The State and Freedom of Contract

Sep. 1998 · Stanford University Press

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The relationship of law to economic freedom has been a vital element in the history of all modern democratic societies. "Freedom of contract" is both a technical term in law, referring to private agreements and promises, and a metaphor often deployed to describe economic liberty. This volume of new essays by eminent legal historians offers fresh perspectives on freedom of contract in both senses of the term, and considers how economic freedom relates to such classic political freedoms as free speech and other Anglo-American constitutional norms. The principal focus of the essays is on broad issues of policy and law, rather than on narrow considerations of legal doctrine.

All the contributors reject stereotypes that pervade the existing literature about the allegedly unalloyed individualism of the common law, and show how active state interventions of various kinds have shaped contract law in relation to social change throughout our legal history. Equally, however, they reject shibboleths regarding "bringing the state back in," and take a hard look at the claims of statist ideology regarding the norms and rules that have established the legal boundaries of liberty in the modern industrial and post-industrial eras.

The topics covered are Blackstone's claim that property was the "despotic dominion of the private owner" (A. W. B. Simpson), labor and contract (John V. Orth), the influence of philosophical trends on legal innovations (James Gordley), contract and individualism (David Lieberman), the tradition of public rights (Harry N. Scheiber), the formal concept of "liberty of contract" in American law (Charles McCurdy), the interwoven history of labor law and contract law (Arthur McEvoy), public policy in relation to natural resources (Donald Pisani), and globalization of freedom of contract (Martin Shapiro).

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Harry N. Scheiber holds the Riesenfeld Chair in the Law School at the University of California, Berkeley (Boalt Hall). He is the author of a number of works, including The Wilson Administration and Civil Liberties, 1917-1921 (Cornell University Press, 1960), The Condition of American Federalism: An Historian's View (U.S. Government, 1966), and The Ohio Canal Era: A Case Study of Government and the Economy, 1820-1861 (Ohio University Press, 1969). He is the editor of United States Economic History: Selected Readings (Knopf, 1964), and he is the co-editor of American Law and the Constitutional Order: Historical Perspectives (Harvard University Press, 1978) and of Legal Culture and the Legal Profession (Westview, 1996).