Book Review

Comparative/World

This collection of nine essays explores "economic liberty" in Anglo-American legal history, in particular the law and culture of "freedom of contract." Every essay is a pleasure to read: clear, devoid of jargon, and completely accessible to a general audience. Combined, they are a true collective enterprise. Such consistency is rare in an essay collection and a credit both to this volume's editor, Harry N. Scheiber, and to the series in which it appears.	1
Series editor Richard W. Davis's short foreword situates modern freedom in a history of traditional liberties (religion, speech, assembly, political participation) emerging uncertainly in the shadows of early modern England, then gradually spreading throughout the world in convulsive and reversible bursts. In the American case, that history is conventionally expressed as one of individual claims of rights against the state, with economic freedom—here "freedom of the individual from arbitrary and capricious authority over persons or property, and the freedom to produce and exchange goods and services" (p. vi)—the paradigm case. This volume suggests that the Anglo-American history of economic freedom is more complex, expressed as much through the agency of state authority as its absence; but also that, ideologically and culturally, freedom of contract has indeed staked out a formidable presence at the American end of the continuum.	2
The first four essays focus on freedom of contract's English history. A. W. B. Simpson establishes the point of departure in a wonderfully entertaining essay on early modern property law. Until the nineteenth century, landed property was the Anglo-American legal system's predominant concern, managed by a complex common law that accommodated highly fragmented conceptions of ownership and regulated use. No Blackstonian "despotic dominion" of individual unencumbered ownership; property rights were subject to both the common law of private and public nuisance and to legislatures interposing claims on behalf of the public. Contract-like institutions were not absent from early modern property law (mortgages, leases) but were expressed entirely in its terms. That included labor, John Orth argues. Statutory regulation, not individual agreement, filled the substance of the hiring; once hired, labor was property. But this began to change during the eighteenth century. The complexity of commercial society and industrial processes exceeded the state's capacities to regulate hiring. The performance of labor hence was reconceptualized as a creature of contract. Laborers' own "contracts of combination" with each other remained beyond the pale. Nevertheless, recognition of labor as a subject for bilateral bargaining, not ownership, assumes fundamental causal significance in the emergence of the nineteenth-century regime of contract by demonstrating that contract was "a practical device for ordering economic relations" (p. 64).	3
The move to "freedom" of contract—privileging the parties' wills in conceptualizing their relationships—is usually associated with the late eighteenth/early nineteenth-century transition to an economy of commodified property and labor and with political and economic theories that elevate the individual over other sources of ordering, notably the state. But James Gordley finds few such connections. Will was no stranger to early modern law. The issue was what one could legitimately "will" to do. Following Aristotle, jurists thought will was relational: expressible only within a social and historical context that acknowledged the needs of others. Modern will theory emerged from the atrophy of this vital idea and became embodied in contract not because jurists embraced freedom of choice as a positive and preferable theory of human action but because they could no longer sustain older relational ideas in their understanding of how human will expressed itself. The unrestrained will thus became a norm by intellectual default, accompanied by the relocation of restraint in the name of fairness in a now externalized and hence structurally interventionist locale: the state.	. . .