March
1965), p. 381.
There is a consensus among economists that repeal of the antitrust laws would result in
much greater size and concentration of American industrial firms which, in turn, would increase
political pressures to bring them under public control. Donald Dewey concludes that “While
antitrust may be largely irrelevant to the economic performance of the American economy, it
may be absolutely indispensable to the political survival of American capitalism.” 81
This contemporary observation indicates that Arnold’s most important contribution to our
understanding of the role of the antitrust laws is probably to be found in The Folklore of
Capitalism where he describes the antitrust laws as symbols of legitimacy for business
institutions. In Western European nations, where there is no strong antitrust tradition, business
firms employ other symbols of legitimacy, e.g., the representation of trade unions on boards of
directors in Germany. Arnold’s witty observations in Folklore contain the important insight that,
in America, the antitrust laws are not “antibusiness,” but actually make industrial power
legitimate by bringing it within the concept of free competition. Arnold was incorrect, however,
to imply (before becoming a trustbuster) that the antitrust laws had only a symbolic significance.
On the contrary, they are the major reason why a cartel system, like those found in Western
Europe, has not developed in America. Although the antitrust laws have not influenced economic
performance to the extent that trustbuster Arnold thought possible, they have affected economic
structure to a greater extent than satirist Arnold led his readers to expect in The Folklore of
Capitalism.
Arnold’s trust-busting campaigns were based on the assumption that a nationwide
restoration of competition would create a more prosperous society by closing the gap between
actual and potential industrial production. Restoration of competition, however, did not turn out
to be the decisive factor in eliminating the vast unused industrial capacity which characterized
the Depression. Rather, the approach of the Second World War and the rapid development of
war industries proved to be decisive.
The onset of a protracted “cold war” after the defeat of Germany seemed to ensure that
the major responsibility for promoting the full use of industrial capacity would be filled, not by a
restoration of competition but by a thriving war industry operating largely under government
direction. 82
Even if international tensions are somehow reduced, it seems likely that policymakers
will continue to prefer direct or indirect public planning as a means of ensuring full production.
As Robert Heilbroner has pointed out, modern technology has created social problems which
require nonmarket controls to forestall. 83 Antitrust programs, no matter how vigorous, cannot
deal with these problems. Therefore, the postwar pattern of filling in economic gaps by public
funds and public direction is likely to be continued. In the last several years, Arnold himself
seemed to have accepted this conclusion. While voicing his respect for antitrust laws and the
competitive tradition, he placed his greatest emphasis on the need for increased public spending
for badly needed social services. 84
81
Dewey, “The Shaky Case for Antitrust,” p. 43.
See John Kenneth Galbraith, The New Industrial State (Boston: Houghton Mifflin Co., 1967).
83
Robert L. Heilbroner, The Limits of American Capitalism (New York: Harper & Row, 1965), p. 118.
84
See Arnold, Fair Fights and Foul
82
Arnold’s writings on antitrust after 1938, although not likely to be remembered as
contributions to American social and economic thought, give valuable insights into his most
enduring commitments. They reveal, for example, that he was a sincere idealist, far less cynical
than the manipulator whose praises he sang in his earlier writings. Once Arnold had shaped the
ideal of a free economy into a rationale for practical humanitarian action, he proceeded to ignore
his former assertion that ideals should never guide institutions. In his early writings, Arnold
contended that practical institutions needed to escape from their ideals to be effective. As head of
the Antitrust Division, he asserted that business institutions could not be effective if they were
allowed to escape from their competitive ideals.
The constant current which flows through Arnold’s writings before and after 1938 was
his stress on the use of accepted ideals to achieve humanitarian economic goals. The changes in
his approach after 1938 indicate that the material well-being of all Americans was far more
important in his thinking than maintaining a consistent intellectual position concerning the
relationship between social ideals and institutions.
.
CHAPTER V
THE IDEAL OF THE LAW
According to Arnold, legal ideals, like other ideals, do not describe or guide the actual
workings of the institutions which produce them. Their function is rather that of maintaining the
morale of persons closely connected with those institutions or in some way identified with them.
Legal ideals maintain morale in four important ways: by conferring prestige on judicial
institutions, by producing a feeling of unity and comfort in society, by creating an atmosphere of
tolerance, and by dramatizing humanitarian values.
The prestige enjoyed by judicial institutions is based on the ideal of supremacy of law as
applied by impartial judges. Although most judges are elected, they are viewed as the most
trustworthy protectors of society from the tyranny of the majority. 1 Judges are different from
bureaucrats and Congressmen in that they are guided by reason rather than by personal
preference. This impartiality is society’s guarantee of the rule of law above the whims of men,
“It is obvious,” said Arnold, “that our belief that courts are the chief guardians of the supremacy
of law is the reason why we adopt such a respectful attitude toward them.” 2
The ideal of legal supremacy is manifested by reverence for the Constitution. This
document became, like the Bible, an object of popular worship. Most of those who revered and
worshiped the Constitution “. . . knew approximately as much about the history and dialectic of
that document as the masses in the Middle Ages knew about the Bible —in those days when
people were not permitted to read the Bible.” 3 Men might be permitted to choose between sound
and unsound economic theory, but they could not be permitted to choose between sound and
unsound constitutional theory. “To prevent them from erring on this point,” Arnold observed, “a
scholargarchy was set up, with complete autocratic power.” 4 In this fashion, constitutionalism
was translated into judicial prestige and power.
Arnold contended that the ideal of constitutionalism has a habit of appearing even where
there is no constitution. In 1921, he observed, the revolutionary courts of Russia were opposed to
the new economic policy of Lenin. They gained moral support from the only Russian legal
periodical of the time which warned of the “danger of being drowned by the petty bourgeois
wave” and urged the courts to “preserve their own proletarian essence.” 5 Such legal utterances
in a nation whose ideological structure is so different from America’s indicated to Arnold that
judicial institutions develop common patterns of thought regardless of their origin: “Just as a ship
gathers barnacles or an oyster secretes pearls (the choice of the figure depending on one’s
attitude) so does a judicial institution accumulate great defensive fundamental principles.” 6
1
Thurman Arnold, “The Role of Substantive Law and Procedure in the Legal Process,” Harvard Law
Review, vol. 45 (February 1932), p. 630.
2
Ibid.
3
Ibid., Folklore of Capitalism, p. 79.
4
Ibid., p. 67.
5
Ibid., “Book Review—Soviet Administration of Criminal Law by Judith Zelitch,” Columbia Law Review,
vol. 32 (May 1932), p. 924.
6
Ibid.
Arnold describes the way in which, during the New Deal period, courts combined the
ideal of legal supremacy with shrewd judicial strategy to preserve their supremacy over
expanding regulatory bodies. When the first epoch-making acts of the New Deal were passed,
the Supreme Court was silent. During the period of public enthusiasm over these new policies,
the court consistently avoided comment on their constitutionality. 7 By virtue of this brooding
silence, Arnold noted that the court “hung like an ominous cloud over those who were attempting
new forms of control.” 8 New regulations were enforced half-heartedly out of fear that a future
decision might declare them void from the beginning. 9 Finally, when the public had become
disillusioned with the recovery legislation, the court declared it unconstitutional in Schechter
Poultry Corp. v. United States. 10In making its decision, however, the court left no certain way of
telling whether other acts pending before Congress (e.g., the Social Security bill and the Wagner
Labor bill) were constitutional. 11 The court’s power to create “a cloud of hampering
uncertainty” over the activities of new regulatory bodies gave it a great strategic advantage in its
efforts to maintain judicial supremacy.
The strategic position of the judicial system, Arnold contended, rested mainly on the
legal notion of “trial by combat.” According to this notion, courts stand aloof from regulation,
confining their efforts to settling contests between parties. Each battle is viewed as a war to end
wars, because it will give rise to legal principles which will make future contests unnecessary. 12
By limiting themselves to deciding only contests between parties, the courts could escape
passing on regulations at unpropitious times; or, they could “take pot shots at specific regulations
without ever being forced to assume responsibility for the regulatory scheme as a whole.” 13 In
other words, the courts were able to maintain “great supervisory power with a minimum of
executive responsibility.” 14 Arnold concluded that the notion of trial by combat, rather than any
particular constitutional decision, was the force that kept the conservative tradition alive during
the early New Deal period. 15
By combining the ideal of legal supremacy with astute judicial strategy, the courts were
able to maintain a spiritual hierarchy which reinforced their own power and prestige. At the top
of this hierarchy were the courts, bound by fundamental law. At the bottom were the bureaus,
bound by red tape rather than law. Between the bureaus and the courts were the commissions
with quasi-judicial powers. While these bodies were not exactly courts, they were more like
courts than like bureaus. 16
During the 1930s, Arnold’s main concern had been to give greater freedom of action to
the government bureaus attempting new forms of economic regulation. He suggested ways to
7
Home Building and Loan Association v. Blaisdell. 290 U.S. 398 (1934); Nebbia v. New York. 291 U.S.
502 (1934); Ryan v. Panama Refining Co. 293 U.S. 388 (1935).
8
Arnold, Symbols of Government, p. 175.
9
Ibid., p. 193.
10
Schechter Poultry Corp. v. United States. 295 U.S. 495 (1935).
11
Arnold, Symbols of Government, p. 177.
12
Ibid., p. 182
13
p. 189
14
p. 190
15
p. 194
16
pp. 201-02.
loosen the stranglehold of the judiciary over administrative tribunals. 17 In later years, he saw the
government bureaus grow in power, and their relationship to the “spiritual government” of the
courts undergo a fundamental change. In 1962, he wrote, “Our courts, which before the great
depression were accustomed to review decisions of administrative tribunals with meticulous
care, now affirm them if there is the slightest supporting evidence.” 18
Administrative tribunals, Arnold maintained, are immunized from judicial review by the
doctrine that they are composed of experts in their particular fields, whereas the courts lack such
expertise. The situation that Arnold described in 1962 seems to be almost the reverse of that
described in 1935. In The Symbols of Government, he spoke of administrative tribunals, who
based their decisions on expertise rather than on symbols, being demoralized and hampered by
judicial review.
As the relationship between the courts and the regulatory bureaucracy changed, Arnold’s
emphasis also changed from stress on freedom of action and experimentation for the bureaucracy
to protection of individual liberty from bureaucratic encroachment. Arnold recently observed
that, under the cloak of deference to expertise, “Many of the evils and oppressive bureaucratic
practices which were protected by conservatives in 1937 have become a part of our
administrative machinery. Yet so securely has our system of administrative tribunals become
entrenched that there is no effective protest made today against bureaucratic aggression.” 19
Arnold realized that the courts had lost a great deal of ground to the bureaucracy since the
1930s. Still, he believed that the courts retained an aura of respect in American public opinion.
Perhaps the recent battles over the Fortas, Haynsworth, and Carswell nominations have
destroyed many of the symbols and ideals which supported that respect. Yet in the midst of the
arm-twisting battle over Judge Haynsworth’s nomination, the Supreme Court unanimously
denied a request by the Nixon Administration to delay school desegregation in Mississippi. The
rebuffed Administration publicly announced its intention to enforce the decision. Even in the
wake of the Fortas, Haynsworth, and Carswell affairs, it seems premature to discount the
authority and respect Arnold attributed to the courts. These judicial ordeals, however, do give
fresh meaning to Arnold’s observation that legal ideals “are the clothes which the Court must
wear in order to retain its authority and public appearance.” 20
A second important morale-building function of legal ideals is the creation of a feeling of
unity and comfort in society. Arnold asserts that “the function of law is not so much to guide
society, as to comfort it.” 21 Although the ideal of the “rule of law” is sometimes considered to be
the moral background of revolt, it usually operates to induce acceptance of things as they are. It
accomplishes this by creating a realm somewhere within the mystical haze beyond the courts,
where all our dreams of justice in an unjust world come true. 22 The mystical realm of justice
created by legal ideals is important to the ordinary citizen. He may be treated unjustly by a
policeman at a street crossing, but chooses to pay his fine rather than go to the trouble and
expense of taking his case to court. Yet he is comforted by the belief that if he did take the
17
Ibid., “Trial by Combat and the New Deal,” Harvard Law Review, vol. 47 (April 1934), p. 944.
Ibid., “The Folklore of Capitalism Revisited,” p. 193.
19
Ibid., pp. 193-94.
20
Ibid., “Professor Hart’s Theology,” Harvard Law Review, vol. 73 (May 1960), p. 1311.
21
Ibid., Symbols of Government, p. 34.
22
Ibid., pp. 34-35
18
trouble to travel the gamut of the judicial system, he would eventually obtain justice. Even when
the performance of the courts is disappointing, the citizen gains solace from the thought that
there are legal principles lying beyond the courts, waiting for better judges to apply them. 23
The heaven of legal ideals, if it is to give comfort, must remain far away. Like most
utopias, its flaws become all too apparent when it gets too close to everyday life. Thus, courts, by
a kind of instinctive wisdom, decide cases only after long procedural struggles during which the
real cause of the litigation is forgotten. As their actions fade into a distant mist, the imperfections
of the judicial process are lost. 24 The learned science of jurisprudence, which contains the
principles of the law, is also sufficiently elusive to provide a heaven of comfort: “For some it lies
buried in a system, the details of which they do not know. For some, familiar with the details of
the system, it lies in the depth of an unread literature. For others, familiar with this literature, it
lies in the hope of a future enlightenment.” 25
Arnold concluded that because Americans are in fact subject to countless petty
restrictions under civil and criminal law, are subject to the nonresponsible power of private
economic government, and are living in an age of rapid and inevitable centralization, they must
have a judicial heaven as a dramatic and comforting representation of impersonal justice. 26
Closely related to the feeling of social comfort is the feeling of social unity which the law
fosters. According to Arnold, judicial institutions “move in all directions at once in order to
satisfy the conflicting emotional values of the people.. . .” 27 The genius of the law is that it
reconciles conflicting values by offering symbolic satisfaction to everyone. The least favored
members of society are comforted by the fact that, under the law, the poor and the rich are
treated alike. The more fortunate members of society are pleased by the fact that the wise are
treated better than the foolish. The businessman is happy to find that the law protects individual
freedom from governmental restraint and therefore ignores more profitable forms of dishonesty.
The preacher is glad that all forms of dishonesty which can be curbed without destroying
economic liberty are being curbed by the law. 28
It is not possible for judicial institutions to admit that they are moving in many
contradictory directions at the same time. Therefore, an effort must be made “to construct a
logical heaven beyond the courts, wherein contradictory ideals are made to seem consistent.” 29
This task is undertaken by the science of law or jurisprudence. In attempting to reconcile
contradictory values, jurisprudence faced many of the same problems which confronted theology
in the past. Both august disciplines were compelled to reconcile stern moral logic with
benevolent and commonsense ideas. Both accomplished this feat by setting up separate
categories which dramatized moral and benevolent values respectively. In theology, a separate
personality known as the Redeemer appeared to represent benevolence and escape from the stern
moral logic of eternal punishment for sin. The science of jurisprudence similarly conceived of
separate courts of equity to escape from the stern logic of the law. Both theology and
23
p. 223.
Ibid.
25
pp. 58-59
26
pp. 224-25
27
p. 49
28
p. 35.
29
Ibid., p. 56
24
jurisprudence were able to preserve the sanctity of moral logic, and at the same time to find ways
to prevent its enforcement when the result would be cruel or impractical. 30 Setting up separate
categories, however, does not completely reconcile inconsistencies in either theology or law. For
theology, thriving in an age of faith, the problem was not difficult to solve. Doubters were told
that the ways of Providence were beyond human understanding. Jurisprudence, thriving in an age
of reason, had a more difficult task: to unify inconsistent legal practices by producing an
apologetic literature so complicated and unreadable that no one could discover its inner
contradictions. 31
For the great mass of people, who cannot even pretend to read jurisprudence, the
reconciliation of conflicting values is accomplished through the public trial. This dramatic event
permits the public to discuss all the various contradictory attitudes about crime, since they are all
represented by various persons playing different roles in the trial. “Without the drama of the
public trial,” observes Arnold, “it is difficult to imagine on just what institution we would hang
our conflicting ideals of public morality.” 32
The Constitution is also an effective instrument for creating a feeling of social unity. It is
universally revered as the product of exceptionally gifted forebears who were able to write down
the fundamental principles of social organization. Of course, the founding fathers could not
anticipate all future contingencies, and so their written words must be supplemented from time to
time by learned men who apply the fundamental principles of the Constitution to contemporary
situations. This process is defended by pointing out that the forefathers wanted the Constitution
to be a growing and not a static thing. On the other hand, if learned men are opposed to a new
constitutional interpretation, they point out that the Constitution cannot be one thing today and
another thing tomorrow. The Supreme Court uses both arguments on different occasions. 33 The
Constitution thus becomes a flexible instrument that can be used on both sides of any moral
question. According to Arnold, this is its great genius: “It is essential to constitutionalism as a
vital creed that it be capable of being used in this way on both sides of any question, because it
must be the creed of all groups in order to function as a unifying symbol.” 34
Although Arnold was convinced that the law must serve as a unifying symbol in society,
he was not always consistent as to the role of the judge in creating an atmosphere of consensus.
Writing in 1937 in defense of President Roosevelt’s plan for reorganizing the Supreme Court,
Arnold chastised the court for its internal dissension: “When a court which is supposed to
represent the ideal of the rule of law and the symbol of national unity becomes a bitter battle
ground between opposing political theories, the only remedy is to appoint men on the court who
are sufficiently aware of the function the court must play among American ideals to exercise
adequate judicial statesmanship.” 35
Twenty-three years later, Arnold was defending the Warren Court against the charge that
its internal dissensions were causing it to lose the respect of “first rate lawyers.” Arnold rejected
30
pp. 61-62
pp. 65-66
32
pp. 147-48.
33
Ibid., Folklore of Capitalism, p. 28.
34
Ibid., p. 29.
35
Ibid., “A Reply (in Support of the President’s Supreme Court Plan),” American Bar Association Journal,
vol. 23 (May 1937), p. 368.
31
the suggestion that the Justices spend more time in conference to reach a broader and clearer
consensus. “Men of positive views,” he said, “are only hardened in those views by such
conferences.” 36 A proliferation of concurring and dissenting opinions should be expected from a
court made up of men who have deep-seated convictions about national problems and have taken
sides on controversial issues. The conflicts on the court, concluded Arnold, “are making the
Court responsive to the demands of a rapidly changing economy.” 37
It is not surprising that Arnold should change his argument over a twenty-three year
period characterized by significant changes in American society and in the outlook of the
Supreme Court. Arnold, with the advantage of hindsight, was glad that Roosevelt’s Court
Reorganization Plan failed in the unique way it did, i.e., preserving the revered symbol of an
independent judiciary while at the same time helping to terminate judicial resistance to economic
change. Had Roosevelt’s plan succeeded, Arnold argued, “the Court would not today be our
most effective symbol of freedom and human rights.” 38
Arnold’s inconsistent statements about the role of judges as symbols of national unity,
however, probably reflect more than the passage of time in a changing world. Arnold never
reconciled completely the judge’s role as the embodiment of unbiased reason and national unity
with his own temperament as a partisan advocate. In fact, his reason for retiring from the Circuit
Court of Appeals in 1945 was that his preference for partisan argument over impartial
deliberation made him an unsuitable ornament for the judicial bench. 39 The nature of Arnold’s
dilemma appears most clearly in the following passage:
The effectiveness of the law consists in the fact that there is a
consensus that it represents a rational process, devoid of personal
bias or prejudice. . . . This is another way of saying that if you do
not believe that men are endowed with the ability to exercise
unbiased free will, and are able to make decisions along the line of
inexorable logic, you will not make a good judge. 40
Because the law is able to make room for a large number of conflicting values, it
performs a third important function in society: the creation of an atmosphere of tolerance.
According to Arnold, judicial institutions are “the great storehouses of those contradictory
notions which allow people to be different.” 41 Whenever a people is swept off its feet by singleminded devotion to an ideal, judicial institutions lose prestige. They regain it only when society
becomes able to tolerate contradictory ideals. “Therefore,” observed Arnold, “the law is a
barometer of the spiritual contentment of a people.. . .” 42 For “only when men are secure are
contradictory social values tolerated.” 43 The public trial is enormously important as a symbol of
society’s tolerance of different social values: “So important is the public trial to the whole
36
Ibid., “Professor Hart’s Theology,” p. 1312.
Ibid., pp. 1313-14.
38
Ibid., Fair Fights and Foul, p. 69.
39
Ibid., p. 159
40
p. 61.
41
Ibid., Symbols of Government, p. 242.
42
Ibid., pp. 247-48
43
p. 130.
37
ideological structure of any government that the adoption of more efficient and speedy ways of
punishing individuals is a sure sign of instability and insecurity and decay.” 44
Arnold’s appreciation of law as an expression of tolerance of contradictory ideals is
related to his theory of orderly and gradual social change. Sudden revolutionary changes inspired
by single-minded idealists are, for him, too costly in terms of individual liberty. Arnold expects
peaceful social change to be characterized by intellectual confusion. He observes that “the more
illogical the process of social change is, the less disorder and repression accompany it.” 45
If law is to embody social tolerance, it must be vigorous in its defense of civil liberties. In
The Symbols of Government, Arnold clearly states his view of the Supreme Court’s role in
relation to economic theory on the one hand, and to civil liberties on the other. If the court
chooses to stand guard over an economic theory, Arnold contended, it takes a dangerous gamble
on the continuance of that theory. Because of the changing nature of economic theory, the court
should “hesitate to interfere with any exercise of governmental power which is sincere in its
purpose and honestly designed as an experiment in social welfare.” 46 The ideal of a fair trial,
which embodies tolerance of dissenting ideas, has far greater durability than any economic
theory: “It is here that the Court can take a bold stand without gambling on the future, because
the ideal of a fair trial for the oppressed has survived every dictatorship that the world has ever
known.” 47
Arnold also pointed out that property interests will either have sufficient political strength
to protect themselves, or be so weak that not even the court can maintain their privileges. The
fanatics, the lowly, and the oppressed, however, have only the court to protect them when they
wish to publicly express their ideas without undergoing punishment. 48 Thus, Arnold concluded,
the court should give priority to the protection of civil liberties over the protection of economic
interests: “In the celebration of legal and economic theories the Court should be equipped only
with prayer books and collections of familiar quotations. In the protection of those seeking a fair
trial it should be armed with a sword which it dared to use with courage.” 49
The Warren Court, Arnold observed, has given priority to the protection of civil liberties
over the perpetuation of economic theory. During the Depression, judges assumed that property
was more important than human rights. The Constitution of that day “stood as an unyielding
obstacle to practical legislation attempting to relieve human needs and correct social injustices. .
. .” 50 However, the old Constitution has gone and a different kind of Constitution has taken its
place: “The new Constitution stands as a vision of racial equality, civil rights, and human
freedom. It is no longer available as a weapon against social reform of any kind.” 51
After taking note of the Warren Court’s decisions with respect to the administration of
criminal law, the civil rights of Blacks, and the reapportionment of state legislatures, Arnold
44
Ibid., “The American Ideal of a Fair Trial,” Arkansas Law Review, vol. 9 (summer 1955), pp. 311-12.
Ibid., Symbols of Government, p. 247.
46
Ibid., p. 196
47
p. 197.
48
Ibid.
49
pp. 197-99.
50
Ibid., Fair Fights and Foul, p. 68.
51
Ibid.
45
concluded: “. . . the Court has emerged triumphant, having made the greatest contribution in our
judicial history since John Marshall in 1803 first established the power of the Supreme Court to
declare the acts of Congress unconstitutional in Marbury v. Madison.. . ." 52
Arnold’s commitment to a tolerant, libertarian society was manifested by his views on a
wide variety of civil liberties issues. He was a spirited defender of the individual’s right of
privacy against intrusive devices such as wiretapping. Wiretapping, to Arnold, “is the equivalent
of putting a man in the bedroom to listen to everything that is said in the privacy of your house.”
53
Never neglecting an opportunity to buttress his views with conservative credentials, Arnold
supported his argument against wiretapping by quoting an editorial from the Wall Street Journal.
The editorial contended that while a law to make wiretap evidence acceptable in Federal courts
might not violate the letter of the Fourth Amendment, it could easily violate its spirit. 54 It is
interesting that Arnold employed the very “spirit over the letter” argument that had irked him
when it was used in 1937 by the opponents of President Roosevelt’s Court Reorganization Plan.
At that time, he observed sarcastically that the great virtue of the argument was that it could be
used on both sides of any moral question without the user being bothered by what the
Constitution actually says. 55 When defending the values of tolerance and individual liberty,
Arnold became morally inspired in much the same way that the philosophers of 1937 became
inspired defending conservative legal and economic theory.
Arnold was likely to use a variety of argumentative devices in defense of civil liberties.
As a judge on the Circuit Court of Appeals, he couched an opinion defending literary freedom in
the rhetoric of free trade. The Postmaster General had revoked the second-class mailing
privileges of Esquire magazine on the ground that he considered it “morally improper and not for
the public welfare.” Judge Arnold noted that Congress had established the second-class mailing
privilege to encourage literary contributions to the public good. But he could not agree that the
Postmaster General’s action had fostered this objective: “. . . the American way of obtaining that
kind of contribution is by giving competitive opportunity to men of different tastes and different
ideas, not by compelling conformity to the tastes or ideas of any government official.” 56
Arnold noted that Justice Holmes had expressed this idea in his famous dissent in Abrams
v. United States. Holmes had said that “. . the ultimate good desired is better reached by free
trade in ideas, —that the best test of truth is the power of the thought to get itself accepted in the
competition of the market.” 57 Mail service, contended Arnold, provides a vital highway over
which business must travel, and the rates charged for the use of this highway must not
discriminate between competing businesses. If the Interstate Commerce Commission, for
example, were to give lower rates only to businesses which it thought contributed to the public
welfare, its action would be clearly unconstitutional. “Such a situation would involve freedom of
competitive enterprise. The case before us involves freedom of speech as well.” 58
52
p. 75.
Ibid., “Wiretapping: The Pros and Cons,” New York Times Magazine (November 29, 1953), p. 28.
54
Ibid., p. 12.
55
Ibid., Folklore of Capitalism, p. 29. See also Arnold, “A Reply (in Support of the President’s Supreme
Court Plan),” p. 367.
56
Esquire v. Walker. 80 U.S. App. D.C. 145. Decided June 4, 1945, pp. 146-47.
57
Abrams v. United States. (1919) 250 U.S. 616 at 630. Quoted by Arnold in Esquire v. Walker, p. 147.
58
Esquire v. Walker, pp. 147-48.
53
As a detached observer of society, Arnold was aware of the symbolic power that certain
forms of argument have over the public. It would be erroneous to conclude, however, that he
used these arguments in the fashion of a cynical manipulator. Arnold noted that even the
detached, fact-minded observer is moved by inspirational forces. Thus Arnold, while aware of
the symbolic and dramatic character of the ideal of a free economy or the ideal of civil liberties,
was himself caught up in the inspirational drama of these ideals. The factor which kindled
Arnold’s enthusiasm for certain ideals was their positive relationship to his personal standard of
a tolerant and humanitarian society.
The fourth function of legal ideals in society, according to Arnold, is to dramatize
humanitarian values; and in his thinking, these values overlapped considerably with the
libertarian value of tolerance. However, he did distinguish between the two types of values when
he pointed out that a society which pursues a humanitarian ideal to the exclusion of all others
will be intolerant and oppressive.
Arnold contended that the legal ceremony of a fair trial, which dramatizes both tolerance
and humanitarian ideals at the same time, is of tremendous importance to society. It is true that
its delays and technicalities frustrate society and that in times of great public fear, its machinery
is seldom strong enough to protect weak and harmless persons. Yet the ideal of the fair trial is
worth all these social costs “because of its contribution to the ultimate survival of a great
humanitarian ideal.” 59 When the ideal of the fair trial is violated, the dramatic effect is
enormous: “Harmless anarchists may be shot by the police in a strike. Liberals will be sorry and
forget. But let them be unfairly treated by a court . . . and, before the dissatisfaction has died
away, the prejudice or phobia which created the unfair atmosphere of the trial will receive a
public analysis and examination which otherwise it would not get.” 60
The fair trial puts before the public a moving drama wherein a great government treats
the lowliest criminals as equal antagonists, strips itself of executive power, and submits the case
to twelve ordinary men. The whole ceremony gives concrete representation to the humanitarian
ideals of human dignity and equality. 61
Arnold compared the fair trial to the miracle or morality plays of ancient times. The great
importance of “these moving dramas on the courtroom stage” is that they “tend to create a more
compassionate society.” 62 The ideal of the fair trial “involves the humanitarian notion that the
underdog is always entitled to a chance.” 63 One of the most moving dramas on the courtroom
stage in recent years, Arnold believed, was the case of Gideon v. Wainwright. 64 Gideon, a fiftyyear-old man who had been convicted of four previous felonies, had been denied counsel at the
trial for his last offense. The refusal was based on a holding by the Supreme Court in Betts v.
Brady 65 that counsel for the accused was not necessary in state trials for minor offenses. Gideon
wrote the court a letter, which he called a “petition of certiorari,” from a Florida prison.
59
Arnold, Symbols of Government, pp. 142-43.
Ibid., p. 142.
61
Ibid., p. 145. See also Thurman Arnold, “Book Review-The Story of My Life by Clarence Darrow,” Yale
Law Journal, vol. 41 (April 1932), p. 932.
62
Ibid., Fair Fights and Foul, pp. 231, 245.
63
Ibid., p. 228.
64
Gideon v. Wainwright. 372 U.S. 335 (1963).
65
Betts v. Brady. 316 U.S. 455 (1942).
60
Although his petition was not technically correct, the court agreed to review his case and ended
by reversing its decision in Betts v. Brady.
Arnold believed that the dramatic impact of the Gideon decision was enormous even
though thousands of persons in penitentiaries whose future might be affected by it would
probably never hear of it. The idea that the distinguished judges of the highest court in America
would reach down into a Florida prison to secure the rights of a lowly, habitual criminal was so
moving that it became the theme of a best-selling book entitled Gideon’s Trumpet. 66 In addition,
Arnold said, a nationwide television network devoted a full hour of its prime time to a dramatic
portrayal of the case. “I doubt if any of the millions of people who saw this presentation of a
great moral issue were not deeply moved.” 67
Arnold believed that the dramatic presentation of the fair trial has more than a fleeting
emotional impact. It tends to foster a more compassionate clinical attitude toward crime in place
of a sterner moral attitude. The compassionate view crime as a disease rather than as a moral
offense and concentrate on removing conditions of social deprivation rather than relying on
punitive methods. 68 At this point, Arnold’s conception of the fair trial was juxtaposed to his
expansionary economics based on government spending for pressing social needs: “. . . the
important thing needed is the recognition of a national obligation to remove the misery and
economic destitution into which criminals are born. Once that obligation is accepted, the goods
and services to meet it can easily be forthcoming from the constantly increasing productive
capacity of the twentieth century industrial revolution.” 69
For the fair trial to dramatize humanitarian ideals, it must meet certain standards, and
Arnold’s writings during the 1930s contain discussions of certain celebrated trials in which he
elaborated on his own conception of a fair trial. A procedure is fair, he was convinced, if the
accused is given a full opportunity to present his defense and if the facts and assumptions on
which the court bases its decision are fully reported in the record. By these standards, the
celebrated trial of Joan of Arc by a medieval court was an outstanding example of fairness. The
court gave Joan every opportunity to present her defense. So fully were the arguments in her
defense considered, that her later fame rests largely on the evidence found in the trial record
itself. 70 Joan was found guilty, not because of an unfair trial but because the court “was
compelled to represent the prevailing ideals and phobias of its era.” 71 The most important
function of a fair trial, asserted Arnold, is to leave a record by which the injustice done to
harmless people by the blind phobias of an age can be examined: “Where a court allows all the
relevant facts to appear on the record, we may well forgive unfortunate results caused by human
prejudices. Where a court denies this . . . leaving to outsiders the burden of disclosing all the
facts . . . then only is the rather splendid ideal of a fair trial in danger.” 72
By this standard, according to Arnold, the trials of Benjamin Gitlow and Eugene Debs
were also fair trials since the assumptions on which their convictions rested were clearly stated in
66
Anthony Lewis, Gideon’s Trumpet (New York: Random House, 1964).
Arnold, Fair Fights and Foul, p. 243.
68
Ibid., pp. 235, 244-45
69
p. 245.
70
Ibid., Symbols of Government, p. 135.
71
Ibid., p. 141
72
pp. 140-41
67
the record. In the case of Gitlow, the assumption was that peace could not be secured if persons
like Gitlow were allowed to talk. Debs was convicted on the theory that war could not be carried
on if Debs were allowed to talk. Although these assumptions may have been unreasonable, the
trials of Gitlow and Debs were fair. “No judicial machine,” Arnold wrote, “is likely to question
the underlying assumptions of the government which it supports, however regrettable those
assumptions may be.” 73
The famous Scottsboro trial in Alabama, on the other hand, did not meet the standards of
a fair trial. Arnold maintained that the Alabama court did not have sufficient confidence in the
reasonableness of its assumptions to spread them frankly on the record. Had it dared to say that,
as a matter of principle, Negroes were not entitled to sit on juries and that Negroes who had
intercourse with white women were to be treated as white men who committed rape, then the
trial would have been fair, even if the Negroes had been convicted. These assumptions remained
hidden, however, and “the trial became a maze of attempts to keep relevant material out of the
record.” 74
The standards of a fair trial which Arnold elaborated in 1935 were different from those he
advocated during the 1950s when the McCarthy-inspired loyalty probes had reached their peak.
Arnold was no longer willing to concede that a trial of a man’s views and opinions could be fair.
Men could only be fairly tried for their actions, not for their beliefs or their dangerous
tendencies. A character or heresy trial, asserted Arnold, could not conceivably be a fair trial.
Therefore, it was as impossible to devise a fair procedure for a loyalty hearing as it was for the
medieval court to devise a fair trial for Joan of Arc. That court made a tremendous effort to be
fair, but failed to realize “that to try a man’s character or his opinions flies in the face of due
process itself.” 75 That Arnold had, without comment, considerably broadened his earlier
conception of a fair trial is indicated by his statement in 1935: “. . . all the arguments in favor of
Jeanne [Joan of Arc] were so carefully set out and answered, that as soon as prosecutions for
heresy no longer fitted into popular prejudices, this trial, so eminently fair, appeared to be unfair.
76
The depth of Arnold’s commitment to the ideal of a fair trial was manifest in his response
to the wave of loyalty probes that were ruining the careers of many innocent persons. Arnold’s
law firm agreed to defend such persons free of charge. Writing to Robert Hutchins in 1952,
Arnold observed:
At the present time the situation of anyone charged with
Communist activities, however innocent he may be, is very
precarious. Mr. Lattimore is a good example. He has not the means
to defend himself or even to pay for the transcript of the
proceeding. We of course take his and all other cases for nothing
and, if necessary, put up expenses, but the burden on an individual
firm is very great.77
73
p. 140
pp. 141-42.
75
Ibid., “The American Ideal of a Fair Trial,” p. 314.
76
Ibid., Symbols of Government, p. 141. Emphasis mine.
77
Ibid., Selections from Letters and Legal Papers of Thurman Arnold, p. 75.
74
The ideal of a fair trial is so important to society that institutions must be required to live
up to its substance as well as its form. “Any tribunal,” Arnold wrote, “which takes on the
trappings and aspects of a judicial hearing . . . must conform to our judicial traditions, or sooner
or later it will develop into a monstrosity that demands reform.” 78
Where a legal ideal has definite humanitarian significance, Arnold insisted that it guide
institutions as well as comfort them. The fair trial is another of Arnold’s humanitarian exceptions
to his early axiom that ideals exist to give morale, not direction, to institutions. Another
exception, noted in Chapter IV, is his humanitarian version of the ideal of a free economy.
Most legal ideals, in Arnold’s view, remain far removed from the world of practice. He
cited the ideal of law enforcement as an example, carefully distinguishing it from practical
measures to preserve public safety and convenience. In its abstract form, the ideal asserts that the
prosecutor’s duty is to enforce all the laws with equal vigor regardless of his own views of public
safety and convenience. The prosecutor can do no such thing in practice because there are more
laws than he could ever enforce. He views the laws as an arsenal of weapons which he can use
selectively to incarcerate certain individuals who are dangerous to society. He may seek
compromises with a large number of unimportant offenders to avoid clogging the courts with
prosecutions. On the other hand, he may press a prosecution for some minor offense to remove a
dangerous criminal from society. 79 The practical approach of the prosecutor is worlds apart from
the ideal of law enforcement which distrusts bargaining with offenders, demands uniform
sentences, and emphasizes laws rather than individuals. 80 The ideal compels prosecutors,
officers, and judges to make the necessary compromises of criminal cases sub rosa while the
process is openly condemned. 81
Arnold’s observations concerning law enforcement point to an important problem which
he believed is endemic to legal institutions, i.e., how to reconcile the inconsistencies between
legal ideals and institutional practice. Above all, the notion of a seamless web of legal principles
applied by impartial judges according to the dictates of reason must be reconciled with
contradictory practices. The conventional method for supporting the “seamless web” idea,
observed Arnold, is by an elaborate ceremony of learning and research. “Books piled on books
give us a vision of the impartiality of legal learning, and the possibility of its constant
improvement toward the end of abstract justice.” 82 The science of jurisprudence supplies the
deficiencies of law as a rational process by applying more reason. The result is an enormous
amount of argumentative literature. 83 The law schools also make an important contribution to
the ceremony of learning and research: “Harvard is busy collecting books, giving scholarships to
persons who are willing to read them, and employing professors to read what the scholarship
students have written.” 84
78
Ibid., “Mob Justice and Television,” Atlantic Monthly, vol. 187 (June 1951), p. 70.
Ibid., Symbols of Government, p. 153. See also Arnold, “Law Enforcement-An Attempt at Social
Dissection,” pp. 17-18.
80
Ibid., p. 154
81
p. 162.
82
Ibid., Fair Fights and Foul, p. 259.
83
Ibid., “Apologia for Jurisprudence,” Yale Law Journal, vol. 44 (March 1935), p. 731.
84
Ibid., Fair Fights and Foul, p. 270.
79
Arnold was convinced that there is a more satisfactory way of reconciling legal ideals
with the actual workings of legal institutions which would curb the inflation of legal literature.
The best approach to this problem is to emphasize a science about law, which would include in
its subject matter the narrower science of law. 85 Arnold’s science about law would consider the
law in the same way that a detached anthropologist would observe the customs of a primitive
culture. The traditional science of law includes all the morale-building ceremonies and ideals of
the law. Arnold clarified his hopes for a science about law by comparing it to the Copernican
revolution. Once men ceased to think of the earth as the center of the universe and began looking
at it from the outside, amazing advances in man’s control over the physical environment were
made possible. Similarly, if law is viewed from the perspective of the world surrounding it rather
than as the center of an independent universe, it can be used as a means of social control. 86
The main problem facing Arnold’s science about law is one of peaceful coexistence with
the science of law. Arnold himself saw that those who take legal ceremonies and ideals to be
literal truths will be disturbed by observations made from an anthropological perspective. It
would seem that a professor lecturing at Yale about the seamless web of the law could not help
being disturbed by the knowledge that, across the hall, Arnold was comparing his beliefs to the
rituals of a primitive culture. Arnold, however, insisted that peaceful coexistence is possible. The
science about law, he said, does not “involve abandoning the proverbs, parables, and precepts of
the law.” It means only that lawyers should think differently about the law when they are on “the
solemn judicial stage” than when they are off it. “Once diagnosis becomes a recognized
technique,” concluded Arnold, “the orator and the dramatist will find that their place in the law is
still undisturbed.” 87
Arnold’s critics, however, remain skeptical that legal philosophy can coexist with an
anthropological approach which denies its objective validity. Georges Gurvitch, for example,
contends that, by reducing legal ideals to subjective projections and illusions, Arnold
undermined the “objective and spiritual values” which inspire those ideals. Gurvitch contends
that the “philosophy of law” can coexist with the “sociology of law” only if both recognize that
there is at least some objective validity in the values and ideals which inspire the law. The major
difference between Gurvitch’s two concepts of law and those of Arnold is that Gurvitch is able to
partially unite the philosophical and sociological dimensions of law through their common
acceptance of a realm of objective moral values upon which both must draw. Arnold’s sciences
of law and about law, on the other hand, operate on entirely different assumptions, and must
pursue independent objectives unless one is to be absorbed by the other. Gurvitch implies that
this is the result of Arnold’s approach which, he contends, “returns to the earlier imperialism of
sociology.” 88
Many of Arnold’s own observations would induce skepticism about his hope for peaceful
coexistence between the science about law and the science of law. For example, Arnold was of
the opinion that all vital creeds must be believed as literal truths. If they are viewed as folklore
85
Ibid., “Institute Priests and Yale Observers-A Reply to Dean Goodrich,” University of Pennsylvania Law
Review, vol. 84 (May 1936), p. 822.
86
Ibid., pp. 823-24.
87
Ibid., “The Jurisprudence of Edward S. Robinson,” p. 1288.
88
Georges Gurvitch, Sociology of Law (London: K. Paul, Trench, Trubner and Co., Ltd., 1947), p. 144; see
also pp. 1-2, 146-47, 240-41.
rather than as truth, legal creeds can be expected to lose their vitality. Arnold himself seemed to
recognize this fact in a letter written to an acquaintance in 1960: “Senator Taft . .. used to tell me
that he thought it was a good thing to have one fellow like myself on the Yale Law Faculty but
he certainly wouldn’t want many more of them. There is some truth in what he said.” 89
“My own way of expressing the paradox,” Arnold wrote, “is to say that if people
generally agreed with what I said, nothing I said would be any longer true.” 90 It would seem that
unconventional observations like those of Arnold cannot succeed in dividing the study of law
into two distinct approaches based on contradictory assumptions. Rather, the genius of
jurisprudence finds ways of incorporating the contributions of men like Arnold without altering
its overall moral conception of the law. Thus, thinkers of Arnold’s caliber, too gifted to be
ignored, had to be content to see legal philosophy move ever so slowly toward their perspectives,
incorporating bits and pieces of their philosophy in such a way as not to cause serious indigestion
to the body of jurisprudence. Arnold’s vision seems to have been a science about law,
incorporating and—at the same time—preserving the science of law. But jurisprudence, in its
infinite genius for reconciliation and survival, usually succeeds in incorporating the science
about law rather than being incorporated by it.
Arnold, along with other dissenters in the legal profession, has left his skeptical mark on
American jurisprudence. The nature of his individual contribution can be further explored by
comparing him with three of the most important dissenting legal thinkers of the twentieth
century—Oliver Wendell Holmes, Jr., Roscoe Pound, and Jerome Frank.
Holmes viewed the law primarily in terms of physical force. He focused upon “the
circumstances in which public force will be brought to bear upon men through the courts.” 91
Arnold, on the other hand, emphasized the psychological rather than the physical force of the
law. The results of this difference in emphasis by Holmes and Arnold can be seen in their
respective approaches to the adjustment of group differences and the protection of individual
rights in society.
“I believe,” wrote Holmes, “that force, mitigated so far as may be by good manners is the
ultima ratio, and between two groups that want to make inconsistent kinds of world I see no
remedy except force. . . .” 92 Arnold’s approach to the reconciliation of conflicting social ideals
was quite different. Force, he thought, is “too exhausting” to maintain social unity over a long
period of time. This task can only be performed by symbols and ideals that are generally
accepted and extremely flexible.
As a judge, Holmes most assuredly attempted to civilize force by the “good manners” of
democratic rules, but his conception of the ultima ratio of social adjustment led him to view the
law primarily as a method of umpiring social battles. Arnold, on the other hand, emphasized the
unifying function of the law, which is able to reduce social conflict by offering symbolic
satisfaction to many groups in many different ways.
89
Arnold, Selections from Letters and Legal Papers of Thurman Arnold, pp. 52-53.
Ibid., p. 53.
91
Quoted by John C. Ford, “The Fundamentals of Holmes’ Juristic Philosophy,” in Francis Le Bulk and
James Hayes, The American Philosophy of Law (New York: Crusader Press, 1947), p. 378.
92
Mark De Wolfe Howe (ed.). The Holmes-Pollock Letters, vol. II (Cambridge: Harvard University Press,
1941), p. 36.
90
Holmes considered force to be the ultimate basis of individual rights as well as the
ultimate basis of adjustment between conflicting groups. “Just so far as the aid of the public
force is given a man, he has a legal right. . . .” 93 Arnold’s observations again reveal a dimension
which Holmes has overlooked. The right of a fair trial, for example, was significant to Arnold
not because of the application of public force, but because of the voluntary suspension of public
force by the state while twelve ordinary men determine the outcome according to their respective
lights. In relatively stable times, the ideal of a fair trial is supported, not so much by public force
as by widespread emotional attachment to the values dramatized through this moving judicial
ceremony.
Arnold’s emphasis on the psychological impact of law in society was also quite different
from Holmes’s narrowly focused interest in the concrete results of legal contests. “The
prophesies of what the courts will do in fact,” Holmes said, “and nothing more pretentious, are
what I mean by the law.” 94 To understand the law, Holmes recommended viewing it from the
perspective of the “bad man” whose interest lies in guessing how his particular case will be
decided.
Arnold’s discussion of the importance of the Gideon case illustrates his departure from
Holmesian guidelines. He dismissed the importance of the decision for the thousands of convicts
directly affected (Holmes’s “bad men”) and emphasized its impressive psychological impact on
society.
These distinctive approaches might be summarized as a difference between Holmes’s
positivism (connoting an emphasis on physical force and concrete judicial behavior—the more
readily observable and measurable aspects of the legal process) and Arnold’s psychologism
(connoting an emphasis on law was a psychological force in society—a less readily observable
and measurable aspect of the legal process).
A second important distinction can be drawn between the Darwinian tendencies of
Holmes and the humanistic tendencies of Arnold. “I shall think socialism begins to be entitled to
serious treatment,” wrote Holmes, “when, and not before, it takes life in hand and prevents the
continuance of the unfit.” 95 The doctrines of Malthus appealed to Holmes. He once remarked
that he would “let Malthus loose” on those who contributed neither “thought nor beauty to life.”
96
As a justice on the Supreme Court, he gave legal expression to these views in an opinion
upholding compulsory sterilization of inmates in institutions for the feebleminded. 97
Arnold’s clear preference for those legal ideals which protect powerless and oppressed
groups in society is a contrast to Holmes’s tough-minded approach to the law. The contrast,
however, should not be overdrawn. Holmes was, on balance, a strong defender of the civil
liberties of minorities; nevertheless, he leaves the impression that his defense of civil liberties
does not derive so much from a belief in the dignity of the individual as from a desire to keep
minorities intact so that they will not lose their fair chance to become the dominant force in
society. “The sacredness of the individual,” Holmes remarked, “is a purely municipal ideal of no
93
Holmes, The Common Law, p. 214.
Quoted in Max Lerner, The Mind and Faith of Justice Holmes (New York: Modern Library, 1943), p. 75.
95
Ford, “Fundamentals of Holmes’ Juristic Philosophy,” p. 397.
96
Ibid., p. 396.
97
Buck v. Bell. 274 U.S. 200 (1927).
94
validity outside the jurisdiction.” 98 Arnold, on the other hand, praised the “fair trial” as a
concrete expression of the ideals of individual dignity and equality. These ideals, as embodied in
the fair trial, have “survived every dictatorship that the world has ever known.” Holmes prided
himself on detachment from humanitarian considerations. 99 Arnold’s legal philosophy was
permeated with them.
One of the great achievements of Holmes’s “detached” and “hard- boiled” jurisprudence
was the identification of law with the will of the majority. This represented an enormous gain
over the traditional notions of abstract and timeless legal principles which in practice served to
fortify special interests seeking to preserve the economic status quo. The task of further
broadening the social base of the law was undertaken by Roscoe Pound. Pound’s philosophy
reaches out boldly beyond Holmes’s majority interest to identify law with the satisfaction of as
many social interests as possible. “The pressure of the unsecured interest or unsatisfied demand,”
said Pound, “keeps us at work trying to find the more inclusive solution.” 100 The creative work
of lawmakers and judges in finding more inclusive social solutions is Pound’s idea of “social
engineering.” The task involves the adjustment of overlapping and conflicting interests as well as
an attempt to broaden overall social satisfactions.
Arnold’s writings incorporate the central tenets of Poundian philosophy and thus
reinforce the identification of law with more inclusive social objectives. Like Pound, Arnold’s
theory was pluralistic rather than majoritarian. Society was conceived as a complex of different
interests to be satisfied. Both Pound and Arnold sought to offer “something for everybody”
through the law, and both set out to accomplish this by creative social engineering.
Pound’s theory of social interests, however, is open to the criticism that it does not attach
sufficient importance to the civil liberties of individuals. To be sure, the important civil liberties
are listed among Pound’s sixty categories and subcategories of social interests, 101 but there is
nothing to suggest the importance that should be assigned them in relation to the numerous other
interests listed. The protection of civil liberties, therefore, is made to depend on a precarious
balancing process with no guidelines to indicate the extent of that protection. The practical result
of such a “balancing test” is likely to be the weakening rather than the strengthening of judicial
protection of civil liberties. 102
Like Pound, Arnold viewed the law as a means of satisfying and reconciling many
conflicting interests. But he departed from Pound by strongly advising judges to give priority to
the protection of civil liberties. Although Arnold never admitted it, he introduced a moral
conception of justice and individual rights into a legal theory purporting to deal only with
morale. In his later writings, this moral commitment is more evident. For example, he asserted in
1955 that “the philosophy of justice” must stand over the conflicting ideals of society, keeping
each in its proper place. The ideal of the fair trial, symbolizing the priority of the rights of the
98
Howe, Holmes-Pollock Letters, p. 36.
Lerner, Mind and Faith of Justice Holmes, pp. 45-46.
100
Roscoe Pound, Interpretations of Legal History (New York: Macmillan, 1923), p. 157.
101
See Reuschlein, Jurisprudence—Its American Prophets, pp. 142-44.
102
See Justice Frankfurter’s majority opinion in Minersville School District v. Gobitis 310 U.S. 586 (1940)
and his concurring opinion in Dennis v. United States 341 U.S. 494, at 525.
99
individual to those of the state, must prevail over “every consideration of efficiency in
government administration.” 103
Although Roscoe Pound devoted his considerable energies to bringing law into a closer
relationship with the social sciences, he stopped far short of allowing the social sciences to
govern his conception of the nature and function of law. 104 However, Arnold and another bold
iconoclast, Jerome Frank, were not hesitant in taking this step. Both men brought psychology to
the forefront of legal analysis. They concluded that the realm of legal ideals serves the
psychological function of comforting society rather than the practical function of guiding it.
Frank contends that legal thinking is guided by the “basic myth” of certain and
unchanging law. The need for legal certainty can be traced to the child’s need for an absolute
authority figure. The role of the father—giving the appearance of certainty in an uncertain
world—is transferred in adulthood to the law. Arnold, in similar fashion, sees law offering
emotional comfort by creating the illusion of justice in an unjust world:
Although Frank and Arnold agreed on the mythical nature and psychological function of
legal ideals, they disagreed on what should be done about it. Frank insists that law must be
liberated from its childhood fixation as soon as possible. Arnold, on the other hand, believes that
legal myths serve positive social functions and should not be discouraged. 105 Frank strongly
disagrees with Arnold’s view that legal illusions should be retained for some imagined social
purpose after they have been unveiled by perceptive critics. 106 Society is only harmed by
continued adherence to childish illusions. The legal critic must have the courage to help society
“grow up.” Lack of courage, Frank concedes, is not usually the reason why perceptive critics do
not wish to overturn legal illusions. He offers a more subtle explanation which contains some
important insights into the legal philosophy of Arnold. “Such men . . . are still in some small part
enthralled by the myths they have learned to see through . . . they . . . cannot bear to have the
shams utterly exposed, the superstitions totally destroyed. They find a lingering comfort in the
spectacle of a public still under the spell.” 107
The impression left by Arnold’s legal writings bears a strong resemblance to Frank’s
diagnosis. Arnold was willing to let extralegal perspectives govern his diagnosis of the law, yet
he found “the idea of federal judges roaming the stormy fields of economics, sociology,
psychiatry, and anthropology, their black robes flapping in the winds of controversy . . . a
disquieting one. . . .” 108 Arnold did not believe that law is a “brooding omnipresence in the sky”
and yet he thought it important that the general public so conceive it. He satirized the notion that
judicial decisions are the product of detached reason, but contended that a good judge should
103
Arnold, “The American Ideal of a Fair Trial,” p. 311.
For example, Pound abandoned the idea of deriving the categories of social interest from the
motivational concepts of social psychology and based them instead on claims made upon the legal system.
105
This difference of opinion led to characteristic differences between the two men in their exercise of the
judicial function. Compare Judge Frank’s opinion in United States v. Roth 237 F. 2d 796, 801-27 with Judge
Arnold’s opinions in Holloway v. United States 148 F. 2d 665 and Fisher v. United States 149 F. 2d 28.
106
See Judge Frank’s remarks on Demogue and Wurzel in Law and the Modern Mind (New York: Tudor
Publishing Co., 1935), pp. 223-31.
107
Ibid., p. 235.
108
Thurman Arnold, “Judge Jerome Frank,” University of Chicago Law Re- view, vol. 24 (summer 1957),
p. 634.
104
believe in it. He exposed the unrealistic quality of legal ideals but asserted that if men do not
strive for them the law loses its “moral force.”
Arnold explained his reluctance to abandon legal ideals by pointing to the importance of
their stabilizing and unifying impact on society. The reader, however, cannot escape the
impression that these ideals provided a certain amount of comfort and inspiration for Arnold
himself; and that he would have been most disturbed if his skeptical views had been completely
accepted by the legal profession.
Arnold’s insights into the psychological significance of the law point to important
deficiencies in Frank’s “adult jurisprudence.” Arnold realizes that the legal ideals Frank would
attack constitute the psychological basis for the prestige of judicial institutions. He doubts that
the concept of the “adult personality” is sufficiently inspiring to replace the legal ideal of
authoritative impartial law. 109 Arnold’s point is well taken. If the general public ceased to
believe that the judgments of courts were more impartial and certain than those of legislative
bodies, it is doubtful that the present importance and independence of courts in the American
system of government could be maintained.
Both Frank and Arnold are open to criticism for emphasizing only the psychological and
mythical aspects of legal ideals. Certainly the guiding ideal of “a government of laws and not of
men” is contradicted countless times in practice. But if the phrase were completely discredited
and the discretionary standard “a government of men and not of laws” put in its place, it seems
probable that the exercise of arbitrary authority would increase. If a legal standard is capable of
inspiring a people, it is likely to find expression in reality as well as in poetry. When ideals find
only partial expression in society, it is no more “realistic” to regard them as myths than it is to
regard them as literal truths.
Arnold’s exclusive concern with the symbolic and psychological properties of law
renders his theory of little use as a tool for understanding and dealing with the kind of radical
disrespect for law which is manifested today by the destructive rioting of slum Blacks. This
explosive problem makes it clear that the law must offer concrete as well as symbolic
satisfaction to all groups in society if it is to retain respect. In his recent writings, Arnold—
without much elaboration—related his legal philosophy to the concrete needs of disadvantaged
groups. 110 His personal commitment to meeting these needs was always evident. This does not
alter the fact that his theory of law, developed during the 1930s, is exclusively concerned with
the psychological and symbolic benefits of the law.
Charles A. Reich addresses himself to more concrete legal issues in a recent article
dealing with the legal rights of welfare recipients—many of whom live in the slums. 111 The
Social Security Act conferred certain rights which (as Arnold would be quick to observe)
symbolized a new public attitude toward welfare recipients. Reich contends, however, that in
practice these rights are virtually unprotected and frequently violated. Entitlements granted by
government to other social groups, e.g., professional licenses, farm subsidies, contracts for
defense, space, and education are not neglected in this fashion. “It is only the poor whose
109
Ibid.
Ibid., Fair Fights and Foul, pp. 244-45.
111
Charles A. Reich, “Individual Rights and Social Welfare: The Emerging Legal Issues,” Yale Law
Journal, vol. 74 (June 1965), pp. 1245-57.
110
entitlements, although recognized by public policy, have not been effectively enforced.” There is
a great danger to society, concludes Reich, “when any group in the population lacks entitlements
and hence chronically suffers from insecurity and dependence.” 112 He urges the legal profession
to become actively involved in social welfare to provide concrete enforcement of rights granted
three decades ago but still largely ignored.
Arnold’s theory of legal ceremonies and symbols does not begin to come to grips with
the kind of problem Reich describes, nor does it tend to inspire the kind of concrete legal action
he recommends. Despite this serious limitation, Arnold’s psychologically oriented theory of law
was a genuine contribution to American legal theory. The reverence for law in American society
is a matter of faith based only partially on concrete experience. Arnold’s imaginative account of
how this faith is preserved by symbols and ceremonies and how it, in turn, preserves social unity
was an important as well as an original contribution to our understanding and appreciation of
American law. When men come to regard law purely as a public convenience, Arnold will cease
to be relevant; but as long as they continue to project their ideals onto the legal system, Arnold’s
insights will be helpful.
.
112
Ibid., p. 1255
CHAPTER VI
CONCLUSIONS
The undermining of established systems of thought by the dissenting intellectuals of the
late nineteenth and early twentieth centuries 1 was strongly reinforced by the writings of
Thurman Arnold, especially those which appeared in the 1930s. By undermining the
conservative orthodoxy of their time, the dissenters, including Arnold, also undermined the
philosophical tenets of eighteenth-century Jeffersonian liberalism which supported
individualism, minimal government, and the beneficence of natural economic laws. Yet Jefferson
and the dissenters had certain common purposes which point to what is perhaps the most
enduring characteristic of American liberalism.
Arthur Schlesinger has observed that the basic meaning of American liberalism from
Jefferson to the New Deal lies in the effort by less powerful elements in American society to
control the business community, ordinarily the most powerful. 2 More specifically, liberalism has
usually enlisted farmers, small entrepreneurs, and laborers to check the concentration of politicoeconomic power in the hands of organized business interests.
Jeffersonian liberalism was animated by its opposition to Hamilton’s policy of national
subsidization of manufacturing, mercantile, and investing interests at the expense of agrarian
interests. Jefferson thought of big government chiefly as an agency for giving unfair advantages
to wealthy businessmen. Thus, the predominant strain of Jefferson’s economic thinking was
laissez faire. He was inclined to believe that the natural economic order was beneficent and
should not normally be disturbed by government.
By the 1830s the gap between Jeffersonian theory and economic reality had widened
considerably. Corporations in banking, transportation, and manufacturing were becoming more
powerful and influential. President Andrew Jackson came to realize that only by increased
government intervention in the affairs of business could the growing concentration of wealth and
power be effectively checked. As Schlesinger observes, “For the Jeffersonians, mistrust of banks
and corporations was chiefly a matter of theory; for the Jacksonians, it was a matter of
experience.” 3 Although Jackson recognized the need for greater governmental intervention in
business affairs, he justified these actions as attempts to restore the natural economic order. He
adhered in theory to the laissez faire principles of Adam Smith, as had Thomas Jefferson who
considered The Wealth of Nations “the best book extant” on economic questions. 4
Industrial capitalism underwent unprecedented expansion in the decades following the
Civil War. The imposing size and power of new business organizations, however, made little
impact on prevailing economic theory. The classical economics of Adam Smith became deeply
embedded in the schools and colleges of the post-Civil War period. The philosophical lag which
was noticeable during Jackson’s presidency became chronic during the closing decades of the
nineteenth century. At a time when rapid and massive economic change was the dominant
1
The methods and conclusions of these thinkers are reviewed in Chapter I.
Arthur M. Schlesinger, Jr., The Age of Jackson (Boston: Little, Brown & Co., 1945), p. 505.
3
Ibid., p. 313
4
pp. 314-15.
2
characteristic of the American scene, economic theory continued to emphasize static laws.
Academic economists conceived of the universe as a closed system operating in accordance with
unchanging universal laws. The static laws of economics were thought to be beneficent provided
they were not interfered with by government. The influence of static laissez faire thinking was
strengthened rather than weakened by the evolutionism of William Graham Sumner who
contended that the social order was fixed by natural laws “precisely analogous to those of the
physical order.”
Any extension of government activity into economic affairs could only mar the flawless
operation of these laws.
During the closing decades of the nineteenth century, constitutional law increasingly
reflected the influence of laissez faire economic theory. Thomas M. Cooley, the leading
authority on American constitutional law during this period, gave great impetus to this
development. By identifying the constitutional clause, “due process of law,” with the protection
of property rights, he performed a great service to lawyers and judges seeking to embody laissez
faire in American constitutional law. 5 As the Constitution became more and more a bulwark of
property, conservative judges and lawyers interpreted it as the embodiment of fixed and
changeless principles. They saw their task as one of discovering these principles and defending
them against the pernicious tendencies of social and economic legislation.
By the 1890s, conservative theorists had succeeded in identifying the industrial
capitalism distrusted by Jefferson with the natural economic order he championed. Eighteenthcentury liberal ideas were transformed into conservative systems of thought which protected
business organizations from liberal reformers seeking to check their politico-economic power.
Liberal intellectuals of the 1890s began to range themselves against the philosophical
trends which they believed could serve only conservative purposes. They revolted against what
Morton White has called “formalism” in American thought, i.e., its abstract, rationalistic, static
orientation. 6 From the 1890s to the 1930s (when Thurman Arnold’s most important writings
appeared) criticisms of both the methods and conclusions of conservative social thought grew in
extent and influence.
The dissenting intellectuals of the late nineteenth and early twentieth centuries found that
many of the tenets of Jeffersonian philosophy had to be altered if not discarded. Individualism,
they insisted, must be understood in terms of social groups and organizations. The concept of a
natural economic order must be partially or completely discarded to make room for deliberate
regulation and/or planning by government.
Although the dissenters altered or discarded many tenets of Jefferson’s philosophy, they
shared his desire to check the politico-economic power of organized business interests and his
distrust of abstract philosophies which had lost contact with personal and social experience. The
attitude of religious homage toward the Constitution or toward economic theories was as foreign
to Jefferson’s thought as it was to the thought of the dissenting intellectuals.
5
Benjamin R. Twiss, Lawyers and the Constitution (Princeton, N.J.: Princeton University Press, 1942), pp.
6
Morton White, Social Thought in America—the Revolt Against Formalism (Boston: Beacon Press, 1957),
25-26.
pp. 11-12.
To dissolve the “steel chain” of conservative ideas, the dissenters attacked the notion of
absolute, universal, and unchanging ideas in all fields of social thought. Thurman Arnold
reinforced the attack on absolutes by asserting that ideas are relative to organizations. It is not the
duty of organizations to follow principles but rather the purpose of principles to serve
organizations. The priority of organizations, however, is not unqualified. Arnold provided an
explicit standard by which organizations and creeds can be judged: “. .. in order to make
judgments as to whether any activity is a good or a bad thing, it is necessary to have standards.
For the time being we are adopting the standard that it is a good thing to produce and distribute
as much goods as the inventive and organizing genius of man makes possible.” 7
Interpreters and critics of Arnold’s major writings too often overlook this explicit
standard. Max Lerner, for example, observes that Arnold provided a theory of tactics without
revealing the ends those tactics are to serve. 8 Sidney Hook contends that Arnold’s loyalty to
organizations rather than principles left no basis for judging organizations other than the
effectiveness of the techniques of political control. 9 Both of these criticisms overlook Arnold’s
explicit statement of a standard by which both organizations and techniques can be judged.
Lerner and Hook, however, make the valid observation that Arnold inadvertently
admitted moral values, which are not explicitly stated, into his writings. For example, Arnold
asserted that institutions should be judged “by their utility in the distribution of physical comforts
and in the development of an attitude of spiritual peace.” 10 We have previously seen (Chapter
II) that “spiritual peace” was related in Arnold’s thinking to tolerance, a second standard to
which he was strongly committed. Arnold’s discussion of the importance of a fair trial makes it
clear that he placed a moral value on tolerance and fairness to individuals as individuals quite
independently of the contribution of this ideal to the production and distribution of material
wealth. Arnold also went beyond his purely materialistic standard when he warned that fanatical
devotion to a single ideal stifles “kindness” and “makes human liberty an unimportant value.”
Moral principles, which Arnold declared inimical to objective analysis in certain passages,
became subtly but surely integral parts of his analysis in other passages.
Arnold’s major writings have an unfortunate tendency to undermine the objective validity
of principles which might play a serious and constructive role in society as well as those which
are retrogressive. Nowhere did Arnold draw a distinction between realistic and unrealistic ideals.
He assumed that all ideals will be unrealistic, and he concerned himself solely with the problem
of employing them constructively.
His approach dismissed the possibility of mitigating the effects of philosophical lag by
developing a more realistic set of ideals. Practical men are left with only one alternative: the
manipulation of myths. Arnold’s emphasis on manipulation might have been an appropriate
tactic during periods of ideological transition such as the 1930s, but it fails to recognize the
necessary task of replacing outworn ideals with new principles designed to be taken seriously as
guides to a meaningful social existence.
7
Arnold, Folklore of Capitalism, p. 177.
Lerner, “The Shadow World of Thurman Arnold,” p. 702.
9
Hook, “The Folklore of Capitalism: The Politician’s Handbook—a Review,” p. 344.
10
Arnold, Folklore of Capitalism, pp. 137-38. Emphasis mine.
8
Arnold and the dissenting intellectuals who preceded him employed a variety of methods
intended to encourage critical analysis in social studies. They examined social institutions from
the detached perspective of the anthropologist, the evolutionary perspective of the historian, and
the holistic perspective of the generalist. Arnold employed all these perspectives in a series of
cogent observations which ignored the standard approaches and conventional boundaries of
established academic disciplines.
In place of a systematic theory consisting of formal definitions and logical progressions,
Arnold offered numerous illustrative examples which invite the reader to view prevailing ideals
and institutions in unaccustomed ways. Thus, he did not attempt to define the essence of private
corporations, but simply observed that they are “like armies.” This observation could be
subjected to innumerable intellectual criticisms. It lacks precision, exaggerates, overgeneralizes,
has no specific content, and is in great need of elaboration. These criticisms, however, do not
speak to Arnold’s main purpose which was not to detail the distinguishing characteristics of
private corporations, an exercise his readers would rapidly forget, but to bring his audience to
view private corporations in a new way, i.e., as disciplined, authoritarian organizations rather
than as competing individuals.
Arnold’s illustrations were characterized by cogency, imagination, and humor. They
reach across historical epochs and disciplinary boundaries simultaneously to provide illuminating
parallels to prevailing social institutions. Thus, Arnold described medical controversies in the
Middle Ages to satirize conservative resistance to the economic measures of the New Deal. He
poked fun at modern legal textbooks by comparing them to earlier theological treatises such as
Bush on the Resurrection, Plenary Inspiration, Cases on Conscience, and Method of Divine
Government.”11
Arnold’s talent was displayed in his imaginative use of history rather than in his mastery
of it. C. Wright Mills has said of Marx and Weber that “every line they write is soaked in
knowledge of history. They have truly assimilated it.” Other thinkers such as Mosca and
Durkheim “tend more to use it, at times rather externally, as illustrations of this or that theory.” 12
Arnold’s approach to history fell in Mills’s second category. It is the approach of a brilliant
amateur: amateurish, because Arnold was more a dabbler in history than a master of it; brilliant,
because of the skill and imagination with which Arnold used history to communicate new
meanings.
In common with the dissenting intellectuals of the late nineteenth and early twentieth
centuries, Arnold preferred to concentrate on the whole of society rather than its fragmented
parts. He deplored the artificial division of social phenomena into separate categories called
“law,” “economics,” “sociology,” and “political science.” Rather than polite chatting across
disciplinary boundaries, Arnold advocated making the boundaries themselves less distinct.
Arnold’s holistic approach amounted in practice to a consortium of intellectuals who
were generalists like himself; men whose interests in broad social trends and problems took them
far afield from the discipline in which they received their professional training. For example,
Arnold deeply respected men such as Edward S. Robinson, a psychologist who became a
11
12
Ibid., Symbols of Government, p. 67.
C. Wright Mills, ed., Images of Man (New York: George Braziller, Inc., 1960), p. 13.
member of the Yale Law School faculty and developed a psychological theory of jurisprudence;
Walton Hale Hamilton, a distinguished institutional economist who also joined the Yale law
faculty; Charles Horton Cooley, a pioneer in sociology who had received his doctorate in
economics; and Leon Keyserling, a graduate of Harvard Law School, who became an economic
adviser to President Truman.
Generalists such as Arnold had difficulty giving their strongest loyalties to the insular
concerns of their respective disciplines. They are frequently looked upon with some disfavor by
the stauncher members of their disciplines as “armchair philosophers,” “popularizers,” or
“gadflies.” This disfavor is not completely undeserved. The generalist always runs the risk of
brilliant superficiality. As Charles Horton Cooley, commenting on changes in sociology,
observed: “We elders ‘got by’ and now would like to raise standards. When everybody was
trying to do everything we were all so superficial that no one ventured to cast stones at any one
else. But the new generation will not tolerate ‘armchair’ sociology.” 13Brilliant superficiality,
however, seems a price worth paying for the fresh insights frequently provided by broad-ranging
generalists. During the 1930s, the very elaborate disciplines of law and economics were
remarkably insulated from the world of social change around them. Arnold’s brilliant but
superficial plunges into history and psychology provided a critical assessment of the intellectual
products of academic orthodoxy. He noted the similarities between the dialectics of legal
theorists and the reasonings of theologians. He compared respectable economists to Roman
augurs who studied the entrails of geese, and always seemed to find bad omens for legislation
which they disliked. He observed that legal and economic theories were similar to the deceptive
rationalizations of mental patients. These broad-ranging observations dramatized the failure of
prevailing legal and economic theories to realistically assess the social trends and problems of
the 1930s.
The critical perspectives of Arnold and the dissenting intellectuals of the late nineteenth
and early twentieth centuries were intended in large part to clear the way for social reform. The
dissenters were in agreement with John Dewey’s contention that the sanctification of a priori
universal principles was a major obstacle to the kind of thinking necessary to secure intelligent
social reforms. Even Oliver Wendell Holmes, who was as skeptical of reformers as he was of
businessmen, believed that legal principles should not be absolutized in such a way as to block
social experimentation.
Thurman Arnold’s two major books, The Symbols of Government and The Folklore of
Capitalism, were masterpieces in satirical analysis of the great conservative systems of thought
which made reform so difficult in the 1930s. The “atmosphere of religious worship” surrounding
these systems and the business institutions to which they gave “mystical” support was the
primary target of Arnold’s corrosive satire. Although the “practical observations” contained in
Arnold’s books do much to clear the way for reform thinking, they offer little in the way of
specific programs to implement reform. Arnold remained remarkably aloof from the
disagreements which existed within the New Deal over programs and policies. He did not
discuss the practical issues raised by these disagreements; i.e., the merits and proper scope of
national planning, the groups which should or would control the process of planning, the merits
and proper scope of various schemes of direct regulation, government subsidies, government
13
p. 241.
Edward C. Jandy, Charles Horton Cooley: His Life and Social Theory (New York: Dryden Press, 1942),
corporations, or the restoration of competition (aside from some satirical remarks on the
operational failures of the antitrust laws). He merely observed that expanded governmental
organizations were needed to “fill in the social gaps” left by the “industrial feudalism.”
Arnold’s neglect of specific programs of reform reflects the fact that his major concern
was the psychological rather than the technical or managerial problems of reform. In common
with the dissenting intellectuals before him, he emphasized the application of scientific
intelligence to human problems. Most of the dissenters, however, were interested in the
programmatic use of the scientific method; i.e., the use of scientific techniques to diagnose
social needs, devise programs based on this objective diagnosis, and finally to test the
effectiveness of the programs in action. Arnold’s overriding interest, on the other hand, lay in the
psychological use of the scientific method; i.e., the use of scientific techniques to discover the
impact of emotionally charged words and beliefs on human behavior, and to apply these findings
by manipulating slogans devised to gain public acceptance for new programs.
Most of the dissenting intellectuals recognized the irrationality of prevalent ideals and
institutional practices, but their response was to encourage widespread acceptance of an
objective scientific attitude toward social institutions and problems. Arnold dismissed this effort
as futile. He contended that irrational myths would continue to be the moving forces of political
life and should be manipulated for humanitarian purposes.
Arnold stated that his psychological approach to reform draws support from the
discoveries of modern psychiatry which can be profitably applied to human institutions. These
discoveries, according to Arnold, reveal that various ideals within the human personality are
contradictory to each other and to the behavior of the individual. Psychiatrists have learned to
accept the irrational ideals of their patients and to manipulate them to achieve the patient’s
physical comfort. In similar fashion, concluded Arnold, the politician should accept the irrational
nature of social ideals and manipulate them to make the members of society more comfortable.
Arnold’s advice to the politician, however, was based on a misunderstanding of the
purposes of modern psychiatry. The psychoanalyst, for example, sees his task as “Helping the
client to become more aware of his unconscious feelings . . . [resulting in] more spontaneity,
rationality, and other values implicit in the mature personality.” 14 The analyst does not try to
manipulate irrationality, but rather to reduce it by bringing it before conscious inspection.
Unlike Arnold, modern psychiatrists do not accept an inevitable contradiction between
ideals and behavior. “When behavior and the basic philosophy of life are at odds,” observe the
authors of a widely respected text on psychotherapy, “the personality usually is in trouble.” 15
Rather than uncritically accepting and manipulating irrational ideals, the modern psychiatrist
helps his patient toward the development of a “tested personal philosophy adequate for his time
and circumstances.” 16 The perspectives of modern psychiatry, therefore, do not support Arnold’s
approach to reform so much as they support the approach taken by most of the earlier dissenting
intellectuals who, recognizing the irrationality of social ideals and behavior, sought to reduce it
14
Lawrence M. Brammer and Everett L. Shostrom, Therapeutic Psychology (Englewood Cliffs, N.J.:
Prentice-Hall, Inc., 1960), p. 31.
15
Ibid., p. 389
16
p. 390.
by encouraging an attitude of scientific objectivity toward the social problems and institutions of
their times.
Arnold’s emphasis on social control by manipulation of irrational symbols and ideals
separates him from most of his fellow American dissenters and gives him much in common with
a group of European thinkers—sometimes referred to as “the Machiavellian”—all .of whom
stress the irrationality of politics and the inevitability of elite rule. 17 Arnold can be differentiated
from this group primarily in terms of his characteristically American faith in reform through
democratic (albeit manipulated) politics. He ascribes far less importance to the role of violence
as a means of social control than do European thinkers in the “Machiavellian” tradition.
If Arnold’s elitism is somewhat tame by European standards, it is quite bold by American
standards. To be sure, contemporary American political scientists are far more “elite conscious”
than were most of their predecessors of the 1930s. 18 Arnold anticipated this contemporary trend
in political science and, mostly to his disadvantage, moved boldly beyond it.
The most prominent characteristic of contemporary “elitist theories of democracy,”
contends Professor J. L. Walker in a recent essay, is the tendency to view elites as the bulwark of
liberal democratic values, in contrast to classical theories of democracy which placed primary
importance upon the attitudes of the general public. 19 The late V. 0. Key provides a good
example of this viewpoint. “The critical element for the health of a democratic order,” he
maintained, “consists in the beliefs, standards, and competence of those who constitute the
influentials, the opinion leaders, the political activists in the order.” 20 Arnold, in a similar vein,
advised his readers not to fear chaos and oppression from new organizations as long as the men
who direct them “are good organizers and at the same time tolerant and humanitarian.” The
values of a society are determined, according to Arnold, by the creed of the class in power or by
the creed of a new class rising to power. Thus, for Arnold as for Key, the character of elites was
the critical element for the health of a democracy.
The point at which Arnold went beyond the elitism of contemporary political scientists is
found in the extent to which he believed public opinion could be controlled by scientific
manipulation. Professor Walker points out that in most of today’s “elitist theories of democracy .
. . it is assumed that the individual citizen will receive information from several conflicting
sources, making it extremely difficult for any one group to ‘engineer consent’ by manipulating
public opinion.” 21 Arnold, on the other hand, contended that political “games can be controlled”
once the relationships between social symbols and human behavior are discovered by social
scientists and applied by politicians. Arnold’s hope represented a naive belief in the near
omnipotence that can be derived from the findings of modern social science. A small but
representative sample of these findings is contained in a recent survey of public opinion by Lane
17
See James Burnham’s study of the common elements in the philosophies of Machiavelli, Pareto, Sorel,
Mosca, and Michels: The Machiavellians (Chicago: John Day Company, 1943).
18
The striking exception to this generalization is found in the early writings of Harold D. Lasswell: see
Politics—Who Gets What, When, How (New York: McGraw-Hill, 1936); and Psychopathology and Politics
(Chicago: University of Chicago Press, 1930).
19
Jack L. Walker, “A Critique of the Elitist Theory of Democracy,” American Political Science Review,
vol. 60 (June 1966), pp. 285-95.
20
V. a Key, Public Opinion and American Democracy (New York: Alfred A. Knopf, 1961), p. 558.
21
Walker, “A Critique of the Elitist Theory of Democracy,” p. 286.
and Sears.22 On the basis of conclusions drawn from scientific studies in this area, the authors
offer certain canons of advice to politicians—two of which are presented below:
1
On any given issue, the greater the change in opinion you
advocate, the greater will be the audience change—if the audience
respects you highly and if it has relatively weak convictions on the
matter.
2
On any given issue, the greater the change in opinion you
advocate, the more you will be criticized and the less change you
will get—if the audience already has strong opinions on the issue,
and is somewhat indifferent to you as an advocate. 23
These axioms suggest that there are sharp limits to the powers of social control which
politicians can expect to garner from a careful study of the recent findings in the social sciences.
Arnold not only underestimated the enormous difficulty of building a body of knowledge
sufficiently subtle, complex, and flexible to constitute a science of social control; he also
overlooked the unpleasant fact—emphasized by contemporary political scientists—that effective
social control would require stifling the flow of information from opposing sources. In other
words, Arnold overlooked the basic incompatibility between his elitist theory of social control
and his libertarian sentiments. 24
Perhaps the closest parallel in recent American political science to Arnold’s bold elitist
and manipulatory concepts is found in the early writings of Harold D. Lasswell. Arnold and
Lasswell both began with the assumption that individuals are poor judges of their own best
interests and have an “infinite capacity” for making ends of their symbols. Lasswell made his
assumption explicit, 25 whereas Arnold clearly implied it in his notion of the basic inconsistency
between the ideals of individuals and their “practical needs.”
On the basis of this assumption, both Lasswell and Arnold were quite skeptical of the
value of extensive public discussion and debate in society. “Discussion,” asserted Lasswell,
“frequently complicates social difficulties, for the discussion by far-flung interests arouses a
psychology of conflict which produces obstructive, fictitious, and irrelevant values.” 26 Arnold
agreed that public debate hardened existing opinions around fictitious and irrelevant ideals,
making practical compromise much more difficult. Both Arnold and Lasswell minimized the
contribution of public debate to objective diagnosis and treatment of real social problems.
Rather than extending public discussion or facilitating the expression of group interests,
Lasswell and Arnold proposed to channel the power of violent divisive emotions into relatively
harmless symbolic channels by skillful manipulation of slogans and myths. The task of
22
Robert E. Lane and David 0. Sears, Public Opinion (Englewood Cliffs, N.J.: Prentice-Hall, Inc., 1964).
Ibid., p. 49.
24
In recent years Arnold recognized this incompatibility and expressed his distrust of government by
manipulation of symbols. (See Chapter H.)
25
Lasswell, Psychopathology and Politics, pp. 194-95.
26
Ibid., pp. 196-97.
23
manipulation was to be performed by a new elite characterized by a new attitude toward social
institutions. 27
There is great danger to democratic institutions in both the assumptions and the
conclusions shared by Arnold and Lasswell. The notion that individuals are poor judges of their
own interests is usually accompanied by the belief that some uniquely qualified group can more
effectively determine their interests for them. Arnold’s “fact-minded observers” and Lasswell’s
“social scientists” are assumed to have such capabilities. Once the view is accepted that an elite
is more capable of determining the best interests of the average citizen than is the average citizen
himself, the political procedures for registering popular demands and reactions become primarily
an obstacle to good government rather than a necessary ingredient of it. The logical conclusion is
that democratic procedures (if they are to be maintained at all) function best when they are under
the manipulatory control of a qualified elite.
The unique qualification of Lasswell’s and Arnold’s elites lies in their scientific
detachment. Both men believed that modern social scientists can study human organizations and
prescribe cures as disinterestedly as a physician diagnoses and treats a patient. This assumption
is certainly open to serious question. Is Lasswell, a social scientist, completely disinterested
when he links the hope of the world with the skills of his profession? 28 Was Arnold merely an
“objective observer” when he described the rise of a new leadership class (consisting of fellow
New Dealers)? It seems most improbable that any group of men, including social scientists, can
exercise political power with the dispassionate attitude of the physical scientist. There is no
evidence that the research methods developed by social scientists have rendered them immune
from the pleasures of prestige and dominance which have led other elites to abuse their power.
In the light of these considerations, it is to Arnold’s credit that the objectives of his theory
of social control were considerably less ambitious than are those of Lasswell. Arnold’s interest in
psychological manipulation was confined to gaining public acceptance for social and economic
reforms designed to maintain the material prosperity of the nation. Beyond this limited objective,
Arnold had no desire to adjust the psychological attitudes of individuals. Lasswell, on the other
hand, views politics as a kind of mass psychotherapy. 29 Unlike Arnold, he links politics directly
to the mental health of individuals. Politics is to be concerned with promoting healthy psychic
states among political participants and ordinary citizens alike. Political science will be allied with
fields concerned with the individual’s mental health, e.g., general medicine, psychopathology,
and physiological psychology. 30
Arnold’s theory of social control was less ambitious than Lasswell’s in geographical
scope as well as in psychological application. Arnold was seeking solutions only for American
problems, and had no vision of permanent cures. Lasswell, on the other hand, is searching for a
permanent reduction of world tension through the agency of a universal body of myths and
symbols. 31
27
28
See Lasswell’s proposal for a “politics of prevention,” ibid., pp. 196-203.
See Lasswell, World Politics and Personal Insecurity (Chicago: University of Chicago Press, 1934), p.
20.
29
Ibid., p. 233.
Lasswell, Psychopathology and Politics, p. 203.
31
Ibid., World Politics and Insecurity, p. 237.
30
Although Arnold’s prescriptions were bolder than those of most reform-minded
American dissenters, his purposes (especially when compared to those of Lasswell) did not seem
radically different. Like American reformers before him, Arnold was concerned with limiting the
power of organized business interests and clearing the way for more governmental intervention
in the economy. He represented the extreme liberal reaction to conservative preemption of
doctrines used earlier by Jefferson and Jackson to check the social power of dominant business
groups. If businessmen have successfully used Jeffersonian doctrines in an irrational way,
Arnold reasoned, then liberals must do the same. Public manipulation rather than public
education is the surest means of securing reform in a nation dominated by irrational myths.
Yet whether he intended it or not, Arnold’s writings during the 1930s served the purpose
of public education. They popularized the facts of the corporate revolution uncovered by other
writers, and exposed the discrepancy between these facts and the prevailing ideals of law and
economics. Although Arnold professed indifference to the development of a more “realistic” set
of ideals, his critical dissection of social “folklore” was a valuable point of departure for those
who wished to pursue this purpose. By exposing the fanciful dimensions of ideals accepted as
absolute and unchanging truth, he facilitated more realistic trends in social thought.
In addition to undermining conservative folklore, Arnold provided observations of lasting
significance concerning the interplay of ideals and institutions. His cogent demonstration of the
importance of a friendly ideological climate to the growth and development of institutions is as
applicable today as it was during the 1930s. It helps explain, for example, how organizations
associated with the Department of Defense have been able to undertake programs involving huge
sums of money with relatively little controversy, while new organizations associated with
President Johnson’s War on Poverty must operate in an atmosphere of intense controversy to
secure relatively meager sums. Arnold also provided a valuable conceptual framework for
looking into the future. Speculations about tomorrow’s social ideals, he asserted, should be based
on close observation of today’s rising organizations. This advice is helpful in appreciating the
significance of the growth of the “warfare industry” since World War II, 32 the anticipated
expansion of the “knowledge industry,” 33 and the growing demand for expansion of public
service organizations to grapple with long neglected social problems. Arnold’s insights in
contemporary context add a new dimension to the importance of public policy decisions relating
to the competing claims of these institutions.
Arnold continued over the years to espouse his views in books, articles, and speeches.
His contribution to American social thought, however, is found mainly in his writings during the
1930s, which contain the richest supply of original and probing ideas. His later writings add
important insights into his deepest moral and political commitments, and clarify some of the
puzzling ambiguities of his earlier works. The important message contained in Arnold’s writings
throughout the years is that the emotional force of ideals must be channeled into practical
humanitarian purposes if those ideals are to withstand the test of time. Hopefully, this message
will not be ignored by the proponents of business ideals or by the scientifically inspired
intellectuals who are increasingly assuming the responsibilities of social leadership.
32
33
See Galbraith, The New Industrial State.
Kenneth E. Boulding, “The Knowledge Boom,” Challenge, vol. 14 (July/ August 1966), pp. 5-7.

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