The Law of Many Faces: Antebellum Contract Law Background of Reconstruction-Era Freedom of Contract

Abstract

This article, published in late-2008, has two goals. First, it seeks to connect doctrinal histories of contract law with the political and social histories of contract ideology. In doing so I hope to show how the tales about the development of contract doctrine can be told more richly by considering the political and ideological developments of the period. Second, and more significantly, this article highlights the ambiguous strands of contract law that were part of the culture of contract surrounding Reconstruction, and shows how contract law was far more contextualized than historians of either free labor ideology or contract doctrine typically acknowledge. This failure to explore the rich context and ambiguity of mid-nineteenth century contract law produces, on the one hand, an inappropriately narrow view of Reconstruction-era conceptions of the potential role of contract, and, on the other hand, a general inattentiveness to the potential uses of contract law and ideas to challenge the otherwise dominant ideologies. The article proceeds through four topics: antebellum equity jurisprudence, antebellum labor law, inn and carrier law, and antebellum feminist uses and critiques of contract. By connecting contract-as-doctrine to contract-as-political-ideology through these four areas, I hope to show that during Reconstruction there was more possibility for both than often seems apparent to those looking back after the Lochner era.

Keywords: contract, freedom of contract, Reconstruction, equity, antebellum, free labor, will theory