The Institutional Backgrounds for the Field Civil Code in New York (1865) and California (1872)

Abstract

The aim of this paper is to show that the Civil Code for New York, written by David Dudley Field in 1865, was not enacted because of the institutional setting at the time.Following the theory of Institutional Economics by John R. Commons and Douglass C. North, there will be shown, with an institutional comparative analysis that the historical, social and economic backgrounds did not allow a Civil Code to become law in the common law society of New York. However the Field Civil Code did get enacted as California law in 1872. The institutional setting of California was different than the one of New York.There will be taken a look at the historical background of New York and California and explained why the New York Civil Code did not have a chance to be enacted in New York, but did so in California. Also, attention will be given to the social and power structures of New York and California in the middle of the 19th century and the position of the lawyers. The lawyers played an important role to what happened to the Civil Code in both states. Their role in California is of special importance, since they managed to use the Field Civil Code in their own interest and in that way influenced the evolution of California law in between Common Law and Civil Law. Consequently it will be shown how important the historical and social background is for the evolution of law in a society. And that informal institutions have to be taken into consideration when introducing formal institutions.