Q: “Among the many questions I have about this first volume (and also White's Tort Law in America): can we use changes in tort law in the pre-Civil War era to measure changing attitudes towards the market? There's a very important argument among historians of slavery about the influence of capitalism on anti-slavery (and I'd add pro-slavery) attitudes. One line goes that capitalism gave people more contact (and perhaps more sympathy) for the plights of others and so increased anti-slavery sentiments. I wonder if there was a similar dynamic at play with tort law? Did capitalism make legislators and judges more sympathetic to the plights of tort victims? There's a lot to be said here -- and I'd be very interested in White's thoughts on this. “
A: There strike me as two dimensions to the question. One is whether it makes sense to assume that in the antebellum years systems built on slave labor were fundamentally different from those based on "capitalism". The other is whether, if one assumes that capitalist systems increase the contacts people have with strangers, the emergence of a law of civil wrongs not arising out of contract--what we now call tort law--might have some relationship to capitalist modes of economic organization.
I am not inclined to give strong causal weight to either possibility. First, one should not forget that antebellum systems of labor not premised on slavery were not exclusively "wage labor" systems in the mode of late nineteenth-century industrial enterprises. There were numerous gradations of labor categories: indentured servants, apprentices, family members in agricultural households, wage earners primarily attached to individual households, itinerant wage laborers who did seasonal work. There were some antebellum factory workers, and there were workers in the transportation sector. Moreover, the increased demand for labor as the territory of the United States expanded did not mean that newly arrived European immigrants necessarily entered the labor force as "free" laborers: most of them came either in some form of indenture with designated residents of America or as persons with established contacts to Americans in particular communities. So one would need to determine what "capitalism" means in that context. Whatever it means, it isn't necessarily in stark juxtaposition to slavery. After all, slave plantations were capitalist institutions, with slave often performing tasks connected to the dispersal of goods and services produced on the plantations in domestic and international markets.
Second, the connection between the emergence of tort law and an economy featuring expanded contacts among strangers, as part of expanding transportation and commerce, seems a bit of a chicken-and-egg issue. Howard Schweber, in The Creation of American Common Law, posits a sharp distinction between "northern" and "southern" common law systems, argues that the idea of general common law duties, as opposed to more 'local' duties founded on traditional status categories, developed in the north (and not in the south), and that the enhanced technological development of northern states resulted in expanding the scope of common law duties, whereas that was not necessary in the south because, on the whole, its technological development remained attenuated.
In the first edition of Tort Law in America I argued that the shift from a writ-specific, particularized 'common law' of civil injuries not connected to contractual relations occurred in part because an industrializing economy brought "strangers" into more contact with one another. At the same time I argued that the idea of tort law being organized around some general principles--civil duties owed "by all the world to all the world," a negligence standard to determine whether such duties had been breached--could be connected to the secularization of knowledge and to enthusiasm for "scientific" classifications of legal subjects. If one were to equate a writ-driven approach to civil injury with traditional expectations of conduct based on status (thus 'intentionally' going on someone else's land --trespass) would be categorized differently from inadvertently going on the land (trespass on the case, requiring something like 'fault') because of different expectations about the relationship of landowners to different categories of others, then I suppose one could argue, with Schweber, that technological development has a fragmenting effect on traditional social hierarchies and thus requires abandoning the particulars of the writ system for more general legal obligations.
The problem I have with that argument is that one can't tell whether the change is primarily based on different ways of conceiving legal subjects (where do legal rules come from, how should legal fields be organized) or whether it is primarily a reaction to commerce and technology's creating different sets of social interactions. One should bear in mind that the process of classifying legal subjects around comprehensive principles, rather than around writs, goes on in all American common law subjects around the same time. Langdell's contracts casebook and Holmes' writings on torts appear, in their first editions, within five years of one another. Holmes criticizes Langdell, but not for seeking to create a classification system for contracts.
So without making a closer analysis of ante- and post-bellum common law opinions, looking for implicit starting premises, I wouldn't be inclined to draw strong causal links among capitalism, slavery, the absence of slavery, and tort law in the early and late nineteenth century.