Piotr Alexandrowicz, Canonistic Justification of Freedom of Contract in the Western Legal Tradition
The monograph elaborates the history of justification of freedom of contract which was developed in the medieval canon law jurisprudence, its reception (or lack thereof) in the modern era and its significance for contemporary discussion on freedom of contract. Medieval canonists were the first in the Western legal tradition to offer in contract law the solutions close to modern freedom of contract. To support their claim they developed three arguments. The first one was founded on the authority of the available sources, the second arose from the prohibition of lying to avoid the sin, the third was founded on the perception of agreements as a useful tool for maintaining social peace. The canonistic argumentation faced mixed reception in the modern era. Some legal schools of this period accepted it (canon law jurisprudence, late scolasticism), some declined it (legal humanism), for others it served only as a useful example (Dutch jurisprudence, usus modernus Pandectarum) and it resembled still others in function (law of nature). At the turn of 18th and 19th centuries there emerged a general contract theory which assumed freedom of contract. As a result the question of the binding force of contract lost its significance in the civil law tradition. The answers to this question may be found in the forgotten medieval canon law jurisprudence or in contemporary discussion on contract theory in common law. Both of these convey similar arguments and it may be of high value to reach for them in search of justification of contractual freedom limitations broader than positive law dogmatics.