McGill Law Journal Revue de droit de McGill
CONTRACTS MEANING AND THE HISTORIES OF
CLASSICAL CONTRACT LAW
Anat Rosenberg*
This paper argues that histories of nine-
teenth-century contract have been implicated in
the creation of a questionable historical artifact:
the story of a single meaning of contract at the
decisive era for modern contract laws develop-
ment, a story intimately tied with atomistic in-
dividualism.
The paper traces how the consensus has
been built and kept beyond debate despite sig-
nificant controversies engaging rival historical
schools of nineteenth-century contract law. It
does so by critically synthesizing multiple ac-
counts of contract law, produced from the nine-
teenth century to our own days. It opens, how-
ever, with a brief literary excursion in order to
show that there is good reason to view the con-
sensus as unwarranted. An individualist but re-
lational version of contract was dominant in
Victorian literary realism, one of the central
cultural sites of the Age of Contract, problem-
atizing the story of a single meaning of contract.
The consensus created by contract histories
bears implications for present thought as it ne-
gotiates visions of contract, and as it explores
laws constitutive effects on social conscious-
ness. This paper lays the consensus open so
that we can let go of it.
Cet article soutient que lhistoire des con-
trats du XIXe sicle fut implique dans la cra-
tion dun artefact historique discutable : le dve-
loppement dune seule et unique interprtation
du contrat une poque dcisive pour le dve-
loppement du droit contractuel moderne, un d-
veloppement intimement lie lindividualisme
atomistique.
Cet article retrace la faon dont ce consen-
sus se dveloppa lcart de rels dbats, en
dpit dimportantes controverses opposant plu-
sieurs coles de pense historiques du droit con-
tractuel du XIXe sicle. Pour ce faire, larticle
rsume de manire critique plusieurs exemples
du droit des contrats du XIXe sicle nos jours.
Larticle dbute avec une brve excursion litt-
raire afin de dmontrer quil existe de bonnes
raisons de douter que le consensus soit justifi.
Une version individualiste mais relationnelle du
contrat tait dominante dans le ralisme litt-
raire de lpoque victorienne, lun des princi-
paux sites culturels de l re du contrat , ren-
dant problmatique la thorie dune unique si-
gnification du contrat.
Le consensus cr par lhistoire des con-
trats influence la pense actuelle puisquil con-
cerne linterprtation des contrats et explore les
effets constitutifs du droit sur la conscience so-
ciale. Cet article met nu le consensus afin quil
puisse tre reconsidr.
* Radzyner School of Law, Interdisciplinary Center (IDC) Herzliya. For invaluable dis-
cussions I am grateful to Roy Kreitner. For financial support I am grateful to the Sa-
cher Institute for Legislative Research and Comparative Law at the Hebrew University
of Jerusalem.
Citation: (2013) 59:1 McGill LJ 165 Rfrence : (2013) 59 : 1 RD McGill 165
Anat Rosenberg 2013
166 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
Introduction
I.
II.
III.
What Did Contract Mean in Victorian Culture?
A Literary Excursion Away from Metanarratives
Classical Contract Law
A. Individualism in Contract Histories
B. Individualistic Bias in Contract
1. General: The Classical Model of Contract
2. Conceptual Tendencies in Classical Contract
Law
3. The Promising Individual
Classical Contracts Others: Status and Collectivism
A. Status and Contract
1. From Status to Contract
2. Status Still Here
B. Collectivism and Contract
1. Collectivism as Historical Trend
a. General
b. Conceptual Tendencies in Contract Law
c. The Promising Individual
2. Assessing the Limits of the Collectivist Impact
3. Collectivism as Conceptual Alternative: Internal
Critique
IV.
Individualism as Culture
A. Individualism Around Contract
1. Context
2. Challenges to the Historical Narrative
a. Causality
b. Periodization
c. Contradiction/Complexity
B. Collectivism Around Contract
Conclusion
167
168
176
176
177
177
178
181
184
184
184
185
188
189
189
189
191
192
195
196
197
197
199
199
200
201
202
205
THE HISTORIES OF CLASSICAL CONTRACT LAW 167
Introduction
If you were inclined to search for ghosts in legal scholarship, classical
contract law would be a promising start: a historical construct holding
present legal thought firmly in its grip. This paper argues that contract
histories themselves have been implicated in the continual, and unwar-
ranted, grip of the classical construct.
Contract histories have secured the dominance of classical contract by
effectively uniting on a questionable story made up of the following narra-
tive strands: Classical contract law embodied a specific version of individ-
ualism; that version, in its idealist articulation, treated contract as an act
of the will of an autonomous, economically rational individual. The fall
of contract was not, for many decades, a conceptual fall. Why not? Because
the available social alternativesstatus and collectivismfunctioned as
Others, eroding contract in practice without substituting its meaning.
And so contract retained its conceptual relation to individualism through-
out the century. The individualism of contract law, furthermore, was of
broad cultural resonance. Taken together, the narrative strands suggest
that laws atomistic version of individualism in contract was the only one
available in the nineteenth century. At the decisive era for modern con-
tract laws development, these histories tell us, contract meant but one
thing, and individualism in contract meant but one thing.
The historical debate is heated on virtually all other questions: the ex-
planation for contract laws individualist bias; how old this individualism
is (here positions range along a timeline of some six hundred years); and,
closely related, what were the minimal features which made any particu-
lar constellation of contract rules, doctrines, or theoretical rationalizations
distinctively individualistic. It is possibly the breadth of these debates
that renders the picture of classical contract law so obvious and its indi-
vidualism so dominant. Just below the heat of debates, the story of a sin-
gle individualistic meaning of contract serves as common ground. A hotly
contested field has managed to produce an uncontested historical con-
sciousness.
This paper traces how the consensus has been built and kept beyond
debate in contract histories, by critically synthesizing multiple accounts of
nineteenth-century contract law, produced from the nineteenth century to
our own days. While the narrative strands making up the consensus
those of individualism, status, collectivism, and the broader cultureare
all too familiar, their effect in grounding a shared consciousness concern-
ing contracts historical meaning has not been adequately grasped.
I open, however, with a brief literary excursion in order to show, at the
outset, that there is good reason to view the consensus among historians
as unwarranted. An individualist but relational version of contract was
dominant in Victorian literary realism, one of the central cultural sites of
168 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
the Age of Contract. The literary outlook clarifies that there was more
than one version of contract, and more than one version of individualism
going around. This basic insight should put readers in a critical position
for the review of histories that follows.
* * *
Part I introduces the broad historical and conceptual pattern of sta-
tusindividualismcollectivism that has engaged contract histories for
over a century now. It argues, suggestively, that canonic novels often em-
braced a relational meaning of contract, one unheeded by the status
individualismcollectivism axis, and so offers good reason to doubt the
current historical consciousness.
The following Parts then show how histories have grounded the un-
spoken consensus. Part II discusses classical contract law (individualism);
Part III discusses status and collectivism. Parts II and III together re-
count contracts stable link with a specific version of individualism as it
emerges from contract histories. Part IV reviews discussions of the wider
cultural terrain of the nineteenth century; here histories reveal assump-
tions about the broad cultural resonance of contract laws individualism.
In reviewing discussions of the cultural terrain after having reviewed le-
gal developments, I reverse the standard story in which context or
background come first, in an effort to flesh out the nontrivial connection
made by historians between the individualism of contract law and broader
cultural mores.
about a single historical meaning of contract and its individualism.
I conclude by discussing the normative implications of the consensus
I. What Did Contract Mean in Victorian Culture? A Literary Excursion
Away from Metanarratives
Contract histories have for a long time conversed with two metanarra-
tives of the nineteenth century. One metanarrative is the liberation of the
individual from inhibiting social locationsfrom the categories of status.
In this story, contract rose to prominence at the Victorian era as a concep-
tual alternative to status, a story memorably captured in Henry Maines
aphorism, from status to contract.1 Less celebratory versions view the
development not as progress, or view the displacement of status as only
partially, tenuously, or questionably achieved, but otherwise agree on the
conceptual conflict at hand: status versus contract.
1 Sir Henry James Sumner Maine, Ancient Law (London: JM Dent, 1917) at 100.
THE HISTORIES OF CLASSICAL CONTRACT LAW 169
The contract of this narrative bears a specific and too-familiar ideal-
ist meaning, that of the classical legacy: an act of a socially disembedded2
private individual will, a notion reliant upon a view of the contracting in-
dividual as an autonomous agent acting within a distinct sphere of eco-
nomic rationalitythe market.
A second metanarrative is the rise of the welfare state, or the move
from individualism to collectivism. In this story, contract, as the preferred
mode for determining social relations, rose with individualism and sank
with collectivism. Here, too, there are alternative versions. One version
doubts whether any effective socialization was achieved through these
changes, at least from the narrow perspective of contract. Another version
questions the linearity of change (first individualism, then collectivism)
and suggests a messier story. But the conceptual opposition of individual-
ism versus collectivism, in which contract is associated with the former,
remains intact.
Combined, the entire move of the nineteenth century is sometimes de-
scribed as statuscontractstatus:3 communally based definitions of social
relations are superseded by individually defined ones, and then revert
back again. Whether the story is one of progress and decline, vice versa,
or just an amalgam of normative visions competing for dominance, the
conceptual picture emerging from histories is of status and collectivism as
the two historical Others of the classical view of contract, each entrenched
in a commanding narrative of the nineteenth century. The Otherness of
status and collectivism arises from their conceptualization as alternatives
to, not of, contract, a conceptualization which preserved contracts mean-
ing even as it threatened its normative appeal and operative relevance.
The individualism of contract law, though emerging from histories as
virtually hegemonic, was in fact just a versionone possible interpreta-
tionof promissory relations, even among liberals.
This Part aims to cast doubt on the story of contract carrying but one
culturally embraced individualist meaning, and so place readers in a criti-
cal position from which to observe the consensus among historians. This
Part argues that a culturally dominant individualist version of contract,
one significantly different from that identified by contract histories, and
2 For more on the use of this term, see e.g. Zygmunt Bauman, Foreword in Liquid Mo-
dernity (Cambridge: Polity, 2000); see also ibid ch 1 at 16ff.
3 See e.g. Roscoe Pound, The End of Law as Developed in Juristic Thought (Part 2)
(1917) 30:3 Harv L Rev 201 at 21921 [Pound, End of Law 2]; Robert W Gordon, Brit-
ton v. Turner: A Signpost on the Crooked Road to Freedom in the Employment Con-
tract in Douglas G Baird, ed, Contract Stories (New York: Foundation, 2007) 186 (a
critical account of the statuscontractstatus narrative).
170 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
disruptive of the statusindividualismcollectivism conceptual axis, was
available in at least one central site of Victorian social thought: canonic
realist novels.
* * *
Realist novels shared with legal thought an ardent attempt to imagine
and represent a new social order, one problematizing the older order of
status; to make sense of a world which, as Raymond Williams put it, had
no new forms, no significant moments, until these were made and given
by direct human actions.4 Novels, like law, recognized their age as the
age of contract, and are well known for their fascination with promissory
relations. Promises were central to novels as stories, but no less im-
portantly as plot hinges, as links, as figures for representing, imagining,
exploring, and constructing their world; promises in novels were conspic-
uous, multiple, and diverse.
The legal and novelistic attempts to construe a new world were part of
their shared liberal commitments. Novels, no less than law, have been
recognized and assessed by historians as part of the rise of individualism.
The best-known reference is probably Ian Watt, who explained the rise of
the realist novel against the economic, political, and ideological rise of in-
dividualism, in which, Watt noted, the idea of contract was central.5 Anal-
yses have confirmed and reconfirmed the relation from various directions
in a series of claims about the Victorian novel as supporter of bourgeois
ideology, as the middle class art par excellence, or, beyond class relations,
generally as naturalizer of a capitalistic social order and promoter of indi-
vidualistic values, at times lumping novels and law together in the dis-
cussion.6
4 The English Novel: From Dickens to Lawrence (New York: Oxford University Press,
1970) at 11.
5 The Rise of the Novel: Studies in Defoe, Richardson and Fielding (Berkeley: University
of California Press, 1957) at 6364.
6 See e.g. Franco Moretti, The Way of the World: The Bildungsroman in European Cul-
ture, translated by Albert Sbragia (London: Verso, 2000) (discussing the English novels
tendency, together with law, to legitimate the established order); Daniel Cottom, Social
Figures: George Eliot, Social History, and Literary Representation (Minneapolis: Uni-
versity of Minnesota Press, 1987) (arguing that the realist novel was one of the major
forms of the rational representation of a universal order, which was in fact a projection
of the newly dominant English middle class); Leo Bersani, A Future for Astyanax:
Character and Desire in Literature (Boston: Little, Brown, 1976) ch 2 (arguing that the
psychological readability of characters in novels served to guarantee the established so-
cial order); Deidre Shauna Lynch, The Economy of Character: Novels, Market Culture,
and the Business of Inner Meaning (Chicago: University of Chicago Press, 1998) (argu-
ing that nineteenth-century literature individuated citizens and at the same time pur-
veyed assurances about human homogeneity, and was thus involved in the transition to
THE HISTORIES OF CLASSICAL CONTRACT LAW 171
And yet, novelistic individualism was often not the same one found in
law, and, unlike the alternatives usually recognized in contract histories
(status and collectivism), that individualism served to differently conceive
contract itself rather than to signal its displacement. Contract in novels
carried a different, if individualistic, meaning.
In novelistic discourse, contract was often construed not as abstract
individual willing, a means for individuals to assert themselves and over-
come social controls, but as a concrete relationship within a web of rela-
tionships, a paradigm of interdependence, entailing limits as well as free-
doms, and compromise as much as self-assertion. This outlook reversed
many of the basic features associated with the classical system of mean-
ing. Its deep structure, however, can be sufficiently explicated for the
purposes of this paper by attending to its construction of the promising
individual. For, just like the legal conceptualization of contract, the novel-
istic one was directly related to that human picture.
How did novels, famed for their celebration of individual character,
psychological depth, and personal uniqueness, construe individuality? As
the discussion below suggests, individuals in novels were, more often than
not, insistently relational beings, a construction salient in promissory con-
texts. Unlike the socially disembedded, rational, contracting person of
law, the novelistic contracting individual was incomprehensible and in-
middle class hegemony); Irene Tucker, What Maisie Promised: Realism, Liberalism
and the Ends of Contract (1998) 11:2 Yale Journal of Criticism 335 (arguing that the
realist novel functions as a cultural instrument by which the rationalization of contin-
gency takes place, thus enabling the agency of subjects with limited knowledge and con-
trol and sustaining the idea of autonomy, somewhat like contract); Patrick Brantlinger,
Fictions of State: Culture and Credit in Britain, 16941994 (Ithaca: Cornell University
Press, 1996) at 146 (arguing that novels, even when critical of the social evils of capital-
ism, underwrite the naturalness and stability of the social realm); Linda M Shires, The
Aesthetics of the Victorian Novel: Form, Subjectivity, Ideology in Deidre David, ed, The
Cambridge Companion to the Victorian Novel (Cambridge: Cambridge University
Press, 2001) 61 (the [realist novels] hero or heroine is molded to the bourgeois ideal of
the rational man or woman of virtue at 65); Joseph W Childers, Industrial Culture
and the Victorian Novel in Deidre David, ed, The Cambridge Companion to the Victo-
rian Novel (Cambridge: Cambridge University Press, 2001) 77 (a neat separation of in-
dustrialism and the novel is nearly impossible. … Each looked to the other for models of
effecting and controlling as well as understanding change at 7778); WJ Harvey,
Character and the Novel (Ithaca: Cornell University Press, 1965) at 24:
One of the few Marxist generalizations about literature to hold up reasonably well
when put to the test of detailed historical examination is the thesis that the devel-
opment of the novel is intimately connected with the growth of the bourgeoisie in a
modern capitalist system. From this social process derive the assumptions and val-
ues we may conveniently if crudely lump together as liberalism.
172 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
significant outside her7 relationships. To be sure, that person was indi-
vidualized: she could not be reduced to group identities, and was not en-
tirely preceded by status-like determinations, or even by relative power
positions. In other words, this person was not an instantiation of a status-
based outlook or of a collectivist sensibility. And yet, the novelistic con-
tracting individual was a social creature who could not be stripped off of
her relationships; she became a self through and in them. This concep-
tion, though not exclusive in canonic novels, was dominant and distinct
enough to cast significant doubt on the picture of a single meaning of con-
tract, and of individualism, emerging from contract histories.
What follows is one example of a novelistic construction of a promising
individual, from George Eliots Middlemarch (187172),8 often considered
an epitome of Victorian individualism.9
* * *
Recall Tertius Lydgate, a young surgeon nurturing ambitions to de-
velop a modern medical practice. He marries Middlemarchs local beauty,
Rosamond Vincy, expecting nuptial bliss to conform to his professional
aspirations. Idealism, however, soon meets reality. Lydgate is unable to
repay the many loans taken for furnishing the newlyweds home, and
wants to cut expenditures. To his frustration, Rosamond reveals ideas of
her own (or rather, of her home-make) and refuses to cooperate. As credi-
tors begin to collect the couples furniture, Lydgate is offered a loan by the
towns banker, Bulstrode. Bulstrode offers the loan to secure Lydgates
loyalty: Lydgate tends a patient who threatens to expose devastating se-
crets from Bulstrodes past. Bulstrode then kills the patient.10 The secrets
are of course soon revealed, and Lydgate is implicated in suspicions of
murder. Rosamond fails to support him. He is finally saved and sadly rec-
onciled to a mediocre career and a cold marriage.
Lydgate is one of a number of Middlemarch protagonists encountering
an unaccommodating social and interpersonal reality to which they pain-
fully adjust. This plotline, centred on the meanings of individuality and
7 The female pronoun might seem awkward for readers sensitive to the grave limitations
on womens contractual capacities in the nineteenth century, and familiar with feminist
critiques of classical contract law. My usage is both a way of re-evoking those critiques
and a reminder of the role, complex yet inevitable, that women did play in contract,
which feminist historians have recovered.
8 George Eliot, Middlemarch, ed by David Carroll (Oxford: Oxford University Press,
1996).
9 See e.g. Calvin Bedient, Architects of the Self: George Eliot, D.H. Lawrence, and E.M.
Forster (Berkeley: University of California Press, 1972) ch 1, 3.
10 I am oversimplifying a complex plot in which the killing itself is a matter of changing
medical practices.
THE HISTORIES OF CLASSICAL CONTRACT LAW 173
the possibilities of agency, has been influential in Middlemarchs evalua-
tion as a liberal text.
The process of adjustment in Lydgates story, as in other plots, is im-
portantly grounded in contractual stories. These work symbolically as the
axis along which Lydgate comes to terms with historical, social, and,
foremost, relational contexts. The pressure of the contract serves the nar-
rative in constructing identity through a set of collapsing idealizations,
with self-reflexive modalities gradually replaced by a full recognition of
otherness and its constitutive power for selfhood. Put otherwise, contracts
primary work in Middlemarch is a formal one, bringing individuals into
contact with the world around them, thus breaking the isolation of pro-
cesses experienced in wholly internal terms.11 As contracts do so, they
producein readers as much as within the plota consciousness of dif-
ferences between persons, and, in consequence, an appreciation of the
constant compromises which the very fact of relational, interdependent
existence demands. Consider the main turns contributing to this outlook.
Three basic stages inform Lydgates contract-based process of adjust-
ment. At the point of contract formation (initial loans), complacent Lyd-
gate adopts a vision of the ideal marriage in full compatibility with his
professional aspirations: [H]aving been accepted [by Rosamond], he was
prepared to accept all the consequences which he believed himself to fore-
see with perfect clearness. … [O]ther schemes would not be hindered: they
would simply adjust themselves anew.12 He is wrong: not only is Rosa-
mond not the submissive, supportive figure he imagines, but his profes-
sional aspirations too are self-reflexive and overlook the suspicions of a
small community accustomed to traditional medical practice.13
Moving along the axis, as the contract becomes a burden, Lydgate
comes to recognize something of the reality of his non-ideal wife and non-
indulgent community. Yet at this stage he strives to preserve the larger
ideal vision of his life and so falls into alternative forms of idealization. He
begins to see Rosamond as a different kind of creature so that he might
11 Contracts formal function is often supported by the content of promissory plots; in Lyd-
gates story, promissory interaction between himself and Rosamond is a case in point
they are stories of contest and explicit compromise. Content alone, however, does not
capture the force of the relational conception in Middlemarch.
12 Eliot, supra note 8 at 32627.
13 Note that Lydgates initial disposition is not a representation of a socially disembedded,
abstract individual mode, but an aspect of his social conditioning. Lydgate, of aristocrat-
ic background, walked by hereditary habit (ibid at 327)his social context explains
his disposition. If this initial conditioning is status-like and ties Lydgate with generic
class traits, the process of adjustment is individualized and depends upon concrete rela-
tional settings.
174 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
still accept her: [I]t was inevitable that in that excusing mood he should
think of her as if she were an animal of another and feebler species.14 He
reframes his career as removed from the more petty business of everyday
life: [B]y the bedside of patients the direct external calls on his judgment
and sympathies brought the added impulse needed to draw him out of
himself.15
At the third and final stage, when the contractual obligation over-
whelms Lydgate, he can no longer resist the reality of his wife, nor escape
the disappointment in his career. At this stage, the plot ties Lydgates pro-
fessional performance with his domestic trouble, again through a contrac-
tual storythe loan from Bulstrode, which brings both his marriage and
his professional standing to a near breaking point. The plot emerges in a
sadly realistic adjustment on all fronts, with Lydgate appreciating his
marriage, his career, and himself in different lights.
Lydgates contract works in the plot as a figurative site of change, ap-
pearing at the height of a tension always and already existing between
subjective conceptions and social and historical reality, and between self
and other. The existence of individuals in Middlemarch is defined through
these points of limit and adjustment, the double change of self and be-
holder.16 The contracting person in this novel is not stable and given at
any moment; she is in a constant state of relational becoming. Rather
than extensions of the individualways to improve and expand her scope
of self-determinationpromises are figures for her obstacles, anxieties,
and limitations. Through the process of compromise, in which both differ-
ence and interdependence become clear, Middlemarch investigates differ-
ent modes of relating to others, moving from ignorant (and egocentric)
idealism, through partial acknowledgement, to full appreciation of the re-
ality of others, which, in this novel, is both factually and morally inescap-
able. Marginally, observe that the contracting individuals economic ra-
tionality, a conceptual construction dependent upon her basic self-
sufficiency, is entirely foreign to Middlemarchs vision. 17 Contract, we
might conclude, bears a meaning deeply at odds with the atomistic ver-
sion.
14 Ibid at 628 [emphasis added].
15 Ibid [emphasis added].
16 Ibid at 88.
17 The question of economic rationality is part of the construction of the ideal market. For
a detailed examination of novelistic and legal views of the market, see Anat Rosenberg,
Separate Spheres Revisited: On the Frameworks of Interdisciplinarity and Construc-
tions of the Market (2012) 24:3 Law & Literature 393 [Rosenberg, Separate Spheres].
THE HISTORIES OF CLASSICAL CONTRACT LAW 175
Why has this view of contract and the contracting individual escaped
contract historians? One answer is disciplinary boundaries, but, while im-
portant, it is the easy one. The more complex problem lies in the individu-
alizing mode involved in relational outlooks like that of Middlemarch. The
main problem here, a legacy of Marxist criticism, is the distinction be-
tween class, or similarly broad (and relatively rigid) social locations, and
concrete relationships underlying Middlemarchs idea of contract. The lat-
ter are not truly social from the perspective of radical critique, but ra-
ther are the mark of individuality discovered or evolved through experi-
ence.18 For critiques concerned with abstraction from class divisions, the
distinction between relational modes and the fully isolated idea of the au-
tonomous individual is all but misleading given the suppression of class
conflict in both and, thus, suppression of the essence of political struggle.19
This viewpoint likewise informs liberal histories in which the individu-
al/social binary serves as a core analytic tool. But the distinction between
constructions of individualism like that of Middlemarch and that identi-
fied by contract histories, while indeed within rather than outside liberal-
ism, is important for a critical re-evaluation of those histories.20
* * *
Liberal sites of social thought did not accept a single meaning of con-
tract; canonic novels interpretation of individualism often parted ways
with the story grounded by contract histories. The meanings of contract
and individualism were subjected to divergent, if liberal, interpretations.
With this basic insight as background, the following Parts ask how
contract histories have managed to agree on contracts meaning in the
nineteenth century, a consensus which has so far been too transparent,
despite the familiarity of its building blocks.
18 See e.g. Cottom, supra note 6 at 70.
19 For a more general articulation of this position with respect to the experience of public
life in industrial society, see e.g. Richard Sennett, The Fall of Public Man (New York:
Vintage, 1976); Herbert Marcuse, The Affirmative Character of Culture in Negations:
Essays in Critical Theory, translated by Jeremy J Shapiro (Boston: Beacon Press, 1968)
88 at 98 (arguing that the concept of the person in bourgeois culture is an idealist disre-
gard of social conflicts and conventions, and charging classical literature since Shake-
speare with affirming the ideal, producing in its representations of individual interac-
tion the counterimage of what occurs in social reality).
20 The point is easily grasped today, after decades of relational contract theory as well as
relational individualism. It has remained, however, oddly irrelevant to nineteenth-
century contract histories, a point I discuss in my conclusion.
176 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
II. Classical Contract Law21
Undisputed Point #1: Classical contract law embodied a specific ver-
sion of individualism. This Part first clarifies the meaning of individual-
ism in historical accounts of contract law. I then review and refocus his-
tories of contract law to elaborate on its content. While the consensus
traced in the next two Parts may be less obvious to readers, the story of
this Part has been told many times over; I thus recount only its core ele-
ments, while focusing on the underlying human picture: the promising
individual in the market.
A. Individualism in Contract Histories
Writers time and again relate classical contract thought of the nine-
teenth century to individualism, and they do so in different ways. Some
writers discuss basic ideals underlying individualism, such as contracts
commitment to negative liberty (Steven Lukes autonomy22); others refer
to specific doctrines of individualism, like the economic individualism of
the market;23 still others refer to patterns of human behaviour and con-
sciousness, like the calculating promisor.24
The point of convergence among the various writersthe underlying
concern in the varied uses of individualismis an ideational construct:
21 The discussion covers histories which have dealt with various aspects of nineteenth-
century contract law, like case law, theory, and, more broadly, legal thought or con-
sciousness. I thus refer interchangeably to law, legal discourse, or legal thought.
for American contract law as well and are examined by its historians.
The term classical is prone to different uses. For example, Atiyah focuses on a the-
ory he interchangeably calls will theory and classical theory, which emerged by 1830
(PS Atiyah, The Rise and Fall of Freedom of Contract (Oxford: Clarendon Press, 1979)
[Atiyah, Rise and Fall]). Kennedy and Kreitner refer to classical theory as a way to
distinguish it from pre-classical thought, and argue that it rose in the last three or four
decades of the century (Duncan Kennedy, The Rise & Fall of Classical Legal Thought
(Washington, DC: Beard, 2006) [Kennedy, Rise & Fall]; Roy Kreitner, Calculating
Promises: The Emergence of Modern American Contract Doctrine (Stanford: Stanford
University Press, 2007)). The difference emanates from the extent to which the expul-
sion of relations from contract, rather than just increasing focus on the will, is perceived
as crucial. Given my interest in the final result, on which these and other historians
generally agree, I treat the move from the will theory to the classical formulation as a
process of intensification, and use the terms interchangeably.
I focus primarily on the law in England. However, these origins have been crucial
22 Individualism (Oxford: Basil Blackwell, 1973) ch 711.
23 For an elaboration of the doctrines, see ibid at 7992, 14041.
24 For an account set in terms of the ethics of human interaction and patterns of behav-
iour, see Duncan Kennedy, Form and Substance in Private Law Adjudication (1976)
89:8 Harv L Rev 1685 at 171718, 1738 [Kennedy, Form and Substance].
THE HISTORIES OF CLASSICAL CONTRACT LAW 177
a picture of the social order at the centre of which lies a sphere of free
competitive economic activity conducted by autonomous individuals who
are rational maximizers of economic interest. This notion is surrounded
by corresponding conceptions about the roles of politics (not necessarily
laissez-faire, but tending to view government economic activity as inter-
ventionist, and channeling it to encourage individual competition and
self-reliance) and the judiciary (viewed as a protector of rights, the goal
being to ensure mutual respect of rights among individuals and, thus, ad-
equate spaces for self-realization). The diverse accounts of classical con-
tract law all suggest, from different angles, that contract law assumed
and reinforced this liberal world view, which for brevitys sake I call the
atomistic view.
B. Individualistic Bias in Contract
Classical contract laws structures and rationalizations were closely
tied to the atomistic view, histories show.25 The following account notes
the salient features making up the tie. As it weaves different histories in-
to a single account, it adopts the emphases of specific historians on specif-
ic points, which might not be conceded by others. In dealing with histori-
cal details this is unavoidable, yet should not obscure the main argument:
the end resultnamely, the picture of contractenjoys a wide consensus
even if not every detail of how and when law got there does.
1. General: The Classical Model of Contract
As every contract derives its effect from the intention of the parties,
that intention, as expressed or inferred, must be the ground and
principle of every decision respecting its operation and extent, and
the grand object of consideration in every question with regard to its
construction.26
Such was Pothiers classic formulation of the will theory of contract, the
basis of the English formulation of the theory.27
25 Not necessarily in a causal relationship, as Part IV will clarify below.
26 M Pothier, A Treatise on the Law of Obligations, or Contracts, translated by William
David Evans, 3d ed (Philadephia: Robert H Small, 1853) vol 2, ch 5 at 3031, cited in
AWB Simpson, Innovation in Nineteenth Century Contract Law in Legal Theory and
Legal History: Essays on the Common Law (London: Hambledon Press, 1987) 171 at
190 [Simpson, Innovation].
27 See Simpson, Innovation, supra note 26; Atiyah, Rise and Fall, supra note 21 at 399
400; DJ Ibbetson, A Historical Introduction to the Law of Obligations (Oxford: Oxford
University Press, 1999) at 222.
178 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
As classical contract doctrine gave meaning to this formulation, a spe-
cific picture of the contractual relation emerged: The relation represented
a meeting point between two individuals with separate interests. Each of
them was a person able to choose for herself, who rationally chose that
which could best serve her own economic interest. The meeting point was
achieved through the exercise of each persons will. That exercise, or the
moment of formation, was the core of the analysis, which proceeded by as-
suming its exclusive meaningfulness. Importantly, the discourse of rights
and dutiesseeking to describe what one party need or need not do for
the other, and to what that party is or is not entitled from the other
relied on the distinction and even opposition between the parties before,
at, and after formation, focusing attention on each in isolation rather than
on the fact of their relation. The same discourse relied on the isolation of
both parties from a broader social environment. Their contract belonged
to a separate economic sphere ideally composed of such persons and the
relationships they in fact choose, and of nothing else. This picture, finally,
was of general applicability, ideally representing any and every contract.
2. Conceptual Tendencies in Classical Contract Law
A number of points are widely viewed as central to contract laws indi-
vidualism. Most generally, the will theory brought about a tendency to at-
tribute all the consequences of a contract to the will of those who made it.
Thus, for instance, restrictions of capacity existed because some persons
lacked free will; duress [was] the overbearing of the will, undue influence
its subversion; … mistake meant that the wills of the parties had miscar-
ried; the measure of damages was defined by the will of the parties with
respect to the extent of liability; and so forth.28 The source of liability was
the promise, whatever else happened before or after it was made; and it
was to be equally protected in all cases through the expectation measure.
Contract law thus became abstract. Its doctrines seemed to describe
phenomena in a manner one step removed from concrete particulars of
the persons and subject matters appearing in the cases.29 Abstraction is
28 Kennedy, Form and Substance, supra note 24 at 1730 (the list appears there). See also
Atiyah, Rise and Fall, supra note 21 at 405, 435; Ibbetson, supra note 27 at 22142;
Duncan Kennedy, From the Will Theory to the Principle of Private Autonomy: Lon
Fullers Consideration and Form (2000) 100:1 Colum L Rev 94 at 115 [Kennedy,
From Will Theory]; Roscoe Pound, The Role of the Will in Law (1954) 68:1 Harv L
Rev 1 at 47 [Pound, Role of the Will]; Samuel Williston, Freedom of Contract (1921)
6:4 Cornell LQ 365 at 37071; John P Dawson, Economic Duress: An Essay in Perspec-
tive (1947) 45:3 Mich L Rev 235.
29 Christopher T Wonnell, The Abstract Character of Contract Law (1990) 22:3 Conn L
Rev 437 at 438. See also Lawrence M Friedman, Contract Law in America: A Social and
Economic Case Study (Madison: University of Wisconsin Press, 1965) at 20; Atiyah,
THE HISTORIES OF CLASSICAL CONTRACT LAW 179
often contrasted with an older view of contract as a status-like relation-
ship, which treated different types of contracts (landlord and tenant, mas-
ter and servant, principal and agent, and so forth) on different terms. At
the core of the nineteenth-century opposition between status and contract
was a contrast between the mandatory terms of the status relation
prescribed by law or custom according to the parties social rolesand the
freely chosen content of the contractual relation. Abstract law was limited
to specifying the general conditions under which individually willed con-
tent would be enforceable.30
Closely related was a tendency to reify contractto treat it as a thing
intentionally made by the parties.31 The nineteenth century gave rise to
the rules of offer and acceptance, determining how a contract was made.32
Once reified, contract, and more specifically the moment of formation,
could be an independent source of rights and duties, a definitive point of
reference for the entire relationship. The effect was the bounding-off of
the contractual relation from the more extensive and boundless relation-
ships that surround it.33
The free choice of the parties was almost beyond challenge. Contrac-
tual rights were conceived as absolute, and thus a person was not ac-
countable for the reasons for her contractual choices. The approach was
also reflected in a severe attitude to changed circumstances between for-
mation and the time of performance: very little scope was allowed for ad-
justment of the parties rights and duties.34
Rise and Fall, supra note 21 at 402; Donal Nolan, The Classical Legacy and Modern
English Contract Law, Book review of Good Faith and Fault in Contract Law by Jack
Beatson & Daniel Friedmann, eds, (1996) 59:4 Mod L Rev 603 at 61415.
30 See Atiyah, Rise and Fall, supra note 21 at 400; Tortious Interference with Contractu-
al Relations in the Nineteenth Century: The Transformation of Property, Contract, and
Tort, Note, (1980) 93:7 Harv L Rev 1510 (probably written by John T Nockleby); Grant
Gilmore, The Death of Contract (Columbus: Ohio State University Press, 1974) at 68;
Gordon, supra note 3 at 208.
31 The executory model of contractthe paradigm case of the will theorywas tied with
the idea of a thing created by will. The introduction of rules of set-off between parties
strengthened reification by pointing to the net sum representing the value of the con-
tract-as-thing (Ibbetson, supra note 27 at 21617).
32 See Atiyah, Rise and Fall, supra note 21 at 446.
33 On contracts limitedness or bordered relationship, see Arthur Allen Leff, Contract
as Thing (1970) 19:2 Am U L Rev 131 at 138; Nolan, supra note 29 at 604.
34 See Atiyah, Rise and Fall, supra note 21 at 40554; Gilmore, supra note 30 at 1415.
For an account of the philosophical justification for dismissing subjective motives, see
also Alan Brudner, The Unity of the Common Law: Studies in Hegelian Jurisprudence
(Berkeley: University of California Press, 1995) at 12829, 13435.
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The flipside of the absoluteness of contractual rights was the idea that
no duty arises before a binding contract is entered into, which is again ex-
plained in terms of the intentional basis of contract.35 The absence of pre-
contractual duties and the absoluteness of contractual rights focused the
contractual outlook on the moment of formation as the crucial point in
contract, both contributing to and emanating from contracts reification.
In the classical era, a narrow formulation of excuses held sway. This
narrow formulation suffers from a potential internal contradiction, for the
ideal of the absolutely free will seems to justify a liberal interpretation of
excuses if these represent cases of defective assent, or unfree will. The
formulation of excuses, however, was in line with individualism.36 Indeed,
and more broadly, historians have repeatedly explained logical incoheren-
cies in the classical models commitment to the abstraction of free will by
viewing them as victories of the individualist commitment to the ideal
market over the subjectivist legacy embedded in the will theory.37
35 See Kennedy, Rise & Fall, supra note 21 at 22728; Kennedy, Form and Substance,
supra note 24; Gilmore, supra note 30 at 14.
36 Some accounts explain the tie in terms of the intertwining of freedom in contract with
the ideal market (Thomas L Haskell, Capitalism and the Origins of the Humanitarian
Sensibility, Part 2 in Thomas Bender, ed, The Antislavery Debate: Capitalism and Abo-
litionism as a Problem in Historical Interpretation (Berkeley: University of California
Press, 1992) 136 at 138; Dawson, supra note 28 at 266; Atiyah, Rise and Fall, supra
note 21 at 40203). Others refer to the basic individualistic position, which seeks to en-
large the sphere in which a person may act in a self-interested fashion. The contraction
of the initial liability in contract (its limitation to intention) leaves greater areas for
people to behave in a self-interested fashion, but liberal rules of excuse oblige the prom-
isee to share the losses of the promisor who is unable to perform (Kennedy, Form and
Substance, supra note 17 at 1735). Narrow excuses were also part of the limited sphere
for pre-contractual duties and reinforced the idea of absolute contractual rights, for ex-
cuses were a route into subjective motivations undermining the objective fact of an
agreement. Finally, a narrow formulation of excuses was part of the reluctance to con-
cretize.
37 See Robert B Seidman, Contract Law, the Free Market, and State Intervention: A Ju-
risprudential Perspective (1973) 7:4 Journal of Economic Issues 553 at 555; Friedman,
supra note 29 (the law of contract was the legal reflection of that market and naturally
took on its characteristics at 22); Atiyah, Rise and Fall, supra note 21 at 43537 (argu-
ing that the model was based on the free market bargaining process); Melvin A Eisen-
berg, Why There Is No Law of Relational Contracts (2000) 94:3 Nw UL Rev 805
(classical contract law rejected principles of unfairness, which typically … have little
application to contracts made between strangers on perfect markets at 808).
One major tension in the model was between freedom and enforcement, explained
in terms of the models ultimate commitment to market security. For commentary, see
e.g. Betty Mensch, Freedom of Contract as Ideology, Book Review of The Rise and Fall
of Freedom of Contract by PS Atiyah, (1981) 33:4 Stan L Rev 753; Mark Pettit Jr,
Freedom, Freedom of Contract, and the Rise and Fall (1999) 79:2 BUL Rev 263; RB
Ferguson, Commercial Expectations and the Guarantee of the Law: Sales Transactions
in Mid-Nineteenth Century England in GR Rubin & David Sugarman, eds, Law,
THE HISTORIES OF CLASSICAL CONTRACT LAW 181
The picture of the market is at the heart of historians assessments of
the classical legacy. The same is true for the image of the human agent
acting through contract in the market. I now turn to that person.
3. The Promising Individual
Classical contract thought, histories show, established a view of a
choosing individual: an abstract, self-sufficient person, who, when con-
tracting, is rationally self-interested. Lukes explains: the abstract indi-
vidual is a self pictured abstractly as given, with given interests, wants,
purposes, needs, and so forth. The crucial point is that the relevant fea-
tures of individuals, which determine the ends that social arrangements
are held to fulfill (whether these features are called instincts, faculties,
needs, desires, or rights), are assumed as given, independent of social con-
text.38 Charles Taylor critiques givenness as a vision of self-sufficiency: in
this vision, individuals can develop their human capacities independently
of society; the development of rationality, or becoming a fully responsible
and autonomous being, can somehow be achieved outside society.39
This individual was at the heart of law, histories show. Classical con-
tract law took free choice, epitomized in the idea of promise, as the basis
for its entire analytic structure, to the exclusion of other sources of obliga-
tions. The idea of individual choice as a necessary and sufficient principle
assumed a promisor who did not require society in order to become a
meaningfully choosing person. Being self-sufficient, the promisor knew
her own interest best. Being self-sufficient, she did not, at least not by def-
inition, owe any duties except those she first chose to owe to her promisee.
She preceded society in terms of significance and conceptual structure.40
Economy and Society, 17501914: Essays in the History of English Law (Abingdon, UK:
Professional, 1984) 192.
Another tension was between the notion of will and objectivism adopted by courts,
likewise explained in terms of laws promotion of market rationality. See e.g. Atiyah,
Rise and Fall, supra note 21 at 45960 (offering as explanation the avoidance of factual
inquiries and mistakes), Morton J Horwitz, The Transformation of American Law,
17801860 (Cambridge, Mass: Harvard University Press, 1977) at 26 (suggesting pro-
motion of uniformity and predictability); Gilmore, supra note 30 at 4445 (suggesting
imposition of absolute liability in contract and limiting the range of excuses); Kennedy,
Rise & Fall, supra note 21 at 23940 (explaining objectivism as the limitation of judicial
policing of contract through this pseudo-scientific measure of protecting reliance).
38 See Lukes, supra note 22 at 7378.
39 Philosophy and the Human Sciences: Philosophical Papers 2 (Cambridge: Cambridge
University Press, 1985) at 18990.
40 For one historicization of the epistemological shifts enabling this outlook, see Craig
Muldrew, The Economy of Obligation: The Culture of Credit and Social Relations in
Early Modern England (Basingstoke, UK: Palgrave, 1998) at 32832.
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The notion of self-sufficiency bears a close relation to the opposition
between self and society, in which the social is pictured as a threat to in-
dividual development. In this, the vision of individuality in classical con-
tract mirrored the private/public (or state/civil society) distinction. The
distinction was part of contract laws construction of separate-spheres ide-
ology, a conceptual investment in the market as a free realm of economic
pursuit.41
The model of contract, centred as it was on the primacy of the individ-
ual will, emerged in the nineteenth-century rearrangement of areas of
law. Law which represented the involvement of communal will, like tort,
status, and quasi-contract, was banished from the contractual zone; con-
tract rules were rationalized through the notion of individual will; and
remaining rules incommensurate with the vision of contract were concep-
tualized as exceptions, counterprinciples detached from the operative
sources of contract.42 As the central tool of market exchange, contracts
basis in individual will bolstered the vision of the self-regulating market:
that market began with the premise of a sphere in which the state was
somehow uninvolved.43
The second building block of the individual, her economic rationality,
mirrored a second aspect of separate-spheres thought: the family/market
distinction. This distinction connotes separations within civil society, be-
tween market and non-market (yet private) forms of association. The
separation within civil societyvariously formulated as market versus
home, business versus family, exchange versus gift economy, and so
forthimports a basic contrast in both norms of conduct and structure:
rational, calculating, self-interested action based on abstract freedom and
formal equality within the market is contrasted with altruistic, fluid,
compassionate action in an often more dependent and hierarchical context
within the family.
41 The private/public distinction ran through every level of doctrine: Kennedy, From Will
Theory, supra note 28 at 107. For the historical evolution of this idea, see Kennedy,
Rise & Fall, supra note 21; Seidman, supra note 37 at 55456.
42 For an elaborate study of the process, see Kennedy, Rise & Fall, supra note 21. See also
Kreitner, supra note 21 (discussing consideration doctrines role in the creation of sepa-
rate spheres). For a detailed discussion, see Rosenberg, Separate Spheres, supra note
17.
43 See Karl Polanyi, The Great Transformation (Boston: Beacon Press, 1957) at 71. On the
state/civil society separation, see Frances E Olsen, The Family and the Market: A
Study of Ideology and Legal Reform (1983) 96:7 Harv L Rev 1497 at 1501; GR Searle,
Morality and the Market in Victorian Britain (Oxford: Clarendon Press, 1998) ch 11 (a
distinct role for the state as a disinterested source of authority unaffected by commer-
cial considerations functioned as a balance for the market); Joseph William Singer, Le-
gal Realism Now, Book Review of Legal Realism at Yale, 19271960 by Laura Kalman,
(1988) 76:2 Cal L Rev 465 at 47782.
THE HISTORIES OF CLASSICAL CONTRACT LAW 183
Historians find the distinction in classical law. Legal rules expressed,
as Roberto Unger puts it, a reluctance to allow contract law to intrude …
upon the world of family and friendship, … [and] destroy their … commu-
nal quality.44 The distinction between market and family not only pro-
tected the communal quality of the latter, but injected content into the
former: action in the market was not just private, but self-interested and
rational.45 Assessments thus expose a sophisticated ideological structure:
while the separation between public and private spheres created the mar-
ket as a free realm of private interaction, the one between market and
non-market private relationships rendered it economically rational. Con-
tract law marginalized relations that were not individually chosen and
shaped, as well as relations that did not adhere to strict rationality and a
rigid allocation of rights and duties, sustaining a view of a compart-
mentalized social life. When contracting, the individual is calculating and
calculable, a person with a market consciousness, Kreitner summarizes.46
The historical picture emerges in an idealized contracting party char-
acterized by extreme atomism. The parties need not discuss or agree on
ends or values; they can achieve complex interdependence in production
44 Roberto Mangabeira Unger, The Critical Legal Studies Movement (Cambridge, Mass:
Harvard University Press, 1986) at 6266.
45 Consider the non-enforceability of promises to make gifts, for example, a rule within
consideration doctrine reversing the enforceability of promises outside contexts of ex-
change. The rule expresses the inappropriateness of contract to contexts in which gifts
are given. But why? One answer is that unreciprocated transfers raise the spectre of
economically irrational social transactions, which the legal vision of the market denied
(see Kreitner, supra note 21). Atiyah explains that liberality or beneficence (which are
the grounds for a gift) were considered a good cause but not sufficient consideration.
Atiyah, however, does not discuss the constructive effect on views of the market emerg-
ing from this distinction, but rather seems to think that consideration was gradually
stripped of any important role in contract law (Rise and Fall, supra note 21 at 45152).
Note that leaving gifts outside contract did not entail only a conceptual separation be-
tween market and non-market relationships, but one which made family and friends in-
ferior contestants in fact when they happened to compete with market creditors. See
WR Cornish & G de N Clark, Law and Society in England, 17501950 (London: Sweet
& Maxwell, 1989) at 20708. For further discussion see Rosenberg, Separate Spheres,
supra note 17.
46 Kreitner, supra note 21 at 22835. Note that Kreitner distinguishes theory from case
law. For an argument distinguishing legal ideology from judicial discourse in the Eng-
lish context, see RB Ferguson, The Horwitz Thesis and Common Law Discourse in
England (1983) 3:1 Oxford J Legal Stud 34. The possibility that case law complicated
theory and so also the overall vision of classical law seems plausible; the main aspects
of this theory are covered in the discussion below of status and collectivist influences on
contract.
184 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
and consumption without acknowledging any interdependence as moral
beings.47
III. Classical Contracts Others: Status and Collectivism
Contract histories have long acknowledged that classical contract law
was never a clean analytical structure, nor an exclusive ideological con-
struct. This Part reviews histories of classical laws Others: status and col-
lectivism, the two social alternatives to classical laws individualism.
Histories of contracts Others, while diverse in many ways, establish
these points of agreement. Undisputed Point #2: The conceptual alterna-
tives to classical contract in the nineteenth century were, predominantly,
status and collectivism. Undisputed Point #3: In the nineteenth century
these alternatives did not represent alternative meanings of contract, but
alternatives to contract; hence they did not challenge contracts meaning.
The consensus I trace here may be less obvious to readers than that
treated in the previous Part; it emerges from a complex field of historical
inquiry usually conceived as revealing the fall or failure of classical law,
rather than its solidification. To make things more complex still, histori-
ans have treated status and collectivism both as external and as internal
critiques of contract.
The following discussion clarifies how the consensus emerges. If the
two points above are conceded by historians (that is, if status and collec-
tivism were the two conceptual alternatives to classical contract and did
not challenge its meaning during the nineteenth century), histories speak-
ing to these points effectively identify one kind of individualism in con-
tract (the alternatives were something else than individualism) and allow
that this one individualism was the only thing considered contractual in
the nineteenth century, at least in its latter partafter the classical con-
struct had been firmly established. Together, these points speak to the
persistent conceptual link between contract and individualism traced in
the previous Part; this link is an unappreciated contribution of histories
interested in the force of status and collectivism.
A. Status and Contract
1. From Status to Contract
The classical model of contract, recall, established a distinction be-
tween status and contract. Contract represented a set of freely chosen,
47 See Kennedy, Form and Substance, supra note 24 at 176771.
THE HISTORIES OF CLASSICAL CONTRACT LAW 185
self-imposed obligations of abstract individuals, unlike status, which rep-
resented obligations imposed without an individuals consent, tied instead
to a social position.48 Kennedy explains the change in the operation of sta-
tus categories in contract law: first, status came to exist as the opposite of
rights in the abstract, rather than the medium for the organization of
rights in the particular; second, the elements composing particular sta-
tuses were fragmented and dispersed, rather than treated as the elements
of operative wholes.49 Both of these developments, Kennedy argues, were
influenced by, and appeared to confirm, Maines generalization.
Indeed, the analytical distinction in legal thinking between status and
contract often emerges from history as an echo of a wider socio-political
implication: contracts meaning as not status was part of Victorians
search for an alternative system to traditional hierarchies,50 the readiest
mode, as Dicey put it, of abolishing a whole body of antiquated institu-
tions.51 Maines aphorism invoked contract as a proxy for the refined (and
progressive) essence of the nineteenth-century social reality of industriali-
zation and the market.52 I will return to the relation of contract to a wider
terrain in the next Part.
2. Status Still Here
The story of the classical models triumph has been challenged by his-
tories which identify status categories as operative sources for contractual
practice and for common law at the high Victorian era. While never
acknowledged conceptually, status remained, according to these histories,
a challenge to the nineteenth-century idea of contract.
Thus, histories of credit contracts, a type of contract central to the so-
cioeconomic developments of the era, show their entanglement in social
relations. Margot Finn describes the experience of personal credit con-
tracts in England from the onset of the industrial and consumer revolu-
tion to the outbreak of World War I, and claims that the autonomous in-
48 The notion is broader than the place into which one is born; it includes the generation of
rights and duties based on social role or group belonging.
49 See Kennedy, Rise & Fall, supra note 21 at 18694. See also Singer, supra note 43 at
47782 (discussing classical thoughts emergence in opposition to status, which became
an abnormality).
50 See Pound, End of Law 2, supra note 3 at 20910.
51 AV Dicey, Lectures on the Relation Between Law & Public Opinion in England During
the Nineteenth Century, 2d ed (London: Macmillan, 1962) at 151. See also Amy Dru
Stanley, From Bondage to Contract: Wage Labor, Marriage, and the Market in the Age
of Slave Emancipation (Cambridge: Cambridge University Press, 1998) at 1 (discussing
William Graham Sumners similar understanding in the American context).
52 Supra note 1 at 100.
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dividual model of political economics did not gain prominence and coexist-
ed with the model of the social individual, who gained rights and respon-
sibilities by virtue of her status and connections. Finn shows, for instance,
how both tradesmen and courts confirmed differences in the social-
hierarchical position of debtors in the way they handled and responded to
credit contracts, and how gender identities played a role in contractual
exchange. Finns review of county court litigation reveals that judges
urged the continual need to moderate legal obligations by equitable con-
siderations, most notably those of gender and class, rather than promot-
ing a transition from status to contract.53 Erika Rappaport similarly de-
picts consumer credits cultural role and its entanglement with social po-
sitions, both class and gender, defying the supposed rationality of the
market.54
Employment contracts are another site in which status-like regulation
never lost its grip. Thus, while, as John Orth argues, the reconceptualiza-
tion of labour in terms of contractcompleted by the midnineteenth cen-
turywas a major factor in the reorientation of the common law as a
whole in the direction of contract, it was no sooner established than it be-
gan to be undermined.55 Historians suggest that the new priority accorded
to property and contract in Victorian England was qualified, as far as la-
bour contracts were concerned, by a continuing role for status-based forms
of regulation.56
The legal treatment of promises of marriage has also been challenged
as a site of abstract contract principles answering to the classical formula-
tion. Ginger Frost, for instance, disputes the understanding of breach-of-
promise-of-marriage cases as extreme sites of the triumph of individual-
ism and abstraction in contract. Instead, she argues, these actions
demonstrated that judges, despite formalistic contractual language,
53 Margot C Finn, The Character of Credit: Personal Debt in English Culture, 17401914
(Cambridge: Cambridge University Press, 2003).
54 Erika Rappaport, A Husband and His Wifes Dresses: Consumer Credit and the Debt-
or Family in England, 18641914 in Victoria de Grazia & Ellen Furlough, eds, The Sex
of Things: Gender and Consumption in Historical Perspective (Berkeley: University of
California Press, 1996) 163.
55 John V Orth, Contract and the Common Law in Harry N Scheiber, ed, The State and
Freedom of Contract (Stanford: Stanford University Press, 1998) 44 at 6265.
56 Ibid. See also Gordon, supra note 3; Simon Deakin, Legal Origin, Juridical Form and
Industrialization in Historical Perspective: The Case of the Employment Contract and
the Joint-Stock Company (2009) 7:1 Socio-Economic Review 35.
THE HISTORIES OF CLASSICAL CONTRACT LAW 187
brought social, gender-, and class-aware values to bear on contractual is-
sues.57
Such histories, which point to social locations and social roles as rele-
vant and operative sources for contract practice and law, expose that sta-
tus had never disappeared and had remained a social alternative to the
individualistic construction found in the classical model. What is the im-
plication? From the perspective of evaluating the rise of individualism,
some may be inclined to argue that individualism was slow; establishing
the classical system was no easy project. Others suspect that individual-
ism was never about the elimination of statuses, but rather a form of their
covert embrace.58
What of contracts meaning? Observe three points. First, no alterna-
tive individualist meaning of contract can be glimpsed hereonly a re-
turn to status.59 Second, histories often intimate that despite statuss
persistence, the meaning of contract as not-status was triumphant; the
classical construction of contract proved conceptually resilient to status-
based definitions. For the most part, status was not discursively, analyti-
cally, or theoretically acknowledged as part of what contract was, even
though it influenced contractual relations and informed legal responses.
As my discussion of collectivism below clarifies, the issue often goes be-
yond a distance between books and action, or between ideology and reali-
ty. It reaches deeper, for all of these levels could and did accommodate
statusonly not as part of contract. My concern is with what could and
what could not, according to available histories, be considered contractual.
Once the classical idea of contract took hold in law, its alternatives be-
came and remained, according to historical accounts, external to its mean-
ing; as such, they strengthened that meaning even as they critiqued its
normative appeal and eroded its practical significance. Finally, accounts
often reinforce the classical meaning in their tendency to describe status
in terms of an obstacle to contractual enforcement.60
57 Ginger S Frost, Promises Broken: Courtship, Class, and Gender in Victorian England
(Charlottesville: University of Virginia Press, 1995).
58 For a discussion of the various positions concerning the relations between liberal ideals
and statuses, see Anat Rosenberg, Entanglements: A Study of Liberal Thought in the
Promise of Marriage (2013), online:
59 In Finn (supra note 53) there are findings which, if she had gone further in conceptual-
izing them, would make up a relational, non-atomistic liberal view of contract. Finn,
however, tends to emphasize the continuing force of statuses.
60 For a critique of historical treatments that too readily accept the conceptual opposition
of contract and status, see Rosenberg, Entanglements, supra note 58.
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B. Collectivism and Contract
Collectivism, unlike status, is considered part of the Age of Contract;
part of the story of modern contract laws evolution, rather than its reject-
ed past. Indeed, individualism and collectivism are customarily identified
as the two ideological currents that influenced contract, and modern law
is repeatedly portrayed in terms of their contest.
The general tension between individualism and collectivism is a per-
sistent point in analyses of contract on two levels. As a matter of histori-
cal account, the story of the rise and fall61 is a dominant narrative of the
nineteenth century, and legal accounts of contract converse with it. When
collectivism is analyzed as a historical trend, it generally denotes histori-
cal attempts, dating from mid-century onward, to mitigate the unwanted
effects of the unrestrained pursuit of self-interest, whether as part of a
radical or a liberal outlook. (Given its often liberal turn, the term collec-
tivism is somewhat confusing. In using it I merely trace a common prac-
tice in contract histories.) Either way, in the pursuit of its goals in con-
tract, collectivism, according to contract histories, reacted to individual-
ism and functioned as a palliative rather than a full-fledged alternative.
References to collectivism in histories thus do not generally point to a
consistent program, despite the positive ideals of egalitarianism and the
advancement of positive freedom they identify with it.
But references to collectivism do not denote only a historical develop-
ment; they also denote a conceptual possibility and ideological tendency, a
possible route of action existing from the start within classical contract
doctrine.62
Subsection 1, below, synthesizes accounts of collectivism as a histori-
cal trend to consider its assessed impact on classical contract. I briefly re-
visit the tenets of classical law reviewed in Part I to clarify how they
changed under the collectivist impact. Subsection 2 then discusses the
limited influence of collectivism on the legal conceptualization of contract,
to which histories speak. Subsection 3 discusses collectivism as a concep-
tual possibility developed by internal critique of classical contract. The
overall aim is to show how histories of collectivism in fact confirm the re-
lation of contract and individualism in the nineteenth century.
61 Individualismcollectivism, laissez-faireprotectionism, industrial revolutionconsumer
revolution, individual-basedcorporate-based economy, and so forth.
62 Examples below. To get a sense of the dominance of this argument, see Brudner, supra
note 34.
THE HISTORIES OF CLASSICAL CONTRACT LAW 189
1. Collectivism as Historical Trend
Unlike invocations of individualism in contract, which can be more
or less related to identifiable commitments, collectivism of the late nine-
teenth century is treated more diversely; its uses in history invoke radical
and liberal programs, as well as isolated and conceptually hazy trends.
This is part of the reason for assessments of collectivisms limited impact
on the meaning of contract, discussed in the next section. This section
concentrates on changes in law associated with collectivism, whatever
their assumed conceptual underpinnings.
Accounts treating collectivism as a historical trend generally rely on
the story of change in which individualism first rose to prominence, and
then (even if almost immediately) was eroded by collectivismthat is, by
changes that together added up a more interventionist, welfarist legal
regime. Such, for example, was Diceys account, later confirmed by Ati-
yah. Consider the impact of collectivism on contract law as it emerges
from histories.
a. General
No alternative theory of contract was formulated in the nineteenth
century. The impact of collectivism in contract was to be found in case law
and in legislative activity.63 But contract laws commitment to individual-
ism was more than a lack of textbook theory. The collectivist outlook, his-
tories show, worked against a backdrop conception of contracts meaning,
the plausibility of which it little disputed.
b. Conceptual Tendencies in Contract Law
The core of contract in law remained a highly abstract description of
promissory relations. However, legislative activity began to apply special
rules to types of ordinary contracts (labour, corporate, consumer, etc.) on
an ever-increasing scale. These were becoming, for legal thinkers, special-
ized bodies of law, areas in which the parties rights and duties were un-
derstood as determined by state law, not by contract.64
Contract thus remained reified in legal thought as a thing created by
the parties, capable of being analyzed in isolation. The important differ-
ence within contract was an increasing willingness to forgo the assump-
tion of equality (or acquiescence in inequality), or, in another formulation,
to forgo the assumption that parties were under all circumstances the
63 See Atiyah, Rise and Fall, supra note 21 at 764, 773; Subsection III.B.2, below.
64 See Atiyah, Rise and Fall, supra note 21, ch 21.
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best arbiters of their own interest, which, in classical thought, was uncon-
tested.65 Instead, there was an increasing willingness to protect the weak-
er party in the relationship from her own creation and to prevent injustice
between parties. The relative power position of the parties to the promise
vis–vis one another gradually became part of the relevant social context
of contract. In addition, judicial inquiry began to consider post-formation
circumstances to prevent abuses that emanate from strict adherence to
literal contractual content.66 The effect of concern about interparty justice
and equality was a relaxation in the absoluteness of contractual rights:
terms of contracts became more susceptible to judicial adjustment.67 As
Ibbetson notes, however, These circumstances were never linked togeth-
er as a general principle.68
Protection of pre-contractual reliance also became more acceptable,
mitigating the individualist view that little acknowledged pre-contractual
duties. Cases, however, were confused and, as Atiyah puts it, bogged
down in a mass of technicalities … and anyhow did not adequately reflect
the essential point that justifiable reliance depended on a much wider set
of factors.69 What seemed clearer was an increase in reliance-based liabil-
ities under tort lawunder something perceived as other than contract.70
A similar trend toward inter-party justice and equality was found in a
liberalization of excuses.71
Attending to a partys weakness was a potential acknowledgment of
individuals interdependent existence. The collectivist outlook on contract,
however, was little able to accommodate contract to its own insights; his-
tories suggest that the parties mutual dependence was acknowledged on-
ly to the extent that one had a power to overbear the other, whether prior
to the contracts formation, using her pre-existing advantages, or after
formation, relying on her contractual ones.
Similarly, parties dependence on a larger social context was relevant
only in terms of their power contest within the antagonistic contractual
relation. The changes in the approach to contract were, in other words,
inward-looking: they represented an effort to make contract fairer as be-
65 See Pound, Role of the Will, supra note 28 at 1112.
66 Scrutiny of motivations also became more acceptable, but this development belongs
largely to the twentieth century.
67 See Atiyah, Rise and Fall, supra note 21 at 73637.
68 Ibbetson, supra note 27 at 258.
69 Atiyah, Rise and Fall, supra note 21 at 772.
70 See ibid at 77274.
71 See Gilmore, supra note 30 at 8081; Ibbetson, supra note 27 at 252.
THE HISTORIES OF CLASSICAL CONTRACT LAW 191
tween the contracting parties, an effort beginning with their chosen con-
tent. A corollary point is that these changes did not undermine contracts
reification. The core remained the individual choices that created the con-
tract. The liberalization that resulted in partiesempowered or weak-
ened by the stateachieving something less or more than they had osten-
sibly intended was rationalized against that core; both the consensual
idea and the attendant independence of parties were maintained as cor-
nerstones. In fact, the whole process can be seen as an attempt to restore
to weaker parties the independence they appeared to have risked, to rein-
state classical thoughts ideal image of competitive equality, and to deliver
on contracts promise of enabling each individual to assert herself.72 The
result was a limited conceptual change in contracts meaning, conceded by
historians virtually without exception. I return to this point in a moment.
c. The Promising Individual
The historical story of the rise of collectivism is linked with the sug-
gestion that atomism was no longer a plausible account of the social struc-
ture. Following the establishment of the bureaucratic state and the rise of
corporations, atomism lost its hold.
This development, however, could not be seen from within contract
lawit did not so much affect the meaning of contract in law, or the way
individuals came to owe duties under it, as it diminished contracts appeal
and practical importance. The web made up of individually chosen rela-
tionships was displaced in legal thought by a structure of organizations,
with individual duties assigned on an increasing scale through legislation
applicable to individuals relations with organizations.73 Where contract
was thought to exist, the idea of control through choice held sway (with
greater support at the fringes); where choice was out of controlwhen
third parties and public interest were offended by itcontract was
thought to be displaced altogether.
A limited appreciation of individuals social embeddedness within con-
tract law was observable, as noted, in courts increasing willingness to
consider a partys weakness relative to her partner. However, by and
large, when contracting, a person was assumed to be manifesting a (more
or less successful) attempt at independent generation of economic plans,
according to her own (more or less well-founded) perception of self-
72 See Harry N Scheiber, Economic Liberty and the Modern State in Scheiber, supra
note 55, 122 at 12324 (interventions were justified as necessary for bringing social re-
alities into line with the theoretical premises of freedom of contract). See further discus-
sion in Subsection III.B.2, below.
73 See Atiyah, Rise and Fall, supra note 21 at 724.
192 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
interest. All that could be done was to add patches that would help the in-
dividual achieve that goal.
The ideal market in which individuals contracted thus remained a
conceptually distinct sphere, but one acknowledged as less than perfect.
Outside support for market failures and uninformed and weak parties be-
came an acknowledged need. The outside was the state; in other words,
the conceptual separation on the level of state and civil society remained
intact, a significant point for historians evaluation of the collectivist out-
look on contract, to which I now turn.
2. Assessing the Limits of the Collectivist Impact
Histories that view collectivism as a historical trend imply that it bore
limited importance for the meaning of contract in the nineteenth century.
Nineteenth-century collectivism represents a specific stage in the histori-
cal attack on classical contract law. The important point about this stage
is its second-degree or reactive quality, widely agreed upon by historians.
The content of the collectivist attack was the inappropriateness of the re-
gime governed by the ideal of freedom of contract. The drama of the fall
of contract was not a dispute about the meaning of contract in its classi-
cal formulation, but rather a dispute about contracts desirability or
workability. Collectivism acquiesced in the classical view of contract, and
moved to narrow its scope; or, on another reading, moved to remedy its
failures in fact. The nineteenth-century critique largely left aside the pos-
sibility that the legal regime in force did not, or did not necessarily, corre-
spond to that required by the abstraction of free contract, and instead
emphasized that freedom of contract was pernicious.74
The story of collectivisms limited impact on the legal conceptualiza-
tion of contract appears in multiple histories. Lawrence Friedman, for ex-
ample, explains the external quality of the collectivist impact as a charac-
teristic of contract law, directly related to its coextension with the free
market. Contract law, argues Friedman, sought to provide legal support
for the residue of economic behaviour left unregulatedthat is, for the
free market. Accordingly, it was busy defining its own boundarieswhat
kind of transactions were and were not contractual. Contract law, as a re-
sidual category, was expanded and narrowed primarily through a process
of inclusion and exclusion. By definition, therefore, no revolution could
take place within it. The most dramatic changes impacting the signifi-
cance of contract law in modern life, claims Friedman, came about not
74 See Duncan Kennedy, Distributive and Paternalist Motives in Contract and Tort Law,
with Special Reference to Compulsory Terms and Unequal Bargaining Power (1982)
41:4 Md L Rev 563 [Kennedy, Distributive Motives].
THE HISTORIES OF CLASSICAL CONTRACT LAW 193
through internal developments in contract law, but through developments
in public policy which robbed contract of its subject matter.75 This analysis
has been confirmed over and over.76 The process, in essence, was one in
which the classical paradigm was left intact, compelling, as Unger has ar-
gued, all other modes of thought to define themselves negatively, by con-
trast to it.77
Collectivism, historians suggest, largely failed to replace the classical
view of contract; the dominant outlook influencing reform approached
contract from the outside, addressing a variety of its unwanted effects.
Whether collectivisms normative content was liberal or radical, its ap-
proach was external to contract.
Another lens through which this point can be viewed is the opposition
between state and civil society. Contract, according to the classical view,
was something belonging to civil society, or to a private sphere of action.
The welfare state (or steps towards it)the achievement of collectivism
did not challenge the opposition between state and civil society.78 Rather,
collectivism redefined state roles: the state now had, in addition to its role
of legalizing private interaction, a redistributive function and a responsi-
bility to protect individuals against severe adversity. And because the op-
position between state and civil society with regard to the source of obli-
gations remained intactno private/public flip79 had been performed as
yet in legal thoughtthe controversy between individualism and collectiv-
ism within contract could be framed in terms of non-intervention and
intervention. The subject of (non-)intervention remained the same idea
of contract, the debate turning on the role of the state with regard to it,
most significantly with regard to inequalities in fact in contractual rela-
tions.80
75 Supra note 29 at 2124.
76 See e.g. Atiyah, Rise and Fall, supra note 21 at 714; E Allan Farnsworth, The Past of
Promise: An Historical Introduction to Contract (1969) 69:4 Colum L Rev 576 at 604;
James Gordley, Contract, Property, and the Will: The Civil Law and Common Law
Tradition in Scheiber, supra note 55, 66 at 8586.
77 Unger, supra note 44 at 58. For additional accounts of the continued dominance of the
classical formulation of contract, see Brudner, supra note 34 at 90; Nolan, supra note
29; Kennedy, From Will Theory, supra note 28 at 16263; Scheiber, supra note 72 at
124; Pettit, supra note 37; Ibbetson, supra note 27 at 245; Atiyah, Rise and Fall, supra
note 21 at 686.
78 See Olsen, supra note 43 at 1516.
79 Kennedy, From Will Theory, supra note 28 (coining the term).
80 The discourse of interventionism versus non-interventionism itself functioned rhetori-
cally to preserve the centrality of private ordering as the contractual paradigm. See
Kreitner, supra note 21 at 164.
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Collectivism, historians show, brought about changes in doctrine and
in the scope of the applicability of general contract law. While little pre-
vented collectivists from achieving the same results from within con-
tract81 and replacing the classical meaning of contract, the nineteenth-
century collectivist conceptual apparatus continued to work against the
essence of contract; its moves were perceived as interference with con-
tract. The frame of mind, with respect to contract, remained intact.
Changes were superimposed by a source largely understood as foreign, as
other than contract, and otherwise worked only at its periphery, neutral-
ized within the terminology of the will theory.
This point emerges repeatedly from historical accounts of contract, but
it is too often submerged under the governing theme of the fall of con-
tract. Viewed from the perspective of contracts meaning, however, histo-
ries of nineteenth-century collectivism are better seen as accounts of con-
tracts victory, not of its fall. But this would require a different normative
focus.
The rise-and-fall narrative implicitly suggests that the meaning of
contract is not in itself very significant; what is significant is its fate in
the world. This normative position seems to be the legacy of Eugen Ehr-
lich, who criticized the juristic focus on unchanging legal propositions as
inhibiting appreciation of actual changes in law properly understood.82
While contract maintained a stable meaning into the twentieth century,
the legal world around it changed, arising in a different social law, in
Ehrlichs terms. This changing perception is the main thrust of the histo-
ries of nineteenth-century collectivism and contract law.
It would be mistaken, however, to overlook the manner of change de-
picted by histories as a process external to contractto disregard the sig-
nificant stability of the meaning of contract and its individualism as those
emerge from contract histories. The image of contract is important both as
a matter of its own history and in terms of its continued influence. It is
through meaning that the ubiquitous human practice of contracting is
understood, experienced, lived, and transformed.83 And so, I ponder on the
stability of contracts meaning a little longer.
81 See discussion in Subsection III.B.3.
82 Fundamental Principles of the Sociology of Law (Cambridge, Mass: Harvard University
Press, 1936) at 397.
83 For a similar insight from a different perspective, see Jeffrey M Lipshaw, Contract as
Meaning: An Introduction to Contract as Promise at 30 (2012) 45:3 Suffolk UL Rev
601.
THE HISTORIES OF CLASSICAL CONTRACT LAW 195
3. Collectivism as Conceptual Alternative: Internal Critique
Collectivism is discussed in contract histories not just as a historical
trend, but as a conceptual alternative that internal critiques of the classi-
cal model found within the model itself. Identifying collectivism as a con-
ceptual possibility available within classical contract doctrine represents a
second stage in the historical attack on classical contract.84 This twenti-
eth-century development arguably rendered obsolete the earlier debate,
since the social or collective principle that nineteenth-century opponents
put forward as an alternative to contract turns out to have been estab-
lished within contract from the start.
Internal critique is primarily the work of legal realism and critical le-
gal studies, which have foreclosed on the deductive aspirations and logical
coherence of the classical model. Internal critique is woven into this pa-
per: it is internal critique, for example, that points out the contradiction
between will and coercion in classical contract law; it is likewise internal
critique which links contract law with a specific vision of the market, ra-
ther than with any abstract concept of freedom.
The link between contract and individualism, internal critique
showed, did not lie in the basic ideals which contract supposedly protect-
edindividual will, freedom, or choicebut more concretely in choices
within doctrine that could, conceptually, go the other way (collectivism)
just as well. The critique thus left any account of the relation of these ide-
als to individualism a matter of ideological bias only; that relation was not
inherent in them but rather depended on the specific way in which they
were put to use in law. The private/public distinction turned out to be
groundless, as contract law was shown to be a principle of social order.
Contract never represented a presocial order, and, as a social order, did
not have to represent an individualistic one.85
But all of this was not available for nineteenth-century jurists. Inter-
nal critique is an intellectual move that history finds only in the twentieth
century. Contracts ability to encompass collectivist concerns within its
paradigmatic core, historians argue, was not entertained by thinkers of
the nineteenth century.86
When internal critique arrived, it confirmed the basic association of
classical contract and individualism. Paradoxically, it may have strength-
ened it, for in showing the association to be contingent and unnecessary,
84 See Kennedy, Distributive Motives, supra note 74.
85 See Kennedy, From Will Theory, supra note 28; Brudner, supra note 34.
86 Kennedys histories of legal thought speak to this point: see e.g. Kennedy, From Will
Theory, supra note 28.
196 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
internal critique found contract to contain not just grey areas and inter-
mediate hues, but an antagonistic ideological possibility, one perhaps too
oppositional to be openly endorsed.
IV. Individualism as Culture
I have so far focused on three points that tie together into a single as-
sumption: contracts close and persistent tie to the atomistic view as a
specific version of individualism, confirmed even as the significance of sta-
tus and collectivism has occupied historians attention. This Part turns to
the fourth undisputed point. Undisputed Point #4: The individualism of
contract law was of broad cultural resonance, falling in line with econom-
ic, political, and ideological currents of the era.
I use the term culture loosely to refer to these currents; any more
precise a use would fail to capture the diversity of references in contract
histories. My use aims to capture a simple commonality: references all in-
voke social sites, systems, and processes of meaning-making considered in
some recognizable sense non-legal. The relations of all of these to law is a
matter of debate: law may be reflective of, a product of, constitutive of, or
part of those other sites, systems, and processes, with more or less em-
phasis on the unique mechanisms through which law establishes and
transforms meaning in relation to non-legal sites. Historical accounts of
classical law embody diverse theoretical approaches to these issues, in-
volving differing attention to the broader cultural terrain. The important
point for the purposes of this Part is the emergent sense that contracts
individualism was of broad cultural resonance.87 Histories portray, often
with few words, a continuous and smooth cultural landscape, at least for
nineteenth-century liberals.
The consensus here is possibly the least obvious one; this third and fi-
nal Part aims to clarify it, and so to complete the argument about histo-
ries solidification of the notion of a single historical meaning of contract.
It is least obvious for, while some well-known histories have centralized
the cultural context in their accounts of the individualism of classical law,
many others have resisted these assessments. This Part shows, however,
that these resistances have not, in fact, challenged the sense of continuity
between legal and non-legal culture, from which law emerges as a phe-
nomenon entirely consonant with a broader cultural history. Explorations
of collectivism in broader culture, in the meantime, add a layer of expla-
nation to collectivisms perceived failure to reconceptualize contract; they
87 I return to this question in my conclusion from a different perspective, to suggest that
one effect of the current consensus among historians is to delimit understandings of
laws constitutive effects on social consciousness.
THE HISTORIES OF CLASSICAL CONTRACT LAW 197
thus support the same sense of continuity between the legal meaning of
contract and Victorian culture in general. Having laid bare all elements of
consensus, the troubling implications for legal history and theory will be
explored in my conclusion.
A. Individualism Around Contract
At the background of historical analyses of contracts individualism
lies a picture of broadly economic, political, and ideological shifts in the
nineteenth century. The broader context has been mostly elaborated by
historians who consider it part of the explanation of classical contract law;
but the picture is not only their work. While, as an explanation for legal
developments, nineteenth-century individualism is contested, as a general
backdrop it is not. I pause on controversies among historians concerning
the relation between the broader context and contract law; controversies
deal with questions of causality, periodization, and internal contradiction
in law. These are of interest not just in themselves but because they re-
veal the points of consensus; even historians who attribute the legal de-
velopment largely to other grounds, or are otherwise reluctant to move too
quickly between law and non-legal culture, view individualism as classical
contract laws receptive cultural soil.
1. Context
At least since Diceys Harvard lectures, the story of contract laws con-
tinuity with cultural mores has been common wisdom. Nowhere, pro-
claimed Dicey, have changes in popular convictions or wishes found any-
thing like such rapid and immediate expression in alterations of the law
as they have in Great Britain during the nineteenth century, and more
especially during the last half thereof.88 Dicey identified three main cur-
rents of public opinion: the first third of the nineteenth century Dicey
named the period of Old Toryism or legislative quiescence; the second
third of the century, the period of individualism in public opinion; the last
third, the period of collectivism.
The period of individualism, argued Dicey, was in fact Benthamism of
common sense89 rather than strict dogma, which under the name of lib-
eralism became the main factor in the development of English law. Dicey
articulated the terms of this position. Though presumably only an idealist
articulation which neither he nor anyone else thought was exclusively nor
coherently at work in English culture, it was this version he took care to
88 Supra note 51 at 7.
89 Ibid at 170.
198 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
expound: Benthamite liberals looked upon humanity as separate persons,
each of whom must by her own efforts work out her happiness and well-
being. They held that the prosperity of a community means nothing more
that the prosperity or welfare of the whole, or of the majority of its mem-
bers. From 1832 onward, claimed Dicey, the supremacy of individualism
was for many years incontestable and patent; conservatives were as much
imbued with individualism as were Whigs or liberals. From Benthamite
principles, English individualists had in practice deduced a corollary
that the law ought to extend the sphere and enforce the obligation of con-
tract; such extension was conceived as an extension of individual liberty,
for contract itself was understood as an expression of individual wishes.
An affirmation of the tie between developments in contract law and
the expansion of contractual freedom, on the one hand, and individualism
in culture, on the other, is famously found in Atiyahs The Rise and Fall of
Freedom of Contract.90 Atiyah refers to individualism rooted in or given
impetus primarily by utilitarianism and classical political economy, and
emphasizes the relation of legal ideas to economic thought, though he
does argue that individualism was asserted as a moral value throughout
the nineteenth century. The new individualistic ideas of the utilitarians
and political economists came to have a pronounced effect on the law from
1830, with the idea of freedom of contract seizing hold of legal thought.91
The basic premise, again, was that individuals knew their own interests
best, and were concerned with maximizing their wealth or happiness. In
the economic sphere, the emphasis was on the role of the choosing indi-
vidual at the centre of the free market. Other historians have likewise
identified individualistic doctrines and mores echoed in contract law.92
90 Supra note 21; see also PS Atiyah, An Introduction to The Law of Contract, 5th ed (Ox-
ford: Clarendon Press, 1995) ch 1. Atiyah also criticizes Diceys historical account (Rise
and Fall, supra note 21 at 23137, 326, 479). The controversy, however, centres on the
role of government, while Dicey and Atiyah share much in common concerning the legal
view of contract. Somewhat similarly to Atiyah, Morton Horwitzs classic thesis links
the change in contract thought in the nineteenth century to the rise of the market econ-
omy and to the service of commercial interests. Horwitz concentrates on American law,
but attributes the change to England as well (supra note 37, ch 5).
91 Atiyah, Rise and Fall, supra note 21 at 36869. For the problematics of periodization,
see supra note 21.
92 See e.g. Gilmore, supra note 30 at 96 (viewing the rise and fall of the general theory of
contract and of laissez-faire economics as remote reflections of the transition from
nineteenth century individualism to the welfare state and beyond, while also offering
specifically legal … factors, like the distrust of the civil jury); Williston, supra note 28
at 366 (connecting, on the one hand, freedom of contract and various doctrines of indi-
vidual freedom, and, on the other hand, the social philosophy that called for the great-
est individual freedom and development). Peter Gabel and Jay Feinman also argue that
classical law in the United States was an ideological apparatus that must be grasped in
THE HISTORIES OF CLASSICAL CONTRACT LAW 199
A somewhat different account of individualism and classical contract
began interestingly with individualism outside contract but not outside
the law: it began with the individualist conception of justice at common
law. Roscoe Pound described the evolution from antiquity of the idea of
the end, or purpose, of law, pronouncing the culmination of the process in
the nineteenth-century thoroughly individualist theory of law.93 This
theory rested on the conception of justice as the securing of maximum in-
dividual self-assertion, with law having the purely negative function of
removing obstacles to self-assertion. Utilitarianism arrived, according to
Pound, when individualist ideas were already firmly fixed, and in fact
took its (unnecessary) individualist turn from the earlier individualist
tradition, reinforced by classical economics and postFrench Revolution
politics. This individualist conception of justice, suggested Pound, led to
an exaggerated importance of property and contract, a preference for pri-
vate over public right, and an antagonism toward legislation.94 Individual-
ism at the common law, on this account, influenced both ideology outside
the law and the area of contract law.
2. Challenges to the Historical Narrative
The story of the period of individualism in culture and its relation to
classical law has been challenged. The troubling point is that the chal-
lenges end up reinforcing, or at least leaving undisputed, the sense of a
cultural background of individualism of the kind found in contract law.
a. Causality
One important challenge has been directed at the causal explanation
behind the cultural story. James Gordley argues that the will theories of
contract arose as a response to an intellectual crisis within the legal disci-
pline, namely the fall of the Aristotelian philosophical tradition. However,
Gordley concedes that the will theory corresponded with, and even gave
the socio-economic context that it legitimated. Gabel and Feinman make explicit the
idea of a legal translation of broader cultural dynamics when they argue that lawyers
associated themselves emotionally and intellectually with the new socioeconomic order
and expressed in their professional activities the individualistic nature of the new sys-
tem of human relationships (Contract Law as Ideology in David Kairys, ed, The Poli-
tics of Law: A Progressive Critique, 3d ed (New York: Basic, 1998) 497 at 501).
93 End of Law 2, supra note 3 at 204.
94 See Roscoe Pound, The End of Law as Developed in Juristic Thought (Part 1) (1914)
27:3 Harv L Rev 195; Pound, End of Law 2, supra note 3; Roscoe Pound, Liberty of
Contract (1909) 18:7 Yale LJ 454.
200 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
credibility to, prevalent individualistic notions.95 Philip Hamburger also
argues that economic liberalism played a very limited role in shaping con-
tract theory. Consensus theory specifically, he suggests, was selectively
adopted by common lawyers from natural law and civilian ideas, and was
gradually assimilated into common law. Hamburger agrees, however, that
economic liberalism was compatible with the English version of contract
theory, and may have encouraged it and rendered it appealing.96
To the extent that the story of individualism as culture is a liberal
functionalist history, critical history has challenged it by allowing a
measure of autonomy to legal thought itself, thus complicating causal ex-
planations and making room for laws indeterminacy. Duncan Kennedys
history of classical legal thought focuses on the internal structures of legal
consciousness, viewed as a device mediating the contradictions of experi-
ence. What contradictions? Most broadly, the conflicting pull, and rele-
vance, of individualism and altruism, autonomy and community, or, as
Gordon has put it elsewhere, the fundamental contradiction between the
needs for fusion and for individuality.97 While Kennedy veers away from
the background story,98 his focus on the conceptual forms of legal con-
sciousness offers highly elaborate accounts of historical human experience
as played out in legal thought, accounts both of the individualism estab-
lished at the core of contract law, and of its conceptual (altruist) alterna-
tive. The individualism of classical contract, it turns out, represented a
contingent arrangement of the pieces of a contradictory existence. The
point to note, from my perspective, is that the account remains silent
about the possibility of other arrangements of experience actually availa-
ble to historical agents. And so, one is left primarily with a sense of the
conceptual pieces which were available for arrangement in historical con-
sciousness, among them one ideal version of individualism.
b. Periodization
Objections centred on periodization suggest that it is a misunder-
standing to represent the changes in nineteenth-century contract law
particularly the executory contract model at its baseas a new phenome-
non. Thus Simpson explained the change in the nineteenth century pri-
95 Supra note 76 at 83. See also James Gordley, The Philosophical Origins of Modern Con-
tract Doctrine (Oxford: Clarendon Press, 1991).
96 Philip A Hamburger, The Development of the Nineteenth-Century Consensus Theory
of Contract (1989) 7:2 LHR 241.
97 Robert W Gordon, Critical Legal Histories (1984) 36:1 Stan L Rev 57 at 114.
98 He only commits incidentally to not denying the importance of ideologies like laissez-
faire, nor of concrete economic interests (Rise and Fall, supra note 21 at 2).
THE HISTORIES OF CLASSICAL CONTRACT LAW 201
marily in the production of systematic treatises relying on Continental
writers who assimilated Roman sources. Baker too finds the executory
model in earlier periods; Hamburger points to the early roots of consensus
theory; and Ibbetson proclaims the idea of contractual liability rooted in
voluntary intentional acts as having been familiar to common lawyers for
at least half a millennium.99 None of these histories, however, contest
the suggestion that the formulation of contract law and its rising im-
portance as the centre of private law in the nineteenth century bore the
marks of individualistic cultural mores, and some expressly concede it.100
c. Contradiction/Complexity
Cornish and Clark offer a critique of a different kind, one returning to
internal contradictions in law. They emphasize the underplayed princi-
ples of nineteenth-century equity rules, which offered a competing ideolo-
gy to the common laws individualism. Chancery evolved a view of con-
tract which emphasized dependence and took a broader view of the con-
tractual relationship, seeking to encourage trust and fairness in bargains
and to protect the weak and unfortunate. This outlook was associated
with the older world of statuswith landed property and familial alliance.
The authors admit, however, that equitys outlook did not pose a threat to
the hegemony of common law individualism, which, again, was every-
where apparent: it was only toward the end of the century that any seri-
ous challenge was made to the ideals on which the greatest nation of the
99 JH Baker, Book Review of The Rise and Fall of Freedom of Contract by PS Atiyah,
(1980) 43:4 Mod L Rev 467; Hamburger, supra note 96; Ibbetson, supra note 27 at 232
(agreeing that the greater depth and weight given to the idea of the will was a nine-
teenth-century novelty).
100 The rejection of executory contract and will theories as a nineteenth- or late eighteenth-
century transformation was elaborated by Simpson in his critique of the Horwitz thesis.
Simpson did not, however, touch upon the relation of culture to the reception of, per-
haps, older ideas in this period, and their formulation under the will theory of contract
(AWB Simpson, The Horwitz Thesis and the History of Contracts (1979) 46:3 U Chi-
cago L Rev 533; Simpson, Innovation, supra note 26). From Simpsons review of Ati-
yahs Rise and Fall, it appears he would not deny the relation of a culture of individual-
ism to contract legal thought, at least in terms of emphasis, and he agrees that philan-
thropy or paternalism eroded the significance of private contract (AWB Simpson, Con-
tract: The Twitching Corpse in Legal Theory and Legal History: Essays on the Common
Law (London: Hambledon Press, 1987) 321 at 332). Maitland and Montague confirm
the general argument of nothing new in claiming that in nineteenth-century contract
law, more [had] been done to codify existing law than to introduce new principles.
They suggest, however, that contract law gained in importance by a vast expansion of
business (Frederic W Maitland & Francis C Montague, A Sketch of English Legal Histo-
ry, ed by James F Colby (New York: GP Putnams Sons, 1915) ch 8 at 182).
202 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
nineteenth century had been built. It was only then that equity had to be
sharply curtailed.101
* * *
The golden age of contract in law, histories suggest, was in line with, if
not a result of, nineteenth-century individualism. Whether a historical
continuity, coincidence, or innovation, the individualism of classical con-
tract law emerges from dominant contract histories as one in tune with
nineteenth-century culture in general.
Likely, no historian would resist the suggestion of cultural complexity,
of contradictory or alternative interpretations of contract and of individu-
alism in contract, certainly not after the cultural turn of the last few dec-
ades. Contract histories, however, have not only left this issue little ex-
plored and little conceptualized; they have somewhat inadvertently se-
cured the opposite notion of cultural homogeneity. Having been preoccu-
pied with a host of other questions involved in classical contract history
contrasting it with its status and collectivist Others, determining causali-
ty and periodization, and making sense of internal legal complexity
histories have left one thing undisputed: the notion of a virtually hege-
monic idea of contract, and individualism in contract, in Victorian culture,
in law, and beyond it.
B. Collectivism Around Contract
Historians who view collectivism as a historical trend relate it to
broader changes in the political, economic, and ideological scene. This
Subsection reviews some accounts. I then consider how accounts of collec-
tivism contain within them explanations for the collectivist failure to re-
conceive contract, despite the transformative effects collectivism had on
nineteenth-century law as a whole. My purpose is neither to provide a
comprehensive account of available explanations, nor to evaluate them;
rather, my aim is to offer a sense that the collectivist failure to reconceive
contract is a phenomenon which, like individualism, emerges from histo-
ries as something rooted in the deep currents of the nineteenth century,
reinforcing the story of contract laws continuity with broader mores.
Dicey identified roughly the last third of the nineteenth century as the
period of collectivism in public opinion. The period was characterized, ac-
cording to Dicey, by intellectual attacks on individualism, a waning belief
in general maxims, and underlying conditions that stressed collective ac-
tion and diminished the importance of individual effort. The practical cor-
ollary of the rise of collectivism was a demand for restrictions on freedom
101 See Cornish & Clark, supra note 45 at 226.
THE HISTORIES OF CLASSICAL CONTRACT LAW 203
of contract. Unequal bargaining power and problems of monopoly and ex-
ternalities called for paternalistic intervention in contractual freedom.102
Atiyah similarly locates the beginnings of the collectivist trend in con-
tract law in the last third of the nineteenth century, and elaborates on
many of Diceys underlying factors. The trend, according to Atiyah, was
largely attributable to the rise of a consumer society with a prospering
working class, the growth of the corporate society, the expansion of de-
mocracy, and the establishment of a vast governmental bureaucracy. All
of these were correlated with conceptual changes. Conceptions of positive
freedom, a more benevolent meaning of the state following the Reform Act
of 1867, shifting notions of responsibility (from individuals to their social
environment), and the egalitarian idealall made the classical model
seem less and less adequate. Attempts were accordingly made to restore
concrete equality or to provide a substitute at the expense of abstract
freedom of contract.103
But historians all concede that the processes were external to contract.
Why were they so? Why did contract retain its link to individualism?
Prominent in analyses of the effects of collectivism on contract law is an
argument that real collectivism in contract appeared only in the twenti-
eth century.104 Until then, collectivist influences did not offer an alterna-
tive reading of social relations; individualism reigned supreme. Collectiv-
isms proponents did make efforts, according to some historians, to articu-
late philosophical and economic underpinnings.105 But, by and large, those
who took an interest in social issues, historians observe, had been in
search of ways of adapting and conditioning the known world of private
102 Dicey, supra note 51.
103 See Atiyah, Rise and Fall, supra note 21 at 58286, 62733. See also Pound, Role of
the Will, supra note 28 at 1415.
104 See Ibbetson, supra note 27, ch 13 (arguing that real collectivism arrived only toward
the end of the twentieth century, and only then an argument emerged that perhaps
principles of substantive fairness underlay contractual liability); Cornish & Clark, su-
pra note 45 at 11213 (arguing for the liberal turn and individual-based commitments
of collectivism, with Marxian influences awaiting another twenty to thirty years);
Scheiber, supra note 72 at 125 (noting the involvement of English liberals in important
interventionist legislation); Richard A Epstein, Contracts Small and Contract Large:
Contract Law Through the Lens of Laissez-Faire in FH Buckley, ed, The Fall and Rise
of Freedom of Contract (Durham: Duke University Press, 1999) 25 (claiming that nine-
teenth-century collectivist changes were not inconsistent with laissez-faire); Eric A
Posner, The Decline of Formality in Contract Law in ibid at 61 (supporting Epsteins
analysis).
105 See e.g. Cornish & Clark, supra note 45. These authors reject the view of collectivism as
an un-theorized sentiment, as expressed by Dicey. Polanyi, too, famously viewed collec-
tivism as a spontaneous and varied response to the rise of the market: see infra note
108 and accompanying text.
204 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
property and free contract, and were at least suspicious of any dramatic
breach with that present. Collectivism is sometimes even reduced to a
form of apologetics. Searle, for one, reads nineteenth-century paternalism
as in fact the other side of the same coinnamely, the preservation of the
market and liberalism as the sole source of meaning.106
Furthermore, Cornish and Clark read the Judicature Acts of 1873
1875, merging the common law courts with the court of Chancery, as the
triumph of individualistic common law principles over the competing val-
ues of equity, and the next seventy-five years or so as the unequivocal ide-
ological control of common law ideas in contract adjudication. They sug-
gest that case law was consolidating its individualist ideology precisely
because of the sensed threat of a collectivist government expressing itself
through legislation. Collectivist legislation, in this account, was not part
of the general rules governing contract, at least not until the mid
twentieth century. 107 It thus failed to transform contract, and even
prompted its consolidation.
An encompassing explanation lies in the broader context of the con-
flict. The critique of individualism in contract law was closely associated
with the critique of the market; the broader struggle was not about con-
tract law, but about market society. Collectivism was a reaction to the
market, and contract in this larger picture was but one aspect. Rather
than redefine it, collectivism placed limits on contract which were part of
the greater protective effort. Within this process, the almost automatic
assumption that contract belonged to market individualism remained
intact.108
The stability of contracts conceptualization in dominant legal dis-
course, these various accounts suggest, emanated from the what and why
of nineteenth-century collectivism itself. Taken together with the broad
consensus about individualism in culture, contract law appears to have
been, quite simply, part of its own epochone of the many sites of social
thought which added up to a sweeping cultural wave.
106 Supra note 43, ch 11.
107 See Cornish & Clark, supra note 45 at 20026.
108 Polanyi argues that [t]he great variety of forms in which the collectivist counter-
movement appeared was not due to any preference for socialism or nationalism on the
part of concerted interests, but exclusively to the broader range of the vital social inter-
ests affected by the expanding market mechanism (supra note 43 at 145). The idea of a
broader conflict in which contract is but a proxy for the larger question of a social order
also seems to fit with Diceys and Atiyahs accounts.
THE HISTORIES OF CLASSICAL CONTRACT LAW 205
Conclusion
Histories show that classical contract was individualistic (Undisputed
Point #1), that the social alternatives were status and collectivism (Un-
disputed Point #2), which remained external possibilities, and ideological
antagonists, until well into the twentieth century if not ever since (Undis-
puted Point #3), and suggest, or do not dispute, that laws version of indi-
vidualism was in tandem with the individualism of its age (Undisputed
Point #4). And the concord of opinion here, or at least lack of disagree-
ment, is so overwhelming in a field of heated discussion that it must be ei-
ther a certainty or a trivialitybut it is neither.
In conclusion, note at least two nontrivial effects of this broad agree-
ment. First, the effect of agreement is a historical picture in which indi-
vidualism in contract could mean but one thing: social relations based on
a socially disembedded individuality in a rational economic sphere, at
least as an approximate ideal. This picture closes off the possibility that
other versions of contractand, in particular, other versions of individual-
ism in contractwere around. The question is one which is never asked.
As suggested in the first Part of this paper, an elaborate alternative,
centred on a relational view of contract and the promising individual, was
vying for dominance in canonic literature of the era. This alternative
should be familiar these days; the twentieth century, and the turn to the
twenty-first, have seen discussions of relational contract and relational
individualism, understood as critical responses to the atomistic individu-
alism of the classical liberal tradition. Relational ways of thinking, how-
ever, were available for liberals in the high Victorian era, in contract no
less than in other sites of social significance.
But even assuming that we do not know whether there was an alter-
native or not, the fact that this question is not on the table, that it is not
an uncertainty informing the historical understanding of contract and its
meaning, is in itself extremely influential in guiding past and future
thought.
The historical picture, too readily conceded, partly explains how the
classical model remains a dominant principle, a starting point for any lib-
eral framing of contract law. It is still the case that [t]he challenge facing
contract lawyers … is … to identify which features of the classical law
should be discarded and which retained.109 What is more, claims relying
on the classicist system of meaningfor instance, a claim that contractu-
alism is expanding because private arrangements are expanding at the
109 Nolan, supra note 29 at 603.
206 (2013) 59:1 MCGILL LAW JOURNAL REVUE DE DROIT DE MCGILL
expense of public onescontinue to make perfect sense.110 The individual-
ismcollectivism tension assumes that there is but one individualism and
so identifies a single individualistic possibility for contract, making any-
thing else seem like encroachments on an ideal (good or bad). This tension
remains the one to inform contractual thinking; it is the reigning frame-
work for virtually every theory, from conservative to radical and any hues
in between. And of course, the conceptual possibilities of the status
individualismcollectivism axis remain influential as ways to understand
the alternatives faced by Victorians themselves, and to make sense of de-
velopments that followed.111
Perhaps this ghost of contract would not have been so powerful had it
been acknowledgedor at least entertained as a possibilitythat it was
not quite as culturally dominant and conceptually exclusive as has been
assumed, not even for nineteenth-century liberals.
A second effect of the historical agreement is that despite an outpour-
ing of scholarship on the constitutive effect of law, the individualism of
classical contract law emerges from history as reflective of what individu-
alism could possibly mean in the nineteenth century. Classical thought
might have been revolutionary within the internal history of legal think-
ing on contract, as some historians claim, but its individualism appears
nonetheless to have been virtually obvious, the only available construction
for nineteenth-century liberals when they turned their gaze to contract.
Historians have effectively closed off the possibility that there was a vari-
ety of individualisms which could, and did, respond to concerns about
what might replace the older world of status, and about how the melting
of old solids was to be confronted.
And so, the idea that law is constitutive of social consciousness re-
mains limited to the suggestion that law is involved in diachronic transi-
tions among social ordersfrom one dominant system to another (say,
from feudalism to capitalism)along with all other domains of social
thought, all of which either cooperate or try to resist. There remains no
room for a more culturally activist version of constitutivism, in which law
takes part in synchronic cultural negotiations among alternative ways of
framing any emergent social order (say, English capitalism). In this ver-
sion of constitutivism, law is constitutive not because it is hegemonic, but
because it enforces, with the backing of hegemonic state power, non-
110 See ibid at 604 (making such a claim).
111 See Kennedy, Distributive Motives, supra note 74 at 576. Feinman also suggests that,
at least in the American context, the classical framework is being re-established (Jay M
Feinman, Un-Making Law: The Classical Revival in the Common Law (2004) 28:1 Se-
attle UL Rev 1).
THE HISTORIES OF CLASSICAL CONTRACT LAW 207
hegemonic worldviews within cultures containing divergent and multiple
views. The important point here is not that law is involved in justifying or
negotiating the dominant social order for us. The important point, rather,
is that other justifications and negotiations might have been available,
and law is involved in making choices here; that in complex cultures, law
offers a specific and non-obvious way of understanding and experiencing
the social order; that a social order is not an essential reality, but a reality
dependent upon interpretations. And those interpretations are nuanced,
multiple, and not necessarily ideologically antagonistic.
In the case of classical contract law, the possibility which contract his-
tories do not invite their audience to entertain is that historical legal
thought cemented an interpretation of individualism in contract which
was less than obvious for historical agents. The classicist ideological bias
toward individualism has preoccupied histories to such an extent that the
content of the bias has only been examined vis–vis ideological antago-
nists (status/collectivism), keeping intact the sense of a single hegemonic
idea of individualism and a single meaning of contract entangled with it.
After all seems to have been said and done in contract histories; after
they have been written and rewritten for over a hundred years; after they
have undergone conservative, liberal, radical, feminist, and perhaps some
other revisions; after they have expanded from theory to consciousness,
from high-court precedent to small-claims litigation, from books to prac-
tice, and have extended their idea of context in multiple directions, there
remain untouched residues of agreement which merit more attention, and
which create, by virtue of being unattended, a powerful sense of history
informing understandings of the what and how of market society to pre-
sent days. History is often normative in ways it does not acknowledge.
