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
... judges established rules and principles through the accumulation of precedent ( that is , the judge - made " common law " ) . In these ways , a system once fixed and rigid in how it constrained property owners was transformed in the ...
... judge - made law and public law in the form of parlia- mentary interventions worked their effects , for example , by deter- mining the changing status of labor and specifying the degree of freedom that workers might enjoy . Beginning in ...
... judges , and lawyers , actual business practices will be the principal source of contract law . " One of the most in- teresting features of emergent contract law in the international arena is the regulatory thrust , which , as Shapiro ...
... judge of this common good , and to decide whether it be expedient or not.41 Blackstone , writing before the invention of the hidden hand , goes on , in a somewhat desperate passage , to argue that in the long run there is really no ...
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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 |