27 July 2015

The Aesthetics (!) of Contract Theory: Part 1

For too long I've been getting easy pageviews by posting about student loans. (By my rough count, I've posted on student loans upwards of 40 times.) Thus, it's about time I get to something important like the intersection of aesthetics and contract theory. Or rather, it's time to post a few times about an article by Efi Zemach and Omri Ben-Zvi by that title, which you can download and read for yourself by going here.

Zemach and Ben-Zvi captured my interest because most contemporary contract theory is framed in terms of efficiency. Regardless of its appearance of mathematical precision, law and economics--by far and away the leading framework for contract theory for the past 30 years--is little more than what J.S.Mill characterized as a glorified pig's philosophy. Which kinda works for contracts because folks regularly use them for rather piggish purposes.

On the other hand, a relatively few folks find the center of contract theory in some form of neo-Kantian autonomy while fewer yet (like my erstwhile colleague Kenny Ching) find the paradigm for contract theory in Aristotelianism as reworked by Thomas Aquinas; in other words, virtue theory. There are evev a very few reliance-theory holdouts, to whom Zemach and Ben-Zvi direct some sustained attention.

On yet another hand, a significant number of generally right-minded folks frame their contract-theoretical work around three poles of this trilemma (efficiency, autonomy, and virtue) in what is commonly known as contract theory pluralism. For examples of my pluralistic endeavors download Principled Pluralism and Contract Remedies (here) or Mission Possible: A Paradigm for Analysis of Contractual Possibility (here) or even Consideration in the Common Law of Contracts: A Biblical-Theological-Critique (here). Zemach and Ben-Zvi 

Utilizing an aesthetic approach seemed like a breath of fresh air on what has become an intractable discussion. My intrigue was initially disappointed. Zemach and Ben-Zvi quickly disclaimed applying serious aesthetic theory to contracts. Instead, they explained, they use "aesthetics" as another primarily cognitive (or pre-cognitive) form of analysis "by understanding aesthetics as the space within which jurist make pre-theoretical commitments that shape the way they experience the structure of legal discourse." Or, in a more poststructuralist vein, aesthetics "determines how one experiences oneself as already situated in certain (contingent) space." Almost gibberish.

In my opinion, one can skim Part II of Zemach and Ben-Zvi's article without great loss. There are some interesting insights, like the authors' admission that their aesthetic analysis is just as embedded in their pre-theoretical commitments as any other starting point: "We briefly discuss the claim that our discussion of aesthetics begs the question since our explanation of aesthetics is also informed by a certain aesthetic." Yet they hasten to add that "this is true--but unimportant." Why? Because "aesthetics are [merely another] way of being in the world and cannot, by themselves, make anything correct or incorrect." Are they certain about that?

After concluding their rationale for not writing anything at all, Zemach and Ben-Zvi go on in Parts III, IV, and V to deploy their aesthetic analysis to the autonomy, reliance, and utilitarian theories of contract law. Sadly, they disregard virtue theory. While occasionally misbalanced in application, we here see the authors perform valuable work as they get at the pre-theoretical "takes" characteristic of these theories. Then in Part VI, they take on pluralism(s) to mixed reviews. But more of all of this in subsequent posts.


  1. Interesting! Is there a link to the subsequent posts ?

  2. If only there were subsequent posts. I have long intended to write two or three more posts on this piece but we all know where good intentions lead ...