The Lost World of Classical Legal Thought: Law and Ideology in America, 1886-1937
Oxford University Press, 4. 6. 1998. - 296 страница
This book examines the ideology of elite lawyers and judges from the Gilded Age through the New Deal. Between 1866 and 1937, a coherent outlook shaped the way the American bar understood the sources of law, the role of the courts, and the relationship between law and the larger society. William M. Wiecek explores this outlook--often called "legal orthodoxy" or "classical legal thought"--which assumed that law was apolitical, determinate, objective, and neutral. American classical legal thought was forged in the heat of the social crises that punctuated the late nineteenth century. Fearing labor unions, immigrants, and working people generally, American elites, including those on the bench and bar, sought ways to repress disorder and prevent political majorities from using democratic processes to redistribute wealth and power. Classical legal thought provided a rationale that assured the legitimacy of the extant distribution of society's resources. It enabled the legal suppression of unions and the subordination of workers to management's authority. As the twentieth-century U.S. economy grew in complexity, the antiregulatory, individualistic bias of classical legal thought became more and more distanced from reality. Brittle and dogmatic, legal ideology lost legitimacy in the eyes of both laypeople and ever-larger segments of the bar. It was at last abandoned in the "constitutional revolution of 1937", but--as Wiecek argues in this detailed analysis--nothing has arisen since to replace it as an explanation of what law is and why courts have such broad power in a democratic society.
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The Emergence of Legal Classicism 18601890
Classicism Ascendant 18801930
Classicism Contested 18931932
The Collapse of Legal Classicism 19301942
Historiography and the Supreme Court
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American Law American legal antebellum antitrust authority Brandeis challenge Chief Justice Civil classical jurists classical lawyers classical legal thought classical thought classicist common law concept Congress conservative constitutional Constitutionalism corporate Death of Contract decisions democratic dissent doctrine dominant due process clause economic elite employer federal courts Felix Frankfurter Fourteenth Amendment historians History Holmes Holmes’s Horwitz ideology individual industrial intellectual interests interpretation James John Joseph Story judges judicial review judiciary Jurisprudence labor injunction laissez-faire law’s legal classicism legal order Legal Realism legal science legislation legislature liberty of contract Lochner Lochner Era majority ment modern neo-Progressive nineteenth century opinion outlook parties police power political popular Populist principles Progressive prohibiting property rights protect railroad regulation regulatory republican Revolution Robert Roscoe Pound social society state’s statute substantive due process Supreme Court T]he theory tion torts tradition treatise unions United wealth William workers York
Страница 135 - It must not be forgotten that you are not to extend arbitrarily those rules which say that a given contract is void as being against public policy, because if there is one thing which more than another public policy requires it is that men of full age and competent understanding shall have the utmost liberty of contracting, and that their contracts, when entered into freely and voluntarily, shall be held sacred, and shall be enforced by courts of justice.
Страница 69 - The mobs of great cities add just so much to the support of pure government, as sores do to the strength of the human body.
Страница 27 - ... no part of the property of any individual can, with justice, be taken from him, or applied to public uses, without his own consent, or that of the representative body of the people.
Страница 23 - ... whenever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to, reform the old or establish a new government. . The doctrine of non-resistance against arbitrary power and oppression is absurd, slavish, and destructive of the good and happiness of mankind.
Страница 150 - Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood.
Страница 235 - The legislature has also recognized the fact, which the experience of legislators in many states has corroborated, that the proprietors of these establishments and their operatives do not stand upon an equality, and that their interests are, to a certain extent, conflicting. The former naturally desire to obtain as much labor as possible from their employees, while the latter are often induced by the fear of discharge to conform to regulations which their judgment, fairly exercised, would pronounce...
Страница 24 - The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the constitution which at any time exists till changed by an explicit and authentic act of the whole people is sacredly obligatory upon all.
Страница 141 - The entire strength of the nation may be used to enforce in any part of the land the full and free exercise of all national powers and the security of all rights entrusted by the Constitution to its care.
Страница 33 - Should Congress, in the execution of its powers, adopt measures which are prohibited by the constitution ; or should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government...
Страница 220 - If by the statement that what the Constitution meant at the time of its adoption it means to-day, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. It was to guard against such a narrow conception that Chief Justice Marshall uttered the memorable warning: "We must never forget, that it is a constitution we are...