From Stable Foundations to Dynamic Processes (and Back?)

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Ajay K. Mehrotra

Let me begin with my thanks to Jack Balkin for hosting this online symposium and for inviting me – long time Balkinization reader, first time contributor – to participate in this discussion.  Thanks, of course, also to Kunal Parker for writing such an important and stimulating book. 

I had the good fortune of reviewing portions of The Turn to Process when Kunal presented an overview of the book and the law chapter at an American Bar Foundation/Northwestern University Legal History Colloquium several years ago.  At that event, many of the participating faculty and graduate/law students were excited to read such a capacious history of modern American intellectual life.  Although some found the workshop paper a bit dense, everyone agreed that Kunal had embarked on a bold and ambitious research project. 

The published version of The Turn to Process validates those earlier sentiments.  Kunal has completed a stunning and sweeping history of how a certain segment of American legal, political, and economic thinkers reoriented their respective fields away from stable notions of “truths, ends, and foundations” toward dynamic “methods, techniques, and processes.” In doing so, he makes several contributions to the existing literature by complementing and at times challenging some of the most canonical works in American intellectual history, especially by uncovering the multiple meanings of “the turn to process” and by re-periodizing our conventional understanding of this otherwise familiar story about change over time.

With its trenchant century-long analysis of the history of Euro-American ideas, The Turn to Process joins the pantheon of monographs about a fundamental transformation in thinking that occurred at the turn of the twentieth century.  Like Morton White’s Social Thought in America: The Revolt Against Formalism (1949), Mary Furner’s Advocacy & Objectivity: A Crisis in the Professionalization of American Social Science, 1865-1905 (1975), Thomas Haskell’s The Emergence of Professional Social Science: The American Social Science Association and the Nineteenth-Century Crisis of Authority (1977), and Jim Kloppenberg’s Uncertain Victory: Social Democracy and Progressivism in European and American Thought, 1870-1920 (1986), Kunal is most interested in explaining how the late nineteenth century “crisis of authority,” or what he refers to as “the disciplinary loss of self,” led key theorists in each of his three fields – law, politics, and economics – to pivot to new ways of addressing contemporary problems. 

But Kunal’s central research questions go well beyond the multifaceted response to the turn-of-the-century crisis of knowledge; he is equally interested in exploring the many consequences of this seismic shift toward means, methods and techniques.  Like Dorothy Ross’s The Origins of American Social Science (1990), and Ed Purcell’s magisterial The Crisis of Democratic Theory: Scientific Naturalism and the Problem of Value (1973) – two books that Kunal singles out as crucial models and foils – Kunal demonstrates how his historical actors were reconfiguring ideas about law, the polity, and economic rationality in response to changing material conditions, both in and outside of the academy. 

Kuanl’s time period, of course, overlaps with the height of American pragmatism.  Thus, it is no surprise that John Dewey’s ideas play a prominent role in his story.  Using Dewey and his valorization of the “scientific experimental method” as a tool for “practical activity” as his point of departure, Kunal documents how leading jurists, political scientists, and (mainly micro) economists responded to the demise of stable foundations and the rise of the administrative state by reverting to methods and means as “provisional tools” to “solve problems as they arise.” 

Yet precisely because these tools were provisional, unmoored from stable foundations, they could be used for both progressive and conservative political ends.  This is perhaps Kunal’s most important and arresting contribution, demonstrating the multiple valences of the turn to “methods, techniques, and processes.” 

For some progressives, like Dewey, the American legal realists (e.g. Karl Llewellyn et al.), and the American institutionalist economists (e.g. Thorstein Veblen et al.), techniques and processes were vital in continuing the assault on foundations and providing an intellectual rationale for government intervention into economy and society.  In the economic sphere, original institutionalists (not to be confused with the more recent variety of new institutional economists), such as Veblen, sought to undermine the marginal utility analysis that had become the foundation of neo-classical economics at the turn of the twentieth century. 

Rather than viewing the market as an institution that helped satisfy already formed individual preferences, as the marginalists believed, Veblen contended that market consumption was a process pursued for its own sake.  What Veblen identified as the elite pathology of conspicuous consumption is thus for Kunal a quintessential example of how one of his key historical figures inverted means and ends.  Consumption was no longer an individual act aimed at maximizing utility; it was, rather, a social activity, an unending process aimed at others. 

Neo-classical economists, of course, had a response to Veblen and other early institutionalists – a response that maintained their promotion of the market.  In what is perhaps his most compelling chapter, Kunal convincingly shows how marginalist economists like Frank Knight, Lionel Robbins, and perhaps most importantly Friedrick von Hayek reconfigured their faith in homo economicus and competitive markets.  They did so by celebrating markets as a method “less for the achievement of competitive equilibrium than for the communication of information,” Kunal notes.  “The market would be re-presented, in other words, as information technology.”  With this reconfigured view of markets as methods, post-war neo-classical economists not only challenged the New Deal order and the bounds of the administrative state; they also gave their discipline license to colonize nearly every subfield, from criminal justice to family relations. 

In the process of revealing the multiple valences of “the turn to process,” Kunal also challenges the standard periodization of the history of law and the social sciences.  This is his second major contribution.  The conventional history of the U.S. social sciences often focuses on the post-World War II period as the key era of “Cold War social science,” a period when the threat of Soviet scientific superiority led to a different type of crisis of knowledge and a glorification of processes. 

Yet Kunal shows that his view of a turn to process had a much older lineage.  It began not as a result of Cold War geo-political pressures, but much earlier in the turn-of-the-twentieth-century response to the first major crisis of authority.  Kunal’s re-periodization also forces one to reconsider whether the post-1970s period was truly an “Age of Fracture” as Dan Rodgers has recently contended, or whether the fracturing and undermining of “truths, ends and foundations” occurred much earlier in the century. 

While the Turn to Process demonstrates Kunal’s prodigious research in the published primary sources of his period, the book also makes some deliberate narrative decisions that are strikingly odd or curious.  For example, Kunal concedes in the framing of the project that he has NOT analyzed the critics of his turn to process. He refers specifically to how Purcell’s account of neo-Aristotelians scholars “who fought valiantly against relativism are not present in this book.” 

Kunal’s omission of the critics of process and technique is somewhat puzzling.  His contention is that he is more interested in how these thinkers – and Kunal and Purcell explore many of the same theorists – “sought to refound knowledge as process.”  That is, Kunal seems more interested in how these thinkers were using process as a response to the problem of relativism. 

But this appears to be a missed opportunity.  A more careful examination of the ideas of the neo-scholastic proponents of natural law in the post-WWII period, for example, could have helped show how foundational thinking was hardly dead decades after the crisis of authority.  In fact, the post-WWII revival of natural law could be seen as part of the conservative repurposing of process to suit new conditions and problems.  Contrasts and contestation, in other words, can help bring to the fore the points of disagreement and thus clarify the arguments made by different historical protagonists. 

Despite these quibbles, Kunal has written a fascinating and persuasive account of a profound transformation in American intellectual life – one that continues to resonate today.  Indeed, Kunal’s narrative underscores how process, method and technique have become embedded in our current way of thinking, especially in the legal field.  Indeed, if one were to survey most present-day lawyers about the fundamental elements of the rule of law, “due process” and “legal procedure” would no doubt be at the top of the list. For better or worse, this might be the most resounding legacy of the Turn to Process.  

Ajay K. Mehrotra is a professor of law & history at Northwestern University, and a Research Professor at the American Bar Foundation. You can reach him by e-mail at ajay.mehrotra@law.northwestern.edu.