Customer Reviews

The Transformation of American Law, 1780-1860 (Studies in Legal History)

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As one reviewer and the publisher had pointed out, the basic premise of the book is how the common law sought to accommodate the economic changes (and actually sought to allocate wealth) during the formative years of this republic. Some commentators have criticized this book as a Marxian dialectic attack of the American law--in particular from the Chicago School quarters. (Chicago Law Review published a very scathing review in the 70s with the aim, I suspect, to discredit Horwitz's argument) But I thought Professor Horwitz did a wonderful job in supporting his argument with citation and documentation. Is he a revisionst? Maybe. But he's more of an E.P. Thompson than a Howard Zinn. In any event, this book presents a very convincing argument despite its tendentiousness.
P.s. For those of you who want to avoid "legal arcana" or those who want a more eclectic treatment of the development of the American law, I would recommend Lawrence Friedman's History of the American Law.

I am neither a lawyer nor a historian, a mere 3rd rate merchant, but the book is an excellent map to where the bones of USA are buried, case by case. How come pollution became such a problem in USA? Case by case, the common law system that protected the environment was broken apart to give the advantage from the property owner to the factory owner. Once a factory owner would have to control pollution, and yes this would add to cost, but not stop progress. Court cases allowed big biz to socialize the cost of pollution while keeping the profits. Sound familiar, with today's bank bailouts?

Yes, Horwitz is a Marxist, but we err if we fail to perceive that Marxists get their facts straight. And as a Marxist, he summarizes we need Marxism. OK, just skip the last paragraph in the book. The rest is a stunning, accurate indictment of USA Big Law and Big Biz (and big govt). WE cannot reform or recover America, but we can know what works, and by self-employment carve out a redoubt of legitimate action in a lawless land.

Horwitz argues a fairly radical case, which may not have received wide enough recognition due to the subject matter and style. He says "I seek to show that one of the crucial choices made during the antebellum period was to promote economic growth primarily through the legal, not the tax, system, a choice which had major consequences for the distribution of wealth and power in American society." He also has some interesting ideas about the way "the internal technical life of a field generates autonomous forces that determine its history." We make a mistake, Horwitz believes, if we fail to account for the activities and interests of lawyers, judges, the legal profession, law schools, etc., when looking at how "the law" influenced history. The same could probably be said, with equally interesting results, for religion, medicine, or the study of history itself.

Horwitz looks at common law. Constitutional law, he says, "represents episodic legal intervention buttressed by a rhetorical tradition that is often an unreliable guide to the slower (and often more unconscious) processes of legal change in America." Constitutional law also focuses on judicial review, rather than what Horwitz characterizes as a very active, constructive, legislative role taken on by nineteenth century jurists. "By 1820," he says, "the process of common law decision making had taken on many of the qualities of legislation. As judges began to conceive of common law adjudication as a process of making and not merely discovering legal rules, they were led to frame general doctrines based on a self-conscious consideration of social and economic policies." The ancient tradition of "an eternal set of principles expressed in custom and derived from natural law" gave way to an understanding of law as "an instrument of policy" that could be used "for governing society and promoting socially desirable conduct." Once this change had been made, the game became one of defining the terms "socially desirable."

These ideas have been used to great effect by Ted Steinberg and others. For people seriously reading American History, this volume is a must-read.

Laissez-Faire means live and let live. In this history by Morton Horwitz, we see that along with the rise of corporatism in America was the demise of laissez-faire through the interventionist hand of the state's judicial system:

Mill owners were allowed by government to destroy other people's property by flood;

Canals and railroads were built by seizing land through "eminent domain";

The right of juries to decide judgements for damages in tort cases was taken from them and given to judges;

Contract labor laws - "if a worker signed a contract to work for a year, and left before the year was up, he was not entitled to any wages, even for the time he had worked. But the courts at the same time said that if a building business broke a contract, it was entitled to be paid for whatever had been done up to that point".

Horwitz shows us that laissez-faire was replaced by corporatism, but he doesn't tell us that because the corporatists label their actions behind a false label, Horwitz rails against their false label rather than the actual label of corporatism that accurately describes their actions: "By the middle of the nineteenth century the legal system had been reshaped to the advantage of men of commerce and industry at the expense of farmers, workers, consumers, and other less powerful groups". Included in these other less powerful groups was the laissez-faire entrepeneur, the sole-proprietor and/or partner(s) in business who were responsible for their actions as businessmen unlike the owners of corporations who hid behind hired managers and the law that held the owners exempt. The worst fraud committed on the American people was the deeming of the corporation as an artificial person with constitutional rights.

I have both a J.D. and a Ph.D. in American history, and this book is tough sledding for me. In short, the subject matter -- the way judges adapted American law to accommodate economic change in the first half of the nineteenth century -- is interesting, but the reader is dragged through lots of legal arcana _en route_. I don't recommend this title for the faint of heart.

it should say how valuable the knowledge is. The lawyer who said the book is tough-going should be ignored as he addressed no content in the book. He only manipulated several people into not reading the book. What a way to manipulate people into remaining ignorant! Get it from ANY library, read one chapter, and pursue YOUR interest in our wretched government's tyranical tendency! If the 1st chapter hits, buy the book anywhere you want and study it! Be free!