Morton Horwitz
Encyclopedia
Morton J. Horwitz is an American legal historian
and law
professor
at Harvard Law School
. The recent past dean
of Harvard Law School, Elena Kagan
, relates that during her time at law school
, students often nickname
d him as "Mort the Tort" since he taught the first-year subject Tort
s.
Horwitz obtained an A.B.
from the City College of New York
(1959), an A.M.
and Ph.D.
from Harvard University
(1962 and 1964), and an LL.B. from Harvard Law School (1967).
He became an Associate Professor of Law at Harvard Law School in 1970 and gained tenure
as a full professor in 1974. In 1981, he was appointed the Charles Warren
Professor of American Legal History.
His first book, The Transformation of American Law, 1780-1860, was published in 1977, and is widely regarded as one of the most important books in modern American legal historiography
. It won the Bancroft Prize
, the preeminent prize in American history in the United States. A product of its time, this book sought to give a "thick description" (à la Clifford Geertz
) of the transformation of American law in the period, without appealing to "covering laws" (à la Carl Gustav Hempel
). The book was conceived as an attack on the so-called "Consensus School" of American Legal History, which had dominated the field of Legal History
in the 1950s and minimized the role of class
dimensions in American legal history. The main argument of his book is that in the first half of the 19th century, many judge
s self-consciously allied themselves with a rapidly-growing class of mercantile capitalists
and promoted a series of legal rules which favored those capitalists.
In The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992), the sequel to his first book, Horwitz focused on the critics of the system which he described in his first book, especially Oliver Wendell Holmes
, Roscoe Pound
, and Karl Llewellyn. He frames this change in the law as a debate between "Legal Formalists
" and "Legal Realists
". He argues that in this period, the victors from his first book tried to present the current state of the law as the natural and necessary consequence of the application of the rules of reason
. In their critique of Legal Formalism, the Legal Realists argued that the inductive and analogical
model applied by the Legal Formalists was logically incoherent; that all law was ultimately a power relationship
; and that, therefore, law was basically a form of public policy which should be decided on public policy
grounds rather than by recourse to abstract categories like "reason
".
These works have been criticized by some—including Richard Posner
, A. W. B. Simpson
, and R. Randall Bridwell—as being tendentious, overly selective of evidence, and insufficiently grounded.
In 1998, Horwitz published his third book, an encomium
on the Warren Court
entitled The Warren Court and the Pursuit of Justice.
Legal history
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history...
and law
Law
Law is a system of rules and guidelines which are enforced through social institutions to govern behavior, wherever possible. It shapes politics, economics and society in numerous ways and serves as a social mediator of relations between people. Contract law regulates everything from buying a bus...
professor
Professor
A professor is a scholarly teacher; the precise meaning of the term varies by country. Literally, professor derives from Latin as a "person who professes" being usually an expert in arts or sciences; a teacher of high rank...
at Harvard Law School
Harvard Law School
Harvard Law School is one of the professional graduate schools of Harvard University. Located in Cambridge, Massachusetts, it is the oldest continually-operating law school in the United States and is home to the largest academic law library in the world. The school is routinely ranked by the U.S...
. The recent past dean
Dean (education)
In academic administration, a dean is a person with significant authority over a specific academic unit, or over a specific area of concern, or both...
of Harvard Law School, Elena Kagan
Elena Kagan
Elena Kagan is an Associate Justice of the Supreme Court of the United States, serving since August 7, 2010. Kagan is the Court's 112th justice and fourth female justice....
, relates that during her time at law school
Law school in the United States
In the United States, a law school is an institution where students obtain a professional education in law after first obtaining an undergraduate degree.Law schools in the U.S...
, students often nickname
Nickname
A nickname is "a usually familiar or humorous but sometimes pointed or cruel name given to a person or place, as a supposedly appropriate replacement for or addition to the proper name.", or a name similar in origin and pronunciation from the original name....
d him as "Mort the Tort" since he taught the first-year subject Tort
Tort
A tort, in common law jurisdictions, is a wrong that involves a breach of a civil duty owed to someone else. It is differentiated from a crime, which involves a breach of a duty owed to society in general...
s.
Horwitz obtained an A.B.
Bachelor's degree
A bachelor's degree is usually an academic degree awarded for an undergraduate course or major that generally lasts for three or four years, but can range anywhere from two to six years depending on the region of the world...
from the City College of New York
City College of New York
The City College of the City University of New York is a senior college of the City University of New York , in New York City. It is also the oldest of the City University's twenty-three institutions of higher learning...
(1959), an A.M.
Master's degree
A master's is an academic degree granted to individuals who have undergone study demonstrating a mastery or high-order overview of a specific field of study or area of professional practice...
and Ph.D.
Doctor of Philosophy
Doctor of Philosophy, abbreviated as Ph.D., PhD, D.Phil., or DPhil , in English-speaking countries, is a postgraduate academic degree awarded by universities...
from Harvard University
Harvard University
Harvard University is a private Ivy League university located in Cambridge, Massachusetts, United States, established in 1636 by the Massachusetts legislature. Harvard is the oldest institution of higher learning in the United States and the first corporation chartered in the country...
(1962 and 1964), and an LL.B. from Harvard Law School (1967).
He became an Associate Professor of Law at Harvard Law School in 1970 and gained tenure
Tenure
Tenure commonly refers to life tenure in a job and specifically to a senior academic's contractual right not to have his or her position terminated without just cause.-19th century:...
as a full professor in 1974. In 1981, he was appointed the Charles Warren
Charles Warren (U.S. author)
Charles Warren was a legal scholar, and the author of the book The Supreme Court in United States History , which won the Pulitzer Prize for History in 1923.He was also a lawyer...
Professor of American Legal History.
His first book, The Transformation of American Law, 1780-1860, was published in 1977, and is widely regarded as one of the most important books in modern American legal historiography
Historiography
Historiography refers either to the study of the history and methodology of history as a discipline, or to a body of historical work on a specialized topic...
. It won the Bancroft Prize
Bancroft Prize
The Bancroft Prize is awarded each year by the trustees of Columbia University for books about diplomacy or the history of the Americas. It was established in 1948 by a bequest from Frederic Bancroft...
, the preeminent prize in American history in the United States. A product of its time, this book sought to give a "thick description" (à la Clifford Geertz
Clifford Geertz
Clifford James Geertz was an American anthropologist who is remembered mostly for his strong support for and influence on the practice of symbolic anthropology, and who was considered "for three decades...the single most influential cultural anthropologist in the United States." He served until...
) of the transformation of American law in the period, without appealing to "covering laws" (à la Carl Gustav Hempel
Carl Gustav Hempel
Carl Gustav "Peter" Hempel was a philosopher of science and a major figure in 20th-century logical empiricism...
). The book was conceived as an attack on the so-called "Consensus School" of American Legal History, which had dominated the field of Legal History
Legal history
Legal history or the history of law is the study of how law has evolved and why it changed. Legal history is closely connected to the development of civilizations and is set in the wider context of social history...
in the 1950s and minimized the role of class
Social class
Social classes are economic or cultural arrangements of groups in society. Class is an essential object of analysis for sociologists, political scientists, economists, anthropologists and social historians. In the social sciences, social class is often discussed in terms of 'social stratification'...
dimensions in American legal history. The main argument of his book is that in the first half of the 19th century, many judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
s self-consciously allied themselves with a rapidly-growing class of mercantile capitalists
Capitalism
Capitalism is an economic system that became dominant in the Western world following the demise of feudalism. There is no consensus on the precise definition nor on how the term should be used as a historical category...
and promoted a series of legal rules which favored those capitalists.
In The Transformation of American Law, 1870-1960: The Crisis of Legal Orthodoxy (1992), the sequel to his first book, Horwitz focused on the critics of the system which he described in his first book, especially Oliver Wendell Holmes
Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr. was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932...
, Roscoe Pound
Roscoe Pound
Nathan Roscoe Pound was a distinguished American legal scholar and educator. He was Dean of Harvard Law School from 1916 to 1936...
, and Karl Llewellyn. He frames this change in the law as a debate between "Legal Formalists
Legal formalism
Legal formalism is a legal positivist view in philosophy of law and jurisprudence. While Jeremy Bentham's can be seen as appertaining to the legislature, legal formalism appertains to the Judge; that is, formalism does not suggest that the substantive justice of a law is irrelevant, but rather,...
" and "Legal Realists
Legal realism
Legal realism is a school of legal philosophy that is generally associated with the culmination of the early-twentieth century attack on the orthodox claims of late-nineteenth-century classical legal thought in the United States...
". He argues that in this period, the victors from his first book tried to present the current state of the law as the natural and necessary consequence of the application of the rules of reason
Reason
Reason is a term that refers to the capacity human beings have to make sense of things, to establish and verify facts, and to change or justify practices, institutions, and beliefs. It is closely associated with such characteristically human activities as philosophy, science, language, ...
. In their critique of Legal Formalism, the Legal Realists argued that the inductive and analogical
Analogy
Analogy is a cognitive process of transferring information or meaning from a particular subject to another particular subject , and a linguistic expression corresponding to such a process...
model applied by the Legal Formalists was logically incoherent; that all law was ultimately a power relationship
Power (sociology)
Power is a measurement of an entity's ability to control its environment, including the behavior of other entities. The term authority is often used for power perceived as legitimate by the social structure. Power can be seen as evil or unjust, but the exercise of power is accepted as endemic to...
; and that, therefore, law was basically a form of public policy which should be decided on public policy
Public policy
Public policy as government action is generally the principled guide to action taken by the administrative or executive branches of the state with regard to a class of issues in a manner consistent with law and institutional customs. In general, the foundation is the pertinent national and...
grounds rather than by recourse to abstract categories like "reason
Reason
Reason is a term that refers to the capacity human beings have to make sense of things, to establish and verify facts, and to change or justify practices, institutions, and beliefs. It is closely associated with such characteristically human activities as philosophy, science, language, ...
".
These works have been criticized by some—including Richard Posner
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
, A. W. B. Simpson
A. W. B. Simpson
Alfred William Brian Simpson QC , FBA usually referred to as A. W. B. Simpson, was a British legal historian and the emeritus Charles F. and Edith J. Clyne Professor of Law at the University of Michigan Law School.- References :...
, and R. Randall Bridwell—as being tendentious, overly selective of evidence, and insufficiently grounded.
In 1998, Horwitz published his third book, an encomium
Encomium
Encomium is a Latin word deriving from the Classical Greek ἐγκώμιον meaning the praise of a person or thing. "Encomium" also refers to several distinct aspects of rhetoric:* A general category of oratory* A method within rhetorical pedagogy...
on the Warren Court
Earl Warren
Earl Warren was the 14th Chief Justice of the United States.He is known for the sweeping decisions of the Warren Court, which ended school segregation and transformed many areas of American law, especially regarding the rights of the accused, ending public-school-sponsored prayer, and requiring...
entitled The Warren Court and the Pursuit of Justice.