February 18, 2006
Teubner's "Coincidence of Opposites" in Contract Law
In the upcoming Festschrift in Honour of Lawrence Friedman (edited by Robert Gordon and Morton Horwitz, Stanford 2006), Gunther Teubner (left) of Frankfurt's Johann Wolfgang Goethe University offers Coincidentia Oppositorum: Hybrid Networks Beyond Contract and Organization. Here's the abstract:
I. The Impossible Necessity of Sociological Jurisprudence
Thesis 1: It is a scientific misconception of the law to believe that empirical or theoretical social sciences can guide law to any significant degree. The really decisive legal irritations are not supplied by interdisciplinary contact with social sciences, but with normatively loaded "reflexive practices" of various social sectors. My example: the dramatic extension of liability throughout networks (virtual enterprises, franchising nets, just-in-time arrangements) is a doctrinally impossible, but a practically necessary, judicial reaction to social perceptions of the risks posed by networks.
Thesis 2: The "translation" of socially reflexive practices into legal doctrine is not a result of a knowledge transfer from the social sciences to law. Private law doctrine can only be persuaded to develop conceptual innovations by its own, internal, path-dependent evolutionary logic. My example: Network is not a legal concept. It is a social science concept and its legal complement can only be reconstructed within the law by evolving "relational contract" into "connected contracts" (Vertragsverbund).
Thesis 3: One of the most important achievements of sociological jurisprudence has been its ability to understand and support the contribution of law to the resolution of paradoxes within social practice. My example: Networks are confronted by their environment with paradoxical demands. Legal doctrine reacts to such network paradoxes with a new legal concept of "double-attribution."
II. Piercing the Contractual Veil in Distribution Networks:
Three Levels of Legal Reality Construction
Approach 1: Casuistry
Approach 2: Political Law-Making
Approach 3: Socially Reflexive Practices
III. Translation Problems: Networks as Connected Contracts
Definition: "The notion of connected contracts (Vertragsverbund) is used to describe any plurality of contracts which refer to each other within either bilateral or multilateral relationships, whose interconnection gives rise to direct legal effects (of a genetic, functional or conditional nature), whether these simply result in an effect of one contract to the other (or others), or whether one can also observe mutual effects."
IV. The Role of Law in Social De-Paradoxisation Processes
Under certain conditions, hybrid arrangements provide for an institutional environment where paradoxical communication is not repressed, but institutionally facilitated and, sometimes, turned productive. Hybrids as a highly ambiguous combination of networks with contracts and organizations seem the result of a subtle interplay between different and mutually contradicting logics of action. How does the law respond to their transformation of external contradictions into an internal and simultaneously individual and collective orientation? In terms of legal conditions: by means of the dual constitution of connected contracts. In terms of legal consequences: through a selective double attribution to individual contractual partners and to the network as a whole.
V. Legal Conditions: The Dual Constitution of Connected Contracts
1. reciprocal references of bilateral contracts to one another, either found within the performance program and/or distilled from contractual practice ("multi-laterality")
2. a contractual reference to the overall project of the connected contracts ("relational purpose"),
3. a close and legally significant cooperation relationship between the participants within the ulti-lateral relation ("economic unity").
VI. Legal Consequences: Selective Double-Attribution to Contractual Partners and to the Network
1. Co-opetition: Exceptions to competition law
2. Unitas multiplex: Decentralized, re-individualized collective liability
3. Private-public Networks: constitutionalizing reflexive autonomy of network nodes.
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