Libertarianism is defined both by its foundations and by the institutions to which it typically is said to give rise. In this paper it is argued that while a system of economic competition can be defended on consequentialist grounds, such arguments are not available to deontological libertarians. Thus it is concluded that deontological libertarians cannot provide a foundation for the type of economic system they favour.
Essay
The Common Law Prohibition on Party Testimony and the Development of Tort Liability
For two and a half centuries of accident law’s history, between about 1600 and 1850, neither the plaintiff nor the defendant in a tort suit could testify in that suit. In fact, during this period the parties could not testify in any civil suit, and the defendant could not testify in a criminal case. These prohibitions were features of a broader common law rule providing that any potential witness who had an “interest” in the outcome of a case was not competent to testify in it. It was not until statutes abolishing this evidentiary prohibition were enacted in England in the 1840s, and in the United States between the late 1840s and the 1890s, that the parties were permitted to testify in tort (and other) suits. This Essay addresses the influence of the prohibition against party testimony on the development of tort liability prior to the middle of the 19th century.
Contract Theory On and Off the Grid
In The Role of Formal Contract Law and Enforcement in Economic Development, Michael Trebilcock and Jing Leng examine the importance of a formal institution of contract law to economic growth. Trebilcock and Leng find the evidence in support of the hypothesis that a formal contract institution promotes economic growth inconclusive, but they do not reject the hypothesis. Although the role of formal contract law in economic growth can be considered as a purely academic matter, the significance of the topic comes from its connection to the question whether developing countries should adopt or strengthen formal contract institutions to enhance growth.
Even if formal contract law does play an important role in development, however, that might not be sufficient to justify state enforcement of private agreements. The legitimacy of an institution of contract belongs to the domain of contract theory. This Essay considers whether contemporary theories of contract are relevant to legal systems without an established tradition of Western legal institutions. The Essay reviews contract theories of Peter Benson, Melvin Eisenberg, Charles Fried, James Gordley, Thomas Scanlon and Michael Trebilcock. The Essay concludes that even if a formal institution of contract does have the potential to promote growth, these contemporary theories tell us very little about the proper content, desirability, or legitimacy of contract law in societies other than those in which Western private law institutions are already well established.