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6 - Time as Life

Common Law Thought in the Late Nineteenth Century

Published online by Cambridge University Press:  03 May 2011

Kunal M. Parker
Affiliation:
University of Miami School of Law
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Summary

The Relations of “Life”

During the last quarter of the nineteenth century and spilling over into the twentieth, as the United States grew into a large-scale industrial economy, it began to experience a new set of problems: mounting capital–labor conflict, massive income inequality, spreading urbanization, and mass immigration. Beginning in the 1870s, in response to such pressures, a variety of groups – farmers, workers, businesses, consumers, reformers – called increasingly stridently for government intervention in economy and society. The federal and state governments responded with a spate of legislation that regulated railroads, utilities, banks, and insurance companies; reigned in monopolies; and sought to reshape capital–labor relations. But there was also considerable opposition to such regulation from a variety of quarters, ranging from those generally distrustful of government to big business interests to a common law–centered bench and bar traditionally hostile to legislation. Increasingly, American democracy would be discussed in terms of the contest between laissez-faire and social democracy, between the immunity of the private sphere from legislative interference and the power of democratic majorities to regulate it.

In the late nineteenth century, although there were strands of laissez-faire thought that reached back to the Scottish Enlightenment through Jackson and Jefferson, by far the most significant version of laissez-faire thought, replete with a coherent philosophy of history, was that associated with what we now call Social Darwinism.

Type
Chapter
Information
Common Law, History, and Democracy in America, 1790–1900
Legal Thought before Modernism
, pp. 219 - 278
Publisher: Cambridge University Press
Print publication year: 2011

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References

Bryce, James, The American Commonwealth (2 vols.) (London: Macmillan & Co., 1888) (1891), Vol. 2, pp. 418–419, 422
Hofstadter, Richard, Social Darwinism in American Thought (rev. ed.) (New York: George Braziller, Inc., 1959) (1944), pp. 4–5 (emphasis in original)
Hawkins, Mike, Social Darwinism in European and American Thought, 1860–1945: Nature as Model and Nature as Threat (Cambridge: Cambridge University Press, 1997)
Peel, J. D. Y., Herbert Spencer: The Evolution of a Sociologist (New York: Basic Books, 1971), p. 1
Spencer, Herbert, Social Statics: or the Conditions Essential to Human Happiness Specified, and the First of them Developed (New York: Robert Schalkenbach Foundation, 1995) (1851), pp. 31–32
Bowler, Peter J., Evolution: The History of an Idea (3d ed.) (Berkeley: University of California Press, 2003), pp. 8–9
Spencer, Herbert, The Study of Sociology (New York: D. Appleton & Co., 1904) (1873), p. 207
Spencer, Herbert, The Principles of Sociology (New York: D. Appleton & Company, 1925) (3 vols.) (3d ed., 1885; 1876), Vol. 1, pp. 442–443
Lawson, John D., The Law of Usages and Customs, With Illustrative Cases (St. Louis: F. H. Thomas & Co., 1881)
Browne, J. H. Balfour, The Law of Usages and Customs: A Treatise Wherein Is More Particularly Pointed Out When and to What Extent Usages and Customs May Be Set Up as a Defence, and How, as a Matter of Evidence, Their Existence Will Control, Vary, or Explain Writings and Agreements (1st U.S. ed. by S. S. Clarke) (Jersey City: Frederick D. Linn & Co., 1881)
Gray, John Chipman, The Nature and Sources of the Law (2d ed.) (New York: MacMillan Company, 1921), p. 296
Siegel, Stephen S., “John Chipman Gray and the Moral Basis of Classical Legal Thought,” Iowa Law Review 86 (2001): 1513–1599, and “John Chipman Gray, Legal Formalism, and the Transformation of Perpetuities Law,” University of Miami Law Review 36 (1982): 439–464Google Scholar
Wharton, Francis, Commentaries on Law, Embracing Chapters on the Nature; the Source; and the History of Law; on International Law; Public and Private; and on Constitutional and Statutory Law (Philadelphia: Kay & Brother, 1884) (Holmes Beach, Fla.: Gaunt, Inc., 2001), pp. 51, 55, 56
Bliss, Philemon, Of Sovereignty (Boston: Little, Brown & Co., 1885), p. 26
Carter, James C., The Proposed Codification of Our Common Law: A Paper Prepared at the Request of the Committee of the Bar Association of the City of New York, Appointed to Oppose the Measure (New York: Evening Post Job Printing Office, 1884), pp. 41, 41, 59, 70
Carter, James Coolidge, Law: Its Origin, Growth and Function: Being a Course of Lectures Prepared for Delivery Before the Law School of Harvard University (G. P. Putnam's Sons, 1907), p. 21 (quoting Sir John Lubbock), also pp. 78, 153, 153, 155, 249
Tiedeman, Christopher G., The Unwritten Constitution of the United States: A Philosophical Inquiry into the Fundamentals of American Constitutional Law (New York: G. P. Putnam's Sons, 1890), p. 9
Holmes, Oliver Wendell, Jr., The Common Law (Boston: Little, Brown & Co., 1938) (1881), p. 36
Grossman, Lewis A., “Langdell Upside-Down: The Anticlassical Jurisprudence of Anticodification,” Yale Journal of Law & Humanities 19 (2007): 149–219Google Scholar
Grossman, Lewis A., “James Coolidge Carter and Mugwump Jurisprudence,” Law and History Review 20 (2002): 577–629Google Scholar
Reimann, Mathias, “The Historical School Against Codification: Savigny, Carter, and the Defeat of the New York Civil Code,” American Journal of Comparative Law 37 (1989): 95–119Google Scholar
Carrington, Paul D., “Hail! Langdell!Law & Social Inquiry 20 (1995): 691– 760Google Scholar
Grey, Thomas C., “Langdell's Orthodoxy,” University of Pittsburgh Law Review 45 (1983): 1–53Google Scholar
Kimball, Bruce A., The Inception of Modern Professional Education: C. C. Langdell, 1826–1906 (Chapel Hill: University of North Carolina Press, 2009)
Kimball, Bruce A., “Langdell on Contracts and Legal Reasoning: Correcting the Holmesian Caricature,” Law and History Review 25 (2007): 345–399Google Scholar
Kimball, Bruce A., “‘Warn Students That I Entertain Heretical Opinions, Which They Are Not to Take as Law’: The Inception of Case Method Teaching in the Classrooms of the Early C. C. Langdell, 1870–1883,” Law and History Review 17 (1999): 57–140Google Scholar
Aschuler, Albert W., Law Without Values: The Life, Work and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000)
Gordon, Robert W., ed., The Legacy of Oliver Wendell Holmes, Jr. (Stanford, Calif.: Stanford University Press, 1992)
Gordon, Robert W., “Holmes' Common Law as Legal and Social Science,” Hofstra Law Review 10 (1982): 719–746Google Scholar
LaPiana, William P., “Victorian from Beacon Hill: Oliver Wendell Holmes's Early Legal Scholarship,” Columbia Law Review 90 (1990): 809–833Google Scholar
Tushnet, Mark, “The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial Court,” Virginia Law Review 63 (1977): 975–1052Google Scholar
Vetter, Jan, “The Evolution of Holmes, Holmes and Evolution,” California Law Review 72 (1984): 343–368Google Scholar
White, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (Oxford: Oxford University Press, 1993)
White, G. Edward, “The Integrity of Holmes' Jurisprudence,” Hofstra Law Review 10 (1982): 633–671Google Scholar
White, G. Edward, “The Rise and Fall of Justice Holmes,” University of Chicago Law Review 39 (1971–1972): 51–77Google Scholar
Fernandez, Angela, “The Lost Record of Pierson v. Post, the Famous Fox Case,” Law and History Review 27 (2009): 149–178Google Scholar

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  • Time as Life
  • Kunal M. Parker
  • Book: Common Law, History, and Democracy in America, 1790–1900
  • Online publication: 03 May 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9780511973963.006
Available formats
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Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • Time as Life
  • Kunal M. Parker
  • Book: Common Law, History, and Democracy in America, 1790–1900
  • Online publication: 03 May 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9780511973963.006
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Time as Life
  • Kunal M. Parker
  • Book: Common Law, History, and Democracy in America, 1790–1900
  • Online publication: 03 May 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9780511973963.006
Available formats
×