The Historical Foundations of Modern Contract Law

Horwitz, Morton J.

doi:10.2307/1340045

Cited by 52 publications

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“…In contract law, for example, will theory reflected the psychological assumption that individual “wills” or “psyches” were the primary causal agents of behavior. As legal historian Morton Horwitz (1974) observed, 19th-century jurists rejected the long-standing belief, that a contract was to be evaluated in terms of its inherent justice or fairness, and substituted instead “the convergence of the wills of the contracting parties” as the measure of legal validity (p. 917). Indeed, the model of the autonomous legal person was so central to the notion of the contract that Grant Gilmore (1974) argued that the transformation from “nineteenth century individualism to the [modern] welfare state” (p. 96) had led to what he described as the “death of contract law.” Similarly, Leonard Levy (1957) characterized 19th-century criminal law as reflecting a “pervasive individualism” which established the legal view that “guilt, like sin, is personal because each man is the captain of his own conduct… .…”

Section: Psychological Individualism Contextualism and The Paradigm C...mentioning

confidence: 99%

Making law modern: Toward a contextual model of justice.

Haney

2002

Psychology, Public Policy, and Law

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Section: Psychological Individualism Contextualism and The Paradigm C...mentioning

confidence: 99%

Making law modern: Toward a contextual model of justice.

Haney

2002

Psychology, Public Policy, and Law

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“…Some trace the origins of business ethics back to the sixteenth century protestant reformation and the subsequent pursuit of profit in the rise of mercantilism, imperialism, physiocracy, industrialization and early capitalism. Vogel (1991, p. 102) simplifies this origin story to “Protestantism made business ethics possible”, but it is much more historically accurate to say that a divergence became possible between business and ethics, whereby the British and Early American legal bedrock of fair and equitable exchange, intrinsic value and enforcement via substantive justice gave way to the radically different needs of contract law in a speculative market economy (Horowitz, 1974). It is ironic that the reform movement intended to break from entrenched religious institutional corruption ultimately led to a far more pervasive corporate form of legal and economic corruption.…”

Section: The Business Ethics Industrymentioning

confidence: 99%

“…The legal role is often understated in the broader narrative of corporate rights. Horowitz (1974, pp. 918-919) amplifies this voice:…”

Section: The Business Ethics Industrymentioning

confidence: 99%

Heroic narratives of intentional non-compliance with PRME

Hillon

2017

SBR

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Purpose The governing bodies responsible for drafting and promoting the Principles for Responsible Management Education (PRME) apparently envisioned a completely voluntary initiative without concern for accountability. Public concern and commentary led to the addition of a reporting requirement in 2010. Two years later, program administrators began to update statuses. As of January 2016, PRME listed 636 signatories on their website. Because the reporting requirement took effect, approximately 86 schools have broken their commitment to comply with the PRME standards. Some schools were de-listed for inaction, whereas others actively left the program. This study aims to understand those who intentionally chose not to comply with PRME. Design/methodology/approach This study utilized a heroic quest typology to analyze and understand the behavior of institutions that intentionally chose not to comply with PRME. Narrative analysis of these concluded quests included strategic plans, research summaries, course syllabi and descriptions, press releases, PRME Sharing Information on Progress reports, UNGC letters of commitment, Communication on Progress reports, and internal informants. Findings Out of the 15 entities, 4 exhibited dual or quasi-heroic quests. Their experiences offered two viable and practical alternatives for institutions seeking to transcend the business ethics industry limitations of the PRME initiative. Research limitations/implications The narrative analysis of this study encompassed a sufficiently large amount of data for confidence in the typological characterization of each institution’s heroic quest. Additional insights from informants would no doubt strengthen the analysis. Practical implications The existence of the business ethics industry casts doubt on the ability of business schools and their accreditors to offer substantive change to create a genuine form of responsible management education. This study concludes with two alternative paths taken by schools attempting to escape the narrative of irresponsible management. Originality/value The PRME publicly lists signatories in non-compliance. While most of these result from passive inaction, a small number of institutions intentionally choose to leave the PRME. No research has been done to understand these intriguing cases and the heroic quest typology is a unique application in narrative analysis.

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“…Simpson's and Lobban's targets include scholars such as Morton Horwitz, Richard Posner, and Patrick Atiyah. Horwitz argued that the law of contract was transformed between the eighteenth and nineteenth centuries from a doctrine concerned with the fairness of the exchange (and hence antagonistic to the commercial classes) to one that became an instrument of the commercial classes and of class oppression (Horwitz 1974). Posner also viewed the law of contract and tort through an instrumentalist lens—regarding the common law as promoting efficiency and the new industrializing economy (a kind of economic determinism) (Posner 1973).…”

Section: Telling the History Of The Law Itselfmentioning

confidence: 99%

Ideologies in Law Time: The Oxford History of the Laws of England

McLean¹

2013

Law soc. inq.

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In the introduction to the new Oxford History of the Laws of England 1820–1914, the authors suggest that their task is to tell the “history of the law itself.” This review essay examines what can be learned from a history told from law's internal point of view rather than through the perspectives of other disciplines, such as economics or philosophy. It considers whether and how the common law responded to industrialization and laissez‐faire ideology, the influence of salient philosophical movements—such as utilitarianism—on statutory change, and how all history is an exercise in ideology. In considering the public sphere, it suggests that this work should form the inspiration for further inquiry.

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The Historical Foundations of Modern Contract Law

Cited by 52 publications

References 0 publications

Making law modern: Toward a contextual model of justice.

Making law modern: Toward a contextual model of justice.

Heroic narratives of intentional non-compliance with PRME

Ideologies in Law Time: The Oxford History of the Laws of England

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