Tuesday, April 3, 2007
Posted by Jeff Lipshaw
Roy Kreitner (Tel Aviv, right) has just published a new book, Calculating Promises, published by Stanford University Press. The sub-title "The Emergence of Modern American Contract Doctrine" probably does not do justice to its original and very interesting thesis. Here's a portion of the blurb:
Breaking with conventional wisdom, the author argues that our current understanding of contract is not the outgrowth of gradual refinements of a centuries-old idea. Rather, contract as we now know it was shaped by a revolution in private law undertaken toward the end of the nineteenth century, when legal scholars established calculating promisors as the centerpiece of their notion of contract.
The author maintains that the revolution in contract thinking is best understood in a frame of reference wider than the rules governing the formation and enforcement of contracts. That frame of reference is a cultural negotiation over the nature of the individual subject and the role of the individual in a society undergoing transformation.
More precisely, Professor Kreitner insists (persuasively) that we cannot really grasp the development of contract doctrine over the last hundred years or so without placing it in what I interpret as a sociological context, the modern individuation of the human. The book points out the error of thinking about the movement from tribes and communities to modern organization as a kind of foreordained and unidirectional teleology. If modern management theory - teams, cells, non-command and control - is a reaction to precisely the Sloan-like or Ford-like scientific management the book describes, what can we say about the present "scientific" conception of law that developed at the same time as the scientific conception of management, and which pervades current thinking (albeit perhaps not Langdellian)? Let me suggest that even the corporation is not as calculating as if often portrayed in legal academic writing. While the corporation is a place where scientific decisions could be made (probably more so than a family, but recall Cheaper by the Dozen), it doesn't mean that within the corporation a certain tribal or group culture doesn't exist. Computers still don't make judgments within corporations; people do. And the battle between data and intuition as the basis for the decision making rages in a very complex way.
The book arrives as I have been honing my essay on the futility of trying to impute either morality or economics as the sole axiomatic justification for the institution of contract law. Professor Kreitner's thesis involves a societal individuation; mine, I think, comes at it in reverse as an individual objectification. Both pieces are relatively disinterested in the normative evaluation of particular doctrinal rules; both instead are trying to draw a line of demarcation between all the other relationships we might have, and those that happen to be regulated by the law of contract.