C. Scott Pryor (Campbell University - Norman Adrian Wiggins School of Law) has posted Person-Centered Pluralism About Contract Theory on SSRN. Here is the abstract:
We are in the midst of a golden age of contract theory. Not because we have figured it out but because it is plentiful, and much of it is deeply considered. Contract law, on the other hand, remains relatively static in the United States.
The stability of contract law is not matched by the discussion of contract theory. Since Ronald Coase first applied neo-classical economic analysis to contract law, contract theory tethered to welfare maximization has raced forward. Nonetheless, welfare centered theories have not ultimately prevailed. Drawing on forms of deontological ethics, theories grounded in visions of personal sovereignty are regularly advanced. And, on a smaller scale, virtue ethics has become a resource for contract theory.
Perhaps that the effort to justify contract law is a bootless errand. Why do we need a theory of contract law when the law we have works tolerably well? First, from an internal perspective, those who engage in contracting and the profession of contract law see themselves as part of something that has a foundation. Situating law in a more comprehensive project is endemic to the human condition. And second, most believe that state coercion ought to be justifiable by some expression of reason. The liberal tradition demands something more than power to justify coercive political action. Since the threat of physical deprivation of property by the state looms in the background for contracting parties, one should expect that contract theory would provide accessible reasons for public action at the behest of a private contract party.
This article will proceed in four parts. Part I begins with a selective canvass of recent developments in contract theory and will conclude with a discussion of refinements to virtue-based accounts of private law. Collectively, these developments comprise a movement toward pluralism. The inadequacy of any single approach to contract theory is widely recognized. Scholars working from within each approach now seek to refine their theories in light of others. This article ultimately provides a broader foundation for pluralism but before incorporating person-centered resources, Part II brings critics of the movement toward pluralism into the conversation. Part III draws on the sociological work on personhood of Christian Smith. Smith’s work is a resource by which the movement toward pluralism can be tethered to a fuller understanding of the human person. This part also demonstrates that the right of redress identified by Andrew Gold fits within this understanding. Finally, in Part IV there will be some examples drawing on the insights of person-centered pluralism for two contemporary issues of contract law.
Very interesting and recommended.
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