A March of Liberty: A Constitutional History of the United States - Vol. 1

By Melvin I. Urofsky; Paul Finkelman | Go to book overview

13

A Law Made for the Times

Debate over the Law An American System Legal
Instrumentalism Changing Views of Land Water
Usage Taking of Land Emergence of Tort Law Master
and Servant Commercial Law The Corporation Sales
Negotiable Instruments Contract Conclusion For Further
Reading

ONE OF THE most famous sentences in legal literature is Oliver Wendell Holmes's statement in his book The Common Law (1881), that law resulted not from logic, but from “the felt necessities of the times.” No better example can be found of this thesis than in American law in the first half of the nineteenth century. Enormous changes in the economy necessitated alterations in traditional legal doctrine to accommodate the spirit of entrepreneurial expansion. While statutes outlined broad public policies, they usually lacked the means for enforcement or for applying the vague goals to specific circumstances; these tasks, as a result, often fell upon the courts. Law did not, of course, create new markets or industries, but it facilitated and legitimized the vast transformations taking place. The law created the circumstances that allowed for what the great legal historian J. Willard Hurst called “the release of creative energies.”


Debate over the Law

The general anti-British sentiment following the Revolution had extended, as we have seen, to English law as well (see Chapter 9); initially, some states forbade litigants from even citing English precedents or writings in their arguments. But in the years immediately following the Revolution, most American lawyers knew only English law. Even in the early nineteenth century, most lawyers learned their craft by reading Blackstone, either in a British version or in the Americanized version edited and expanded by the Virginia jurist St. George Tucker and published in 1803. Thus, for better or worse, English law remained the starting point for American law, although for fifty years it faced hostility from both Anglophobes and democratic radicals, the latter ob

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