The Horowitz Thesis in Antebellum Louisiana Torts Law

Morton J. Horwitz’s influential thesis on antebellum American private law argues that nineteenth century courts consciously transformed common law doctrines to promote economic development and market expansion. In the field of tort law, he contends that judges shifted from older strict liability principles toward fault based standards, thereby limiting the liability of emerging industries such as railroads and manufacturing enterprises. This doctrinal reorientation, visible in negligence jurisprudence and in the narrowing of nuisance and trespass actions, redistributed the costs of industrialization from entrepreneurs to injured individuals. Horwitz interprets this transformation not as a neutral evolution but as a politically charged project aligned with commercial interests and the rise of a market oriented legal order.

Applied to Louisiana, a mixed jurisdiction rooted in civil law yet increasingly influenced by American jurisprudence, the Horowitz thesis raises important questions about legal transfer and adaptation. Did Louisiana courts similarly recalibrate delictual responsibility to accommodate economic modernization, or did civilian concepts of fault and obligation produce a distinct trajectory? This paper revisits antebellum Louisiana tort law through that historiographical lens, examining judicial opinions, codal interpretation, and the interaction between civil law doctrine and common law pressures. By situating Louisiana within the broader debate on law and capitalism, it seeks to assess both the reach and the limits of Horwitz’s account in a civil law context.