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Subject Area: Political Theory

Law without Justice? - Leonard P. Liggio, Literature of Liberty, January/March 1979, vol. 2, No. 1 [1979]

Edition used:

Literature of Liberty: A Review of Contemporary Liberal Thought was published first by the Cato Institute (1978-1979) and later by the Institute for Humane Studies (1980-1982) under the editorial direction of Leonard P. Liggio.

Part of: Literature of Liberty: A Review of Contemporary Liberal Thought, 20 vols. 19781-982

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Law without Justice?

Morton J. Horwitz

  • Harvard Law School

“The Legacy of 1776 in Legal and Economic Thought.” The Journal of Law and Economics 19 (October 1976): 621–632.

Applying his ideas in The Transformatión of American Law, Professor Horwitz considers specifically the demise of faith in the American Revolution's classical liberal ideas. He concludes that the realities of the American state and its legal system have negated these ideals, spawned doubt, and eroded faith.

Two antithetical legal doctrines emerged in the nineteenth century. One endorsed the premises of liberalism. These liberal premises supported equality of opportunity (procedural equality) while opposing equality of results (substantive equality).

The second doctrine focused on how the legal system could intervene to promote economic growth and a narrowly conceived efficiency. Law became a political tool of state policy, a view in sharp contrast to that of the law as nonpolitical and neutral among clashing interests. With its commitment to equal results rather than opportunity, the second doctrine treated law as redistributive.

The nineteenth century saw the clash of these conflicting legal doctrines. Eminent domain and bankruptcy law represent the triumph of the forces using the politicized law as a growth-supporting institution. By the end of the century, Americans were choosing between the market system, which depends on decentralized economic power, and the centralized property system that was the outcome of a legal transformation. Moreover, the natural rights justification for the market was eclipsed by the realities of the new legal-political system.

The rule of law itself suffered from this development, for the primacy of the rule of law depended upon acceptance of eighteenth-century natural rights thinking. The rule of law now faces its most important challenge in today's bureaucratic and regulatory state. But those who advocate change to achieve allocational efficiency represent the same positivist-utilitarian intellectual tradition that undermined both natural rights thinking and traditional legal constraints.

For Horwitz it is too late to return completely to the earlier liberal ideal of justice. We must “recreate the ideal of legality anew.” Nonetheless, he sees one clear legacy of 1776: “After two hundred years we have finally begun to understand that there can be no law without justice and no justice without law.”