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The Transformation Of American Essay, Research Paper
There is no question that at the beginning of the 21st century the United States stands at the apex of world economic supremacy. How did this relatively young and diverse nation reach such a level of preeminence? In The Transformation of American Law 1780-1860 Morton J. Horowitz attempts to demonstrate that the rulings of antebellum judges in cooperation with lawyers and big business directly and consciously effected the common law of the United States.
Mr. Horowitz asserts that a change in legal ideology enabled commercial groups to win a disproportionate amount of wealth and power in American society. The genesis of this new ideology, according to Mr. Horowitz, began when the legal profession forged a mutually beneficial alliance with the merchant elite in order to gain wealth and power. Thus the law began it s evolution, spurred by the court system, of favoring economic growth and development. In order to prove these theories one would need to do exhaustive research, scouring the legal books for precedent setting decisions which support this claim. Mr. Horowitz was certainly up for the task.
Armed with legal fact Mr. Horowitz proceeds to connect judicial precedents favoring social change with precedent setting decisions favoring corporations, leading to contract law reform. At first glance he presents a strong argument.
From the outset Mr. Horowitz establishes the obvious change in civil decision making, contrasting pre-Revolutionary court decisions, which favored the individual, with those of the 19th century, which focused more on community impact and social change, typically fostering the advance of an emergent industrial society. Mr. Horowitz first turns his attention to the concept of property rights and how the need for commercial development spawned judicial precedents.
Prior to the 19th century a property owner possessed absolute dominion over his land. The law upheld the belief which prevented a neighbors land to be used in such a way that conflicted with his [neighbors] quiet enjoyment. In a 1799 New Jersey decision a judge maintained that the right to the flow of a stream was derived from the ownership of adjacent land, and any use of water that conflicted with the interests of any other proprietor on the stream was an unlawful invasion of his property. This was an obvious impediment to economic growth.
As the predominantly agrarian society moved towards a manufacturing economy the need for change was obvious, and the decisions which judges began to put forth reflected that. Palmer v. Mulligan (1805) forced the New York Supreme Court to proclaim that a landowner could obstruct the flow of water for mill purposes.
Along with changes in the conception of property rights big business began to be perceived differently. Mr. Horowitz points out that in the 18th century a corporation was thought of as a municipality, that is a public body charged with carrying out public functions. By contrast the 19th century brought about a change in the interpretation of a corporation. Corporations begun being thought of as organizations pursuing private ends for individual gain. This dramatic metamorphose in philosophical thought enabled corporations to emerge as financial powers, with lawyers, the one time antagonists of big business, as the spearheads.
Using the case method of analysis Mr. Horowitz is constantly citing court decisions to strengthen his arguments. In 1785 the Massachusetts Court of Common Pleas ruled against a bridge company which had drawn away business from a ferry owner. By contrast just 8 years later in a similar case the Massachusetts Supreme Judicial Court ruled that the ferry owner had no legal right to the property and that there was no wrong or injury done to him.
Common roads began to be replaced by turnpikes, and ferries were replaced with bridges. Each new step created a complex web of new legal questions for which the past could only supply a semblance of guidance. Individuals began to be overlooked in favor of profitable decisions for corporations. This spawned the development of the contract, a virtually impotent document prior to the 19th century, as an important legal utility.
Prior to the 19th century contractual obligation derived from the inherent justice or fairness of an exchange. In other words, the judge and jury would act as arbiters, handing out subjective verdicts with no clear guidelines to direct their decisions. In the 19th century both judges and juries began rejecting this belief of fairness in favor of an agreed upon contract written and signed prior to a business venture. This process favored those able to afford the most skilled attorneys who were able to word contracts in such ways as to tip the scales of fairness in their direction.
Mr. Horowitz arguments, while strong and convincing, are not convicting. He creates a wonderfully patterned mosaic of judicial findings, dressing up his argument. Although this work received the Bancroft Prize in American History I found his research insufficient to prove his case. Mr. Horowitz conjures a theory about the driving factor of legal evolution in the U.S., obviously spawned from his prior knowledge of American legal history. The evidence used however is circumstantial. Mr. Horowitz certainly produces the smoking gun, but not the body and certainly no witnesses.
The time period covered in this work was a time of tremendous political and financial change in America. This was a new nation, with emerging ideals and philosophies. Independence, once gained, compelled this nation to produce it s own standard of judgment and law. Perhaps a shift in judicial policy was inevitable and necessary in order to establish this new Republic. It certainly is conceivable that judges understood the importance of a new expanding economy lay not in the methods of the old world, and therefore found it necessary to set precedents based on cultural ideals, which had shifted from patriotic fervor to capitalist yearnings. Historically it appears that a shift from decisions promoting individual gain toward those favoring the societal whole was unavoidable.
Mr. Horowitz therefore cannot present a seamless case, because the active participants in what he believes to have been a conscious restructuring of civil law are long gone. He does not present excerpts from private writings, such as diaries or journals. Mr. Horowitz therefore presents a challenging theory to our ideological ancestry, yet we will probably never know beyond a reasonable doubt if our civil laws evolved naturally or by coerced means.
Critical Book Review
By Rusty Belopolsky
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