Wednesday, May 16, 2007

Pryor and Hoshauer on The Puritan Revolution and the Law of Contracts

C. Scott Pryor, Regent Univ., and Glenn M. Hoshauer, Berean Academy, have posted an article, The Puritan Revolution and the Law of Contracts, which appeared in the Texas Wesleyan Law Review. Here's the abstract:
The revolutionary political, economic, and religious changes in England from the time of Henry VIII through the execution of Charles I accompanied the creation of the modern law of contracts. Most legal historians have ignored the impact of the Protestant Reformation and the rise of Puritanism on the development of the common law. Only a few historians have considered the influence of Puritanism on the law but have come to conflicting conclusions. This paper considers the question of Puritanism's impact on three aspects of the common law of contracts: the rise of the writ of assumpsit, the rationalization of the doctrine of consideration, and the independence of promissory conditions.
The Authors conclude that Puritan theology was irrelevant to assumpsit and consideration but could have influenced the framework of analysis of the application of virtually absolute liability in Paradine v. Jane.
Second, the Puritan emphasis on discipline — personal, social, and ecclesiastical — respresents an independent source of influence on the development of the common law of contracts. The disciplined life grew in cultural significance with the Reformation and the subsequent process of confessionalization. Of the three confessional traditions arising from the Reformation, the Reformed, which included the Puritans, implemented discipline to the greatest extent. The Puritan tools of discipline — self-examination, literacy, catechizing,and local ecclesiastical implementation — proved effective. The emerging modern state valued a disciplined citizenry and eventually co-opted the social gains produced by Puritanism. The particular forms of Puritan theology and discipline were contributing factors to the English Civil War. The Civil War both precipitated the monopolization of judicial power in the common law courts and exacerbated the need for the imposition of social order from above. These factors also underlay the decision in Paradine v. Jane.
Thus, we believe that Puritan social practice - not Puritan theology - influenced the common law of contracts.

No comments: