The History of Contract as a Motif in Political Thought

Abstract

THE HISTORY OF EUROPEAN CONTRACTARIAN THOUGHT has been radically distorted by certain pervasive assumptions in the established classics on the subject. As intellectual history, the story of European contractualism was created by the formidable mind of the German legal scholar, Otto von Gierke, in the late nineteenth century. Most of Gierke's career was devoted to the research and writing of his monumental Das deutsche Genossenschaftsrecht, whose four volumes were published in 1868, 1873, 1881, and 1913. Actually composed two decades before publication, the fourth volume contains the critical sections on contractarian thought during the period 1500-1800, which Ernest Barker published in English translation in 1934.' As amplified and disseminated by Barker, and J. W. Gough, Gierke's views have become standard for our understanding of this aspect of early modem political thought. Within his framework of supposed essentials, a host of specialized studies has appeared. Although valuable in some respects, much of this work is vitiated by ahistorical dogma. We shall first attempt to uncover his dogmatic elements and then proceed to sketch an alternative story. The first task is by no means simple, for the literature is full of contradictory assertions and judgments. Everyone agrees on the centrality of contractarian arguments to the political thoughts of the sixteenth, seventeenth, and eighteenth centuries; but, aside from consensus at this trivial level, almost every statement about the history of contract has been met with contradictions. We are told, for example, that social contract theory was-and was not-invented in ancient Greece, that the Christian Middle Ages did-and did not-rediscover or anticipate the rediscovery of social contract theory, and that the Protestant and Cath-