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

by Morton J. Horwitz

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In a remarkable book based on prodigious research, Morton J. Horwitz offers a sweeping overview of the emergence of a national (and modern) legal system from English and colonial antecedents. He treats the evolution of the common law as intellectual history and also demonstrates how the shifting views of private law became a dynamic element in the economic growth of the United States.

Horwitz's subtle and sophisticated explanation of societal change begins with the common law, which was intended to provide justice for all. The great breakpoint came after 1790 when the law was slowly transformed to favor economic growth and development. The courts spurred economic competition instead of circumscribing it. This new instrumental law flourished as the legal profession and the mercantile elite forged a mutually beneficial alliance to gain wealth and power.

The evolving law of the early republic interacted with political philosophy, Horwitz shows. The doctrine of laissez-faire, long considered the cloak for competition, is here seen as a shield for the newly rich. By the 1840s the overarching reach of the doctrine prevented further distribution of wealth and protected entrenched classes by disallowing the courts very much power to intervene in economic life.

This searching interpretation, which connects law and the courts to the real world, will engage historians in a new debate. For to view the law as an engine of vast economic transformation is to challenge in a stunning way previous interpretations of the eras of revolution and reform.

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Average Customer Review: 4 out of 5 stars

5 of 7 people found the following review helpful:

4 out of 5 stars

What Laissez-Faire?, 2006-01-23
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.

7 of 7 people found the following review helpful:

5 out of 5 stars

Tough nut to crack, yes. But a brilliant work no less., 2004-05-15
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.

4 of 12 people found the following review helpful:

5 out of 5 stars

reviews shouldn't say how hard a book is on the intellect, 2003-03-23
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!

13 of 26 people found the following review helpful:

3 out of 5 stars

Tough but interesting., 1999-06-19
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.

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