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Harry N. Scheiber - The State and Freedom of Contract (Making of Modern Freedom)

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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.

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title The State and Freedom of Contract Making of Modern Freedom author - photo 1

title:The State and Freedom of Contract Making of Modern Freedom
author:Scheiber, Harry N.
publisher:Stanford University Press
isbn10 | asin:0804733708
print isbn13:9780804733700
ebook isbn13:9780585099293
language:English
subjectContracts--United States, Liberty of contract--United States.
publication date:1998
lcc:KF801.Z9S73 1998eb
ddc:346.7302
subject:Contracts--United States, Liberty of contract--United States.
Page i
The State and Freedom of Contract
Page ii
The Making of Modern Freedom
General Editor: R. W. Davis
Center for the History of Freedom
Washington University in St. Louis
Page iii
The State and Freedom of Contract
Edited by Harry N. Scheiber
STANFORD UNIVERSITY PRESS
STANFORD, CALIFORNIA
1998
Page iv
Stanford University Press
Stanford, California
1998 by the Board of Trustees of the Leland Stanford Junior University
Printed in the United States of America
CIP data appear at the end of the book
Page v
Series Foreword
THE STARTLING AND moving events that swept from China to Eastern Europe to Latin America and South Africa at the end of the 1980s, followed closely by similar events and the subsequent dissolution of what used to be the Soviet Union, formed one of those great historic occasions when calls for freedom, rights, and democracy echoed through political upheaval. A clear-eyed look at any of those conjunctionsin 1776 and 1789, in 1848 and 1918, as well as in 1989reminds us that freedom, liberty, rights, and democracy are words into which many different and conflicting hopes have been read. The language of freedomor liberty, which is interchangeable with freedom most of the timeis inherently difficult. It carried vastly different meanings in the classical world and in medieval Europe from those of modern understanding, though thinkers in later ages sometimes eagerly assimilated the older meanings to their own circumstances and purposes.
A new kind of freedom, which we have here called modern, gradually disentangles itself from old contexts in Europe, beginning first in England in the early seventeenth century and then, with many confusions, denials, reversals, and cross-purposes, elsewhere in Europe and the world. A large-scale history of this modern, conceptually distinct, idea of freedom is now beyond the ambition of any one scholar, however learned. This collaborative enterprise, tentative though it must be, is an effort to fill the gap.
We could not take into account all the varied meanings that freedom and liberty have carried in the modern world. We have, for example, ruled out extended attention to what some political philosophers have called "positive freedom," in the sense of self-realization of the individual; nor could we, even in a series as large as this, cope with the enormous implications of the four freedoms invoked by Franklin D. Roosevelt in 1941. Freedom of speech and freedom of the
Page vi
press will have their place in the narrative that follows, certainly, but not the boundless calls for freedom from want and freedom from fear.
We use freedom in the traditional and restricted sense of civil and political libertyfreedom of religion, freedom of speech and assembly, freedom of the individual from arbitrary and capricious authority over persons or property, freedom to produce and to exchange goods and services, and the freedom to take part in the political process that shapes people's destiny. In no major part of the world over the past few years have aspirations for those freedoms not been at least powerfully expressed; and in most places where they did not exist, strong measures have been takennot always successfullyto attain them.
The history we trace was not a steady march toward the present or the fulfillment of some cosmic necessity. Modern freedom had its roots in specific circumstances in early modern Europe, despite the unpromising and even hostile characteristics of the larger society and culture. From these narrow and often selfishly motivated beginnings, modern freedom came to be realized in later times, constrained by old traditions and institutions hard to move, and driven by ambition as well as idealism: everywhere the growth of freedom has been sui generis. But to understand these unique developments fully, we must first try to see them against the making of modern freedom as a whole.
The Making of Modern Freedom grows out of a continuing series of conferences and institutes held at the Center for the History of Freedom at Washington University in St. Louis. Professor J. H. Hexter was the founder and, for three years, the resident gadfly of the Center. His contribution is gratefully recalled by all his colleagues.
Picture 2
R.W.D.
Page vii
Contents
Acknowledgments
ix
Contributors
xi
Introduction
HARRY N. SCHEIBER
1
1. Land Ownership and Economic Freedom
A. W. B. SIMPSON
13
2. Contract and the Common Law
John V. Orth
44
3. Contract, Property, and the WillThe Civil Law and Common Law Tradition
James Gordley
66
4. Contract Before "Freedom of Contract"
David Lieberman
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