Changing History Of Constitutional Protection Law Of Private Properties And Path Dependence

During the last quarter of the twentieth century, the humanities and social sciences have turned toward history. However, until recently, law and economics was a-historical in its methodology and research agenda. In interaction among fields of law, economics, and history, we can rarely see research papers involving legal history and economic history. Studying historical law and economics seeks to build the interaction between historical studying in law and economics and economic history so as to enhance the study methods and study sky in law and economics, what's more it also creates a new field in law and economics study. As we are studying changing history in law of constitutional protection of private properties we use path dependence theory, which is rooted in the new economic history (Clio metrics), so as to realize the general aim of enhancing academic awareness of the actual and potential usage of history among law and economics, and promote the transition of law and economics toward history.Path dependence theory is relevant to the common law system for a simple reason: the doctrine of stare decisis. Oona A. Hathaway, associate law professor of Boston University School of Law, shows us three separate strands of the path dependence theory: increasing returns path dependence, evolutionary path dependence, and sequencing path dependence, which are rooted in the economics, biological, and rational choice theory literatures respectively. The thesis selects the American constitutional protection on private property law history from the establishment of the United States to the New Deal as study theme, and applies the theory of increasing returns path dependence and evolutionary path dependence from Oona A. Hathaway to normatively analyze this law history. Furthermore, it draws some useful conclusions on characteristics of increasing returns path dependence and evolutionary path dependence on the changing history of American constitutional protection on private property law in a Common Law System, and it also takes a few steps on applying path dependence theory on studying law history in a continental law system in our country. The thesis proceeds in six parts. Part I introduces an overview original and changing history of historical law and economics, sets its study direction, mixes and interacts among fields of law, economics, and history, provides the most important and useful way to study historical law and economics, which is path dependence theory rooted in the new economic history, and directs the important significance to study the changing history of American constitutional protection to private property and path dependence.Part II introduces path dependence in a law: The Course and Pattern of Legal Change in a Common Law System by Oona A. Hathaway. Path dependence theory is relevant to the common law system for a simple reason: the doctrine of stare decisis. Increasing returns path dependence, evolutionary path dependence, and sequencing path dependence, which are rooted in the economics, biological, and rational choice theory literatures respectively, can be applied in studying legal change in a Common Law System, and draw significant findings.Part III divides the legal history from establishment of the United States to the New Deal of American constitutional protection of private property to four stages, as originally forming stage, developing and mature stage, reforming and brilliant stage, and stable and rigid stage. According to their characteristics of each stage, this part also sums up legal changing characteristics of each stages.Partâ…£turns to study the increasing returns path dependence characteristics of contract clause doctrine, police power doctrine, and legal due process doctrine in American constitutional protection law system of private properties. It studies how small early events and rapid changes shape the early step of increasing returns path, how path dependence characteristics on same or different path shape the changing line of law doctrine, and how path dependence characteristics produce lock-in effect.Partâ…¤studies evolutionary path dependence characteristics of contract clause doctrine, taking clause doctrine, and legal due process doctrine in American constitutional protection law system of private properties. It analyzes how comprehensive elements effect law evolutionary path, how historical path dependence interacts with logic induce in law evolutionary path, and how classic model and equilibrium model evolutionary path dependence characteristics can be seen in law changing history.Partâ…¥draws some conclusions of applying path dependence theory on studying legal changing history of American constitutional protection of private properties, recalls legal changing history of constitutional protection of private properties in our country, analyzes and approves present value of the Property Law of PRC, permutes the value of applying path dependence theory on studying legal changing history of constitutional protection of private properties in our country, and points out future research direction of this subject.The innovations of this thesis rest on that it opens the door to a new field of historical law and economics, so that it effectively manages to apply path dependence theory on studying legal changing history, and it helps to interact the study of history, law and economics.However, the thesis still has several defects. Historical law and economics requires higher academic level on history, law and economics, while the author just steps into this field for the first time, so it is very possible that the thesis neglects some important facts and stays in comparatively junior level. And precedents in legal system of American constitutional protection of private properties are very huge, while the author has only selected some typical precedents, so it is very possible that the conclusion drawing from these precedents are perjuring or vague. To overcome these defects, the author requires more careful and further research in the future.