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a sweeping reconsideration of the field has occurred, and the traditional view of the autonomy of legal thought has been replaced by an interpretation of law as the direct expression of economic and political interests.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 reasserts an older tradition which takes legal thought seriously, but in contrast to the traditional approach, he insists that the essence of the history of law, like the history of society, is not continuity, but transformation. The modifications of law which constitute the subject of his book are elements of what Karl Polanyi called the “great transformation” from a pre-market to a market society, a historical process which affected entire ways of life, human relations, and, of course, the law.
Horwitz begins by considering the basic changes which took place in the function of common law during the eighty years following the American Revolution. In the eighteenth century, the principles and practices of common law roughly corresponded to dominant social attitudes, and expressed customary ideas of justice thought to derive from natural law. Judges were not supposed to “make” law, but to discover and elaborate on existing precedents. During the early nineteenth century, however, an “instrumental” conception of common law supplanted the older approach. Instead of neutrally attempting to apply pre-existing rules, judges increasingly assumed that they could make law, and common law came to be seen as a mode of shaping public policy.
Most of Horwitz’s book attempts to show how legal doctrines were in fact shaped so as to enrich certain kinds of property owners and subsidize economic growth. In his most impressive chapter he describes the transformation of the legal definition of property from “a static agrarian conception entitling an owner to undisturbed enjoyment, to a dynamic, instrumental and more abstract view of property that emphasized the newly paramount virtues of productive use and development.” In the eighteenth century, for example, riverside property owners could claim damages if a mill was built upstream, flooding their land or impeding river flow. But after 1820, as the early cotton textile factories were constructed, mill owners were given the right to flood nearby land without paying damages by claiming that irrigation was beneficial—even if undesired—to their neighbors.
Similarly, the legal doctrine of eminent domain and the law of nuisance were changed to encourage economic growth. The power of eminent domain was transferred to private railroad and canal companies, who could appropriate private land on the grounds that such companies served a public purpose. Railroads frequently avoided paying compensation for fires caused by sparks from trains, flooding caused by the construction of railroad bridges, and the nuisance caused by noise. And whereas previous claims for damages had required simple proof of injury, the triumph of the legal doctrine of negligence meant injured parties had to prove carelessness on the part of entrepreneurs if they were to collect damages.
The law, in other words, moved from protecting one form of property—that of small, independent owners—to protecting the holdings of corporate enterprises. At the same time, a dramatic shift took place in the relative power of judges and juries. Juries—usually composed of small property owners—found their ability to “find the law” eliminated and their power to assess awards in damage suits sharply curtailed.
Nowhere does Horwitz describe the adaptation of the legal system to an emerging market society more clearly than in his discussion of the changing legal conception of contract. In the eighteenth century, the justification of a contract was taken to be its inherent fairness. Courts refused to enforce contracts which were considered inequitable or which included wide departures from the traditional notion of a “just price.” Such doctrines reflected the outlook of a society in which social and moral obligations were considered superior to economic ones, and in which making the highest possible profit was not the principal motive shaping human behavior.
With the development of wider markets for agricultural products and the beginning of trading in agricultural futures, however, older notions of an objective, traditional standard of value became increasingly inapplicable to economic activity. As the political economy of Adam Smith taught, only the market could determine a just price, and the test of the equity of a contract was simply that two persons had agreed to it.
At the same time, courts began to view labor itself as a commodity whose value was determined in the marketplace. Horwitz, for example, cites the case of a railroad worker who claimed that his employer was liable for injuries suffered on the job. The court ruled that since wages for railroad workers were higher than average, there was no liability; the market itself compensated for increased risk.
As Horwitz makes clear, the result of these changes was that the state increasingly subsidized entrepreneurs and economic growth, and that wealth and property were transferred from small to large property-owners. Because economic development was financed through the legal system and not, for example, by taxing property, the burden of economic development was borne by the weakest elements in American society.
Precisely why this took place is, unfortunately, not made entirely clear in Horwitz’s book. He briefly suggests that a marriage of convenience occurred between the bar and “merchant and entrepreneurial groups.” Previously, merchants had relied on an elaborate system of extralegal methods to settle disputes, fearing that judges and juries were ignorant of or unsympathetic to commercial practices. But as the bar became increasingly professionalized—which meant that lawyers and judges were drawn from higher social classes—and the power of juries curtailed, a community of interest was created among entrepreneurs and judges.
By 1850, the legal system had been transformed, but not without controversy. Those who resisted the expansion of market values often became involved in the movement of the 1820s and 1830s to draw up legal codes, attempting to curb the law-making power of judges. Indeed Horwitz’s analysis helps to make sense of the antipathy to lawyers, judges, and the common law that was so powerful in antebellum America. But, as he shows, even codification could not reverse the economic and legal developments which had taken place. In fact, the codification movement, which began as an attempt to make the law less political, was itself used to “freeze” legal doctrine just at the point at which it was most favorable to commercial interests. After 1850, a more formalist conception of law came into vogue, one which de-emphasized the law-making power of judges and depicted law as standing above political and economic interests. In effect, those interests which had benefited from the power of law to redistribute wealth and power were determined that other groups not use that same power in a more egalitarian direction.
Horwitz writes that he has addressed his book to “the general historian,” and it is to be hoped that a wide audience will read it since the issues it raises are indispensable for understanding nineteenth-century America. But there are some serious shortcomings in Horwitz’s interpretation. For example, he never adequately defines either the “commercial and entrepreneurial” interests who shaped and benefited from the transformation of law, or the “other” interests who suffered from it. Nor does he take into account the possible differences in ideology and aspirations within these groups. Too often “entrepreneurs” and “commercial interests” seem to exist as abstract categories rather than as recognizable social groups.
More important, while Horwitz has clearly read widely in the economic, political, and intellectual history of the period, most of the references he cites tend to be narrowly legalistic ones. He never explicitly refers to a number of historical works which are pertinent to his own investigation and which would help to clarify his findings. Thus, his discussion of changing conceptions of property contains no reference to the work of C.B. Macpherson, even though what Horwitz is describing is precisely a change from what Macpherson calls “possessive individualism,” in which property is valued primarily as a guarantee of individual autonomy, to a market view of property as a means to economic development and capital accumulation.
Similarly, Horwitz’s discussion of the decline of the idea of a “just price” does not invoke E.P. Thompson’s notion of “moral economy,” the popular attitude that economic activity, especially that dealing with the necessities of life, should be governed by community welfare rather than private gain. Even Karl Polanyi, whose definition of the “great transformation” figures implicitly in the book’s analysis, is mentioned only once. Such omissions will make it more difficult for historians to incorporate Horwitz’s findings into their own work.
This is particularly unfortunate, for the book bears directly on a series of conflicts in early American history which have generated extensive discussion in recent years: the conflicts between the republican idea of self-sacrificing virtue and the principles of the market and economic growth; between the ideal of an egalitarian society and the notion that the inequalities generated by the market are just and defensible; between the social ideals nourished by the American Revolution and the realities of nineteenth-century American life.
Most important, Horwitz sheds light on the mysterious process Marx called “primitive accumulation”—the creation of resources for capitalist production, and of an industrial working class, by separating small producers and property-owners from ownership of the means of production. The process occurred in America in the early nineteenth century, but its exact nature has never been clear. We know that slavery generated much of the capital for industrial development, that state investment built a transportation system of canals and railroads, and that America imported part of its early proletariat from abroad. Horwitz directs attention to another significant, though neglected, aspect of the process—how the legal system encouraged the transition from noncapitalist property relations between autonomous individuals, to capitalist relations subordinating small property owners to large and defining labor as a commodity like any other in the market-place.
The largest questions raised by The Transformation of American Law extend far beyond the early nineteenth century. In recent years, much has been done to redefine the concept of the rule of law, not only by Horwitz and his Harvard Law School colleagues Roberto Unger and Duncan Kennedy, but also by such historians as Eugene Genovese and E.P. Thompson. Ironically, while liberal scholars like Hurst and Friedman have reduced the law to an expression of immediate economic interests, sophisticated Marxists like Genovese and Thompson reject a deterministic social model in which a “superstructure” of culture and politics rises above an economic “base.” They have insisted on the partial autonomy of legal processes and thought and on the benefits society may derive from the rule of law itself. The old view of law as an autonomous and neutral entity independent of politics and class can never be revived, but a new definition of the rule of law in all its social ramifications is only beginning to be defined.
Though a legalistic treatise, Horwitz’s book is written with passion. He clearly resents the alliance of law and commerce, the union of intellect and power, in which lawyers have used legal formalism to mask law’s underlying economic consequences. One strength of the book is its implicit point: that behind the bland and seemingly neutral phrases used by scholars to describe the “great transformation”—such terms as “economic development,” “legal uniformity,” and “modernization”—lie fundamental changes in political values and human relations, and the enrichment of some members of the community at the expense of others.
April 14, 1977