‘ou sIf yeek economic growth, if you seek opportunity, if you seek social justice and human dignity’, said George W. Bush as the economy collapsed in 2008, ‘the free market system is the way to go.’ The problem is, the ‘free market’ is based (unlike its ideology) on binding public norms. Markets result from many people interacting in the light of the law. Trust and good faith, for confidence in doing business, come from rule-based institutions, not some free-for-all.

In this book’s introduction, the thesis was proposed that enterprise law can be regarded as a coherent subject. It is a preferable framework to understand the economic constitution and human rights than systems which artificially segregate corporate, labour, competition or insolvency from one another, and each from public policy. On the contrary, the investor, worker, consumer, creditor and member of the public is often the same person. Dividing these actors against themselves is a diversion from unaccountable corporate power.

Theories of enterprise law go to the heart of economics, politics and a just society. First, there are ‘positive’ theories that explain how the world works. For example, a positive theory might argue that labour rights raise employment and productivity, and reduce inequality (see Ch. 5), or that public healthcare gives longer life than privatised or insurance health systems (see Ch. 90). As in natural science, social science frames hypotheses, develops methods for testing the hypotheses, finds results and draws conclusions.

As Chapter 6 explored, competition is meant to benefit consumers and the public, because people exercise choice and influence over what is produced. Enterprises producing what people want often get more business. But competitions also have ‘losers’, and all too much losing means insolvency. ‘Enterprises live (and sometimes die) by credit’, and corporate insolvency, like individuals’ bankruptcy, is an inability to pay debts.

This chapter explores the potential for the revival of the common law of contract.The emphasis is on the possibility of judicial action to reverse some of the movements explored earlier in the work. Contract scholars with a more pragmatic or practical approach to the subject have long maintained that contract law must do more to distinguish different contracting contexts and to develop appropriate rule sets accordingly. The recent engagement with the concept of relational contracting demonstrates a judicial ambition (admittedly not shared by all) to create a more responsive, contextual and flexible contract law.The development of relational contracts is considered and critiqued in the chapter. Developments in other common law jurisdictions (notably the elaboration of an organising principle of good faith in Canada) are contrasted with English law. The chapter concludes that English law is unlikely to follow the lead of other common law countries in articulating good faith principles. Limitations on the litigation system in England are also examined.

This chapter subjects the revival of formal and classical law values in contract law to critical examination. The emergence of a commercially oriented contract law is explored across a number of contract developments over recent years: the reassertion of party autonomy and the emphasis on contract law as default rules; the return to a formalist style of contract interpretation; the marginalisation of equity and considerations of public policy in contract; the tendency of judges to uphold contract terms whose validity was previously regarded as questionable (‘no oral modification’ and ‘no reliance’ clauses); the dilution of common law controls on contract terms (in relation to penalties, for example).The first part of the chapter examines recent contract law developments that suggest the re-emergence of formalism in law. The second part explores the common law’s retreat from a role as general regulator of contracting activity in the context of an increasingly contractualised society.

Enterprise law is the regulation of finance, governance and rights of economic life. It includes everything from global tech corporations, to universities, to oil cartels, to arms-makers, to the health service. Enterprise law is probably the dominant cause of the most basic threats that we must resolve in the twenty-first century, namely escalating inequality, climate damage and war, because the enterprise is the primary type of association that stands between polities and families. In its literal sense, enterprise means ‘doing’ or ‘undertaking’, after the French word entreprende.