自从在1804年《法国民法典》确立以来,契约自由与所有权绝对、过错责任成为19世纪民法的三大基本原则。不独在民法法系国家,在英美法系,契约自由被视为个人的自然权利而受到法律保护。19世纪末20世纪初,社会化大工业的发展以及城市化进程的加快,使得以个人主义为基础的契约自由原则受到了挑战。在美国,这种挑战的标志性案例就是1905年的洛克纳案~①,该案开启了以实质性正当程序保护契约自由的“洛克纳时代”。霍姆斯大法官在该案中撰写了著名的异议,指出多数意见将放任的市场经济理论强 Since the establishment of the French Civil Code in 1804, freedom of contract and ownership were absolute, and fault liability became the three basic principles of civil law in the 19th century. Not only in civil law countries, in the Anglo-American legal system, freedom of contract is regarded as an individual’s natural rights and is protected by law. From the late 19th century to the early 20th century, the development of large-scale socialized industries and the acceleration of urbanization have challenged the principle of freedom of contract based on individualism. In the United States, the landmark case of this challenge was the Lockena case of 1905, which opened the “Lockner era” that protected the contractual freedom with substantive due process. Lord Holmes wrote the famous objection in the case, pointing out that the majority of the opinions will be laissez-faire market economy theory