The central justification for private enterprises, where investors may profit from production, is that competition ensures they serve the public interest. The father of economics, Adam Smith, believed that, with corporations banned, a world of competitive partnerships would ‘make nearly the same distribution’ as if ‘the earth [were] divided into equal portions’, like they were ‘led by an invisible hand’.

‘Of all the occupations’, wrote Cicero in 44 bc, ‘none is better than agriculture, none more profitable, none more delightful, none more becoming to a free man’. Growing a garden, the countryside, the shade of trees, the sound of running water, have long been things of romance. But unlike for Roman nobility, over most of human history people’s toil for food and water was a matter of survival. The Industrial Revolution enabled society to live beyond subsistence, sustaining modern towns and cities, and crucially shifting work away from the farm.

This chapter examines the relationship betweenprivate ordering/self-regulation and national contract law rules. It assesses the impact that private ordering exerts upon national contract law, with particular reference to the legal response to the ISDA Master Agreement. The chapter also examines aspects of market-specific regulation in the United Kingdom. Many areas traditionally covered by common law rules, such as the control of unfair terms in contract, are now the preserve of regulators such as the Financial Conduct Authority (FCA) and the Competition and Markets Authority. In addition to the activities of regulators, enforcement of consumer contract law can be undertaken by a range of organisations and dispute resolution services provided by private entities or through various ADR schemes. There are often significant divergences between the regulatory approach to contract enforcement and the applicable contract law rules on the issue. To illustrate this, the FCA review of the mis-selling of interest rate hedging products to ‘unsophisticated’ customers is contrasted with case law on misrepresentation covering the corresponding scenario under the common law.

‘Don’t you hate to pay taxes!’ said a secretary once to Justice Oliver Wendell Holmes. ‘No, young feller. I like to pay taxes. With them I buy civilization.’ Whether or not we really ‘like’ them, the old American judge had a point. The trouble is we do not yet have a consensus on our measure of ‘civilization’. While most countries have pursued ‘growth’ in ‘Gross Domestic Product’ (GDP), this perversely counts all economic activity as positive, all contracts whatever the effect, even when they damage our health, well-being, environment or security.

This chapter considers the disadvantages arising from the reduced capacity of the common law to serve as a general regulator of contracts. Four areas of ordinary (non-commercial) contracting activity are examined: consumer debt management, payday lending, student loans and non-disclosure agreements. Judicial engagement with these areas of contract has been minimal or non-existent. The examples show how little influence some common problems in consumer contracting, or other contracts involving inequality of bargaining power, have had on the development of contract law rules. The law’s lack of exposure to some common issues generated by its rules only serves to compound the hold that commercial contracting has over legal development. The dearth of legal engagement with these issues also closes off an important forum for the debate, development and communication of contract’s deeper normative values, including the general standards of conduct that are, or should be, inherent in contracting. This accelerates the process of common law impoverishment.

In Constitutional Code, Volume 1, Bentham proposed ‘virtual universality’ of suffrage, giving the right to vote to ‘the whole body of the inhabitants, who, on the several days respectively appointed for the several Elections … are resident on the territory of the state, deduction made of certain classes’. Among the ‘classes thus deducted’, alongside minors and non-readers, stood ‘[F]emales’.1 Women were thus excluded from the ‘constitutive authority’, the founding authority in the State. Unlike other provisions of the code deemed to require explanation, this ‘enactive’ law was not justified by any corresponding ‘ratiocinative’ text. This cursory exclusion would have passed unnoticed in the context of nineteenth-century dismissals of women’s political rights, had it not contradicted other statements in which Bentham openly justified female suffrage. For instance, as late as 1822, at the time he was working on Constitutional Code, he lamented in manuscripts that ‘the gentler half of the species stand as yet excluded [from the suffrage] by tyranny and prejudice’.2

The purpose of this chapter is to explore Bentham’s observation of the tendency of representative democracy towards corruption. In his constitutional theory, Bentham’s chief concern is to prevent corruption, and he consistently maintains that the antidote for that political evil is representative democracy. However, Bentham indicates that representative democracy is not immune from corruption, and I suggest that this insight is derived from his observation of the dynamic processes of politics. For that reason, Bentham’s constitutional theory can be interpreted as an analysis of political processes and an offering of normative guidance on them and their development as influenced by the political psychology of members of political society.

This chapter2 is one of the first attempts to investigate the use of indirect legislation in Bentham’s later constitutional writings. However, the epigraph serves as a disclaimer. Bentham acknowledges that his divisions into three categories (civil, penal, and constitutional) might not be as watertight as other parts of his theory.3 This is a reminder that the explorations of indirect constitutional law presented in the present chapter need to be handled with critical caution as the mechanisms labelled ‘indirect’ might have shifting boundaries.

‘The power of communication of thoughts and opinions is the gift of God,’ said Lord Eyre CJ in 1794, ‘and the freedom of it is the source of all science, the first fruits and the ultimate happiness of society.’ For those with slow Wi-Fi, a ‘gift of God’ might seem a stretch, but there is no doubt that modern communication is both a source, and a wonder, of science. Historically, most of us communicated in person, or not at all. A post open to everyone and mass literacy only developed in the nineteenth century. Then came telegraph, telephone and now the Internet. The Internet works with devices (like a phone) sending data over the radio spectrum to receivers (like a Wi-Fi box).

This chapter sums up the arguments in the book and reaches some brief conclusions.

The history of enterprise law, the evolution of state and corporate power, is essential to understand why our economic constitution is as we see it today. Why is enterprise financed by a mix of taxes, savings in the stock market or banks, prices and regulatory subsidies, but without any clear consensus on what should be public or privately owned? Why are the votes in our economy partially spread among investors, workers and the public, yet decisively influenced by asset managers and banks? Why are social, economic and political rights enshrined in international law, yet their realisation in national law is so uncertain? Why has enterprise law changed, and where should it go? History does not let us see into the future, but when we learn from the past, we understand our options better for deciding what to change.

Education is probably the most important enterprise for a country’s future because it influences people’s capabilities in almost all of life’s endeavours. At the very centre of a just society is the ‘essential importance of human development in its richest diversity’.1 ‘Everyone has the right to education’ in international law. Elementary education ‘shall be free’, and higher education must be ‘equally accessible to all on the basis of merit’ and ‘in particular by the progressive introduction of free education’.

No domain of the law seems to have escaped Bentham’s reformatory activity. Based on a self-proclaimed ‘genius for legislation’,1 his ambition was to create a ‘complete body of laws’ or a pannomion.2 Within this project, constitutional law especially deserves attention. Bentham was concerned with that domain from the very beginning of his career, which started with a criticism of the philosophy of human rights3 and the resounding A Fragment on Government,4 and which ended with Constitutional Code.5