From The Public-private Dualistic Notions To Positive Rights Notions

Though studying seven important judgments in the history of the United States, I analyzed the transformation of American legal concepts. In my opinion, in the19th and the20th century the American legal system experienced the rise and fall of the legal concepts that law should be divided into public and private law, and then the legal concept that treat positive rights as core of law rise in the20th century. From the end of the18th century to the mid‐19th century, we can see that public‐private law concept became mature. Since the beginning of the20th century, along with economic development, social structure was increasingly more complex, and the interests of the society became diverse. Consequently, the traditional public‐private law concept could not satisfy the demands of law and justice in a higher level. As a result, public‐private law conception declined and positive rights conception raised instead.From the U.S. Supreme Court decision in the19th and20th century, we can clearly see the track of this evolution. Period of the Court of Marshall in the early19th century, the distinction between legal concepts of public and private law gradually developed, which we can see from the cases called Marbury v. Madison, the Dartmouth College case, and Gibbons v. Ogden. Till the mid‐19th century, public‐private law conception is already mature, and becomes the main legal conception, which can be seen from the case of Charles River Bridge v. Warren Bridge. In the20th century, the public‐private law conception began to decline, with the rise of New Deal. As a result the Supreme Court eventually no longer cling to the notion. In the mid‐20th century, the legal concept of positive rights began to rise, and the Warren Court used it as the main legal framework, which can be seen from the famous Brown v. Board of Education judgment.In order to explain the phenomenon of the rise and fall of the two legal concepts, I selected two scholars’ theories. First one is the American scholar Ezra Pound’s theory which can be called legal realism. And the second one is the German scholar Max Weber’s formal rationality and substantive rationality theory. Though the two theories, we can explain the phenomenon that law concepts changed during the history of America deeply and properly.