Guest Post by Chaumtoli Huq, Part II: Freedom to Contract and the Reasonable Man

Chaumtoli Huq, Teaching Contracts through a Critical Race & Decolonial Framework, Part II*

In yesterday’s post, I set out the general framework of critical race and decolonial theory through which one can view the development of contacts law doctrine.  Today’s post applies those theories to two components of that doctrine.

Race and Freedom of Contract

When I speak to students of economic theories or the theory of freedom to contract that underpin contracts doctrine, I make it clear that the economy to which I am referring was racialized.  Early in the semester, I briefly discuss classical and neoclassical economic theories that inform contract theories not only as a matter of the economy or market, but also as intersecting with race, and other social identities.  My students read Matthew Desmond’s piece from the 1619 project, In order to understand the brutality of American capitalism, you have to start on the plantation. 

[Slavery] also made “all nonslavery appear as freedom” … Witnessing the horrors of slavery drilled into poor white workers that things could be worse.  So they generally accepted their lot, and American freedom became broadly defined as the opposite of bondage.  It was a freedom that understood what it was against but not what it was for; a malnourished and mean kind of freedom that kept you out of chains but did not provide bread or shelter.  It was a freedom far too easily pleased.

Next time I teach, I may share Robin D.G. Kelly’s What Did Cedric Robinson Mean by Racial Capitalism, to introduce racial capitalism, the concept that the market assigns differential socio-economic values based on racial identity. This framework allows students to critique the freedom of contract doctrine as reinforcing racial hierarchies. Racial capitalism was not unique to the United States; it contributed to the development of English common law contracts. Race played a critical role in the colonial laws on contracts establishing indentured servitude that brought many South Asians to labor in plantation economies throughout South Asia, such as tea plantations and plantations in South America and the Caribbean.  Indentured workers who entered into these contracts were deemed to have choice, in contrast to enslaved persons, even though the contracts into which they entered were coercive and exploitative. The principle of freedom of contract served to cement a racial hierarchy among persons of different racial/ethnic backgrounds which reverberates today.  Simply connecting the doctrine to this context allows students to develop a nuanced and critical approach to the law.  Free choice, freedom to contract was desirable and promoted in order to facilitate global capitalism, and it reinforced racial hierarchies.

Decolonizing Reasonable Person

I introduced a decolonial framework to the discussion of two durable doctrinal features of classical contract law: the idea of objectivity and the reasonable man (now person) standard.  The presentation of the doctrine as rational and neutral obscures the techniques of racial and colonial subordination that the doctrine employs.  Kimberle Crenshaw, in Toward a Race-Conscious Pedagogy in Legal Education, describes this belief in the objectivity of legal discourse as “perspectivelessness.” She goes on to argue that this “objectivity” seeks to suppress alternative values by “discounting the relevance of any particular perspective in legal analysis and by positing an analytical stance that has no specific cultural, political or class characteristics.” In my class on objectivity and the reasonable person standard, which together constitute the cornerstone interpretative mode used to analyze contracts and the relationship between the parties, I introduced a quote attributed to Walter Rodney, author of  the groundbreaking work, How Europe Underdeveloped Africa.

A culture is a total way of life.  It embraces what people ate and what they wore; the way they walked and the way they talked; the manner in which they treated death and greeted the newborn.

The reasonable person standard, even one conceived broadly to allow for diverse voices, still views the subject in relation to some external rationality and gives the courts/judges the power to validate/invalidate the subject's experience.  If culture is so pervasive and varied, as Rodney states, how then can we construct a mode of interpretation and knowing that is “objective.”  This raises the question: objective to whom? 

This is where students, especially working class and students of color, find the doctrine puzzling at first, but quickly acquiesce under some notion that it is at least neutral and unbiased.  Why not, I query, question this objectivity and its alleged neutrality?  I ask them: can we construct a mode of interpretation from the vantage point of the person harmed by an agreement, or seeking some equitable remedy, or from multiple standpoints, as Critical Race and other critical frameworks urge us to do?  Why is a mode of interpretation that prioritizes the person harmed biased, or not objective?  Can we draw examples from other knowledge systems that are not rooted in European philosophies?  Students were able to share examples of how in their respective cultural traditions they interpret their surroundings and resolve disputes of facts and interpretation.  Such questions foster a more pluralist vision of modes of interpretation that allows all students to engage and contribute. 

A student processing the doctrine shared with me an instructive quotation from feminist scholar Patricia Collins’ Towards an Afrocentric Feminist Epistemology, which she read in a college course.  She said that was unsure whether the passage was related to the reasonable person doctrine, but she thought it resonated with our class discussion. 

One key epistemological concern facing Black women intellectuals is the question of what constitutes adequate justifications that a given knowledge claim, such as a fact or theory, is true.  In producing the specialized knowledge of Black feminist thought, Black women intellectuals often encounter two distinct epistemologies: one representing elite white male interests and the other expressing Afrocentric feminist concerns. Epistemological choices about who to trust, what to believe, and why something is true are not benign academic issues.  Instead, these concerns tap the fundamental question of which versions of truth will prevail and shape thought and action.

My student correctly identified the problem with the reasonable person standard from an equity perspective drawing from Black feminist scholarship.  Credibility - who do we believe – is not a neutral process.  The mode of interpretation we adopt can reinforce systems of oppression. 

This is precisely the kind of expansive connections we want our students to make; it is the kind of critical thinking we want to encourage our students to engage in.  I claim no credit for her insight or for her generosity to share with the class. I only created the classroom space in which these connections could occur.  I add, that, post-colonial scholar Gayatri Spivak’s piece, Can the Subaltern Speak, also reveals how the existing legal and social structure does not allow the subaltern (or marginalized) to articulate their demands because it is constituted as the Other and not the norm.  Displacing the arbiter of what is reasonable from the persons to some abstract legal concept is rooted in imperialism and white supremacy because it denies the experiences of the subject.  The colonial project functioned through laws and notions of order and through its civilizing mission.  Implicit in this standard is the imperialist frame of discounting the experiences of persons subject to colonization.  Uncritically reinforcing it contributes to a discourse that alienates many students in the class.  Afrocentric, Third World and postcolonial scholars offer all our students this critical analysis whether they agree with its premise or not.  

In his book The Groundings with My Brothers, Rodney speaks specifically of the role of the Black scholar and academic, which resonates with me.  He urges scholars to “attack those distortions which white imperialism, white cultural imperialism, have produced in all branches of scholarship.”  I feel ethically responsible to present anti-oppression frameworks to the study of law.  Cognizant of my responsibility to teach what “the law is,” given that contracts is a bar exam subject, I found simple interventions such as a quote, song, guided questions can begin to give students the analytic tools and permission to question the doctrine.  Often, a 15-minute focused discussion out of a 90-minute doctrinal class can yield exciting “office hour” or hall-way discussions.  From a teaching standpoint, it enhances my own learning.  Of course, ideally, law schools will have more courses devoted specifically to understanding these critical frameworks, but doctrinal professors teaching core subjects like contracts can surely do more.

Tomorrow’s post suggests alternative counter-hegemonic narratives one can construct to problematize contacts law doctrine.

*This post is part of a series on introducing critical perspectives, including critical race perspectives into contracts teaching.  Other posts in the series include:

• Guest Post by Chaumtoli Huq, Part I: The Decolonial Framework
• Guest Post by Deborah Zalesne, The (In)Visibility of Race in Contracts: Thoughts for Teachers
• What Should a Court Do in Response to Racist Contractual Threats? Wolf v. Marlton Corp.
• Guest Post by Charles Calleros: Raising Issues of Race, Ethnicity, and Culture in 1L Contracts: Language Barriers
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part II – Consideration
• Guest Post by Charles Calleros, Talking about Race in the Contracts Course: Interface with Civil Rights Laws, Part I – Mutual Assent
• Teaching Assistants, Emily Houh's Redemptive Theory of Contract Law