On the new pluralism in contract theory.

• Author: Kreitner, Roy
• Position: 'Contract as Promise' at 30: The Future of Contract Theory

INTRODUCTION

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. (4) Finally, much of the work of economic analysis of contract law is based on a unified principle of efficiency with the aim of deriving all doctrinal results through the application of this single metric. (5)

Whether or not it comes as a response to these influential unification theories, a movement toward a pluralistic conception seems to be coming into its own. (6) or at least, that will be my claim. The paper proceeds as follows: Part I is an exercise in mapping the new pluralism, and distinguishing among its various strands. Since there is no organized pluralist movement in contract theory and no recognized division of labor, theorists have been developing independent lines of thought. Part I restates some of those variant lines. Part II is a reflection on the meaning of pluralism for contract theory. It begins by asking the abstract question of whether pluralism can be a theoretical model, or whether pluralism is inherently anti-theoretical and inevitably drawn to breaking apart the possibility of justification itself. It continues with an attempt to reformulate, still at a relatively high level of abstraction, the pluralist message. Its central claim is that pluralism is an attempt to conceptualize contract without a core. Part Ill is a preliminary but concrete attempt at the pluralist exercise of conceptualizing contract without a core.

1. MAPPING THE NEW PLURALISM IN CONTRACT

   one might be tempted to believe that pluralism in contract theory already received its definitive statement over a decade ago with the publication of Robert Hillman's The Richness of Contract Law (7) That book, itself based on an article Hillman published a decade earlier, (8) argued that contract law was characterized by a plurality of theories, most of which claimed to offer a unified perspective in understanding all of contract. The very plurality of the theories, claimed Hillman, and the fact that all of them offered genuine insights into particular aspects of the world of contract, militated against their comprehensive pretensions. Each of the theories was interesting; none was capable of explaining all of contract. But The Richness of Contract did not take the next step of trying to theorize plurality; it rested, instead, with the observation that there were many valuable theories. Recent attempts at pluralist theory try to do more, in the sense that they try to offer some indication of when aspects of particular theories are relevant, and when they should be set aside. Leon Trakman has recently articulated the idea at some length, concentrating on contract formation:

   The article disputes the presupposition that pluralism in contracts leads to a non-theory in which all theoretical postulations are treated as incommensurable with one another, leading to contract nihilism. The purpose of pluralism is not to dismiss all, or even any, contract theory out of hand. Its purpose is to encourage exploration into the manner in and extent to which different substantive theories of contract formation are conceived as being exclusive of, or complementary to, one another. (9) What maintains these theories as plural is the fact that they see some role for a number of principles that are, on the face of things, in tension with one another. In this sense, it may be the case that contract theory has responded to Randy Barnett's claim that there was a generational divide between scholars satisfied with an array of principles, and those who sought theoretical order among them. (10)

   At the borders of pluralism, we might locate two opposing theoretical positions that define the outer boundaries of a pluralist position. on the one hand, we would find work that recognizes the importance of seemingly distinct values or principles of central importance to contract law and then attempts to reconcile them without eviscerating either one. Eyal Zamir's take on efficiency and paternalism is indicative: efficiency and paternalism are typically thought to be principles in tension; some scholars try to eliminate paternalism from the realm of contract; Zamir shows that paternalism is too deeply rooted in contract to be ignored, but that it can actually be understood as coherent with efficiency, provided our working theory of efficiency is not overly narrow. (11) In some sense, at this border of pluralism, we might find all those theories that attempt to integrate, in some orderly and predictable fashion, theories typically thought to be at odds, whether through convergence or vertical integration. (12) These theories are at the border of pluralism because while they recognize a plurality of values at the outset, they seem to imply that theory allows for the type of ordering that will do away with conflict or competition among the values. At the other border we would find work critical of the very possibility of theory, but without giving up on some method of gaining theoretical knowledge. I take this to be Peter Alces's position in Unintelligent Design in Contract, which claims that while existing theoretical models are doomed to fail, there is still good reason to rethink contract theory in a way that incorporates the idea of a normative continuum. (13) This theory is at the border of pluralist theory because it suggests that principled theory in the face of pluralism might be impossible; paradoxically, it may be the case that the most pessimistic view of contract theory is also the most ambitious. (14)

   Between those two border positions (convergence/integration on the one hand; hope for a new theory without using existing theories on the other), at least three variants of pluralism in contract theory have made recent appearances. one variant of pluralist contract theory rests on the idea that the world of contract usefully divides into types, and that the work of theory is to account for a typology that will allow for varied application of the range of principles that animate various existing theories. A second variant...