Categorical imperatives

Merely in order to write one or two transitional paragraphs in an essay that happens to span about 150 years of legal history, I’m trying to understand a fundamental shift in legal reasoning from the “classical” period of 19th century American law to the progressive era of the early 20th century. This is the kind of thing they don’t typically teach in law school. Law school as I knew it was a trade school: got a broken contract? here’s how you fix it. Maybe that’s changed some. But I digress.

Morton Horwitz’ Transformation of American Law, 1870-1960 is a place to start. The hallmark of the classical period, he writes, was the distinction between public law and private law. Public law engaged the coercive power of the state; private law guarded the sacred American space of private life, where the individual is free to act without the interference of government regulation. Private law principles underwrote the notion of “liberty of contract” that was upheld by the Supreme Court in Lochner v. New York (1905). But that opinion, which struck down a law regulating the hours that bakery employees could be required to work on the theory that the employment contract was a voluntary agreement, dramatically illustrated the fallacy of the “will” theory of contract law in an industrializing society.

With the reaction to Lochner, then, the 20th century progressive critique of the nice categories of private and public law began in earnest. Within the courts themselves the distinction began to fall, as judges and juries reacted to the demands of business and industry. More and more, contracts (and even noncontractual relationships) between private parties were subjected to uniform standards of objective reasonableness—at the expense, if necessary, of the subjective intentions of the parties. Now if private contracts are to be interpreted in the light of business conventions and public policy quite apart from the individual intentions of the parties, what happens to “private” law? And if there is no more private law—no more neutral, “night watchman” theory of the benign operation of the law over private parties—then the whole operation of the law is open to question. Exactly what social policies were the courts pursuing, and to what ends?

These are fascinating questions, and I’m only halfway through the book, and nowhere close to tackling my troublesome paragraphs, but my thoughts are interrupted by another fascinating issue of categorization: Michael Bérubé’s updated blogroll. Michael has been much troubled himself:

This was the moment I’d been dreading for months. Categorizing the blogs! I feared that every step I took would kill a living thing. What if I classified someone’s blog as anarcho-syndicalist when in fact many of its posts were crypto-Maoist? What if I designated “Sivacracy” as post-Impressionist when in fact its studied pointillism owes a great deal to Scott McLemee’s experiments with color and line? And (this last question bedevils all of us literature professors) what was I to do with those damned medievalists? Especially the ones whose blogs are full of thorns?

I’m delighted that GreeneSpace made the list (category: “Fabulous Ones”). That's definitive, isn't it?