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The Transformation of American Law, 1780-1860

by Morton J. Horwitz
Harvard University Press, 356 pp., $16.50

Until recently, the history of American law has been centered in law schools and written by and for lawyers. Apart from an interest in constitutional cases, American historians have tended to avoid the field: their feelings of inadequacy in dealing with technical legal doctrine and procedure are surpassed only by their terror when confronted with statistics. Essentially a service for the legal profession, the history of law was mainly concerned with the origins and gradual development of a legal tradition independent of economic changes and political conflicts. The law was exalted as being above the realm of politics, and modifications of legal doctrines were more or less equated with scientific discoveries; their origins lay wholly within a self-contained and self-sufficient system of thought.

Legal history, however, is too important to be left indefinitely to lawyers. During the past generation, a sweeping reconsideration of the field has occurred, and the traditional view of the autonomy of legal thought has been replaced by an interpretation of law as the direct expression of economic and political interests. The first writer to cross the sharp boundary which had separated legal history from general American history was J. Willard Hurst, who taught at the University of Wisconsin. For Hurst, the essential function of law in nineteenth-century America was to facilitate economic growth and assist in capital formation. Legal procedures and rulings fostered enterpreneurial activity, making possible a “release of energy” essential for economic development.

For Hurst and the “Wisconsin school” he inspired, ideas and ideologies had little independent part in shaping legal behavior. Law was a mirror of society, and particularly of the best organized economic interests and political groups. As one of Hurst’s most prominent disciples, Lawrence Friedman, expressed it in his History of American Law, the legal system “does the bidding of those whose hands are on the controls.” Far from reflecting an autonomous historical tradition, “the strongest ingredient of American law, at any given time, is the present.”

The Transformation of American Law is both the culmination and a significant advance beyond the Hurst school. Like Hurst, Morton Horwitz rejects the common equation of law with constitutional cases, insisting instead on the primacy of “private law” and the economic causes and implications of legal decisions. But while Hurst assumed that nineteenth-century law reflected the underlying consensus of a society united in its commitment to economic growth and entrepreneurial activity, Horwitz sees the legal system as ridden with deep social and ideological conflicts. And unlike Friedman, for whom conflict over legal policy took place among similarly motivated interest groups, Horwitz makes it clear that the conflict reflected far-reaching divisions in a society undergoing rapid economic transformation.

For Horwitz, law is not simply a matter of legal procedures nor can it be reduced to dollars and cents. It is a way of interpreting the world, and as such encompasses political philosophy and social ideology. The relation between law and society is a reciprocal one; law both reflects and influences social change. Horwitz thus…

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