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46 Harv. L. Rev. 553 (1932-1933)
The Basis of Contract

handle is hein.journals/hlr46 and id is 621 raw text is: HARVARD LAW REVIEW VOL. XLVI FEBRUARY, 1933 No. 4 THE BASIS OF CONTRACT * T HE nature of contract has been much discussed by lawyers interested in specific technical doctrines, and by moralists, economists, and political theorists interested in general social philosophy. There is still need for some effort to combine these points of view. The bearings of general philosophy become more definite through its applications, and the meaning of a technical doctrine receives illumination when we see it in the light of those wider ideas of which it is the logical outcome. This large and important task is obviously beyond the limits of a short paper. But a few suggestions may indicate something of the scope of the problem. I. THE SOCIAL ROOTS OF CONTRACT One of the most influential of modern saws is Maine's famous dictum that the progress of the law has been from status to con- tract. It has generally been understood as stating not only a his- torical generalization but also a judgment of sound policy - that a legal system wherein rights and duties are determined by the agreement of the parties is preferable to a system wherein they are determined by status. This easy assumption, that whatever happens to be the outcome of history is necessarily for the best and cannot or ought not to be counteracted by any human effort, is typical not only of the histori- * This article will appear as part of a book on LAW AND TE SOCAL ORDER, to be published by Harcourt Brace & Co.

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