Classical Contract Law, Past and Present
Interdisciplinary Center (IDC) Herzliyah - Radzyner School of Law
September 15, 2011
This paper synthesizes and refocuses a wide range of histories of nineteenth-century contract law. It uncovers an inadvertent consensus among historians: despite significant controversies engaging rival historical schools of contract law, it is almost universally agreed that nineteenth-century law embodied an elaborate version of individualism; that the alternatives to its individualism were status and collectivism — but they functioned as external critiques and so left contract's conceptual link with individualism intact; and that the individualism grounded in contract law was in keeping with broad cultural mores.
The consensus effectively entrenches a questionable historical artifact: the idea of a single meaning of contract at the decisive era for modern contract law's development. This idea's persistence bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness.
The paper aims to generate a clear grasp of the existing historical story of contract law, together with a critical understanding of legal history’s role in keeping a dubious but powerful artifact alive. It concludes by venturing into alternative ways of engaging with the classical legacy once the artifact is shaken off, or, at least, a little shaken.
Keywords: contract, legal history
Date posted: January 24, 2012 ; Last revised: May 3, 2012
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