Reading Morton Horwitz in an Era of Native Land Acknowledgements, Slavery Reparations, and Climate Change.
Laws and rights change over time. This is a good thing or a bad thing, depending on what side of change you are on. As an educator, the interesting questions for me are how and why and when change happens. We’ve seen fundamental change in the LGBTQ legal landscape and may see youth-led gun law changes after Parkland. Ideas of ownership have changed. The sharing economy is all Generation Z has known. Is there a new communal spirit of the age? What transformations might we expect in the realm of property rights in the context of Native land acknowledgements, slavery reparations, and climate change?
After moving and unpacking book boxes I picked up my worn copy of The Transformation of American Law, 1780–1860 (Harvard UP, 1977). Once again I found myself wishing Horwitz had begun with Paul’s epistles and then argued, via Max Weber, that the spirit of the law in early nineteenth-century America was the spirit of capitalism. This attention to spirit would have freed him from much of his expository work (explaining the nature and mechanics of judicial sermonizing) and allowed him to consider the deeper meaning of change. Transforming the letter of the law for political reasons by claiming to embrace its spirit is a short-lived game, as he points out in his sequel, The Transformation of American Law, 1870–1960, The Crisis of Legal Orthodoxy. That is, the process of codifying spirit transforms spirit into letter of the law, exposing it to the danger of a spiritual attack of another sort. If the years 1780 to 1860 saw the demise of common law and the rise of an individualistic American jurisprudence committed to economic growth, he argues, 1870 to 1960 saw the collapse of this system at the hands of early 20th-century legal progressives with a different social agenda. Now, a new spirit of communal ownership may bring new transformations.
Horwitz’s central claim is that early to mid-19th-century American judges were Apostles of economic growth. His purpose was to show “that one of the crucial choices made during the antebellum period was to promote economic growth primarily through the legal, not the tax, system, a choice which had major consequences for the distribution of wealth and power in American society” (xv). The contractarian ideology of nineteenth century judges, he continues, “was both instrumental (in the sense of promoting economic development) and laissez-faire (in the traditional sense of being hostile to legislative or administrative regulation)” (xv).
Horwitz begins with an explanation of an “instrumental conception of law” — a conception of the common law as an instrument of will as it emerged in late eighteenth-century America. In the postrevolutionary period, he explains, laws received from the English common law tradition were reconstructed on a consensual foundation. The law as received might remain the same, but its logic had changed; by the mid-nineteenth century, “[l]aw was no longer conceived of as an eternal set of principles expressed in custom and derived from natural law. Nor was it regarded primarily as a body of ruled designed to achieve justice only in the individual case. Instead, judges came to think of the common law as equally responsible with legislation for governing society and promoting socially desirable conduct” (30). Presenting cases such as Palmer v. Mulligan (1805) and Platt v. Johnson (1818), in which the court held in favor of upstream landowners and mill operators who were allowed to obstruct the flow of water for their mills, Horwitz argues that these decisions “introduced into American common law the entirely novel view that an explicit consideration of the relative efficiencies of conflicting property uses should be the paramount test of what constitutes legally justifiable injury.” (38). Land and property became less thought of as an individual’s private estate but something held “upon a tenure which admits of its deterioration in value from [future] causes” (133).
In a chapter on the subsidization of economic growth through the legal system, Horwitz argues how in decisions such as Brown v. Kendall (1850) American judges abandoned the traditional common law rule of strict — no-fault — liability and required tort plaintiffs to prove negligence on the part of the defendant. One effect of this transformation of modern tort law was to enable and subsidize commercial interests at the expense of injured individuals, by shielding enterprises against severe penalties. But the more important effect was cultural, he argues. Who decides what is want of due care or imprudent behavior? Who constructs the reasonable man standard? “Indeed, the law of negligence became a leading means by which the dynamic and growing forces in American society were able to challenge and eventually overwhelm the weak and relatively powerless segments of the American economy” (99).[*] Here, as in the chapter on property, Horwitz signals the importance of the legal conception of reasonableness, and hints that any such subjective standard contains the seeds of its own destruction.
In subsequent chapters he charts the change in the conception of the corporation, the rise of legal professionalism, and the relationship between the Bar and commercial interests. And finally, in the central and most important chapter of his book, “The Triumph of Contract,” Horwitz details how the notion of the individual, reasoning mind sustained the new thinking about contractual relationships. “Only in the nineteenth century did judges and jurists finally reject the longstanding belief that the justification of contractual obligation is derived from the inherent justice or fairness of an exchange. In its place, they asserted for the first time that the source of the obligation of contract is the convergence of the wills of the contracting parties” (160). This change, and the democratic implications of the “meeting of minds” on which it is based, was the most profound transformation yet. The task for courts in construing the intention of contractual parties, Thomas Metcalf stated in 1828, “is to find the meaning of the parties; not to impose it” (192)
Yet radical subjectivism is a precarious doctrine. “If a subjective theory of contract served its historical function of destroying all remnants of an objective theory of value, it had the drastic limitation of making legal certainty and predictability impossible….[H]aving destroyed most substantive grounds for evaluating the justice of exchange, [commercial interests] could elaborate a legal ideology of formalism…that could not only disguise gross disparities of bargaining power under a façade of neutral and formal rules of contract law but could also enforce commercial customs under the comforting technical rubric of ‘contract interpretation’” (201).
Put another way, Horwitz’s title asserts a transformation in passive voice. He implicitly acknowledges the key events were as symptomatic as they were constitutive. The jurists he cites — Lemuel Shaw, Isaac Parker, Joseph Story, Joseph Angell — are not agents exactly, but interlocutors. They are registering the emergent outlook described by Weber: “that attitude which seeks profit rationally and systematically in the manner of…Benjamin Franklin…[who] was filled with the spirit of capitalism [even] at a time when his printing business did not differ in form from any handicraft enterprise.” “It is only necessary to read Franklin’s account of his efforts in the service of civic improvements in Philadelphia,” Weber argues, “to apprehend…the joy and pride of having given employment to numerous people, of having had a part in the economic progress of his home town.”
Spirits haunt Horwitz’s text. He alludes to the “spirit of economic development” (31), the “spirit of improvement” (42), the “onward spirit of the age” (75), the “precise and calculating mercantile spirit” (81), the “precise and calculating spirit of contract law,” (83), the “spirit of competition” (114), the “inexorable spirit of the age” (240), the “commercial spirit of the age” (241), and the generic “spirit of the age” (243). At such points it becomes unclear whether he is arguing that this spirit was the causal agent of his legal transformation, whether the judges he cites were not activists but “reactivists.” Such legal transformations are only possible because of our cultural embrace of the Pauline distinction between spirit and letter — a distinction that can exist only temporarily, as he argues in his final chapter, “The Rise of Legal Formalism.” Inevitably, the spirit becomes law. The “flexible, instrumental conception of law” Horwitz identifies is simply a juridical attestation of spirit; legal formalism, which rejected this conception and served “to neutralize and hence defuse the political and redistributional potential of law” (256), is simply an arrest of spirit — putting the genii back in its bottle — and a promotion of “rule of law.” Spirits are temperamental political allies.
And so what of the new spirits of the age, unsettling ownership claims? The Governor of California apologized for past violence against Native Americans, including dispossession. Land acknowledgements are becoming standard practice for a new generation, embraced by Stanford students and readers of Teen Vogue. And 150+ years after the end of slavery, David Brooks is taking seriously Ta-Nehisi Coates’s Case for Reparations.
And in a comprehensive article, Property Rights for the Anthropocene Era, John Sprankling argues that new, flexible visions of property ownership are needed, involving equitable sharing, time limits on property rights, and geographic limits on property rights:
The Anthropocene era marks a profound transition in the relationship between humanity and the planet. Humans have replaced nature as the dominant force transforming the Earth. This reality will necessitate a variety of major social, cultural, economic, and other changes, including conceptual changes to our traditional view of property rights.
There seem to be two separate spirits of the age, one reaching back in time and one far into the future. Who has the stronger claim — those dispossessed by the past or those who see dispossession in the future? Will the spirits cancel each other out or join together? What transformations will we see?
[*] For those readers interested in the literary correlative to the transformation Horwitz identifies, I would suggest reading Nan Goodman’s Shifting the Blame: Literature, Law, and the Theory of Accidents in Nineteenth-Century America (Princeton UP 1998). Goodman explores a parallel transformation from strict liability to negligence in the fiction of Melville, Cooper, Crane, and Twain, making the case in the process that that there exist so many nineteenth-century stories about accidents not merely because accident stories are captivating, but because they reflect and thus reveal a culture preoccupied with responsibility and prudence.
