The Opening of American Law: Neoclassical Legal Thought, 1870-1970
Herbert Hovenkamp
Abstract
Two late Victorian ideas disrupted American legal thought: the Darwinian theory of evolution and marginalist economics. The legal thought that emerged can be called “neoclassical,” because it embodied ideas that were radically new while retaining many elements of what had gone before. The Darwinian social sciences and marginalist economics developed inconsistent and exclusive methodological approaches, each regarding the others’ methodologies as unscientific. Nevertheless, legal thinkers managed to accommodate both in ways that glossed over or ignored these inconsistencies. In general, Darwini ... More
Two late Victorian ideas disrupted American legal thought: the Darwinian theory of evolution and marginalist economics. The legal thought that emerged can be called “neoclassical,” because it embodied ideas that were radically new while retaining many elements of what had gone before. The Darwinian social sciences and marginalist economics developed inconsistent and exclusive methodological approaches, each regarding the others’ methodologies as unscientific. Nevertheless, legal thinkers managed to accommodate both in ways that glossed over or ignored these inconsistencies. In general, Darwinian models assessed human welfare by making objective judgments based on observed external characteristics such as health and productivity, while marginalism based its conception of welfare on observed market behavior. Although Darwinian social science was developed earlier, in most legal disciplines outside of criminal law and race theory marginalist approaches came to dominate. This book carries these themes through a variety of legal subjects in both public and private law.
Keywords:
Darwin,
marginalism,
law,
social,
science,
economics,
welfare,
legal thought
Bibliographic Information
| Print publication date: 2014 |
Print ISBN-13: 9780199331307 |
| Published to Oxford Scholarship Online: October 2014 |
DOI:10.1093/acprof:oso/9780199331307.001.0001 |
