Unity and Pluralism in Contract Law
It is a cliché of contemporary legal scholarship that, in the last few decades, the study of law has witnessed a vast proliferation of competing theoretical approaches. The old faith in the careful honing of doctrinal concepts and the essential usefulness of legal analysis has given way to a cacophony of competing theoretical sects. Economists, moral philosophers, sociologists, historians, and others have stepped forward to offer the insights of this or that discipline as a new and superior path to legal enlightenment. Perhaps nowhere has this cliché been truer than in the realm of contracts scholarship, where, for a generation, the competing disciplinary approaches have been energetically proselytizing for their chosen theories. Hence, modern legal scholarship abounds with economic, philosophical, and sociological theories of contract law. Most contracts scholars take one of two basic approaches. On one side stand those who, while acknowledging the usefulness of the new theoretical tools, remain unconverted to any of them. With lawyerly pragmatism, they remain skeptical of unifying theoretical enterprises. Human experience and the law are too complex for academic reductionism, they argue, and “a good gray compromise” of competing principles and policies is the best that we can hope for. On the other side are those who declare that “theory works.” The problem with pragmatism, they assert, is that ultimately it fails to provide either illumination or concrete conclusions. We are left with little more than a series of ad hoc ipse dixits lacking coherence or justification. In contrast, rigorous theory of one sort or another offers the promise of real understanding. Obviously, both portraits are overdrawn, and individual scholars fall at different points along the spectrum between them. Nevertheless, the tension between pragmatism and theory explicitly or implicitly pervades much of contemporary contracts scholarship. Into this discussion comes Contract Theory by Stephen A. Smith. Published as part of Oxford University Press’s Clarendon Law Series, Smith’s book, despite its aggressively boring title, is a fascinating and important contribution to the current debates. Part textbook and part original analysis, Smith surveys most of the prominent contemporary theories of contract law and ultimately offers a detailed argument in favor of a unified theory built around the moral force of promising. Smith is a legal philosopher by training, and he has a philosopher’s faith in theory. Hence, Contract Theory squarely challenges the pragmatic approach to contract law. Smith admits that “[i]n the end . . . because there is little consensus as to the best theory of contract, studying contract theory mainly entails learning about competing theories” (p. viii). Nevertheless, he clearly believes one may hope for greater unity and precision than “a good gray compromise,” and one of Contract Theory‘s contributions is Smith’s sustained discussion and defense of a set of criteria for winnowing out defective theories.