The Politics of Law: A Progressive Critique

By David Kairys | Go to book overview

PETER GABEL AND JAY FEINMAN


22
CONTRACT LAW AS IDEOLOGY

IN 1915 the United States Supreme Court struck down a Kansas statute that prevented employers from requiring their employees to quit or refrain from joining unions because the statute interfered with the "freedom of contract" protected by the Fourteenth Amendment to the Constitution. In Coppage v. Kansas the Court said:

The principle is fundamental and vital. Included in the right of personal liberty and the right of private property--partaking of the nature of each--is the right to make contracts . . . The right is as essential to the laborer as to the capitalist, to the poor as to the rich . . .1

The right of freedom of contract expressed in this opinion conveys a sense of personal autonomy, projecting a free market in which laborer and capitalist, rich and poor can freely transact to get what they want, unfettered by the needs of others or the dictates of government. At the same time, the image also conveys a sense of social solidarity, suggesting that the market is an arena of mutual respect in which people can hammer out their collective destiny through firm handshakes enforceable in a court of law.

The view of contract in Coppage v. Kansas is now generally regarded as out of date. Under modern contract law, "society may restrict the individual's freedom to contract. . . . At the very least, the state may strive to ensure that [people making contracts] do in fact bargain in acceptable ways and are not so powerful as to substitute coercion for bargain."2 The principle of personal autonomy underlying freedom of contract has been supplemented by modern principles of cooperation and fairness to ameliorate the harshest aspects of market exchanges. The modern image of contract conveys a new sense of autonomy and solidarity, in which

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