James Coolidge Carter and Mugwump Jurisprudence

Abstract:     
This article examines the thought of James Coolidge Carter, a leading legal theorist, practicing attorney, and political reformer of the Gilded Age, most famous for his resistance to codification. Carter, like many elite legal figures in the late nineteenth century, belonged to the genteel urban political culture known as the Mugwumps. I show how Carter's suspicion of legislators, his faith in courts, his equation of the common law with custom, and his condemnation of legislation inconsistent with custom, reflected his Mugwump world view. I also explore how Carter, like other Mugwumps, struggled to accommodate traditional modes of thought to the challenges of modernity. This struggle explains the precarious synthesis of apparently inconsistent elements in his jurisprudence. For example, Carter clung to a core of beliefs he inherited from the antebellum Whigs even as developments in the decades after the Civil War led him to embrace positions characteristic of the Jacksonians. He merged a traditional faith in timeless, objective moral principles with a more modern vision of evolving customary norms. I conclude by discussing an additional tension in Carter's thought; despite the antilegislative crux of his jurisprudence, he increasingly acknowledged the need for positive government in an urban and industrial society.

Keywords: Mugwump, James Coolidge Carter, James C. Carter, Carter, codification, custom, "historical jurisprudence"

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