The Rise and Fall of Freedom of Contract
Schedule Wayne Holstad for Your Group
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The image of Robin Hood in
America could not have been resurrected had it not been for the dominant
portrayal in American culture for more than 50 years of the Robber Barons.
The Robber Barons arrived on the American scene after the Civil War. Just as
the blame for the revival of Robin Hood can be placed on the Supreme Court
of the 1930s, the blame for the existence of the Robber Barons can be placed
on the Supreme Court of the Nineteenth Century.
Changes in Supreme Court precedents usually
result from a change in basic principles that can be traced to the
abandoning of existing fundamental theories of law and government in favor
of a new theory. At the time of America’s founding, the underlying theory
was Christian, rooted in Catholic teachings on natural law with Reformation
principles of individual liberty and equality. Individual enterprise had
replaced the aristocratic elitism of the Old World. The gifts of life,
liberty and property, which included the ability of each individual to reap
the benefits of one’s labor and to make contracts, were held sacred.
In the Twentieth Century, modern theories of
socialism and collectivism, combined with Keynesian economic principles,
which require significant government intervention in the regulation of the
economy, doomed private property rights in favor of the transcendent needs
of the welfare state.
In the Nineteenth Century, the dominant philosophical influences had been
utilitarianism, which was later influenced by the scientific philosophy of
Darwin. Darwinism soon infiltrated the fields of philosophy, economics, law
and government. The conflict between utilitarianism and Darwinism, and the
demise of Christian principles, can be found in the manner in which courts
have treated the law of contracts.
The fundamental courses of legal instruction in
English and American jurisprudence have not changed since medieval lawyers
and judges began recording the decisions that resulted from the litigation
of disputes between private individuals. American law schools still teach,
as their foundational courses of legal instruction, the law of property,
contracts and torts. The law of property centers upon the rights of
possession and ownership of real and personal property. The law of contracts
and the law of torts are similar to each other. The law of contracts governs
the conduct and relationship of individuals who enter into agreements
consensually. The law of torts focuses upon the conduct and relationship of
individuals who interact with each other without consent. An assault and a
trespass are both invasions of the rights of an individual by another
without the consent of the victim. A breach of contract is a violation of a
consensual relationship. Law books still maintain decisions rendered in the
Middle Ages adjudicating conflicts arising from these fundamental
principles.