Thursday, April 6, 2006
They're the age-old questions, which we never seem to tire of discussing: Is there such a thing as contract theory? If so, what is it supposed to do? Does it have any value beyond making tenure notebooks a little (or a lot) thicker?
The debate often tends to be between those who start with theory and then conclude that certain existing doctrines (which fall outside the theory) are wrong, and those who start with doctrine and then conclude that theories (which don't explain it) are wrong.
The latest to weigh in on the topic is Brian Bix (Minnesota), who is working on a forthcoming book called Contract Law, the first part of which, available now as a working paper called Contract Law Theory, takes a stab at assessing the role of theory in contract law. Here's the abstract:
This working paper is an early draft of two chapters (and the Preface and Bibliography) from a larger work on Contract Law (for the series, Cambridge Introductions to Philosophy and Law). The working paper covers the theory-focused part of the project. The paper analyzes what it means to have a theory of Contract, and what the criteria should be for evaluating such theories. The paper concludes that general or universal theories of Contract Law -- at least those that have been presented to date (including economic theories of contract law, and deontological theories focusing on promising or autonomy) -- cannot be justified, and we must seek instead to construct a theory that focuses on a particular legal system (or small group of legal systems), and that emphasizes the variety of principles and approaches within Contract Law, rather than seeking to find or impose a unity that does not exist.
In the course of the argument, the paper also touches on the role of history in explaining legal doctrine, voluntariness in contract formation, the moral obligation to keep contracts, and the relationship between rights and remedies.