In 1977, Morton J. Horwitz published the first volume of his history of American law. That work explored the period from 1780 to 1860. Arguing that the issues of the years of the Civil War and its aftermath required a separate study, Horwitz in this volume continues the story from 1870 until 1960. The period under discussion was possibly the most traumatic in all of American history. Industrialism, urbanization, and immigration fundamentally transformed American society from being overwhelmingly rural, agricultural, and seemingly ethnically homogeneous, particularly if one ignored African Americans and Native Americans, which many did in the nineteenth century. These were the years of trusts and corporations. Social and economic stress influenced politics in profound ways, leading to the Populist, Progressive, and New Deal movements. The two world wars contributed to those massive changes, and government grew in ways unimaginable before. Finally, in the 1950’s, the Civil Rights movement began the slow process of bringing excluded minorities into a changing world of greater equality and opportunity.
Legal thought and practices could not remain isolated from these upheavals. The transformations of the law caused by those upheavals are narrated in this compelling but difficult work. It is Horwitz’s contention that law and politics are not separate spheres, an idea that he argues pervaded the ideology of most lawyers, judges, and legal scholars in the nineteenth century, an era dominated by what he calls Classical Legal Thought. That conservative—to Horwitz—worldview of nineteenth century commentators claimed that the United States was a “government of laws, not of men.” From the revolution onward, as American society became more democratic as a result of the Jacksonian and other reform movements, legal scholars, in their fear of the majority with its supposed aims of redistributing the wealth of the minority, claimed that there was a fundamental difference between law and politics. Law supposedly was above the competitive arena of politics. Judges discovered the law rather than making it, and law was thus impartial in its authority and actions. Law was a science in a way that politics never could be. Because it was neutral, lawyers did not have to consider substantive issues such as what might be the public or individual good irrespective of the letter of the law.
Those arguments reflected the post-Civil War world, in which laissez-faire beliefs permeated political and economic thought. This belief in a small role for government justified the maintenance of the existing status quo, with the benefits it had brought to some Americans. One of the defenses the legal profession raised in the late nineteenth century against the possibility of radical change was to posit the difference between private and public law. The latter was mainly criminal and regulatory law. By increasing the authority of private law, the possibility of increased government control and regulation was reduced. Horwitz also argues that increasingly abstract and conceptual writings about the law, especially the development of placing legal prin- ciples in strict and unchanging categories, contributed to the primacy of Classical Legal Thought. It was feared that stronger government and the democratic majority would interfere with the rights of the individual and the minority, for example by using taxation laws to redistribute wealth to the majority. The police powers of governments were restricted by arguing that laws often were intended to regulate, not police, and thus were invalid. Those arguments and justifications indicated that the practitioners and pundits of Classical Legal Thought had become far removed from the new social and economic realities of the late nineteenth and early twentieth centuries.
Horwitz claims that the case of Lochner v. New York (1905) crystallized the opposition to Classical Legal Thought and brought into rival prominence what he calls Progressive Legal Thought. A New York statute limiting bakers to a sixty-hour work week was declared unconstitutional because it violated the concept of the absolute freedom of contract. The strict categories and abstract concepts of an earlier legal day made little sense to progressive jurists. In 1909, Roscoe Pound wrote that the idea that the concept of freedom of contract between the employer and employee implied bargaining equality was a “fallacy to everyone acquainted…with actual industrial conditions.” The emergence of giant corporations had changed the balance of power in employer-employee relationships.
The concept of objective causation was a major element in Classical Legal Thought. Causation, it was argued, was a science to be implemented by judges when deciding liability, and generally corporations and businesses escaped liability judgments...
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