Author: Morton J. Horwitz
Publisher: Oxford University Press
Release Date: 1994-12-15
When the first volume of Morton Horwitz's monumental history of American law appeared in 1977, it was universally acclaimed as one of the most significant works ever published in American legal history. The New Republic called it an "extremely valuable book." Library Journal praised it as "brilliant" and "convincing." And Eric Foner, in The New York Review of Books, wrote that "the issues it raises are indispensable for understanding nineteenth-century America." It won the coveted Bancroft Prize in American History and has since become the standard source on American law for the period between 1780 and 1860. Now, Horwitz presents The Transformation of American Law, 1870 to 1960, the long-awaited sequel that brings his sweeping history to completion. In his pathbreaking first volume, Horwitz showed how economic conflicts helped transform law in antebellum America. Here, Horwitz picks up where he left off, tracing the struggle in American law between the entrenched legal orthodoxy and the Progressive movement, which arose in response to ever-increasing social and economic inequality. Horwitz introduces us to the people and events that fueled this contest between the Old Order and the New. We sit in on Lochner v. New York in 1905--where the new thinkers sought to undermine orthodox claims for the autonomy of law--and watch as Progressive thought first crystallized. We meet Oliver Wendell Holmes, Jr. and recognize the influence of his incisive ideas on the transformation of law in America. We witness the culmination of the Progressive challenge to orthodoxy with the emergence of Legal Realism in the 1920s and '30s, a movement closely allied with other intellectual trends of the day. And as postwar events unfold--the rise of totalitarianism abroad, the McCarthyism rampant in our own country, the astonishingly hostile academic reaction to Brown v. Board of Education--we come to understand that, rather than self-destructing as some historians have asserted, the Progressive movement was alive and well and forming the roots of the legal debates that still confront us today. The Progressive legacy that this volume brings to life is an enduring one, one which continues to speak to us eloquently across nearly a century of American life. In telling its story, Horwitz strikes a balance between a traditional interpretation of history on the one hand, and an approach informed by the latest historical theory on the other. Indeed, Horwitz's rich view of American history--as seen from a variety of perspectives--is undertaken in the same spirit as the Progressive attacks on an orthodoxy that believed law an objective, neutral entity. The Transformation of American Law is a book certain to revise past thinking on the origins and evolution of law in our country. For anyone hoping to understand the structure of American law--or of America itself--this volume is indispensable.
Author: Morton J. HORWITZ
Publisher: Cambridge, Mass. : Harvard University Press
Release Date: 1977
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.
Author: Pietro Costa
Publisher: Springer Science & Business Media
Release Date: 2007-05-06
Authors Costa and Zolo share the conviction that a proper understanding of the rule of law today requires reference to a global problematic horizon. This book offers some relevant guides for orienting the reader through a political and legal debate where the rule of law (and the doctrine of human rights) is a concept both controversial and significant at the national and international levels.
Author: Daniel Jacoby
Release Date: 2015-05-20
Genre: Business & Economics
This text examines the concept of freedom in the context of American labour history. Nine essays develop themes in this history which show that liberty of contract and inalienable rights form two contradictory traditions concerning freedom.
Author: Patricia Mindus
Publisher: Springer Science & Business Media
Release Date: 2009-09-18
This comprehensive presentation of Axel Hägerström (1868-1939) fills a void in nearly a century of literature, providing both the legal and political scholar and the non-expert reader with a proper introduction to the father of Scandinavian realism. Based on his complete work, including unpublished material and personal correspondence selected exclusively from the Uppsala archives, A Real Mind follows the chronological evolution of Hägerström’s intellectual enterprise and offers a full account of his thought. The book summarizes Hägerström’s main arguments while enabling further critical assessment, and tries to answer such questions as: If norms are neither true nor false, how can they be adequately understood on the basis of Hägerström’s theory of knowledge? Did the founder of the Uppsala school uphold emotivism in moral philosophy? What consequences does such a standpoint have in practical philosophy? Is he really the inspiration behind Scandinavian state absolutism?A Real Mind places the complex web of issues addressed by Hägerström within the broader context of 20th century philosophy, stretching from epistemology to ethics. His philosophy of law is examined in the core chapters of the book, with emphasis on the will-theory and the relation between law and power. The narrative is peppered with vignettes from Hägerström’s life, giving an insightful and highly readable portrayal of a thinker who put his imprint on legal theory. The appendix provides a selected bibliography and a brief synopsis of the major events in his life, both private and intellectual.
Author: David M. Rabban
Publisher: Cambridge University Press
Release Date: 2012-11-30
This is a study of the central role of history in late nineteenth-century American legal thought. In the decades following the Civil War, the founding generation of professional legal scholars in the United States drew from the evolutionary social thought that pervaded Western intellectual life on both sides of the Atlantic. Their historical analysis of law as an inductive science rejected deductive theories and supported moderate legal reform, conclusions that challenge conventional accounts of legal formalism. Unprecedented in its coverage and its innovative conclusions about major American legal thinkers from the Civil War to the present, the book combines transatlantic intellectual history, legal history, the history of legal thought, historiography, jurisprudence, constitutional theory and the history of higher education.
Author: Wael B. Hallaq
Publisher: Columbia University Press
Release Date: 2012-11-20
Genre: Political Science
Wael B. Hallaq boldly argues that the "Islamic state," judged by any standard definition of what the modern state represents, is both impossible and inherently self-contradictory. Comparing the legal, political, moral, and constitutional histories of premodern Islam and Euro-America, he finds the adoption and practice of the modern state to be highly problematic for modern Muslims. He also critiques more expansively modernity's moral predicament, which renders impossible any project resting solely on ethical foundations. The modern state not only suffers from serious legal, political, and constitutional issues, Hallaq argues, but also, by its very nature, fashions a subject inconsistent with what it means to be, or to live as, a Muslim. By Islamic standards, the state's technologies of the self are severely lacking in moral substance, and today's Islamic state, as Hallaq shows, has done little to advance an acceptable form of genuine Shari'a governance. The Islamists' constitutional battles in Egypt and Pakistan, the Islamic legal and political failures of the Iranian Revolution, and similar disappointments underscore this fact. Nevertheless, the state remains the favored template of the Islamists and the ulama (Muslim clergymen). Providing Muslims with a path toward realizing the good life, Hallaq turns to the rich moral resources of Islamic history. Along the way, he proves political and other "crises of Islam" are not unique to the Islamic world nor to the Muslim religion. These crises are integral to the modern condition of both East and West, and by acknowledging these parallels, Muslims can engage more productively with their Western counterparts.
This volume examines redistributive processes such as tracing, subrogation and proprietary estoppel and the use of the constructive trust in the context of contracts to assign property, and the breakdown of intimate relationships.
Author: Alexander Somek
Publisher: OUP Oxford
Release Date: 2014-07-31
Originally the constitution was expected to express and channel popular sovereignty. It was the work of freedom, springing from and facilitating collective self-determination. After the Second World War this perspective changed: the modern constitution owes its authority not only to collective authorship, it also must commit itself credibly to human rights. Thus people recede into the background, and the national constitution becomes embedded into one or other system of 'peer review' among nations. This is what Alexander Somek argues is the creation of the cosmopolitan constitution. Reconstructing what he considers to be the three stages in the development of constitutionalism, he argues that the cosmopolitan constitution is not a blueprint for the constitution beyond the nation state, let alone a constitution of the international community; rather, it stands for constitutional law reaching out beyond its national bounds. This cosmopolitan constitution has two faces: the first, political, face reflects the changed circumstances of constitutional authority. It conceives itself as constrained by international human rights protection, firmly committed to combating discrimination on the grounds of nationality, and to embracing strategies for managing its interaction with other sites of authority, such as the United Nations. The second, administrative, face of the cosmopolitan constitution reveals the demise of political authority, which has been traditionally vested in representative bodies. Political processes yield to various, and often informal, strategies of policy co-ordination so long as there are no reasons to fear that the elementary civil rights might be severely interfered with. It represents constitutional authority for an administered world.
Author: Whitney Strub
Publisher: Columbia University Press
Release Date: 2010-12-02
Genre: Social Science
While America is not alone in its ambivalence toward sex and its depictions, the preferences of the nation swing sharply between toleration and censure. This pattern has grown even more pronounced since the 1960s, with the emergence of the New Right and its attack on the "floodtide of filth" that was supposedly sweeping the nation. Antipornography campaigns became the New Right's political capital in the 1960s, laying the groundwork for the "family values" agenda that shifted the country to the right. Perversion for Profit traces the anatomy of this trend and the crucial function of pornography in constructing the New Right agenda, which has emphasized social issues over racial and economic inequality. Conducting his own extensive research, Whitney Strub vividly recreates the debates over obscenity that consumed members of the ACLU in the 1950s and revisits the deployment of obscenity charges against purveyors of gay erotica during the cold war, revealing the differing standards applied to heterosexual and homosexual pornography. He follows the rise of the influential Citizens for Decent Literature during the 1960s and the pivotal events that followed: the sexual revolution, feminist activism, the rise of the gay rights movement, the "porno chic" moment of the early 1970s, and resurgent Christian conservatism, which now shapes public policy far beyond the issue of sexual decency. Strub also examines the ways in which the left failed to mount a serious or sustained counterattack to the New Right's use of pornography as a political tool. As he demonstrates, this failure put the Democratic Party at the mercy of Republican rhetoric. In placing debates about pornography at the forefront of American postwar history, Strub revolutionizes our understanding of sex and American politics.
Author: David J. Bodenhamer
Publisher: Oxford University Press
Release Date: 2012-02-01
The framers of the Constitution chose their words carefully when they wrote of a more perfect union--not absolutely perfect, but with room for improvement. Indeed, we no longer operate under the same Constitution as that ratified in 1788, or even the one completed by the Bill of Rights in 1791--because we are no longer the same nation. In The Revolutionary Constitution, David J. Bodenhamer provides a comprehensive new look at America's basic law, integrating the latest legal scholarship with historical context to highlight how it has evolved over time. The Constitution, he notes, was the product of the first modern revolution, and revolutions are, by definition, moments when the past shifts toward an unfamiliar future, one radically different from what was foreseen only a brief time earlier. In seeking to balance power and liberty, the framers established a structure that would allow future generations to continually readjust the scale. Bodenhamer explores this dynamic through seven major constitutional themes: federalism, balance of powers, property, representation, equality, rights, and security. With each, he takes a historical approach, following their changes over time. For example, the framers wrote multiple protections for property rights into the Constitution in response to actions by state governments after the Revolution. But twentieth-century courts--and Congress--redefined property rights through measures such as zoning and the designation of historical landmarks (diminishing their commercial value) in response to the needs of a modern economy. The framers anticipated just such a future reworking of their own compromises between liberty and power. With up-to-the-minute legal expertise and a broad grasp of the social and political context, this book is a tour de force of Constitutional history and analysis.
Author: Michael Bellesiles
Publisher: New Press, The
Release Date: 2010-08-10
In 1877, a decade after the Civil War, not only was the United States gripped by a deep depression, but the country was also in the throes of nearly unimaginable violence and upheaval marking the end of the brief period known as Reconstruction and a return to white rule across the South. In the wake of the contested presidential election of 1876, white supremacist mobs swept across the South, killing and driving out the last of the Reconstruction state governments. A strike involving millions of railroad workers turned violent as it spread from coast-to-coast, and for a moment seemed close to toppling the nation’s economic structure. In 1877, celebrated historian Michael Bellesiles reveals that the fires of that fated year also fueled a hothouse of cultural and intellectual innovation. Bellesiles relates the story of 1877 not just through dramatic events, but also through the lives of famous and little-known Americans.
Author: William E. Nelson
Publisher: Univ of North Carolina Press
Release Date: 2003-01-14
Based on a detailed examination of New York case law, this pathbreaking book shows how law, politics, and ideology in the state changed in tandem between 1920 and 1980. Early twentieth-century New York was the scene of intense struggle between white, Anglo-Saxon, Protestant upper and middle classes located primarily in the upstate region and the impoverished, mainly Jewish and Roman Catholic, immigrant underclass centered in New York City. Beginning in the 1920s, however, judges such as Benjamin N. Cardozo, Henry J. Friendly, Learned Hand, and Harlan Fiske Stone used law to facilitate the entry of the underclass into the economic and social mainstream and to promote tolerance among all New Yorkers. Ultimately, says William Nelson, a new legal ideology was created. By the late 1930s, New Yorkers had begun to reconceptualize social conflict not along class lines but in terms of the power of majorities and the rights of minorities. In the process, they constructed a new approach to law and politics. Though doctrinal change began to slow by the 1960s, the main ambitions of the legalist reformation--liberty, equality, human dignity, and entrepreneurial opportunity--remain the aspirations of nearly all Americans, and of much of the rest of the world, today.
Author: Keith J. Bybee
Publisher: Stanford University Press
Release Date: 2010-08-24
Comparing law to the American practice of common courtesy, this book explains how our courts not only survive under conditions of suspected hypocrisy, but actually depend on these conditions to function.
Author: Marek D. Steedman
Release Date: 2012-05-22
Genre: Political Science
In the late 1860s the U.S. federal government initiated the most abrupt transition from slavery to citizenship in the Americas. The transformation, of course, did not stick, but it did permanently alter the terms of American citizenship and initiated a century long struggle over the place of African Americans in the American polity. Southern Progressives, crucial in this account, were faced with a significant ideological challenge: how to reconcile their liberal principles with their commitments to racial hierarchy. The ideological work performed by Southern Progressives was instrumental to the establishment of white supremacist institutions in the heart of a putatively liberal democracy and illuminate how combinations of liberal and illiberal principles have affected the history of American political thought. In this work, Marek Steedman demonstrates how Southern Progressives combined commitments to liberal, even democratic, politics with equally strong commitments to the maintenance of racial hierarchy. He shows that there are systematic features of the traditions of liberal and republican thought, on the one hand, and ideologies of race, on the other, that facilitate their combination. Jim Crow Citizenship relates familiar developments in American state-building, legal development, and political thought to race, thus showing how race intertwines with these developments, often shaping them in decisive fashion.