2 - History and Sources

Summary

Whether one thinks of law primarily as a kind of social practice or social institution or as an integral part of practical reasoning – developing reasons for action – law is a purposive human enterprise. As such, it is useful to consider legal history: the original context in which legal rules and practices were developed and the circumstances and concerns that prompted their development. This chapter attempts to give an overview – necessarily a brief and somewhat sketchy overview – of the history of American contract law.

Along with the general context value of history, there is sometimes a specific need for historical explanation – where moral or consequentialist reconstructions of rules and practices fail, a reference to the historical reasons for a certain rule may be the only valid explanation. This becomes an explanation in the minimal terms of showing why we have the rules we have, not any more robust sense of offering a moral or policy justification for keeping (or obeying) those rules. (Of course, one justification for keeping a rule might be that, although it would not be sensible to adopt the rule if starting from scratch, it would be too costly – and insufficiently beneficial – to change the rule at this point.)