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.Could we even imagine a greater divide thanthat between Parsons s discussion of the obligation implied by the cares ofthe past and the steadfast statement of classical theorists that past consider-ation is no consideration?But the image of interdependence rooted in the past was only half theproblem for classical theory.Just as threatening was a new type of interde-pendence looming in the not-so-distant future in the shape of corporatecapitalism, most pointedly in its managerial organization of work.The turnof the twentieth century saw a rise in economic concentration, and with it alimitation of  ruinous competition and an accelerated shift in employmentpatterns: more and more Americans worked for a small number of (giant)corporations.And the workplace was increasingly managed not by skilledworkers themselves serving as shop foremen with wide discretion over workpractices, but rather by an army of management engineers, equipped with ascientific technique explicitly designed to rationalize the workplace.86.1 Theophilus Parsons, The Law of Contracts 3 4 (1st ed., Boston, Little, Brown 1853).7.Id.at 4.8.See David Montgomery, The Fall of the House of Labor: The Workplace, the State, and American LaborActivism, 1865 1925, pp.214 56 (1987); Naomi R.Lamoreaux, The Great Merger Movement in AmericanBusiness, 1895 1904, pp.1 13 (1985); Alfred D.Chandler, Jr., The Visible Hand: The Managerial Revolutionin American Business 411 14, 484 93 (1977); John Fabian Witt, The Accidental Republic: Crippled Work-conclusion: undermining the metaphysics of contract 231Two aspects of this transformation bear emphasis.First, economic con-centration under the corporate form had wide ranging cultural effects.Itchanged not only business practices, but also people s perceptions of theshape of the market, the social body, and its elements.Critics of economicconcentration as well as its most ardent proponents were joined in under-standing the rise of the corporation as entailing the decline of entrepreneur-ial capitalism and with it, the decline of the freeholder or small produceras the model of the modern subject.Journalist and cultural critic WalterLippmann, for example, claimed that corporate concentration was  suckingthe life out of private property, and that theories of autonomous personal-ity based on older notions of property would have to be reexamined if notdiscarded altogether.John D.Rockefeller understood the significance of thenew corporate order in even simpler terms:  The day of combination is hereto stay.Individualism is gone, never to return. 9Second, just as the number of people working in large industrial con-cerns was mushrooming, scientific management was cutting away at theindividuality and the autonomy of the worker.Frederick Winslow Taylor,one of the founders of scientific workplace management, claimed that scien-tific management involved  a great mental revolution, a revolution gearedperhaps more toward managers than workers.With actual production pro-cesses broken down to the minutest details of physical movement, workersoften felt like they were being reduced to parts in a machine, and new man-agers were encouraged to view laborers instrumentally.While some wouldrail against the mechanization of the worker s body as others would hail theadvent of new levels of cooperation, one thing was clear: the individual wasin decline.As Taylor testified before Congress in 1912, the new scientificmanagement would be  entirely impossible with the independent individu-alism which characterizes the old type of management. 10Against this background, the legal arena was one more locus of culturalengagement over the shape of the individual.As John Witt has recentlyingmen, Destitute Widows, and the Remaking of American Law 103 9 (2004); James Livingston, Origins ofthe Federal Reserve System: Money, Class, and Corporate Capitalism, 1890 1913, pp.55 57 (1986).9.Walter Lippmann, Drift and Mastery: An Attempt to Diagnose the Current Unrest 45 (William E.Leuchtenburg ed., 1961) (1914); Rockefeller quoted in Alan Trachtenberg, The Incorporation of America:Culture and Society in the Gilded Age 86 (1982).See also James Livingston, Pragmatism and the PoliticalEconomy of Cultural Revolution, 1850 1940, pp.66 77 (1994).10.Frederick Winslow Taylor,  Taylor s Testimony Before the Special House Committee, in ScientificManagement 30 31, 76 (1947).See also Livingston, Pragmatism and Cultural Revolution, 89 95.232 conclusion: undermining the metaphysics of contractshown, one of the key inroads that scientific management would make intransforming traditional individualism was through workmen s compen-sation programs.These programs enhanced managerial responsibility andwith it managerial control; their working principle was that workplace ac-cidents and consequently employees had to be managed in the aggregate,rather than as individuals.Lawyers were quick to understand that sanction-ing workmen s compensation programs would erode at least the legal imageof individualism and personal responsibility embedded in tort law.By about1915, however, the battle over workmen s compensation had been fought, andthe legitimacy of workmen s compensation statutes had been established.11Classical contract theory was wary of interdependence in both theseforms, but it reached out to both the past and the future in order to buildan image of the contracting individual.The imagined individual subject ofclassical theory was in part an allusion to the republican tradition.This wasthe individual imagined as self-possessed property holder, sole entrepreneur,responsible and independent [ Pobierz całość w formacie PDF ]