Two Horwitzian Journeys
45 Pages Posted: 20 Feb 2007
Date Written: December 21, 2006
This festschrift article describes two projects inspired by Morton Horwitz's The Transformation of American Law, 1780-1860 (Transformation I). Both projects tell the story of the transformation of Transformation I, as it migrated to non-American legal contexts and as its historiographical questions and interpretations were transformed due to the encounter with non-American materials. One project examines the history of the judicial law making in a colonial context - that of British-ruled Palestine in the early 20th century, and the other is a comparative examination of the history of tax avoidance decisions in the UK, the United States and Israel in the early and middle parts of the 20th century.
Both projects described in the article attempt to answer the question what factors influence judicial decisions? Both seek to show that class and economic interests, at least in some contexts, are not the major factor that shaped the case-law. The article is thus an opportunity for me to look back on more than a decade of work and reflect on how my work has been, to a large extent, an attempt to revisit the Horwitz thesis outlined in Transformation I, taking some explicit and implicit questions that Horwitz posed in that book, shifting their focus from legal doctrines and their economic effects to judicial minds and their relationship to culture and public opinion, and examining them in a number of non-American contexts. The ultimate lesson of this experience, I will conclude, is that the Horwitzian journey, a journey which seeks to study the links between politics and judge-made doctrines, is at once an inconclusive yet also a rewarding pursuit.
Keywords: legal history, colonial legal history, tax history, judicial behaviour, comparative law, tax, tax avoidanace, law and society, intellectual history, law and culture
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