Private Law Theory

Our common law has long prized ‘ancient concepts of freedom of contract’. Historically, however, some have enjoyed more freedom than others. European ‘settlers’ wrested 1.5 billion acres of land from Native Americans through means other than arms-length bargaining, and they enslaved many of them. But our shameful history of slavery is largely the story of millions of slaves of African origin. Far from having freedom of contract, they were the subject of contracts: treated as property, purchased and sold, sometimes leased to others or used as collateral for bank loans, and sometimes covered by loss insurance. We take pride in our nation’s impressive economic growth, but its foundation rests on slave labor …

Charles R Calleros, A Quick Critique of the Common Law of Contracts and Capitalism, 53 University of the Pacific Law Review 706 (2022). Online 6 April 2023.