The Philosophical Origins of Modern Contract Doctrine (Clarendon Law S.) - Tapa dura

The common law of England and the United States and the civil law of continental Europe have a similar doctrinal structure, a structure not found in the English cases or Roman legal texts from which they supposedly descend. In this study of common law legal philosophy the author argues that this structure was created in the 16th century in a self-conscious attempt to synthesize two powerful intellectual traditions - Roman law and the moral philosophy of Aristotle and Thomas Aquinas. The protagonists in this movement were a group known to historians as the late scholastics or Spanish natural law school. Although the doctrines of the late scholastics were borrowed by later jurists, the Aristotelian philosophy on which these doctrines were founded lost its authority among educated people in the 17th and 18th centuries. 19th-century jurists re-introduced these doctrines but removed the Aristotelian concepts that they thought were wrong or unintelligible. The result was the "will theories" of contract in which contractual obligation was explained as far as possible in terms of the will of the parties. But without Aristotelian concepts it proved impossible to construct coherent doctrines and contract law fell into a state of confusion from which it is yet to emerge. The author demonstrates that by throwing light on the historical origins of this confusion it is possible to find answers to many of the philosophical puzzles which contract lawyers face today. Re-assessing the impact of modern philosophy upon contract law, he concludes that, modern philosophy having failed to provide a new basis for a coherent doctrinal system in the law of contract, the only hope for devising such a coherent system lies in re-discovering the neglected philosophy of Aristotle and Aquinas.