On the New Pluralism in Contract Theory
Kreitner, Roy, Suffolk University Law Review
Pluralism is on the agenda of contract theory. Maybe pluralism is a budding movement, the next big thing; maybe it is just a rehashing of pragmatic muddling through that either shuns or doesn't deserve the name "theory." But whatever our predilections or eventual evaluations, it is worth noting that pluralism has become a question for theorists interested in contracts. Some of the scholars articulating what I will call pluralism have adopted this moniker themselves; others have developed pluralist insights without calling on the label. this paper has two goals. the first is to draw together a number of works that develop a pluralistic view in contract theory and to map out some of the different approaches they offer. the second goal is to take some combination of those pluralistic insights further (some will say, aside) in developing a relatively encompassing (though woefully preliminary) pluralistic conceptualization of contract.
Let me admit at the outset that the label pluralism is hardly well-defined, and that the contestation over its meaning threatens to make any account of pluralist theories of contract somewhat slippery. But what i have in mind when using the term pluralism is a fairly basic intuition, captured by the idea that there is a multiplicity of justificatory principles applicable to a particular set of institutions or problems. Michael Walzer's classic defense of pluralism in the context of thinking about distributive justice is a good place to start:
There is ... no single point of access to [the] world of distributive arrangements and ideologies. ... Similarly, there has never been either a single decision point from which all distributions are controlled or a single set of agents making all decisions. ... And finally, there has never been a single criterion, or a single set of interconnected criteria, for all distributions. ... In the matter of distributive justice, history displays a great variety of arrangements and ideologies. But the first impulse of the philosopher is to resist the displays of history, the world of appearances, and to search for some underlying unity: a short list of basic goods, quickly abstracted to a single good; a single distributive criterion or an interconnected set; and the philosopher himself standing, symbolically at least, at a single decision point. I shall argue that to search for unity is to misunderstand the subject matter of distributive justice. Nevertheless, in some sense the philosophical impulse is unavoidable. Even if we choose pluralism, as I shall do, that choice still requires a coherent defense. (1)
Walzer's characterization of the philosophical impulse is clearly applicable to contract theory. Indeed, not so long ago it seemed that unification theories of contract were in vogue and that it was worthwhile to consider them as a group. And perhaps unification theories and pluralist theories were always out there vying for dominance, with changing fashion in the legal academy representing a pendulum swing of theory. At any rate, over the past three decades--one might say since Charles Fried's Contract as Promise--most of the leading theories of contracts are unification theories, in the sense that each presents a single justificatory principle as the core around which the entire law of contract should be understood. Fried's book famously posits the promise principle as the moral basis from which contract law as a whole draws its justification. (2) Randy Barnett argues that consent is the central feature around which contract can be understood within a wider theory of protecting entitlements that precede the contract, and Peter Benson argues in a similar vein that contract as a whole can be understood through the logic of transfer of proprietary rights. (3) Recently, Daniel Markovits has argued that collaboration, in the sense of joint planning through which contracting parties confer respectful recognition upon one another, is the core of contract. …