is joint will as a sort of vindication of
personality. It is evident, however, that this explanation assumes the
will theory, the subjective theory of legal transactions. If we start
from the objective theory it breaks down. Take for instance the case
of an offer, which a reasonable man would understand in a given way,
accepted by the offeree in that understanding when the offerer really
meant something else. Or take the case of an offer wrongly transmitted
by telegraph and accepted in good faith as it is transmitted. Here
there is no community of will and yet the law may well hold, as we do
in America, in both cases, that there is a contract. No metaphysical
theory has prevailed to prevent the steady march of the law and of
juristic thought in the direction of an objective doctrine of legal
transactions. Nowhere, indeed, has the deductive method broken down
so completely as in the attempt to deduce principles upon which
contracts are to be enforced.

Later in the nineteenth century men came to think more about freedom
of contract than about enforcement of promises when made. To Spencer
and the mechanical positivists, conceiving of law negatively as a
system of hands off while men do things, rather than as a system of
ordering to prevent friction and waste so that they may do things, the
important institution was a right of free exchange and free contract,
deduced from the law of equal freedom as a sort of freedom of economic
motion and locomotion. Justice required that each individual be at
liberty to make free use of his natural powers in bargains and
exchanges and promises except as he interfered with like action on the
part of his fellow men, or with some other of their natural rights.
Whether all such transactions should be enforced against him or only
some, and if the latter, which, are questions belonging to an
affirmative rather than to a negative science of law.

Historical jurists accepted the will theory and have been its leading
advocates in modern times. They saw that the whole course of legal
history had been one of wider recognition and more effective
enforcement of promises. Those who accepted the ethical idealistic
interpretation of legal history could see freedom as an ethical idea
realizing itself in a larger freedom of self-assertion and
self-determination through promises and agreements and a wider giving
effect to the will so asserted and determined. For the most part they
wrote on the Continent