The Different Explanations for the Emergence of Classical Law - Essay Example

?CONTRACT LAW: THE DIFFERENT EXPLANATIONS FOR THE EMERGENCE ICAL LAW Introduction Different schools of thoughts have different contribution on the emergence of classical law. However, the classical law emerged during the industrialization in the early nineteenth century. During this period, the writ system had immense haphazard effects because of the diversity in the United States’ law and the tendency of its courts to introduce exceptions to certain rigorous requirements. Additionally, there was inconsistency in inter jurisdiction within the American jurisprudence; hence, leading to complexity. In the early 1848, reform that introduced the New York Code of procedures took place1. This reform led to the abolishment of the reforms of action that was based on writ system. Initially, the introduction of the classical law with the introduction of New York Code of procedures seemed to be a significant step in law reforms (Frank, 1975: 182)2. The law spread to the parts of the world including the United Kingdom where it was mainly used to understand and determine trade matters. There emergence of the classical law has been contributed to by different schools of though with certain schools of though held that classical law or classical legal thoughts, as they referred to it, shape and transformed the united states economic and social lives. 1. [Holmes] "The Theory of Torts," 7 Am. L. Rev. 652 (1873) 2. Frank, W.F., (1975) the General Principles of English Law, London: George G. Harrap & Co. Ltd, pp. 182-183 Moreover, the law or the legal though organized the legal elite along the utilitarianism and natural right. The classical law had nationalist or instrumentalist mode of the formative era. During the formative era, leaders of the bar, treatise writers, and the Supreme Court justices among other legal players had the same conception of the law that was viewed to transform old conflicting schools of thought3. These legal players wanted legal thoughts and professions to match with science along the philosophical speculation as well as in the crudities of democratic politics. This alliance of legal player influenced the legal outcome between the year 1865 and 1940 that was defined by the older conservatism. The older conservatism was only realized among the professionals that constituted politicians and despoiling entrepreneurs who piled pressure on the framers, working class, and the “public interest”. Therefore, classical law was introduced as an article of faith within the liberal historiography of this time (Frank, 1975: 183)2. From these two schools of thoughts, it is apparent that the classical law emerged to introduce reforms in both social and economic lives of people during the industrialization period. According to Milsom (1981: 364)4, the law was introduced as a legal measure for autonomy. It aimed at narrowing the gap between different social and economic classes since it seemed to offset the distinguishable result from economic interest and political power. However, both schools of thought have not addressed the autonomy of legal consciousness that led to the introduction of the law. The first contribution notes that the law was introduced to deal with specific concepts within the industrial era. However, on the other side, the second school of thought states that classical law emerged to deal with all the social, economic, and political discrepancies or inequality that emerged during the nineteenth century industrialization in Britain just like other parts of the world that was experiencing industrialization revolution. 3. Blackstone, W. (1973) Commentaries on the Laws of England. London: Macmillan 4. Milsom, S.F.C., (1981) Historical Foundations of the Common Law, London: Butterworths, pp. 361-400 Some contributors of the emergence of the classical law note that before the civil war in the United States, there was a set of legal relationships among the legal elites within and outside America. This relationship comprised of legal system including private citizen of states, private citizen to private citizen, federal to state government, and legislature to judiciary (Tort Law in America)5. These systems were qualitatively distinct from one another and they operated qualitatively in accordance to legal analytical principles. According to this contribution, there was need to define and understand the relation between different entities that formed the society. Therefore, there was a need for a law that would provide such distinctions. The law that was drafted to supply this need led to the classical law. Therefore, the classical law emerged to define the sovereignty among different institutions. Moreover, it aimed at separating power between different governments and unions of sovereign states. However, the classical British regarded the classical law a measure to completion; thus, according to them the law was a perfect to reach certain agreements where business practices could unreasonably restrain an individual’s liberty to engage in business with other people. Therefore, the low provided an avenue for people to engage in business without interferences towards bettering their livelihoods. The understanding herein is that classical law adopted in Britain to change circumstances under which businesses operated following the industrial revolution. Additionally, the introduced specific categories of agreements, clauses, doctrines of economic fairness; however, it did not contrive on market power. 5. White, G. Edward, Tort Law in America, An Intellectual History, New York: Oxford University Press 4. Milsom, S.F.C., (1981) Historical Foundations of the Common Law, London: Butterworths, pp. 361-400 Notably, once Adam Smith rejected all forms of monopoly power within the economic institutions on the grounds that, "A monopoly granted either to an individual or to a trading company has the same effect as a secret in trade or manufactures. The monopolists, by keeping the market constantly under-stocked, by never fully supplying the effectual demand, sell their commodities much above the natural price, and raise their emoluments, whether they consist in wages or profit, greatly above their natural rate6." From this understanding, it is clear that the classical law was initiated to separate and define power within different societal institutions. It is worth noting that all contributors on the emergence of classical law acknowledge that the law had economic and social implication. In other words, the law aimed at eradicating misuse of power by a give legal entity and distributing resources to all societal institutions. Nonetheless, unlike other schools of thoughts, this idea introduced a new concept of the emergence of the classical law that is, policing boundaries. Some theories of the emergence of classical law trace the classical legal thoughts after 1900. The theory states that, after 1900, there was intense integrated system that aimed at reducing almost all legal actions towards enforcing economic rules among the private sectors. The law was refined to respond to attacks from the progressive and liberal politics; thus, the law assumed much of political role of jurisdiction. 6. Smith, Adam (1776) An Enquiry into the Nature and Causes of the Wealth of Nations online from the Adam Smith Institute. According to this theory, the classic law at some points proved to be self-destructive. The classical law later became a pure triumph of formal marginal utility theory in the economics that appeared as American philosophical pragmatism that undermined analytic justice apparatus. This led to disintegration of other thoughts thereby leading to mutual autonomous subcategories that were different from other laws. However, it somewhat resembled the laws of the pre-civil war period. Moreover, the post 1900 classical law theory notes that the law contributed to the judiciary recession that acted as guidance to integrity within the fundamental legal relationships. The emergence of classical law is also pegged on intellectual contracts. According to this concept, the law came to play as a platform that judges, lawyers, and commentators could manipulate events with intension of convincing their audients. Moreover, these legal players were to manipulate the law to link the created subsystems so that they could have their own rules of operation and internal organization. This concept contracted and expended numerous or less aspects of legal reality within the legal consciousness. Additionally, this concept notes that classicism was developed from circa 1900 and it became powerful particularly within the subsystems. Notably, the intellectual contract concept of the law also notes the contribution or the need of the division of power within numerous institutions. Additionally, there is a concept that the classical law or emerged to elaborate the understanding of the British legal system. According to this concept, the contributors note that classical law was first protracted in United States when there were economics and class conflicts particularly in the Central of Georgia7. 7. Central of Georgia Ry. Co. v. Price, 32 S.E. 77 (1898). These conflicts spread and defined the legal systems in the Western European countries especially during the rapid industrialization period. Industrialization was involved with issues including finance and industry alongside “cut-throat competition”, betwixt railroad workers and farmers, the struggle between employees and unions over wages and working conditions, and the regulatory process of the state to federal government like in the case of Brown v. Railway Co8. The need to handle most of the legal injustices and justices that accrued during the industrial period led to emergence of the classical law as was applied in the case Ryan v New York and the Central Railroad9. Like the first contributors, this school of though acknowledges that classical law was an initiation to understand the American legal system. The premises of classical law were to introduce set of institutions each with its own legal actors. According to Blackstone10, its sovereign people to conduct its legal will and to evade jurisdictions of other spheres mandated each institution. This concept anticipates the contribution of quasi science as a force that led to the emergence of the classical law. According to this concept, the classical law emerged from exactly two systems that link the judiciary. These two systems involved parallel fashions; however, it quite difficult to note with certainty which of them served as the model of the other ("The Theory of Torts," 1873: 652)11. 8. Brown v. Railway Co., 11 N.W. 356 (1882) 9. Ryan v. New York Central Railroad, 35 N.Y. 210 (1866) 10. Blackstone, W. (1973) Commentaries on the Laws of England. London: Macmillan 11. "The Theory of Torts," 7 Am. L. Rev. 652 (1873) The first model upon which classical law emerged is the federalism that was supported by the congress. This led to federal judiciary and it was adopted by numerous states and nation. The federal and state governments that adopted classical law or the federal judiciary were seen to adopt or exercised sovereignty. The power of absolute domination attained by these governments led to usurping with state usurping states, federal usurping state authorities, and states usurping federals. The classical law also emerged due to the demand of a jurisdiction and legislation would initiate individual property holding. Both the legislation and property holdings were thought of exercising formally identical and absolute dominion over properties (Vosburg v. Putney, 1891: 403)12. Classical law was a change of order due to social and economic injustices that followed during the rapid industrial revolution. The process of the law formation took different dimension and different understanding. During the industrial revolution, different social and economic classes emerged that led to different legal justices. Therefore, different theories resulted in the understanding the legal justice that emerged during this period13. In some cases, the theories never intended to explain the process, but intended to explain the distribution of resources and power with the society that was created due to industrial revolution. Nonetheless, theories examining the emergence of the classical law do help in understanding the theoretical atmosphere that led to the emergent of the law. 12. Vosburg v. Putney, 50 N.W. 403 (1891) 13. Coke, E. (1605) De Libellis Famosis 5 Co. Rep. 125a The basic mode of the theories resulted into ordering the myriad practices in a more systematization through simplification and generalization of categories and abstractions that allows the practitioners to exercise principles of the law. It should be noted that different aspect of the law was generated by different aspect or change in order within the society following changes in social and economic order. The theories explaining the emergence of classical law helps in understanding basic institutional conflicts that rose among the populist legislation, private businesses, legislations, and courts. For instance, in the year 1905, the united state’s court applied the classical law in a classical case in England15 where classical law was illustrated and applied to a high degree. It is important to note that the difference states of the classical legal thoughts lead to integration of the subsystems in allocating contracts. During the classical period, there was lack of contract freedom. The social and economic nature of the classical law re-enforced the natural right of contracted as well improving working condition and relationships between employees and employers as well as unions. Notably, all the theories led to a composite utilitarian calculation in the enforcement of these agreements. It is worth noting that application of these theories in their deductive modes especially their systems of reasoning often lead to maximization of its application. It is vital for the legal actors to understand legal implications of the theories that explain the emergence of the classical law in order to apply the jurisdictions of the law effectively15. 14. Weber, Max (1947) The Theory of Social and Economic Organization. Translated by A. M. Henderson & Talcott Parsons,The Free Press. 15. Denver & R.G.R. Co. v. Sipes, 47 P. 287 (1896) Bibliography "The Theory of Torts," 7 Am. L. Rev. 652 (1873) [Holmes] "The Theory of Torts," 7 Am. L. Rev. 652 (1873) Blackstone, W. (1973) Commentaries on the Laws of England. London: Macmillan Brown v. Railway Co., 11 N.W. 356 (1882) Central of Georgia Ry. Co. v. Price, 32 S.E. 77 (1898). Coke, E. (1605) De Libellis Famosis 5 Co. Rep. 125a Denver & R.G.R. Co. v. Sipes, 47 P. 287 (1896) Frank, W.F., (1975) the General Principles of English Law, London: George G. Harrap & Co. Ltd, pp. 182-183 Milsom, S.F.C., (1981) Historical Foundations of the Common Law, London: Butterworths, pp. 361-400 Ryan v. New York Central Railroad, 35 N.Y. 210 (1866) Smith, Adam (1776) An Enquiry into the Nature and Causes of the Wealth of Nations online from the Adam Smith Institute Vosburg v. Putney, 50 N.W. 403 (1891) Weber, Max (1947) The Theory of Social and Economic Organization. Translated by A. M. Henderson & Talcott Parsons,The Free Press. White, G. Edward, Tort Law in America, An Intellectual History, New York: Oxford University Press Read More