On the intellectual history of freedom of contract and regulation

Abstract

Are we, private lawyers and contract lawyers, not convinced that we share a common understanding of freedom of contract, of‚ freedom’, of ‚contract’, and of the restriction of freedom of contract through ‘regulation’? Is this common understanding not the basis on which we all operate – implicitly or explicitly – in our intellectual discourse while cutting across different legal traditions and different legal cultures? I argue that this common understanding is no more than a rather superficial ‘gentleman’s agreement’ which allows us to communicate with each other whilst maintaining our own preconceptions. In fact, there are different models of freedom of contract and regulation in Germany, France, the UK and the European legal order, each deeply ingrained in their respective intellectual history.