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Studies in Legal History
The Transformation of American Law, 1780-1860
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.
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.
356 pages, Paperback
First published January 1, 1977
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About the author
Morton J. Horwitz
12 books3 followersMorton J. Horwitz is a legal scholar specializing in the history of American law. Horwitz obtained an A.B. from the City College of New York (1959), an A.M. and Ph.D. from Harvard University (1962 and 1964), and an LL.B. from Harvard Law School (1967). He has taught at Harvard Law School since 1970, where since 1981 he has served as the the Charles Warren Professor of American Legal History.
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Displaying 1 - 14 of 14 reviews
January 26, 2020
I have mixed feelings about this book. On the plus side, Horwitz provides a litany of examples from court cases and legal treatise writers to prove how the law shifted from traditional common law rules toward legal instrumentalism. Despite this, my issue is that he connects everything to economics/industrialism. While the case is clear based on his examples that an instrumentalist view of the law emerged because of growing industrialism and the desire for development/progress, he treats the evolution of formalism as also stemming from these interests (as they matured and gained dominance). I have two issues with this:
First, Horowitz does not provide as many examples when arguing this latter point. For example, when discussing the evolution of damage awards for cases involving destruction to property, he provides quotes from various industrialists complaining about damage amounts to illustrate how those who stood to benefit from market capitalism were behind the shift toward instrumentalism. However, when discussing the emergence of the objective rule of contract theory to prove the emergence of formalism in this area of the law (earlier contract law focused on a subjective meeting of the minds on account of the flexibility that instrumentalists demanded), he merely offers one quote from someone discussing the rise of the international cotton market in the decades prior to the Civil War and the need for predictability. This suggests to me that attributing the rise of formalism strictly to the shifting needs of market capitalists is speculatory, though it is an interesting argument.
Secondly, Horwitz ignores other reasons proposed by other legal/historical scholars for the rise of formalism. For example, William E. Nelson argues that it emerged in part because of abolitionist assertions of "higher law" principles that influenced courts and also because of the desire to make the law scientific based on the rising interest in science on account of the popularity of Darwinism. The fact that Horowitz does not mention these other theories makes his account myopic. This also makes his account overly-determinative, which tends to be a problem in historical writing, as history tends to be multi-faceted, and often non-linear.
Finally, a third issue I have with this book (unrelated to my issues with how he covers the shift toward legal formalism) is personal in nature. As a historian and attorney interested in individual rights and how they evolved and were perceived by American society and the judiciary, Horowitz stays clear of separation of church and state issues that arose between freethinkers and controversies between Catholics and Protestants, the shift in how prostitution cases were handled, and state prohibition laws (changes occurred in these areas of the law too based on both instrumentalism and formalism).
Concluding, I recommend this book if you're interested in the economic/industrial origins of instrumentalism and if you want detailed examples. I don't recommend it if you're interested in getting alternative viewpoints about legal formalism or are interested in how nineteenth-century jurists handled morality/individual rights issues (read William Novak's "The People's Welfare" for information on this area).
P.S. for an interesting article that challenges whether the dichotomy between legal instrumentalism and legal formalism even historically existed in the nineteenth century, see: https://doi.org/10.15779/Z38J73F (I have issues with the author's reasoning in this article, too, however. For example, he stresses that a strict dichotomy didn't exist because: (1) both legal instrumentalism and legal formalism appeared in both the early and late nineteenth century and (2) both groups never reached definitive conclusions revealing that they influenced the reasoning of a case. For example, he insists that legal formalists sat on both sides of the slavery controversy to show how William E. Nelson's theory that anti-slave ideas about how higher law influenced the rise of formalism is incorrect. My argument would be that it's not incorrect, simply incomplete.).
First, Horowitz does not provide as many examples when arguing this latter point. For example, when discussing the evolution of damage awards for cases involving destruction to property, he provides quotes from various industrialists complaining about damage amounts to illustrate how those who stood to benefit from market capitalism were behind the shift toward instrumentalism. However, when discussing the emergence of the objective rule of contract theory to prove the emergence of formalism in this area of the law (earlier contract law focused on a subjective meeting of the minds on account of the flexibility that instrumentalists demanded), he merely offers one quote from someone discussing the rise of the international cotton market in the decades prior to the Civil War and the need for predictability. This suggests to me that attributing the rise of formalism strictly to the shifting needs of market capitalists is speculatory, though it is an interesting argument.
Secondly, Horwitz ignores other reasons proposed by other legal/historical scholars for the rise of formalism. For example, William E. Nelson argues that it emerged in part because of abolitionist assertions of "higher law" principles that influenced courts and also because of the desire to make the law scientific based on the rising interest in science on account of the popularity of Darwinism. The fact that Horowitz does not mention these other theories makes his account myopic. This also makes his account overly-determinative, which tends to be a problem in historical writing, as history tends to be multi-faceted, and often non-linear.
Finally, a third issue I have with this book (unrelated to my issues with how he covers the shift toward legal formalism) is personal in nature. As a historian and attorney interested in individual rights and how they evolved and were perceived by American society and the judiciary, Horowitz stays clear of separation of church and state issues that arose between freethinkers and controversies between Catholics and Protestants, the shift in how prostitution cases were handled, and state prohibition laws (changes occurred in these areas of the law too based on both instrumentalism and formalism).
Concluding, I recommend this book if you're interested in the economic/industrial origins of instrumentalism and if you want detailed examples. I don't recommend it if you're interested in getting alternative viewpoints about legal formalism or are interested in how nineteenth-century jurists handled morality/individual rights issues (read William Novak's "The People's Welfare" for information on this area).
P.S. for an interesting article that challenges whether the dichotomy between legal instrumentalism and legal formalism even historically existed in the nineteenth century, see: https://doi.org/10.15779/Z38J73F (I have issues with the author's reasoning in this article, too, however. For example, he stresses that a strict dichotomy didn't exist because: (1) both legal instrumentalism and legal formalism appeared in both the early and late nineteenth century and (2) both groups never reached definitive conclusions revealing that they influenced the reasoning of a case. For example, he insists that legal formalists sat on both sides of the slavery controversy to show how William E. Nelson's theory that anti-slave ideas about how higher law influenced the rise of formalism is incorrect. My argument would be that it's not incorrect, simply incomplete.).
October 12, 2018
Before reading this book, I probably would have described the change in the law since the founding of the USA as similar to the growth of a tree. It was small when young, and grew up over time, ending with a larger tree. The law just got bigger.
The time around the birth of the United States was one of great change worldwide. The Enlightenment was in full swing, and the shift from agrarianism to industrialization was underway. Before 1780, the common law was derived from "natural law" and custom and in the following decades was faced with pressures from commercialization.
The law, it turns out, wasn't so much a tree that got bigger, a product of nature that grew more or less naturally, being fertilized and pruned as needed. The tree (law derived from "natural law") was systematically replaced with an entirely man-made construct. It didn't grow naturally; it was built with purpose, with a goal (or several goals) in mind.
Horwitz tells us, using many examples, how the law transformed over time, reshaped to the advantage of men of commerce and industry at the expense of farmers, workers, consumers, and other less powerful groups within society. "Not only had the law come to establish legal doctrines that maintained the new distribution of economic and political power, but, wherever it could, it actively promoted a legal redistribution of wealth against the weakest groups in the society."
I'm not a lawyer and at times had to reread sections until I understood what he was getting at. Law is technical and has its own language. In spite of my occasional difficulty, Horwitz, I think, does a fine job of making the material understandable to the lay person.
The time around the birth of the United States was one of great change worldwide. The Enlightenment was in full swing, and the shift from agrarianism to industrialization was underway. Before 1780, the common law was derived from "natural law" and custom and in the following decades was faced with pressures from commercialization.
The law, it turns out, wasn't so much a tree that got bigger, a product of nature that grew more or less naturally, being fertilized and pruned as needed. The tree (law derived from "natural law") was systematically replaced with an entirely man-made construct. It didn't grow naturally; it was built with purpose, with a goal (or several goals) in mind.
Horwitz tells us, using many examples, how the law transformed over time, reshaped to the advantage of men of commerce and industry at the expense of farmers, workers, consumers, and other less powerful groups within society. "Not only had the law come to establish legal doctrines that maintained the new distribution of economic and political power, but, wherever it could, it actively promoted a legal redistribution of wealth against the weakest groups in the society."
I'm not a lawyer and at times had to reread sections until I understood what he was getting at. Law is technical and has its own language. In spite of my occasional difficulty, Horwitz, I think, does a fine job of making the material understandable to the lay person.
January 22, 2020
It seems patently absurd that the core curriculum in American law schools omits even a cursory account of the conceptual and historical underpinnings of our legal system. Horwitz's achievement is in providing such an account, unencumbered by an excess of philosophical speculation. While many of the details in his work can be challenged, and while the overall thesis may be questionable, The Transformation of American Law ties together disparate elements of private law in a compelling manner. At its best, it encourages the reader to adopt the systematic perspective on the American legal system to which so very few law students are exposed.
July 22, 2025
Amazing, human readable, legal history. Of interest to all who want to know how we got from the British conception of common and natural law to the more modern forms of jurisprudence (answer, it was capital).
December 23, 2019
I LIKE THIS BOOK.
February 10, 2021
Indispensably important, but hell of boring to read.
December 28, 2010
We read the first part of this book in my legal history class and I knew I had to finish it over the break.
Overall, the book is a detailed and fascinating intellectual history of the law in antebellum America, showing how the antiquated common law, made for agricultural England, was forced to change to fit the dynamic, capitalist society of early America. Horwitz traces changes in tort, contract, insurance and other forms of law to the changing biases and habits of early American judges and treatise writers. While they tried to demonstrate the continuity that the common law required to justify itself, Horwitz shows that they were really embarked on an unparalleled revolution. For instance, Horwitz shows how an older conception of contract, which required judges to evaluate whether contracts had an appropriate level of "consideration" and whether they abided by certain ideas of "equity," gave way to a new conception where contract was considered a "meeting of the minds" and where almost any right could be contracted away. Now all parties were presumed to be negotiating from equal positions.
Too often Horwitz tries to find a group of sinister capitalists as the motivating force here, even though he shows that these changes in law were often widely supported. Otherwise it's an amazing piece of work.
Overall, the book is a detailed and fascinating intellectual history of the law in antebellum America, showing how the antiquated common law, made for agricultural England, was forced to change to fit the dynamic, capitalist society of early America. Horwitz traces changes in tort, contract, insurance and other forms of law to the changing biases and habits of early American judges and treatise writers. While they tried to demonstrate the continuity that the common law required to justify itself, Horwitz shows that they were really embarked on an unparalleled revolution. For instance, Horwitz shows how an older conception of contract, which required judges to evaluate whether contracts had an appropriate level of "consideration" and whether they abided by certain ideas of "equity," gave way to a new conception where contract was considered a "meeting of the minds" and where almost any right could be contracted away. Now all parties were presumed to be negotiating from equal positions.
Too often Horwitz tries to find a group of sinister capitalists as the motivating force here, even though he shows that these changes in law were often widely supported. Otherwise it's an amazing piece of work.
January 12, 2014
There's a certain way of writing history where the author quotes from a particular individual, one not necessarily well-known to the reader, to prove a global point. It reads something like this.
"Starting in the late 1840s, estoppel was no longer seen as a critical part of a normal breakfast. A cookbook found as part of the Whitney Josiah collection contains ho mention of estoppel despite the dozen-odd references to grits. And the merchant Ungerfeldt Adoo, who consumed estoppel twice weekly at many times in his life, wrote in his diary, 'The estoppel is believed to be too rich for the blood and raise the melancholy.'"
That's the style that Horwitz uses. There's a lot of stuff here about Chancellor Kent this and Supreme Judicial Court of Massachusetts that and Joseph Story the other. And it seems possible one can reconstruct this whole argument using quotes to prove the opposite of everything that's being said.
Well, I guess I have to take it on faith that Horwitz read as much as he thought could be read and honestly synthesized and chose exemplary quotes. Assuming so, it's a very interesting book. I would not have been able to guess most of these legal developments. Indeed, I'm not sure that I understood a lot of these things DEVELOPED per se -- at lest not after the Magna Carta.
"Starting in the late 1840s, estoppel was no longer seen as a critical part of a normal breakfast. A cookbook found as part of the Whitney Josiah collection contains ho mention of estoppel despite the dozen-odd references to grits. And the merchant Ungerfeldt Adoo, who consumed estoppel twice weekly at many times in his life, wrote in his diary, 'The estoppel is believed to be too rich for the blood and raise the melancholy.'"
That's the style that Horwitz uses. There's a lot of stuff here about Chancellor Kent this and Supreme Judicial Court of Massachusetts that and Joseph Story the other. And it seems possible one can reconstruct this whole argument using quotes to prove the opposite of everything that's being said.
Well, I guess I have to take it on faith that Horwitz read as much as he thought could be read and honestly synthesized and chose exemplary quotes. Assuming so, it's a very interesting book. I would not have been able to guess most of these legal developments. Indeed, I'm not sure that I understood a lot of these things DEVELOPED per se -- at lest not after the Magna Carta.
November 11, 2008
I learned that I wish I knew more about 19th century America from this book! The book details the rise of legal instrumentalisim throughout the 19th century, finally transforming into legal formalism. It's a totally different way to think about the development of American contract law, and worth the read.
December 21, 2008
Excellent survey of development of american law during the period. Essential for any practitioner. Main bombshell for contemporary american lawyers is that once upon a time american law was all about doing justice and not about "just following the rules."
November 28, 2013
I'm sure there is tons out there about how this is out of date and incomplete, but this is fascinating. I'm looking at economy and law totally differently. I once heard that markets were social constructs, now i'm seeing economy as such a legal construct. Hmmmm...
April 17, 2012
Not the easiest thing to read, but a very important book on the history early American law.
January 27, 2017
How did we get where we are today? In tiny little bits, incremental steps, compromises in the name of economic growth and efficiency. What could possibly be wrong with that?
April 26, 2025
This book is basically how corporate interests created most of American common law. Extremely prescient.
Displaying 1 - 14 of 14 reviews