Do theories of contract law actually explain what they purport to explain? Legal philosopher and contracts scholar Brian Bix (University of Minnesota) suggests in a concise but content-packed piece entitled The Promise and Problems of Universal, General Theories of Law that the answer to that question is usually no.
Here is Professor Bix’s abstract:
There is a growing literature offering (competing) theories of particular doctrinal areas – theories of contract law, tort law, property law, criminal law, restitution law, etc. As theories of doctrinal areas – and, not limited in title or description to the doctrinal area of a particular jurisdiction or time period – they purport to describe, explain, or (and) justify all past, present, and possible versions of that doctrinal area. The audacious ambition of such claims has done little to slow the supply of these theories, though it may explain why so few among these projects pause to consider explicitly their methodology and grounds. In this paper, I explore what may justify these sorts of theories, and what problems they need to overcome. I use examples primarily from contract law, as it is the area I know best, but I suspect that the promise and problems of general theories of other areas of law will be similar. Part I examines what is meant by general and universal theories. Part II considers the practice of rational reconstruction, a practice that is both often at the core of what theorists of doctrinal areas do, and central to how they justify their project. Part III reflects more generally on the factors that might cause caution about the project of general theory. Part IV comes from the other direction, looking at the considerations that motivate or ground general theories. And Part V adds a few comments on prescriptive theories.
Contract theories thus provide useful paradigms for explaining and understanding doctrine, but they might do better to disclaim their implicit claim to universality. Bix concludes, in part, with the observation that “[t]he mere fact that theories of doctrinal areas that are implicitly or explicitly universal and general are taken seriously, and not dismissed immediately as nonsense, indicates that they have some grounding in the rules and practices of legal systems.”
Professor Bix’s article, The Promise and Problem of Universal, General Theories of Contract Law is available for SSRN download here.
