Book Review

Over the past several decades, the legal history of the doctrine of liberty of contract has given rise to seemingly inexhaustible discussions of the meaning of and interdependent relationships among certain political, social, and legal ideas associated with liberty of contract and the specific contexts in which these ideas are rooted. Volume editor Harry Scheiber and eight collaborators have produced a remarkable set of reflections upon the history of liberty of contract. Taken together, the essays in this anthology avoid the usual pitfalls of the genre, making marvelous, original contributions to the debate. By engaging critically and constructively not only with the literature but also with each other, these historians have pulled off the intellectual equivalent of a perfectly executed series of lateral passes.	1
As Scheiber notes in his introduction, the contributors shed light on two historically distinct but legally related meanings of "freedom of contract." Some of the essays address "contract as the legal form in which agreements and promises are made, with the purpose of making them enforceable by the courts" (1). Others take on the project of illustrating the relation of contract to political liberty and economic individualism, ideas that Scheiber argues should be understood as a commitment to minimal government intervention into individuals' control and disposition of their property. As A. W. B. Simpson, John V. Orth, James Gordley, and David Lieberman show, however, the legal meaning of contract was not nearly as settled as some lawyers may believe. Indeed, changes in doctrine owed much to political and philosophical shifts, to economic and social conditions that all changed over time and across space. As Scheiber, Charles W. McCurdy, Arthur F. McEvoy, Donald J. Pisani, and Martin Shapiro demonstrate, the political nature of liberty of contract involved not just courts but also lawyers, labor unions, interest groups, reformers, legal theorists, and market actors of all kinds, and their interactions with the law changed liberty of contract in significant and lasting ways.	2
The nine essays span the period from the fourteenth century to the early twentieth. They focus mainly on British and American jurisdictions, though one essay--Gordley's masterful analysis of the will theory of contract-ventures onto the European continent and another--Shapiro's--takes the discussion into the global context of the late twentieth century. There is some, but not much, consideration of gender, and what is here relates more to women's duties within marriage (Orth, Lieberman) than to women's status as workers (McEvoy). The focus is squarely on economic regulation--in other words, on the state's involvement in the market--and on the employment relationship as a principal marker of state action and private arrangement. Each of the contributors declares his own variation on the central theme, but it is Orth who states it most succinctly: "[L]aw and labor may be interacting to drive legal development" (65).	3
The labor contract not only represented one of the most contested points of market authority during and after industrialization, but it also provided the starting point for long-lasting legal struggles over the nature of intent, which when captured imperfectly in contractual language could end up undermining the bargain. The first four essays question the neat line that historians have drawn between capitalism, industrial transformation, and liberal theories of economic and contractual freedom. Simpson traces contract's roots in and subservience to property in early modern Britain. Orth describes the increasing scope of contract over more and different kinds of economic transactions and the expansion of statutory law in labor relations, not just wages and hours but also over bargaining and conspiracy. Contract became a device for regulating market power and, more radically, "the lives of ordinary people" (62). David Lieberman scuttles the link between nineteenth-century ideas of liberty of contract and the great eighteenth-century sources of liberal indvidualism, Adam Smith and Jeremy Bentham, thus making it harder--if not impossible--to maintain that modern liberty of contract arose in direct response to the capitalist transformation of markets, state, and society.	4
Gordley's piece is the intellectual bridge of the collection, linking the early essays treating the legal meaning of contract to the later ones dealing with its political and constitutional expressions. Gordley sunders the long-held notion that the so-called "will theory of contract" emerged in the nineteenth century when jurists decided to permit parties to "bind themselves by an expression of their will" (69). Rather, he argues, what was understood as a binding expression of will was distinctly limited, though just what these limits were and how they were defined were not easy to know. It was not the case that the will theory was the first theory of contract to rely on expressions of will; in fact, natural law theories also relied on concepts of will and choice, and they did so centuries prior to the emergence of will theories in the nineteenth century. What the will theorists did "was not to use the concept of will but to use it to the exclusion of any other principle by which the will could be limited" (73). Historians who believe that will theories arose in response to perceived obstacles to social and economic development are wrong, he says, but understandably so, since both contract and property law were becoming more systematic, doctrinally, at the same time that the will theories were emerging. The coincidence of these events led historians to think "phenomena to be closely related that are really quite distinct" (74). Land use conflicts and market inequalities were just as familiar to pre-industrial jurists as to their nineteenth-century successors, and the nineteenth-century solutions to noxious fumes or floods from mills or other negative externalities so celebrated by the Commonwealth historians (for instance, the Handlins, Leonard, Levy, Scheiber) and criticized by revisionists (Morton Horwitz, William Nelson, William Novak) were not all that different from those suggested by Bartolus or even Blackstone himself. In short, the will theory of contract cannot be understood as a consequence of industrialization in particular nor as a response to social and economic change more generally. Rather, continental legal theory's concerted rejection of Aristotelian precepts of private right and human will produced a concept of bargaining so vague as to make it entirely unproblematic, at least in theory. But a doctrine that merely exalted expressions of will or intent in contract and property law proved not terribly useful in dealing with substantive unfairness, inequalities in bargaining power, or the horribly skewed distribution of wealth.	5
How liberty of contract failed to address those problems, how it became the agent of inequality, how the doctrine thwarted the aims of Anglo-American reformers, and how ideas of market freedom became intertwined with constitutional ideals of liberty all are addressed in the essays by Scheiber, McCurdy, McEvoy, and Pisani. Shapiro ends by pointing out that the influence of American notions of free will and contract on global business is difficult to ascertain without further study. The ironic coexistence of theoretical freedom and practical limits on human action, so beautifully handled by Gordley, also surfaces here: "To the extent that the American style of contract writing and disputing is becoming global, global freedom of contract may be, along a certain dimension, illusory, or purchased at a very high cost" (298).	6
The considerable buzz that attends this book is entirely deserved. Specialists in the field of contracts and economic regulation cannot credibly avoid engaging with these essays. Generalists will find much here that is relevant to the social history of American law. Anyone training graduate students in legal history, legal theory, constitutional law, and law and social science would commit professional negligence not to include this volume on a qualifying exams reading list. Like "The Play," in which Berkeley pulled off five lateral passes in defeating Stanford in 1982, this book is one for the ages.	7
Victoria Saker Woeste American Bar Foundation

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