The State and Freedom of ContractStanford University Press, 1998 - 392 páginas 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). |
Dentro del libro
... industry re- quire a legal mechanism for arm's - length transactions that can build into the dynamics of exchange the certainty of expectations upon which individuals and firms rely . The institution of contract has not always been so ...
the ills of social and economic inequality that attended the growth of the modern industrial economy . In chapter 1 , by John Orth , our attention turns to the institution of contract itself in the history of English law . Orth recalls ...
... industrial society , in both Eu- rope and America , Gordley contends that the basic premises of will theory would influence the reformers no less than the defenders of the status quo — again a theme taken up and elaborated in chapters 6 ...
... industrial accident law ) , impelled by a commitment to in- dividualism in the political credo that worked against interven- tions by courts that might be based on a recognition of inequality of bargaining power . The contributions to ...
... industrial conflict . A second was the workplace itself , a separate realm , in which law operated on a continuing basis built on the initial contractual agreement ; and the third was " the private realm of families , slave plantations ...
Contenido
1 | |
13 | |
Contract and the Common Law | 44 |
Contract Property and the WillThe Civil Law | 66 |
Contract Before Freedom of Contract | 89 |
Economic Liberty and the Modern State | 122 |
The Liberty of Contract Regime in American Law | 161 |
Freedom of Contract Labor and the Administrative State | 198 |
Natural Resources and Economic Liberty in American | 236 |
Globalization of Freedom of Contract | 269 |
Notes | 301 |
Index | 365 |