Friday, March 23, 2007
Posted by Jeff Lipshaw
Some weeks back, I posted something on the blog about a new Harvard Law Review article on contract theory entitled The Divergence of Promise and Contract by Professor Seana Shiffrin (UCLA). I thought it was a marvelous article, but I didn't agree with everything in it, and so I wrote a little 3,000 word response for the HLR Forum, which is the on line "respond and comment" site akin to the Yale Law Journal Pocket Part. I don't know quite why, but the editors in their sublime wisdom chose to publish a response by Charles Fried (Harvard), author of the classic Contract as Promise. His response is entitled The Convergence of Promise and Contract, which certainly had it all over my working title Looking for Law in All the Wrong Places (with a dutiful cite to Johnny Lee).
But in the words of my heroes from Galaxy Quest: Never Give Up, Never Surrender! The piece, now essay length, is posted (provisionally, mind you) on SSRN under the far more distinguished title The Futility of Justifying Contract Law as Self-Referential System. (The point of the post title is that most of the expansion came during spring break to the chagrin of my wife who expected me to tear myself away from the computer for a couple seconds. But when the muse hits....)
The essay is the latest in my seemingly never-ending attempt to articulate my idiosyncratic (but absolutely correct) view about the "morality or fairness versus welfare" debate among legal philosophers in contract theory. Should contract law reflect in its fundamental approach (where all cannot be accommodated) the sanctity of promise (Fried), or the affirmation of freely given consent (Barnett), or maximizing of material well being (Schwartz, Craswell, Posner, and a host of others)? I, of course, think they are either all correct or all misguided, and keep trying to explain why. (To be fair, the accommodationists out there are Jody Kraus and my friend Nate Oman.) What was really fun about this was digging into Douglas Hofstadter's Godel, Escher, Bach, and Godel's Theorem,* and the back and forth in the literature about the applications and misapplications of a proof in number theory to the law. (To go beyond that, you have to read my essay.)
Here's the abstract:
All heretofore proffered justifications of the institution of contract law founder on the shoals of the implicit paradox of systems that attempt to justify their own assumptions. There is a paradox, or antinomy, of the subjective and objective in the resort to contract law – the parties couch first-party wants or needs in justifications that would make it appear that those wants or needs are consistent with objective truth. The quotidian result is that the only objective truth about the positive law of contract is that it exists to resolve private disputes peaceably. The ironic conclusion is a recognition that formalism – the resolution of disputes to some lesser or greater degree without acknowledge of the specific context – is consistent with a view that the law has limited efficacy as a social mechanism. This is because law itself is a model that cannot ultimately contain its own assumptions. It must look outside itself, and when it does it sees a myriad of justifications for particular results, all of which sit apart from what law will never know: how the parties would have resolved the problem had it never been objectified.
* I apologize but I am too lazy to transport an "o" with an umlaut over here.