Expansion, Transformation, and the Release of Energy

It's interesting to observe how certain historical phenomena come and go as waves in time. In particular, Morton J. Horwitz's book's first chapters caught my attention when, talking about the role of the judges, stated that contrary to 18th century, in the 19th century, after American war of independence, judges begun to see themselves as instruments of relevant social policies and that their decisions cannot be made or understood in a individual case basis, but instead always having in mind their outcome and it impact in economic, politic and social structures of the time. In this way, 19th century's judges departured even from the blind following of precedent, once the new legal theory then in formation understood common law not as timeless principles of reason and justice, but as embodying a prudential policy method. That said, in recent times we had the partisans of originalism, such as late Justice Scalia, stating that in the decision -making process the judge should not consider the outcome, and that policy issues must be discussed and solved by the legislative branch. If we think that in the period of the post-american indepence war the new country was beginning to build up its economic and political systems with several 'penumbra' spots not well established yet in almost every area of government, its not hard to imagine why judges thought of themselves as "architets of the legal system"(p. 24). Perhaps every period makes the legal method and the judges it needs. -Patricia Hartmann

-- PatriciaHartmann - 15 Oct 2016