New Keynesian Economics/Post Keynesian Alternatives

By Roy J. Rotheim | Go to book overview

NOTES
1
Macneil (1980, p.1). An example is Richard Posner’s notion that the law of contracts is nothing other than the legal expression of the requirements of efficient market exchange (1972; see also Kronman and Posner, 1979); another is Gary Becker’s reduction of social relations to the consequences of individual constrained utility maximization (1976).
2
The foundations were laid down by Grotius in De jure belli ac pacis (1631) and were developed by Wolff, Althusius, Hobbes, Pufendorf and Locke. The standard treatment of these developments remains that of Gierke (1913).
3
Compare Elementorum jurisprudentaie. ‘we call voluntary actions those actions placed within the power of man, which depend upon the will, as upon a free cause, in such wise that, without its decision setting forth from the man’s actions as elicited by previous cognition of the intellect, they would not come to pass’ (1660, p.3; see also 1673, p.19).
4
Here is how Pufendorf actually put it: ‘Since promises and pacts regularly limit our liberty and lay upon us some burden in that we must now of necessity do something, the performance or omission of which lay before entirely within our own decision, no more pertinent reason can be advanced, whereby a man can be prevented from complaining hereafter of having to carry such a burden than that he agreed to it of his own accord, and sought on his own judgement what he had full power to refuse’ (1672, p.402).
5
Pufendorf’s best-known application of the notion of implied contract was in the realm of public law and politics, an enterprise in which he was strongly influenced by Hobbes and Grotius and, in turn, decisively influenced Locke and Hume. This, however, is another story, and need not detain us here.
6
The fact that as a result of this manipulation social norms would themselves become enforceable under the Law of Nature is a matter of the first importance, since it was through this door that the state itself would later menacingly enter the world of private contract bearing regulations governing the conduct of private life which were, even for the early-modern natural lawyers, as much the product of ignorance and prejudice as they were of reason.
7
The full passage is as follows: ‘Regarding the hiring of labour it should be observed that, if a man engages the temporary, and, as it were, transient services of a person, he does not have to pay him when some accident has prevented him from being able to furnish the services agreed upon. But if he has engaged his permanent services, it is only human, in case the latter has been incapacitated by disease or some other mischance from performing his tasks for a short time, not to take from him his position or cut off his salary, especially when there is hope that he can make for the services last by showing diligence later, or when his former good record has been such as to merit this humanity’ (1672, p.743).
8
The continuity between this line of argument and earlier discussions of implicit contract was recognized immediately by fellow solidarist Celestin Bougié, who called Bourgeois’s use of the idea of quasi-contract a means of ‘developing and perfecting the art of interpreting assents wholly unexpressed, as they most often are’ (Bougié in Fouillée et al., 1916, p.526).
9
As future-oriented transactions became more important to the market economy, contract doctrine became more explicitly will-based and less accommodating to traditional mores and practices (see Atiyah, 1979, pp.149-84).
10
Of course, it was pointed out by his critics that even if we owe a debt to our ancestors, it is one that they do not and probably would not recognize: ‘the cave man cut and polished the stone for his own use and not for mine’ (Malapert in Fouillée et al., 1916, p.92).
11
As Atiyah put it: ‘If it is enlightened self-interest which lies at the root of these [contractual] obligations, it is because promises and contracts invite trust, involve reliance and dependence by others on the world of promises’ (1979, p.32).

-167-

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