Natural Law, Due Process, and Economic Pressure

“Liberty of contract” is an honorable phrase. It is not too much to say that contractual freedom is generally regarded as the crowning glory of Anglo-American law in general and of the American constitutional system in particular. Belief in a pre-civil state of nature may have been cast into the discard, but not so the belief in natural law in the sense of ideal law, in natural rights as rights superior—if not anterior—to civil rights, and in freedom of contract as one of the greatest of the natural rights secured by natural law. There is well-nigh universal approbation of the philosophy implicit in Sir Henry Maine's famous conclusion that “the movement of the progressive societies has hitherto been a movement from Status to Contract,” and there is general satisfaction that certain American constitutional provisions preclude any retrograde movement in the future. In particular, there is rejoicing that the due process clauses of the Fifth and Fourteenth Amendments insure to the American workman his natural freedom of contract against any insidious attempt to relegate him to a servile status. In spite of an occasional voice crying in the wilderness, it is still heretical to suggest that constitutional contractual liberty amounts to a guarantee that economic pressure may be exerted by the rich upon the poor, by the employer upon the employee. The hypothesis deserves further examination. It will be profitable to ascertain how far the use of economic pressure has been deemed natural in English law and philosophy, and then to observe the extent to which it is recognized in American constitutional law as a natural right superior to any legislative enactment.