Contract's meaning and the histories of classical contract law.

• Author: Rosenberg, Anat

This paper argues that histories of nineteenth-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 law's development, a story intimately tied with atomistic individualism.

The paper traces how the consensus has been built and kept beyond debate despite significant controversies engaging rival historical schools of nineteenth-century contract law. It does so by critically synthesizing multiple accounts of contract law, produced from the nineteenth century to our own days. It opens, however, with a brief literary excursion in order to show that there is good reason to view the consensus as unwarranted. An individualist but relational version of contract was dominant in Victorian literary realism, one of the central cultural sites of the "Age of Contract", problematizing the story of a single meaning of contract.

The consensus created by contract histories bears implications for present thought as it negotiates visions of contract, and as it explores law's constitutive effects on social consciousness. This paper lays the consensus open so that we can let go of it.

Cet article soutient que rhistoire des contrats du XIXe siecle fut impliquee dans la creation d'un artefact historique discutable : le developpement d'une seule et unique interpretation du eontrat a une epoque decisive pour le developpement du droit contractuel moderne, un developpement intimement liee a l'individualisme atomistique.

Cet article retrace la facon dont ce consensus se developpa a l'ecart de reels debats, en depit d'importantes controverses opposant plusieurs ecoles de pensee historiques du droit contractuel du XIXe siecle. Pour ce faire, l'article resume de maniere critique plusieurs exemples du droit des contrats du XIXe siecle a nos jours. L'article debute avec une breve excursion litteraire afin de demontrer qu'il existe de bonnes raisons de douter que le consensus soit justifie. Une version individualiste mais relationnelle du contrat etait dominante dans le realisme litteraire de l'epoque victorienne, l'un des principaux sites culturels de l'>, rendant problematique la theorie d'une unique signification du contrat.

Le consensus cree par l'histoire des contrats influence la pensee actuelle puisqu'il concerne l'interpretation des contrats et explore les effets constitutifs du droit sur la conscience sociale. Cet article met a nu le consensus afin qu'il puisse etre reconsidere.

Introduction I. What Did Contract Mean in Victorian Culture? A Literary Excursion Away from Metanarratives II. 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 III. Classical Contract's 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 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 unwarranted, 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 narrative strands: Classical contract law embodied a specific version of individualism; 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" alternatives--status and collectivism functioned as Others, eroding contract in practice without substituting its meaning. And so contract retained its conceptual relation to individualism throughout the century. The individualism of contract law, furthermore, was of broad cultural resonance. Taken together, the narrative strands suggest that law's atomistic version of individualism in contract was the only one available in the nineteenth century. At the decisive era for modern contract law's 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 explanation for contract law's 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 particular 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 individualism so dominant. Just below the heat of debates, the story of a single individualistic meaning of contract serves as common ground. A hotly contested field has managed to produce an uncontested historical consciousness.

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 culture--are all too familiar, their effect in grounding a shared consciousness concerning contract's 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 realista, one of the central cultural sites of 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 status--individualism--collectivism that has engaged contract histories for over a century now. It argues, suggestively, that canonic novels often embraced a relational meaning of contract, one unheeded by the status individualism-collectivism axis, and so offers good reason to doubt the current historical consciousness.

The following Parts then show how histories have grounded the unspoken consensus. Part II discusses classical contract law (individualism); Part III discusses status and collectivism. Parts II and III together recount contract's 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 assumptions about the broad cultural resonance of contract law's individualism. In reviewing discussions of the cultural terrain after having reviewed legal 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.

I conclude by discussing the normative implications of the consensus about a single historical meaning of contract and its individualism.

1. What Did Contract Mean in Victorian Culture? A Literary Excursion Away from Metanarratives

   Contract histories have for a long time conversed with two metanarratives of the nineteenth century. One metanarrative is the liberation of the individual from inhibiting social locations from the categories of status. In this story, contract rose to prominence at the Victorian era as a conceptual alternative to status, a story memorably captured in Henry Maine's 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.

   The "contract" of this narrative bears a specific and too-familiar idealist meaning, that of the classical legacy: an act of a socially disembedded (2) private individual will, a notion reliant upon a view of the contracting individual as an autonomous agent acting within a distinct sphere of economic rationality--the 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 individualism versus collectivism, in which contract is associated with the former, remains intact.

   Combined, the entire move of the nineteenth century is sometimes described as status-contract-status: (3) communally based definitions of social relations are superseded by individually defined ones, and then...