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Commons, John R. - Legal Foundations of Capitalism

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LEGAL FOUNDATIONS OF CAPITALISM THE MACMILLAN COMPANY NEW YORK BOSTON CHICAGO DALLAS ATLANTA SAN PBANCISCO . . . . BY MACMILLAN & CO., LAUTED LONDON . BOMBAY . CALCUTTA MELBOURNE TORONTO JOHN R. COMMONS PROFESSOR OF ECONOMICS I N THE UNIVERSITY OF WISCONSIN THE MACMILLAN CO. OF CANADA, LTD. N m QIlrk P THE MACMILLAN COMPANY I924 To MY FRIEND CHARLES R. CRANE COPYBIGHT, 1924 BY THE MACMILLAN COMPANY Set up and electrotyped. Published January, 1924. Printed in the United States of
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  LEGAL FOUNDATIONS OF CAPITALISM THE MACMILLAN COMPANY NEW YORK . BOSTON . CHICAGO . DALLASATLANTA . SAN PBANCISCO MACMILLAN & CO., LAUTED LONDON . OMBAY . CALCUTTA MELBOURNE BY JOHN R. COMMONS PROFESSOR OF ECONOMICS IN THE UNIVERSITY OF WISCONSIN THE MACMILLAN CO. OF CANADA, LTD. TORONTO NPm QIlrk THE MACMILLAN COMPANY I924  To MY FRIEND CHARLES R. CRANE COPYBIGHT,924 BY THE MACMILLAN COMPANY Set up and electrotyped. Published January, 924. Printed in the United States of America  PREFACE The aim of this volume is to work out an evolutionary and be-havioristic, or rather volitional, theory of value. It was commencedthirty-five years ago at Johns Hopkins University under my stimulat-ing teacher, Richard T. Ely.Thirty years ago I published a book under the name of Distribu- tion of Wealth. in which I tried to'mix things that will not mix-the hedonic psychology of B6hm-Bawerk, and the legal rights andsocial relations which he had himself analyzed and then excluded fromhis great work on the psychological theory of value. Afterwards I had various opportunities for the investigation of labor problems andprobIems connected with the regulation and valuation of public utili- ties. This led to a testing of economic and legal theories in the draftingof bills as an assistant to legislative committees in Wisconsin.It was this experience, shared by my students, that led directly to,the theoretical problems of this book. We had to study the decisionsof the courts, if the new laws were to be made constitutional, andthatstudy ran into the central question, What do the courts mean by rea-sonable value? Somehow the answer was tied up with reasonableconduct. None of us could find much in the writings of economistsexcept those ofProfessor Ely that threw light on the subject. Fromthe court decisions it seemed that anything reasonable would besustained, and so we had to use the words reasonable value, reason-able safety, reasonable wage,-and iix up reasonable conduct for publicofficials and private citizens, whether we knew what it meant or not. I had read Veblen's brilliant criticisms, beginning in 1895, on the theories of the classical, socialistic, and psychological economists, andhis suggestion that an evolutionary theory of value must be constructedout of the habits and customs ofsocial life. ,But he had not studiedthe decisions of the courts which are based on these customs, and I went to work with my students digging directly out of the court de-cisions stretching over several hundred years the behavioristic theoryof value on which they were working. We were puzzled, for we tried to reconcile the economists from Quesnay to Cassel with the lawyers from Coke to Taft. We found eventually that what we were really  viii PREFACEworking upon was not merely a theory of Reasonable Value but the Legal Foundations of Capitalism itself . This work is essentially theoretical. dealing only with conceptsderived from the decisions of the English and American courts. butwith an eye on the concepts of leading economists from the Physio-crats to modern times . Another volume is incontemplation re-viewing these theories of the economists and leading up to practicalapplications of a theory of Reasonable Value to current problems . In these researches. I have had important assistance and criticismfrom Wesley C . Mitchell of Columbia University. Arthur L Corbinof the Yale Law Faculty. and William H . Page of the Wisconsin Uni- versity School of Law . JOHN R . COMMONS . UNIVERSITY F WISCONSIN.July. 1923 TABLE OF CONTENTS PAGE ........... HAPTER . MECHANISM. SCARCITY. ORKING ULES I ................... HAPTER 1 PROPERTY.IBERTY ND VALUE I ............... . Use-Value and Exchange-Value I ............... 1 . Opportunity and Encumbrance 21 ..................................... 11 . Power 28 IV Economy .................................. 36 ........... HAPTER 11 PHYSICAL,CONOMIC ND MORAL OWER 47 CHAPTERIV TRANSACTIONS ................................. 65 ................................ . The Parties 65 ......... 1 . Performance, Avoidance, Forbearance 69 I11 . Actual, Potential, Possible, Impossible ....... 79 .................. V . Authorized Transactions 83 .................. . Authoritative Transactions IOO ....................... . Collective Power IOO ....................... Remedial Powers 1083 Substantive Powers ..................... 114 .................... . Determining Powers 121 ........................... robability 121 .............................. urpose 127 Reciprocity 129 .......................... VI . Workiig Rules ............................. I34 CHAPTERVGOING ONCERNS ............................... I43 I . Working Rules ofPolitical, Industrial and Cul-tural Concerns 143 ............................................. 1 Faculties and Opportunities 153 I11 Assets and Liabilities ....................... 157 ........ V Valuation, Apportionment, Imputation 165 V The Unit Rule 172 ............................ ............. I Going Plant and Going Business 182 ............... . Wealth vs Commonwealth 182 .................... Physical Connections 186 ............. Lawfulness and Unlawfulness 1884 Goodwill and Privilege .................. 191 .................... . Going Concern Value 195 6 Uncompensated Service .................. 203 .... RAPTER I THE RENTBARGAIN-FEUDALISM ND USE-VALUE 214 CHAPTER II . TRE PRICE BARGAIN-CAPITALISM ND EXCHANGE- ........................................ ALUE 225 .......................... . The Cornonwealth 22.5
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