Personhood and community: Ambiguity and conflict in nineteenth century American law

This is a study of the intersection of law, culture, and social change in nineteenth century America, especially the northeast. It is based upon studies of the Charles River Bridge Case, the problem of confidence and credit, the problem of legal competency and insanity, and the debate over the common law right to privacy. Together these phenomena reflect aspects of the struggle to define and distinguish the rights of the community from the rights of the individual. They also reflect changes in the terms in which individual personhood was represented and defined. These trends provided the context of many of the legal disputes ostensibly about development, or the shift from status to contract, or new meanings centered around newly configured interests in the means of production.; The methodology informing this study differs in emphasis from that followed by other legal historians, and most resembles the methodologies of cultural historians. Common threads of thought in widely disparate areas of cultural production are the best indicators of the tenor of the time. My approach is based on close reading of judicial opinions, informed by readings of newspapers, social commentary, medical literature, and creative literature.; In addition to substantive rules of law, procedural rules play a role in this study. Procedure, insofar as it leads to outcomes different from those suggested by substantive doctrine, is the true locus of discursive ambiguity in the law. Procedure provided a means of resistance to substantive change, which served to protect individual losers in particular cases, and to slow the pace of change. This study is about "the law," but it is also about the negation of the law as a category. It demands that we look back at each discrete area of social and cultural experience in order to begin to unpack the law, and see it as an outgrowth of experience---not merely an imposition.