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Contracts: King of the Common Law

The common law provides a structure for people in society to freely engage in individual and collective activities. Professor Todd Zywicki explains why contracts are an essential basis for how the common law operates. Contractual arrangements allow people to confidently engage in transactions and to plan for the future with some degree of certainty, allowing society and the economy to develop in new and productive ways. https://youtube.com/watch?v=t8eXV4Uhbug


Contracts is, in many ways, the king of the common law, which is that the entire sort of society of freedom and free markets in the Western world is predicated on the idea of freedom of contract and that people are autonomous individuals who can control their lives, pursue their own goals. And contracts is really the essence of that system of private ordering and individual Liberty. In many ways, the common law system is a bit of a surprise, I think, to most law students, which is we think of law as something where you go and you look up a statute or a rule in, or something issued by Congress or a regulatory agency. But the common law is judge made law. And what is so great about the common law is the common law arises from individual disputes between private citizens who have some sort of conflict. And so, by and large, the common law leaves you alone if you are just pursuing your goals in a cooperative way with the other people around you. And then when you do get into conflict with somebody, the common law basically tries to provide a pragmatic solution to that that is fair, and just, and basically realizes people's expectations of what is expected of them in society. The common law is a somewhat unique system that rose in England, beginning with the Norman Conquest, really, but really throughout the Middle Ages, it evolved out of private dispute resolution. There was a common law system in Europe, but it basically got preempted by Napoleon who turned the whole system into what we call a civil law system focused on legislation and the legislature being the primary actor. In England, the common law basically represents these dispute resolution process between private parties. Of course, once the common law came to the United States, we added our own additions to it, but it's really quite striking the extent to which, when you're sitting in a first year contracts class, for example, you will read plenty of cases from England and plenty of cases from the United States. The concepts are pretty much the same. There's an underlying logic to the common law that transcends national boundaries. You could think of the common law case analysis, the system as having three different levels of analysis. There's the facts which are critically important to the common law. As you will discover in law school, the cases turn on the particular facts of particular disputes that arise between different people. Then you have what we can think of as a conceptual level, which is a body of concepts - to give you some examples from contract law concepts like consideration, offer and acceptance, warranties, all these sorts of things that grew up as ways of operationalizing the common law in a coherent set of concepts. And then above that, or behind that, sometimes articulated, sometimes unarticulated are a set of policies. And those policies are often economic in nature. What we really see is what seems to the animating force of the common law is a desire to promote social coordination in society, to allow people to basically pursue their goals with a minimum of friction and a maximum of cooperation and ability to plan their objectives. And what is so special about contract law, the essence of contract law is it allows us to plan for the future, which is it allows us to plan a year, two, five years from now. Think of it this way. Think of if every day you showed up for law school, the professor might be there, or the professor might not be there. The doors might be open. The doors might not be open. It'd be like walking into a Starbucks every day and just making a transaction across the counter. The whole system of contracts is what allows people to plan the next year of their life. The next three years of their life, to get a job, to be employed. And all those sorts of things have followed from that, that development of this abstract idea of contract and the ability that allows ordinary individuals to plan their futures is a very powerful force. And that's what the underlying logic of contract law is. It allows people to plan their futures as efficiently as possible.

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