It is widely agreed that no theory of contract is fully adequate—all theories face formidable descriptive, normative and conceptual difficulties. Why has contract scholarship failed to produce an acceptable theory of contract law, even after several decades of nuanced and sophisticated theoretical efforts? This Article answers this puzzle by offering a novel meta-theory of contract scholarship that focuses on the aesthetics of various contract theories. An aesthetic commitment, under this understanding, is a pre-theoretical presupposition regarding the form (as opposed to the substance) of legal discourse. The article argues that jurists harbor several different aesthetics and often employ them interchangeably and without noticing. The continuing struggle between different contract theories is isomorphous to the battle of aesthetics that rages in the legal community as a whole. Since there is no meta-aesthetic way to determine which aesthetic construction is correct, contract theories, which are based on different aesthetics, are destined to continue struggling indefinitely. The article explores four leading contract theories—promissory, reliance, economic and pluralistic conceptions of contract—and illustrates the manner each theory’s substantive insights are interwoven with aesthetics commitments, animating and giving the theories their unique character. In so doing, the article shows how the aesthetic point-of-view can better explain these theories’ specific strengths, weaknesses and disagreements, and it grounds its prediction that contract scholarship is not likely to produce a widely accepted theory any time soon.
& Omri Ben-Zvi,
Contract Theory and the Limits of Reason, 52 Tulsa L. Rev. 167
Available at: http://digitalcommons.law.utulsa.edu/tlr/vol52/iss2/18