Privilege and Creative Destruction

Introduction 

Privilege and Creative Destruction: The Charles River Bridge Case is a 1971 book by Stanley I. Kutler. The book offers an acute criticisms on the conduct of Chief Justice Roger B. Taney as the author of the majority decision in Charles River Bridge v. Warren Bridge, 36 U.S. 420 (1837) (Kutler, 1989) . The legal dispensation relating to ownership of property around 1837 can be termed to have been more political than legal. Decisions by national and state legislatures, the executive and the courts were mainly dependent on political inclinations between the Whig Party and the Democratic Party. At the time, the Democratic Party supported giving more control over commerce to state governments who were seen as more competent to safeguard public good. The Whig Party on the other hand, supported federal superintendence of all commercial issues with a focus of protecting entrepreneurs who invested in corporations. Kutler castigates the decision made by Taney who in seeking to support the populace eliminate the worth of shares held in the Charles River Bridge company without any provision for compensation. 

Promulgation of Law 

Several prominent terminologies stand out in the statement upon which this book review is premised. The first is promulgation of law which means bringing a law in effect through official promulgation. This phrase as used in the book seeks to imply that instead of interpreting the law as courts are supposed to, Taney actually created a new law, interpreted it and brought it into effect to be used around the country. The law however, is described as not being an abstraction but rather a synthesis. Abstraction in this context refers to a focus on ideas instead of events. Abstraction is a primary aspect in the relationship between the law and justice as it refers to the law not having emotions or preferences through impartial application. However, the word synthesis is used to show that Taney sough to combine both ideas and events thus creating a hybrid approach to jurisprudence. In this regard, the majority decision authored by Taney not only related the law to the facts of the case but also sought to adapt the law to remedy a factual wrong that would have manifested had the law been followed to the letter. However, the very acts of Taney in using synthesis instead of abstraction to arrive at the decision are described as lacking both in principle and expediency (Kutler, 1989) . 

Balancing Different Principles 

A key focus of the quoted statement relates to the principles being balanced and issue of expediency emanating from the ruling. Principles in this regard relate to fundamental truths or position that Taney and the court faced. The first fundamental truth faced by the court was the fact that Charles River Bridge was a privately owned corporation with investors who had paid dearly for their shares. The property owned by these investors was vested in the value of the shares which relied on the bridge being used on toll. Any act by the state that would stop either the use of the bridge or the levying of the toll would extinguish the value of these shares. The second fundamental truth however was the obligation of the state to cater for the needs of the populace and to try and make the lives of the populace as comfortable as possible. In this regard, it was the obligation of the state to provide means of transport at the least cost if any. The court had to find a balance between the interests of the corporation and its shareholders as well as the populace itself (Kutler, 1989) . 

Expediency 

To arrive at this balance, the issue of expediency also comes into play which relates to the convenience and practicability of the wording and spirit of the rulings. Expediency in legal matters balances with the issue of abstraction of application of law as outlined above. The Supreme Court is a superior court of record whose cases create both ration decidendi and obiter dicta to be applied in several other cases. This is the initial element of expediency that the court ought to balance as several other rulings arrived at in different courts will rely on the ruling made by the Supreme Court. On a more personalized perspective, the people of Boston and Charlestown who used the bridge as well as the shareholders of Charles River Bridge would all be directly and practically affected by the ruling. The court allowed itself to be moved by the convenience of the populace as opposed to the convenience of the shareholders. It, therefore, made a ruling in favor of enhancing the comfort of the populace by providing a free bridge without considering what effect this would have on the shareholders of Charles River Bridge who would immediately lose their entire investment with no compensation (Kutler, 1989) . 

Conclusion 

Kutler does not at any time try to downplay the principle-based dilemma that faced the Supreme Court in the case. Indeed, the statement outlines a serious complexity that combines both varying principles and the issue of the expediency of a few against the expediency of the populace. However, the book seeks to suggest that principle demanded the protection of property and in the event that personal property as to be taken away from the minority for the sake of the majority, then the minority is entitled to a form of compensation. Indeed, it may have been unjust based on the totality of the situation to have found in favor of the company and allow it to continue raking in profits at the expense of the populace. However, principle demands that courts seek to adhere to law when pursuing justice. The law provides for sanctity of contracts and a contract did exist between local authorities and Charles River Bridge upon which investors purchased shares. Compensation would have cured the devaluation of shares visited upon the company with the law being used to serve justice to all parties involved. 

References 

Kutler, S. I. (1989).  Privilege and creative destruction: The Charles River bridge case . Baltimore: Johns Hopkins University Press.