Building judicial capacity in the early American state: Legal populism, county courts, and credit, 1645--1860.

摘要

Because the early American state lacked the military, bureaucratic, and judicial capacities found in stronger modern states for controlling territory, providing public services, and managing the economy, early American political development offers political scientists studying the role of law in society an excellent case study of how judicial institutions develop. Yet, given the limited power and influence of the Supreme Court, federal district courts and circuit courts before the Civil War, the answer of how the nation built its judicial capacity is not to be found in the development of a national judicial bureaucracy. Rather, an answer is to be found in the following fact. By the time of the Civil War, America was already knitted together by an extensive and powerful multi-tiered network of local county courts with independent constitutional authority, supported by a democratic populist legal culture and deeply rooted in the economic and social lives of Americans. This study highlights the contribution of the mid-seventeenth century English legal reform movement, including ideas of ancient constitutionalism and the theory of the Norman Yoke, on American ideas about access to local civil justice as a necessary condition for free and equal citizenship. In addition, it documents the institutional structure and expansion of county courts in the early American state. Furthermore, synthesizing the work of sociolegal scholars, legal historians, and new institutional economists, this essay argues that in the absence of modern institutions to match borrowers and lenders, local courts were heavily involved in the process of financial intermediation. The dissertation begins with a critique of the current field of American public law, arguing for more developmental, institutional, transnational and subnational studies, rather than studies focused on the role of courts in well-functioning, modern, pluralist democracies. This dissertation suggests the field of early American legal development provides a fruitful platform for producing such studies and for dialogue between students of American public law, American political development, historical institutionalism, and analytical narratives.