Portal de Periódicos da CAPES

The English Common Law concerning Monopolies

1954; University of Chicago Law School; Volume: 21; Issue: 3 Linguagem: Inglês

10.2307/1597844

1939-859X

William Letwin,

Legal principles and applications

T HAS BEEN WIDELY BELIEVED that the common law always favored freedom of trade.When English and American judges during the eighteenth and nineteenth centuries decided cases against monopolists, engrossers, or restrainers of trade, they thought they were continuing a tradition that reached back into "time of which no man hath memory."The congressmen who drafted and passed the Sherman Antitrust Law thought they were merely declaring illegal offenses that the common law had always prohibited.Those judges and legislators, like other lawyers, must have known, or at least would not have doubted, that the common law rules on these subjects had changed in the course of time, for it is taken as axiomatic that the common law "grows."But it is not always recognized that the common law can change its direction, and without much warning begin to prohibit practices it had formerly endorsed, or to protect arrangements it had earlier condemned.Lawyers do not so readily see that the common law at any given time reflects the economic theories and policies then favored by the community, and may change as radically as those theories and policies.As a result they have too easily accepted the mistaken view that the attitude of the common law toward freedom of trade was essentially the same throughout its history.But the common law did not always defend freedom of trade and abhor monopoly.For a long time it did quite the opposite: it supported an economic order in which the individual's getting and spending were closely controlled by kings, parliaments, and mayors, statutes and customs, and his opportunities limited by the exclusive powers of guilds, 6hartered companies, and patentees.The common law first began to oppose this system of regulation and privilege at the end of the sixteenth century; it did not do so wholeheartedly until the eighteenth century; and by the middle of the nineteenth century, it had again lost its enthusiasm for the task.It would have been surprising if the pattern of development had been different.Changes in the common law are changes in the attitudes of judges and of lawyers; it would have been remarkable if they had persistently opposed monopoly when the rest of the community did not know