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Law and the Rise of Capitalism
Against a backdrop of seven hundred years of bourgeois struggle, eminent lawyer and educator, Michael E. Tigar, develops a Marxist theory of law and jurisprudence based upon the Western experience. This well-researched and documented study traces the role of law and lawyers in the European bourgeoisies's conquest of power and in the process complements the analyses of such major figures as R.H. tawney and Max Weber. Using a wide frange of primary sources, Tigar demonstrates that the legal theory of insurgent bourgeoisie predated the Protestant Reformation and was a major ideological ingredient of the bourgeois revolution.
352 pages, Paperback
First published January 1, 1977
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September 30, 2014
Tigar and Levy first published "Law and the Rise of Capitalism" in 1977 as one part of a series of interventions made by leftwing attorneys and legal scholars seeking to analyze Western law from a Marxist perspective, which would eventually become known as the critical legal studies school of jurisprudence. Their book is a sweeping account of the origins of bourgeois law from around 1000 AD in the early forms of mercantile law and the surviving legal traditions of the Roman Empire, through to the thought of crucial legal theorists of the absolutist states of Europe such as Philippe de Beaumanoir and Sir Thomas More, and finally to the triumph of the bourgeois revolution in England and France which led in different ways to the codification of new legal norms.
The book is a very well written and lucid account which successfully balances European political history, economic development and legal theory in a way that gives short shrift to none - which is scarecely short of incredible in terms of the law, one of the thorniest and densest of academic subjects. In their view, bourgeois law emerges from the medieval sources including the Roman and Byzantine traditions, feudal/seigneurial obligations, the canon law of the Roman Catholic Church and early international mercantile law, which is constantly reworked, adjusted and repurposed according to the requirements of the time. Their account centers on the contract as the center of bourgeois legal ideology, which was the outward form of the revolutionary rise of capitalism, replacing feudal ties and obligations with the freedom of individuals to make agreements and its codification (some would say ossification) in the contractural form.
Tigar, being an activist lawyer, concludes the book and its new afterward with some thought-provoking observations on "the jurisprudence of insurrection," the name by which he refers to revolutionary lawyers who take the side of the oppressed, exploiting the contradictions of bourgeois law and forcing the ruling class to recognize the content rather than just the forms of individual liberty and freedom of association. In his view the law, contra bourgeois schools of jurisprudence, is not a system but a process which is contested and subject to constant change by different classes in society. While this is certainly a reasonable and correct conclusion, much of the ending is marred by Tigar's, an associate of the Monthly Review school of Sweezy and Baran, belief that the states of Eastern Europe, China and Cuba were socialist and that therefore their inability to replace bourgeois jurisprudence was merely due to the persistence of old norms and ways of thinking.
Similarly, Tigar and Levy's account of the rise of capitalism in this light could be criticized as what Robert Brenner calls "neo-Smithian Marxism." Without taking a hard Brennerite position, their view of capitalism as beginning with the spread of commercial relations within the towns and feudal communes that marches onward, with a few interruptions, to trimuph in 1640, 1776 and 1789 ignores the vast differences in social relations between the high middle ages and emergent capitalism from the 16th century or so. A sense of the novelty of the revolution that replaced feudal social relations with capitalist ones would have made their history stronger and more sensitive.
The book is a very well written and lucid account which successfully balances European political history, economic development and legal theory in a way that gives short shrift to none - which is scarecely short of incredible in terms of the law, one of the thorniest and densest of academic subjects. In their view, bourgeois law emerges from the medieval sources including the Roman and Byzantine traditions, feudal/seigneurial obligations, the canon law of the Roman Catholic Church and early international mercantile law, which is constantly reworked, adjusted and repurposed according to the requirements of the time. Their account centers on the contract as the center of bourgeois legal ideology, which was the outward form of the revolutionary rise of capitalism, replacing feudal ties and obligations with the freedom of individuals to make agreements and its codification (some would say ossification) in the contractural form.
Tigar, being an activist lawyer, concludes the book and its new afterward with some thought-provoking observations on "the jurisprudence of insurrection," the name by which he refers to revolutionary lawyers who take the side of the oppressed, exploiting the contradictions of bourgeois law and forcing the ruling class to recognize the content rather than just the forms of individual liberty and freedom of association. In his view the law, contra bourgeois schools of jurisprudence, is not a system but a process which is contested and subject to constant change by different classes in society. While this is certainly a reasonable and correct conclusion, much of the ending is marred by Tigar's, an associate of the Monthly Review school of Sweezy and Baran, belief that the states of Eastern Europe, China and Cuba were socialist and that therefore their inability to replace bourgeois jurisprudence was merely due to the persistence of old norms and ways of thinking.
Similarly, Tigar and Levy's account of the rise of capitalism in this light could be criticized as what Robert Brenner calls "neo-Smithian Marxism." Without taking a hard Brennerite position, their view of capitalism as beginning with the spread of commercial relations within the towns and feudal communes that marches onward, with a few interruptions, to trimuph in 1640, 1776 and 1789 ignores the vast differences in social relations between the high middle ages and emergent capitalism from the 16th century or so. A sense of the novelty of the revolution that replaced feudal social relations with capitalist ones would have made their history stronger and more sensitive.
December 3, 2023
Law and the Rise of Capitalism is written by Michael E. Tigar who is a human rights activist, scholar and law teacher, and a criminal defense lawyer. Tigar earned his law degree from Berkeley School of Law. Tiger has authored or coauthored fourteen books all focused on law and civil rights. Notable works include Examining Witnesses, 2nd edition published in 2000, and Mythologies of State and Monopoly Power published in 2018. Tigar is certainly qualified to write a book about law as he is a highly credentialed and experienced lawyer.
What I learned from researching the author is that Tiger had an agenda in writing this book. He is a Marxist and a lawyer in a country that has spent the better part of a century indoctrinating its citizens with a hate of communism. As a lawyer he chose to defend people that he felt were marginalized under the law. His agenda isn’t a bad one, but it does inform the reader that his perception is skewed.
In, Law and the Rise of Capitalism, Tiger takes the reader through 800 years of Western European legal history in an effort to give a bourgeois genealogy to modern capitalism and legal ideology. Tiger tries to argue that understanding the bourgeoisie struggle out of feudalism is paramount in understanding law. In his conclusion, Tigar coins the term “jurisprudence of insurgency” and seeks to persuade that an intentional questioning of capitalism cannot proceed without a struggle and in doing so will see the limit in bourgeois legal ideology.
Tigar’s central argument is that the United States legal system is flawed and always will be under a capitalist system. Tigar chooses to practice law under a system that he finds flawed in hopes that he can correct many of the wrongs he sees in social justice as it relates to law. Tigar spends a great deal of time tethering quotes, court decisions, historical records and scholarly works to tell the story of how the merchants of the bourgeois from the Middle Ages worked for hundreds of years to carve their own path in a despotic system. It is pretty impressive to see just how they were able to do this in such a rigid system.
As someone who has no background or education in law I found portions of the book hard to digest. The book is intended for the general public but I think some will find the law terminology difficult to understand. I particularly enjoyed reading about the history of European politics. Upon reading the book, we find that the law we practice in Western civilization is an amalgamation of Roman traditions, the feudal system, Catholicism, and mercantile law that constantly changed over time. In Law and the Rise of Capitalism, we see capitalism slowly replaced the feudal system as more and more people began owning land and merchants amassed more and more wealth.
Tigar concludes the book trying to persuade the reader that law and capitalism are flawed and demonstrates this in some of the cases he has taken on as a lawyer. He speaks heavily on the jurisprudence of insurgency in that the law hasn’t been allowed to change much in a capitalist system. He states that socialist countries haven’t been allowed to influence the law because of the capitalist tradition. “The notion of a “personal” law survived only for those- such as the merchants- who had a special status and who fought to have it recognized.” Although I think that Tiger makes very good points in that the system is flawed, I tend to disagree with him about capitalism being the cause of it. Maybe my american blinders are keeping me from seeing the full picture. Perhaps I’m not versed in law enough to understand.
One thought that came to mind while reading the book is that the merchants that spawned the capitalist system were hated by the general public in the systems in which they lived. This changed over time as it essentially created the middle class and more people had wealth. One thing I find interesting today is that capitalism, at least in the United States, seems to be heading back to the way of feudalism. Less and less people own lands and instead rent property from rich landlords. The middle class is dwindling while the rich are getting richer. Is this the swing in capitalism or has capitalism become corrupt? Giving more power to the ruling class than to the people? It’s an interesting thought and one in which I believe Tigar would agree with.
I know that I am supposed to provide specific examples that the author draws from primary source materials. The problem is that Tigar intentionally didn’t use endnotes or footnotes, making the sources hard to trace. Certainly I could read the exhaustive list of history books, court cases and articles that Tigar provides in the bibliography but that would take months. I wonder how much more successful Law and the Rise of Capitalism could’ve been if Tigar were a historian and included footnotes. I feel the lack of footnotes weakens Tigar’s argument in that it doesn’t make it easy to check the reliability of the references. Tigar himself states in the acknowledgements that he didn’t use footnotes for the first nor the second editions. If I bothered writing for a second edition of the book and knew that one of the major criticisms of my book were a lack of footnotes, I’d revise it. Tiger doesn’t think it necessary.
Overall my opinion of the book is that I mostly agree with Tiger. I didn’t have to read the book to know that our legal system is flawed. There is a rise of excellent programs like The Innocence Project, whose goal is to free the staggering number of innocent people that are incarcerated. I have no doubt that Tigar remains an important part of this movement. I can see that he desired to do the right thing with his law career. I view Law and the Rise of Capitalism as an excellent companion to The State in Early Modern France by James Collins. A book that also looks at the rise of the bourgeoisie in France under the rule of absolute monarchy. I’m not sure how much capitalism interferes with the changing of the law and so I remain unconvinced.
While I do think Law and the Rise of Capitalism is intended for the general public, I don’t think many would make it through. There is a lot of language that isn’t in my everyday vocabulary and I found myself looking at the dictionary often. This book is best suited for law students and scholars, or possibly a Marxist interested in another critique of capitalism.
I recommend the historical portion of Law and the Rise of Capitalism to anyone interested in learning about how western law developed over the centuries. I also recommend the book to any law student that wants to understand it’s history or might want to see a change in the system. Capitalism isn’t above reproach and it isn’t above critique, however, anyone seeking to use this book to argue against capitalism due to the problems in the legal system would be hard pressed to do so given the information found here.
What I learned from researching the author is that Tiger had an agenda in writing this book. He is a Marxist and a lawyer in a country that has spent the better part of a century indoctrinating its citizens with a hate of communism. As a lawyer he chose to defend people that he felt were marginalized under the law. His agenda isn’t a bad one, but it does inform the reader that his perception is skewed.
In, Law and the Rise of Capitalism, Tiger takes the reader through 800 years of Western European legal history in an effort to give a bourgeois genealogy to modern capitalism and legal ideology. Tiger tries to argue that understanding the bourgeoisie struggle out of feudalism is paramount in understanding law. In his conclusion, Tigar coins the term “jurisprudence of insurgency” and seeks to persuade that an intentional questioning of capitalism cannot proceed without a struggle and in doing so will see the limit in bourgeois legal ideology.
Tigar’s central argument is that the United States legal system is flawed and always will be under a capitalist system. Tigar chooses to practice law under a system that he finds flawed in hopes that he can correct many of the wrongs he sees in social justice as it relates to law. Tigar spends a great deal of time tethering quotes, court decisions, historical records and scholarly works to tell the story of how the merchants of the bourgeois from the Middle Ages worked for hundreds of years to carve their own path in a despotic system. It is pretty impressive to see just how they were able to do this in such a rigid system.
As someone who has no background or education in law I found portions of the book hard to digest. The book is intended for the general public but I think some will find the law terminology difficult to understand. I particularly enjoyed reading about the history of European politics. Upon reading the book, we find that the law we practice in Western civilization is an amalgamation of Roman traditions, the feudal system, Catholicism, and mercantile law that constantly changed over time. In Law and the Rise of Capitalism, we see capitalism slowly replaced the feudal system as more and more people began owning land and merchants amassed more and more wealth.
Tigar concludes the book trying to persuade the reader that law and capitalism are flawed and demonstrates this in some of the cases he has taken on as a lawyer. He speaks heavily on the jurisprudence of insurgency in that the law hasn’t been allowed to change much in a capitalist system. He states that socialist countries haven’t been allowed to influence the law because of the capitalist tradition. “The notion of a “personal” law survived only for those- such as the merchants- who had a special status and who fought to have it recognized.” Although I think that Tiger makes very good points in that the system is flawed, I tend to disagree with him about capitalism being the cause of it. Maybe my american blinders are keeping me from seeing the full picture. Perhaps I’m not versed in law enough to understand.
One thought that came to mind while reading the book is that the merchants that spawned the capitalist system were hated by the general public in the systems in which they lived. This changed over time as it essentially created the middle class and more people had wealth. One thing I find interesting today is that capitalism, at least in the United States, seems to be heading back to the way of feudalism. Less and less people own lands and instead rent property from rich landlords. The middle class is dwindling while the rich are getting richer. Is this the swing in capitalism or has capitalism become corrupt? Giving more power to the ruling class than to the people? It’s an interesting thought and one in which I believe Tigar would agree with.
I know that I am supposed to provide specific examples that the author draws from primary source materials. The problem is that Tigar intentionally didn’t use endnotes or footnotes, making the sources hard to trace. Certainly I could read the exhaustive list of history books, court cases and articles that Tigar provides in the bibliography but that would take months. I wonder how much more successful Law and the Rise of Capitalism could’ve been if Tigar were a historian and included footnotes. I feel the lack of footnotes weakens Tigar’s argument in that it doesn’t make it easy to check the reliability of the references. Tigar himself states in the acknowledgements that he didn’t use footnotes for the first nor the second editions. If I bothered writing for a second edition of the book and knew that one of the major criticisms of my book were a lack of footnotes, I’d revise it. Tiger doesn’t think it necessary.
Overall my opinion of the book is that I mostly agree with Tiger. I didn’t have to read the book to know that our legal system is flawed. There is a rise of excellent programs like The Innocence Project, whose goal is to free the staggering number of innocent people that are incarcerated. I have no doubt that Tigar remains an important part of this movement. I can see that he desired to do the right thing with his law career. I view Law and the Rise of Capitalism as an excellent companion to The State in Early Modern France by James Collins. A book that also looks at the rise of the bourgeoisie in France under the rule of absolute monarchy. I’m not sure how much capitalism interferes with the changing of the law and so I remain unconvinced.
While I do think Law and the Rise of Capitalism is intended for the general public, I don’t think many would make it through. There is a lot of language that isn’t in my everyday vocabulary and I found myself looking at the dictionary often. This book is best suited for law students and scholars, or possibly a Marxist interested in another critique of capitalism.
I recommend the historical portion of Law and the Rise of Capitalism to anyone interested in learning about how western law developed over the centuries. I also recommend the book to any law student that wants to understand it’s history or might want to see a change in the system. Capitalism isn’t above reproach and it isn’t above critique, however, anyone seeking to use this book to argue against capitalism due to the problems in the legal system would be hard pressed to do so given the information found here.
March 10, 2021
The jurisprudence of insurgency! Loved this book. A great read for a lefty lawyer.
December 23, 2019
An interesting historical interpretation of the development of legal ideology but if your theory sees third world dictatorships as posing a viable threat and affirmative action/the UN/etc as ruptures with and not component parts of a neo-bourgeois international order it's probably wrong. The relationship between successful bourgeois revolutions and legal positivism and Keynesianism and legal realism seems on spot but the sociological and Marxist seem to be of pure academic ideology and not to have much historical substance.
January 26, 2017
I have to read it fully but my friends highly recommend me to read it
Displaying 1 - 5 of 5 reviews