Liberalizing Contracts: Nineteenth Century Promises Through Literature, Law and History

This is a Chapter 4 from Liberalizing Contracts. In this book, Rosenberg examines nineteenth-century liberal thought in England, as developed through, and as it developed, the concept of contract, understood as the formal legal category of binding agreement, and the relations and human practices at which it gestured, most basically that of promise, most broadly the capitalist market order. She does so by placing canonical realist novels in conversation with legal-historical knowledge about Victorian contracts. Rosenberg argues that current understandings of the liberal effort in contracts need reconstructing from both ends of Henry Maine's famed aphorism, which described a historical progress "from status to contract." On the side of contract, historical accounts of its liberal content have been oscillating between atomism and social-collective approaches, missing out on forms of relationality in Victorian liberal conceptualizations of contracts which the book establishes in their complexity, richness, and wavering appeal. On the side of status, the expectation of a move "from status" has led to a split along the liberal/radical fault line among those assessing liberalism's historical commitment to promote mobility and equality. The split misses out on the possibility that liberalism functioned as a historical reinterpretation of statuses – particularly gender and class – rather than either an effort of their elimination or preservation. As Rosenberg shows, that reinterpretation effectively secured, yet also altered, gender and class hierarchies. There is no teleology to such an account.

Chapter 4 examines the liberal association of contract with freedom. With George Eliot’s Middlemarch (1871) and Thomas Hardy’s The Mayor of Castebridge (1886) we see a move from the midcentury project of pressing on readers the importance of relationality for individual agency and for the morality of choice, toward explorations of the constraining implications of living in a web of relationships.
In Middlemarch, the chapter reads the parallel stories of three protagonists, Lydgate, Dorothea, and Fred, where the fictionalization of promises – most significantly the men’s contractual debts and Dorothea’s deathbed never-made-promise to her husband – is pivotal to the unfolding of plots dealing with relational interdependence, with all the suffocation involved. Eliot gave artistic expression to the concerns of liberal philosophy with voluntary submission as an everyday necessity. Her striking tool for negotiating promissory suffocation was the practice of economy. She incorporated popular political-economic advice about economic prudence into the terms of meaningful existence in the web of constraints. Yet the advice finally falters and reveals Eliot’s hesitation. Her ultimate achievement was in giving expression to a non-naïve liberal consciousness: Eliot's liberalism offered a sense of hope that one could embrace without thereby being the fool who doesn’t realize how limited it is, a position that resonates with us still.
Hardy, writing at the outskirts of high Victorianism and the margins of realism, was far more pessimistic. The Mayor of Castebridge examined contractual constraint through the problem of masculinity in contract. Reading Hardy’s protagonist, Henchard, with histories of Victorian masculinity, the chapter shows how an atomistic approach to contract is associated with a particular vision of conventional masculinity, and represented as ruinous in a capitalistic world of tamed passions, where relational awareness is key to prosperity. The chapter begins with the novel’s brutal opening scene of wife sale, which foretells Hencahrd’s downfall. The downfall plot is then narrated through junctions of promissory overload, in which the character of Farfrae appears as a foil for the novel’s protagonist without the rigid masculine debasement. Viewing conventional masculinity as a victimizing imperative in modern capitalism, Hardy’s art compensates for a blindspot in contract histories, which have read the gender of contract from the perspective of women’s exclusions, and have too often left the positive content of contract – its inclusions, to nongendered readings. Hardy highlighted the inescapable relationality of the capitalist order, but viewed it from a distanced suspicion.