Academic journal article William and Mary Law Review

The Moral Impossibility of Contract

Academic journal article William and Mary Law Review

The Moral Impossibility of Contract

Article excerpt

Contract theory is incoherent; so Contract is amoral. Let me explain.

The function of theory is heuristic. The object of theory is either normative or positive. The best theorists are able to blur the distinction, often for rhetorical purposes. Legal theory (at least in some of its iterations) depends upon a posited conception of doctrine (and doctrine, too, is heuristic). That is, theory either explains or corrects doctrine. (1) To accomplish that, legal theory is dependent upon a theory of legal doctrine. Contract theory, whether deontological, consequentialist, or pluralist, begins and must end with the doctrine, and must have something to say about doctrine that serves a heuristic purpose (as well as, perhaps, other purposes). My interest is not so much with what Contract theorizing tells us, heuristically, about Contract doctrine; my concern is more with what Contract theory, in all of its extant phases, assumes about the nature of Contract doctrine. In this paper, I will engage each of the foregoing observations about the theory-doctrine dynamic and try to say something by drawing conclusions about the relationships among them.

In efforts to formulate the deontological or consequentialist conceptions of Contract, or to demonstrate that Contract is neither wholly explicable in terms of one or the other type of theory, claims are necessarily made about the nature of Contract as a body of doctrine, claims about what doctrine is. I do not mean simply that theorists disagree about what a particular doctrine entails, such as what a court should do in order to apply, for example, the consideration, frustration, or unconscionability doctrines correctly. I acknowledge that reasonable minds disagree about the substance and constituents of those common law Contract doctrines. That is not my point. Instead, I am curious about what it means for a set of rules (say, the set of rules that fixes the parameters of "agreement") to be doctrine, the phenomenon that theory would try to explain.

Heretofore we have assumed the accessibility of doctrine as an idea set. Though we might disagree about the theory or theories needed to make sense of that idea set (or the relationship among plural theories), we have largely taken for granted that we are all talking about the same kind of thing when we use the term "doctrine" to describe what it is theory rationalizes. Examination of the nature of doctrine qua doctrine could reveal something that would explain why particular Contract theory fits particular doctrine uneasily and why Contract theory generally cannot do the work we would have it do, as we would have it do that work. If we were able to arrive at an adequate Contract theory, we would have established the perspective from which to explain (2) and correct. We could appraise the efficacy of certain Contract rules and the results of those rules' application and operation in terms of the theory. In other words, if Contract theory tells us that Contract accomplishes X, we could decide that Contract fails or succeeds in terms of its realization of the goal Contract theory has identified. For example, were Contract really about facilitating Pareto superior moves, we could consider a Contract rule's operation and decide whether it serves or frustrates that object. Alternatively, if Contract is about autonomy, we could appraise its efficacy at vindicating free will, or a particular deontological theory's conception of autonomy. To the extent that theory is serving a positive function, we could test a particular theory's ability to tell the future, notwithstanding epistemological limitations that might frustrate the predictive efficacy of even the best theory. (3) But ultimately, I argue, we cannot arrive at an adequate Contract theory, one that can appraise and predict Contract doctrine, because Contract doctrine resists theory.

My conclusion is that, given the nature of Contract doctrine, theory cannot make sense of Contract, that is, cannot make sense of Contract in any way particularly useful to morality. …

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