Private Law Theory

ABSTRACT
This paper examines, from a historical perspective, the relationship between the law of contract in European legal systems and the political principle of autonomy. It surveys critical developments within contract law in the early modern period, paying particular attention to how the Scots jurist, James Dalrymple, Viscount Stair, offered a distinctive account – for the seventeenth century – of contracting. In his Institutions of the Law of Scotland, he fused together concepts of freedom, the will, and the virtue of promise-keeping into a coherent theory of the law of contract. This paper compares Stair’s approach to that of other natural law jurists of the same period, including Grotius, Pufendorf, and the late scholastics. It concludes by asking what we can learn from this formative period of contract thought. Specifically, by drawing upon Neil MacCormick’s observations that autonomy may not be a suitable principle upon which to base modern contract law, it poses the question of what principles should we use?

MacQueen, Hector Lewis and Bogle, Stephen James, Private Autonomy and the Protection of the Weaker Party: A Historical Perspective (2017) in Weatherill, S and Vogenauer, S (eds), General Principles of Law: European and Comparative Perspectives (Series: Studies of the Oxford Institute of European and Comparative Law) (23), pp 269-296. DOI: 10.5040/9781509910724.ch-016.