An Introduction to the Philosophy of LawPound, Roscoe
Philosophy
An Introduction to the Philosophy of Law
Pound, Roscoe
Law -- Philosophy
Historical jurists accepted the will theory and have been its leading
advocates in modern times. They saw that the whole course of legal
history had been one of wider recognition and more effective
enforcement of promises. Those who accepted the ethical idealistic
interpretation of legal history could see freedom as an ethical idea
realizing itself in a larger freedom of self-assertion and
self-determination through promises and agreements and a wider giving
effect to the will so asserted and determined. For the most part they
wrote on the Continent where the field of legally enforceable promises
had ceased to be bounded by a narrow fence of Roman historical
categories. Thus they had no call to rationalize dogmas of not
enforcing promises made as business transactions. Those who accepted
the political interpretation saw freedom as a civil or political idea
realizing itself in a progress from _status_ to contract in which
men's duties and liabilities came more and more to flow from willed
action instead of from the accident of social position recognized by
law. The English historical jurists might well have asked how far
English rules as to consideration were consonant with the implications
of such a theory, and whether they must not be expected to give way as
the idea unfolded more completely in experience of popular action and
judicial decision. But the leader of this school was not a common-law
lawyer and the American historical jurists devoted their energies to
devising a historical-analytical theory of consideration rather than
to the wider question of what promises should be enforced and why.
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