University of Minnesota Law School
Legal Studies Research Paper Series Research Paper No. 06-12
Contract Law Theory Brian H. Bix
This paper can be downloaded without charge from the Social Sciences Research Network Electronic Paper Collection at: http://ssrn.com/abstract=892783
Contract Law Theory
Preface What does it mean to have a Contract Law theory? A theory is an explanation of the subject of the theory, but what does it mean to explain Contract Law? If someone asks you to explain the game of baseball or a legislative process, one’s initial response would be to detail the rules under which the activity occurs. However, those seeking an explanation of Contract Law are looking for something more than a recitation of doctrinal rules. The questioner would likely want a deeper explanation, one that discussed how the rules and practices got to be the way they are (and this is the role history plays in theories of doctrinal areas) and why they have been maintained rather than radically revised (and here is the place for justification of some sort). However, the process of explanation is complicated by the dynamic nature of law (in particular – though not exclusively – common law areas of law), where not only is it the case that the law changes regularly and significantly, but also that explanations, justifications, and recharacterizations play a role in those changes. This is the sort of feedback that Dworkin captured in his idea of “constructive interpretation.” In Chapter One, and again in the Appendix, I express skepticism about the idea of “Contract Law” as a simple category, or as an area which is likely to be helpfully explained or justified by a single universal theory. However, given that attitude towards the subject, a reader might wonder on what basis I have selected the topics to be covered in a book called “Contract Law.” The simple response is that I have picked the topics that are most often covered in American law school courses under...